by Marvin Washington, Brendon Ayanbadejo and Scott Fujita
Super Bowl week brings back fond memories for us. We shed a lot of blood, sweat and tears to earn our Super Bowl rings.
For years, we put our bodies in harm’s way in the ultimate team sport, and for many of our NFL colleagues, the physical damage done in pursuit of our dreams is often permanent, and sometimes terribly debilitating.
The NFL is the preeminent sports league in the U.S. but it is woefully behind the curve when it comes to marijuana and players are suffering as a result. Many former and current NFL players use or have used marijuana to treat pain associated with injuries sustained on the field. There is a compelling body of research showing that marijuana can help treat pain and brain injuries.
Roughly a year ago, Commissioner Roger Goodell expressed a willingness to consider the medical use of marijuana for players if medical experts deem it a legitimate option. He said, “We’ll continue to follow the medicine… that’s something we would never take off the table if we could benefit our players at the end of the day.”
It is time for Roger Goodell to make good on that promise. The NFL should lead the way in developing a more rational and science-based approach to marijuana. According to the Drug Policy Alliance, abundant evidence already exists regarding the medical potential and benefits of marijuana. Roughly half of the fifty states (representing nearly half of NFL markets) have legalized the use of marijuana for medical purposes, and over seventy percent of Americans support this reform. It just so happens that this week’s Super Bowl is being played in Arizona, a state that allows the use of marijuana for medical purposes.
First and foremost, the NFL should allocate financial resources to advance medical research on the efficacy of medical marijuana in treating brain injuries. In the case of trauma, a lot of inflammation occurs, which affects cognitive functioning and neural connectivity. A compound in marijuana called cannabidiol (CBD) has shown scientific potential to be an antioxidant and neuroprotectant for the brain. In a sport where closed head injuries are common, the league should be doing everything it can to help keep their players healthy during and after their careers. If the NFL wants to continue to grow its game, it must investigate potential medical solutions for its industrial disease, Chronic Traumatic Encephalopathy (CTE). Even the federal government holds a patent on marijuana for this purpose.
Second, the NFL should abandon its policy of drug testing and punishing players for use of marijuana. The NHL does not include marijuana among its banned substances and, just last week, the NCAA announced that it plans to re-examine its approach to drug testing student-athletes for non-performance enhancing drugs like marijuana because “they do not provide a competitive advantage.” The HBO show “Real Sports with Bryant Gumbel” reported that 50-60 percent of players currently use marijuana regularly, mostly for pain relief. Solid evidence already indicates that such use can reduce reliance on opiate-based pain medications as well as anti-inflammatory drugs, many of which present pernicious side effects.
Finally, the NFL should take a leadership role in addressing racial disparities in marijuana law enforcement as well as other injustices caused by ineffective prohibitionist policies. Many players enjoy the use of marijuana apart from its medical benefits, just as tens of millions of other Americans do. A majority of Americans now favor regulating and taxing marijuana, more or less like alcohol, and four states have approved such policies, with more likely to do so in coming years. According to theACLU, African Americans are far more likely than other Americans to be arrested for marijuana possession even though they are no more likely to use or possess marijuana. This basic injustice should be of particular concern to the NFL given that more than two-thirds of all current players are African American.
As former NFL players, we recognize our role as leaders and role models. We firmly believe that reforming marijuana policies can, indeed must, go hand in hand with discouraging young people from using marijuana and other drugs. There is no place any longer, either in the NFL or the nation at large, for the injustices and hypocrisies of prohibitionist marijuana policies. It’s time for the NFL to be a leader and create a rational and science-based marijuana policy.
Marvin Washington is a retired 11-year NFL veteran, a Super Bowl XXXIII champion and retired players CTE/Concussion advocate. His is current a spokesman and advisory board member for Kanna Life Science, a phyto-medical company. Brendon Ayanbadejo is a Super Bowl XLVII and equal rights champion and he retired from the NFL after 13 years. Ayanbadejo is currently working for Fox Sports as an analyst/writer and sits on the executive board of Athlete Ally.
Scott Fujita is a retired 11-year NFL veteran and Super Bowl XLIV champion. He currently works as a TV/film consultant, NFL broadcaster and sports writer. Scott is also a big supporter of human rights and other causes.
It was a busy week in the sports-injury-litigation arena. The NFL Prescription Drug case (Richard Dent et al. v. NFL) continues to heat up as the NFL, NFLPA and retirees duke it out in court filings. And, in a different venue, the NFLPA received a favorable ruling in a concussion lawsuit (Smith et al. v. NFLPA). Both matters focus on the doctrine of preemption.
Ruling Imminent in Prescription Drug Litigation
This case is taking a very unorthodox route to a decision. Judge Alsup has taken a very aggressive and active role in seeking to flesh out the NFL’s position that the retirees’ claims are barred by the collective bargaining agreements (CBAs). This argument hinges on the NFL’s ballistic weapon of choice – preemption.
Judge Alsup posed several questions to the NFLPA – despite the NFLPA not being a party to the lawsuit. In response, the NFLPA contends that the players would be unable to grieve the specific claims alleged in the lawsuit. In other words, there is no provision in the CBAs that would require a court’s interpretation. The NFLPA’s responses triggered reactions from both sides.
The retirees interpret the NFLPA’s position as a resounding victory: the claims are not preempted by any provision of the CBAs.
The NFL, on the other hand, rejects the NFLPA’s position. First, it argues that the NFLPA is wrong, and in fact it has taken the opposite position in a pending concussion lawsuit (see infra) where it is seeking dismissal based on preemption. Second, the NFL argues that this case presents a classic example as to why these claims should be heard, if at all, by an arbitrator – there are interpretative disputes over the meaning of the CBAs, lending itself to the foundational purposes of preemption. Third, and perhaps most convincingly, the NFL cites to several examples where players grieved the “same types of allegations” alleged in the present lawsuit.
As an aside, the NFL attached a treasure trove of exhibits to its briefs. The exhibits (some can be found here and here) involve grievances filed by various players, decision issued by arbitrators and, notably, the Toradol Grievance – NFLPA v. the NFL Clubs. This provides a glimpse of the inner workings of the grievance process.
The retirees must submit their response to the NFL’s brief by Monday, December 8. And Judge Alsup, if satisfied, will issue a decision shortly thereafter.
Although these recent submissions are informative, they arguably distract from the main issue. It matters not whether the claims can be grieved, or even if certain remedies would be foreclosed. At issue is whether the resolution of the claims is dependent upon or requires interpretation of the CBAs. If the answer is no, then the claims are not preempted. If the answer is yes, then the claims are preempted.
At bottom, these are clearly common-law claims that allegedly involve numerous violations of federal and state drug laws. Collective bargaining cannot, in any event, negotiate away fundamental rights. Nor can parties negotiate for things that are illegal. Simply put, this not a labor dispute. The court should reject the NFL’s preemption argument.
Concussion Lawsuit against the NFLPA may be on the Verge of Dismissal
On Tuesday, federal Judge E. Richard Webber of the Eastern District of Missouri may have sounded the death-knell to the concussion litigation against the NFLPA. Judge Webber’s Order can be found here.
At the outset, this is an extremely difficult case. Unions, unlike employers, are granted, in effect, a broad shield of immunity when it comes to lawsuits brought by former and current members.
Preemption, once again, is the go-to weapon of choice for unions when defending these lawsuits. Instead of single-barrel preemption, the union gets a double barrel.
First, a state-law claim against a union can automatically be converted into a duty of fair representation which, then, triggers preemption under the National Labor Relations Act. Generally, a duty of fair representation is the only claim that can be asserted against the union. This claim is difficult to prevail on because of the short statute of limitations (6 months) as well as the burden of proving arbitrary, bad faith or discriminatory conduct, as opposed to mere negligence.
Judge Webber found that the plaintiffs’ state-law claims were subsumed by the duty of fair representation and thus preempted.
Second, Judge Webber also found that at least one of plaintiffs’ claims – negligent misrepresentation – was completely preempted by Section 301 of the Labor Management Relations Act. The court found that the “justifiable reliance” element would require Article 39 of the 2011 CBA to be interpreted, and thus that was sufficient to trigger complete preemption.
Based on these findings, Judge Webber determined federal jurisdiction was present under federal labor law and denied the plaintiffs’ motion to remand.
The case is not over, however. The next process will be for the court to rule on the NFLPA’s motion to dismiss. Although the plaintiffs are on the ropes, they still have another round left. The NFLPA, on the other hand, certainly believes the court just delivered the knockout punch.
To be sure, this decision provides another bullet to a professional-sport organization’s preemption chamber. The only positive to come out of this case is the recognition that Green v. Cardinals is the key to defeating preemption.
Finally, I continue to believe that Section 301 preemption was never intended to expand to the depths it is currently reaching, especially in latent-injury cases involving allegations of concealment. Perhaps it’s time for the Supreme Court to rein in the doctrine’s gigantic reach to ensure that victim’s rights are adequately remedied and defendants aren’t successfully wielding a license to injure with impunity.
All too often in litigation, the lawyers, shamefully, forget about the victims that will be impacted by the outcome of a case. That is especially true in class actions where there are often thousands of absent class members that may never appear before the court. Fortunately, there is a system in place that seeks to ensure that all voices may be heard.
That is the process that will play out in Philadelphia on November 19th in the NFL Concussion Litigation. The Fairness Hearing will provide class members and their lawyers an opportunity to appear before the Court and set forth the reasons why the proposed settlement is unfair, unreasonable, inadequate, arbitrary and inequitable. In anticipation of the hearing, class members were able to submit written objections.
What follows, in no particular order, are quotes from some of the heartfelt objections drafted by former players and their loved ones.
My objection is to the way in which the offer uses the player’s age at diagnosis to calculate the Monetary Award for that player according to the proposed Monetary Award Grid. This approach actually rewards the NFL for the very actions it is being sued for…No one outside the League knows who at the NFL knew what information about head injury and subsequent neurological damage or in what year it was know and with the settlement agreement, the public may never know these facts…Ironically, in the preliminarily approved agreement, the NFL will again save millions of dollars due directly to those early deceptive tactics and inside knowledge that perhaps goes back to the 1980s or even 1970s….However, if one estimates that just half of the 150 disabled players were formally diagnosed at an older age, over age 54, but like my husband and many other former players, had been undiagnosed disease for years prior, then the NFL’s deceit has the potential to save it many millions of dollars and deny a reasonable award to many who are in dire need. – Dr. Eleanor Perfecto, widow of Ralph Wenzel (Entire Objection can be found here)
My initial contacts with the NFL Player Care Foundation, were among the stymied efforts. Primary care physicians were often dismissive and indifferent to my husband’s symptoms and needs. – Dr. Mary Hawkins, wife of Ross Hawkins (Entire Objection can be found here)
The proposed settlement fails to honor those on whose shoulder the NFL organization stands, namely deceased NFL football players that have suffered from CTE…Dale retired from the NFL in 1968…But, in 1981 at the age of 48 Dale began experiencing symptoms of CTE and within 6 month was incapable of fulfilling his job duties, nonverbal, suffering from memory loss, aggressive and unable to care for himself…For his family, it was devastating to watch the mental deterioration and frightening to think of what harm he might do to himself or others…Carmerita contacted the NFL and explained Dale’s condition. Carmerita asked if any other retired NFL players were experiencing similar demential and personality issues and she was given a firm “No” by NFL staff. In addition, Carmerita was told by NFL staff that Dale could not receive disability benefits because she couldn’t prove that his dementia was caused by playing football…The proposed settlement is ambiguous and unfair regarding players that died prior to January 1, 2006. Players that died prior to 2006 have never received benefits from the NFL Mackey 88 Plan to compensate for the cost of dementia nor had access to sufficient research regarding CTE to litigate the existence, causation and effect on their personal health. The players in the 1960’s made so little money compared to the unknown risk of becoming mentally incapacitated at an early age by football related dementia…The proposed settlement agreement provides a unique opportunity for the NFL football organization with current annual profits of $10 billion to recognize and reimburse those who innocently risked their quality of life and mental health to benefit the current NFL dynasty of today. – Personal Representative for the Estate of Dale Meinert (Entire Objection can be found here)
CTE is a direct result of head trauma. I feel it should be ahead of ALS because it has not been proven that ALS is a direct result of head trauma where CTE has been proven to be a direct result from head trauma. My father was in stage 4 of CTE. – Scott Gilchrist, son of “Cookie” Gilchrist (Entire Objection can be found here)
I have carefully read the NFL Concussion Settlement Notice documents several times and still find them extremely convoluted and confusing. Even after reviewing the Notice documents with the substantial help of a savvy and experienced legal advisor, I find the proposed structure illogical and unrealistic…The offer to ‘uncap’ the payout is really nothing more than a red herring – designed for public consumption and to confuse as many retired players as possible. It doesn’t affect the NFL’s ‘exposure’ one iota, as long as the compensation discount factors and class exclusions remain! – Eugene Moore (Entire Objection can be found here)
The settlement does not fairly compensate the older players who cannot take care of themselves…The NFL should compensate these older players who paved the way for the financial success the NFL enjoys today…I grieve for my father because he has been mentally gone for a long, long time. He and other older players should be compensated. – Personal Representative of Joseph P. O’Malley (Entire Objection can be found here)
Football is big business, and we need to recognize that in entering into this settlement, the NFL has made a business decision…The settlement is fundamentally flawed for a number of reasons, and is calculated to ensure that the vast majority of retired football players who suffer from neurodegenerative diseases will receive little if any monetary compensation. At the same time, those players will forever release claims potentially worth millions of dollars. – Darren Carrington (Entire Objection can be found here)
I’m writing to suggest that CTE be addressed in living players because there is technology being developed that will diagnose that condition if not now somewhere in the near future. The settlement only addresses CTE when a player dies [Editor’s note, but only if you died before July 2014] and I think the court should have a clause in the settlement that will allow players to be compensated while they are still alive to take advantage of the benefits. It seems an injustice not to consider CTE in a living player because we cannot enjoy the benefits dead. – Judson Flint (Entire Objection can be found here)
My husband has been incapacitated for five years and has lived in a nursing home. For several years before he was moved, we had caregivers in our home. And for years before that, we living with the knowledge that something terrible was wrong with him–but during those years, we lived in a state of denial, not wanting to accept what the future would hold.In today’s world, our thought process would be totally different. – Ruth Daniel, wife of William P. Daniel (Entire Objection can be found here)
Responsibility for a player’s health and physical welfare has been extremely lacking since the beginning, from the equipment used to attitude. The old but true expression of, “They use you, abuse you, and throw you out” was known by all and experienced by most. Doing the ‘right’ thing cost too much, and money was, and is now, the name of the game. Injured player are expendable. – Larry Barnes (Entire Objection can be found here)
While the thought of the suit is great, there are many things about it that are unfair to our future. Not only is it not fair to us as a player, but to our families as well. – Justin Green (Entire Objection can be found here)
I’m sure you can relate to my pain and suffering even to imagine what life would be without your child or spouse and watch them suffer from a brain disease or head trauma due to the negligence of an organization to fail to release information to prevent the suffering and death of many. Had the research been made public many years ago, these tragedies could have been prevented. – Debra Pyka (Entire Objection can be found here)
Finally, the schedule for Wednesday’s Fairness Hearing is proposed as follows:
- The NFL and Class Counsel will go first;
- Second, the Sean Morey Objectors will argue for 65 minutes, followed by 70 minutes of arguments from other objecting lawyers;
- Third, class members (including players and their families) will have an opportunity to speak. The following individuals are scheduled to address the Court: Ben Utecht, Mary Hawkins, Rebecca Carpenter, Gene Moore, Tregg Duerson and Eleanor Perfetto; and
- Fourth, the NFL and Class Counsel will get a rebuttal.
In a tour de force, the Sean Morey, et al. Objectors filed a lengthy Objection today. It can be found here. Included in the filing is a declaration from the foremost expert on clinical CTE. Neuropsychologist Dr. Robert Stern rips the proposed NFL Concussion Settlement – and backs it up with cold, hard facts. His recently filed declaration can be found here.
Here are some of the highlights.
I am confident that within the next five to ten years there will be highly accurate, clinically accepted, and FDA-approved methods to diagnose CTE during life.
Meanwhile, the proposed settlement eliminates awards for all future claims for CTE – living or dead.
Several key symptoms of CTE that are identified in the scientific and medical literature and in my clinical and research experience are not compensable.
The Test Battery, set forth in Exhibit 2 of the Settlement, is not appropriate for evaluating whether retired professional football players have neurodegenerative diseases such as CTE or Alzheimer’s disease…The specific tests selected, and the length of the battery would not be consistent with that given by the large majority of neuropyschologists who specialize in neurodegenerative disease and who evaluate patients for Mild Cognitive Impairment and Alzheimer’s disease dementia.
It is my scientific opinion, based on the medical and scientific literature and on my own clinical and research experience, that reliance on effort measures included in the Neuropsychological Test Battery would unfairly deprive at least some otherwise eligible person with measurable cognitive deficits of compensation.
To be eligible for compensation under Neurocognitive Impairment Level 1.5 or 2.0, the Class Member would have to be so severely impaired in several areas of cognitive functioning that they would require assistance in many activities of daily living (in level 1.5) or be almost fully dependent on another person for most activities of daily living, such as bathing and toileting (for level 2.0).
The Objectors summarize,
This complex procedural framework is a transparent attempt to minimize the cost of the settlement to the NFL – a consideration of tremendous importance now that the Settlement is purportedly uncapped.
The NCAA has failed. Michigan has failed. Brady Hoke has failed.
Shane Morris was abused. His health and safety was recklessly disregarded. And for what? Michigan was taking a shellacking. Morris’ brain and body took a needless beating.
ESPN’s announcers, Ed Cunningham and Mike Patrick, declared Michigan’s incompetence multiple times:
Ed: THEY HAVE GOT TO GET HIM OUT OF THE BALL GAME!
Mike: I’M TOTALLY WITH YOU. HE HAS GOT TO COME OUT. I MEAN, HE WAS WOBBLY AFTER THAT. FORGET THE LIMPING.
Ed: YOU’VE GOT TO EJECT THIEREN COCKRAN. THAT IS TARGETING. HE DROPS HIS HEAD. HE LAUNCHES. IF IT’S FORCIBLE CONTACT AND IT MOVES UP INTO THE HEAD AREA, I CANNOT BELIEVE COCKRAN WAS NOT CALLED FOR TARGETING AND NOT ONLY EJECTED FROM THIS GAME BUT THEN HE WOULD BE EJECTED FOR THE FIRST HALF OF THE SECOND. YOU HAVE TO CALL THAT A TARGETING PENALTY.
Mike: THAT CERTAINLY LOOKED LIKE IT.
Ed: I CAN TELL YOU THAT NUMBER 7 IS STILL IN THIS GAME IS APPALLING. IT IS APPALLING THAT HE WAS LEFT IN ON THAT PLAY. TO THROW THE BALL AGAIN AND AS BADLY AS HE WAS HIT BY COCKRAN AND COCKRAN SHOULD HAVE BEEN EJECTED AND MISSED THE REST OF THIS GAME AND NEXT WEEK.
Concerned spectators took to Twitter and unleashed their fury with Michigan’s gross incompetence:
I can't believe Shane Morris was allowed to stay in the #Michigan game. Are there no concussion regulations in college? Just stunning.
— Ryan Flaherty (@TheRyanFlaherty) September 27, 2014
As awful as Michigan has been, Brady Hoke should be fired for putting a QB with a possible (and likely) concussion back in the game.
— Charlie Hannema (@CharlieHannema) September 27, 2014
Brady Hoke inexcusably let Shane Morris take a beating without evaluating him for a concussion. http://t.co/9cAcw6BhuJ
— Jon Solomon (@JonSolomonCBS) September 28, 2014
— Doug Kyed (@DougKyedNESN) September 28, 2014
Look at this photo and tell me he is not concussed, TELL ME. (Photo Credit: Leon Halip, USA TODAY) pic.twitter.com/FNR75YG2Sv
— Joshua Henschke (@JoshuaHenschke) September 28, 2014
Leaving Shane Morris in for that long given how visibly injured he was is a fireable offense. No ifs, ands, or buts.
— Drew Hallett (@DrewCHallett) September 27, 2014
But this is exactly how the NCAA envisions its concussion policy to work. “When in doubt, get checked out.” In other words, unless a player makes a self-diagnosis of a concussion, he is not coming out.
The entire world expressed doubt. Hoke directed Morris to return to play because, in Hoke’s words, Morris didn’t stay down.
I don’t know if he had a concussion or not, I don’t know that…. Shane’s a pretty competitive, tough kid. And Shane wanted to be the quarterback, and so, believe me, if he didn’t want to be he would’ve come to the sideline or stayed down. – Brady Hoke
Every player wants to play – they have been conditioned their entire lives to “play through pain” and to obey their coaches.
Hoke’s response punctuates why the NCAA’s concussion policy is a failure.
First, the toothless concussion management plan places the responsibility for reporting injuries on the student-athletes. The same student-athlete who is experiencing amnesia, who is not thinking clearly, or more bluntly, who is suffering from a brain injury.
Second, Hoke admits he does not know how to identify obvious signs and symptoms of an apparent concussion – certainly Morris’ injuries were enough to trigger doubt.
Meanwhile, Hoke – who is paid more than $2 million a year – articulated the NCAA’s defense in concussion lawsuits: It’s the player’s fault. We are not responsible.
And, of course, the NCAA won’t take any action. The NCAA won’t investigate. The NCAA won’t inquire with Michigan as to why a player’s life was put in jeopardy. Nope. The NCAA apparently has more important things to do than to live up to its founding purpose of protecting student-athletes.
One last note, Hoke’s actions arguably constitute a fireable offense pursuant to his contract,
“The University has the right to terminate the employment of the Head Coach for cause in the event of only the following…(c) Conduct of Head Coach which offends public decency or morality as shall be determined by the standards prevailing in the community…(g) Fraud or willful malfeasance in the performance of any duties or responsibilities under this Agreement.”
What say you? Were you outraged? Were you offended?
Let’s see how concerned Michigan is with the health and safety of its student-athletes.
Update – September 30, 7:59 am
Public outrage forces Michigan’s hand. Michigan’s athletic director issued a lengthy statement early Tuesday morning. It essentially admits that Michigan’s policies failed and that Morris did, indeed, suffer a concussion. The full statement from Dave Brandon is below:
Ultimate responsibility for the health and safety of our student-athletes resides with each team’s coach and with me, as the Director of Athletics. We are committed to continuously improving our procedures to better protect the health and welfare of our student-athletes.
I have had numerous meetings since Sunday morning to thoroughly review the situation that occurred at Saturday’s football game regarding student-athlete Shane Morris. I have met with those who were directly involved and who were responsible for managing Shane’s care and determining his medical fitness for participation.
In my judgment, there was a serious lack of communication that led to confusion on the sideline. Unfortunately, this confusion created a circumstance that was not in the best interest of one of our student-athletes. I sincerely apologize for the mistakes that were made. We have to learn from this situation, and moving forward, we will make important changes so we can fully live up to our shared goal of putting student-athlete safety first.
I have worked with Darryl Conway, my Associate Athletic Director for Student-Athlete Health and Welfare, to develop a detailed accounting of the events that occurred. Darryl is the person who oversees all athletic training personnel and serves as the liaison to the physicians we work with through the University of Michigan Health System and University Health Services.
It is important to note that our athletic trainers and physicians working with Michigan Athletics have the unchallengeable authority to remove student-athletes from the field of play. Michigan Athletics has numerous medical professionals at every football competition including certified athletic trainers and several physicians from various relevant specialties.
I, along with Darryl and our administrative and medical teams, have spent much of the last two days carefully reviewing the situation regarding Shane Morris. We now understand that, despite having the right people on the sidelines assessing our student-athletes’ well being, the systems we had in place were inadequate to handle this unique and complex situation properly.
With his permission, I can share that Shane Morris suffered an ankle injury during the third quarter of Saturday’s game. He was evaluated for that injury by an orthopedic surgeon and an athletic trainer several times during the game. With each of these evaluations it was determined that his ankle injury did not prevent him from playing.
In the fourth quarter, Shane took a significant hit and stumbled after getting up. From the field level and without the benefit of replays, medical and coaching staffs did not see the hit. Because they did not see the hit, the athletic training staff believed Shane stumbled because of his ankle injury. The team neurologist, watching from further down the field, also did not see the hit. However, the neurologist, with expertise in detecting signs of concussion, saw Shane stumble and determined he needed to head down the sideline to evaluate Shane.
Shane came off the field after the following play and was reassessed by the head athletic trainer for the ankle injury. Since the athletic trainer had not seen the hit to the chin and was not aware that a neurological evaluation was necessary, he cleared Shane for one additional play.
The neurologist and other team physicians were not aware that Shane was being asked to return to the field, and Shane left the bench when he heard his name called and went back into the game. Under these circumstances, a player should not be allowed to re-enter the game before being cleared by the team physician. This clearly identifies the need for improvements in our sideline and communication processes.
Following the game, a comprehensive concussion evaluation was completed and Shane has been evaluated twice since the game. As of Sunday, Shane was diagnosed with a probable, mild concussion, and a high ankle sprain. That probable concussion diagnosis was not at all clear on the field on Saturday or in the examination that was conducted post-game. Unfortunately, there was inadequate communication between our physicians and medical staff and Coach Hoke was not provided the updated diagnosis before making a public statement on Monday. This is another mistake that cannot occur again.
Going forward, we have identified two changes in our procedures that we will implement immediately:
We will have an athletic medicine professional in the press box or video booth to ensure that someone will have a bird’s eye view of the on-field action, have television replay available and have the ability to communicate with medical personnel on the sidelines.
We are also examining how to reinforce our sideline communication processes and how decisions will be made in order to make sure that information regarding student-athlete availability to participate is communicated effectively amongst the medical team and to our coaches.
We have learned from this experience, and will continue to improve ways to keep our student-athletes’ health and safety our number one priority.
After losing their bid for appellate intervention, the Sean Morey Objectors are now launching a reasonably calculated attack on the merits of the proposed settlement — through the tools of discovery.
The Objectors have propounded discovery requests on Class Counsel and the NFL relating to (a) the process by which the settlement was developed and (b) the merits of the NFL’s defenses – i.e., what the NFL knew, or should have known, about concussions. The Objectors are also seeking to depose an NFL representative on a variety of topics relating to its denial of the long-term risks of TBI. In addition, the Objectors are seeking to depose Class Counsel: Chris Seeger, Arnold Levin and Dianne Naste.
Below are the documents:
Pursuant to Judge Brody’s Order, the NFL and Class Counsel submitted the long-awaited actuarial data behind the proposed settlement. This adds more fuel to the fire that the proposed settlement is a WIN for the NFL and a significant loss for the victims – i.e. the players.
Below is the data:
In a stark admission of the deal’s lousiness, Class Counsel concedes the majority of players — unless they opt out — are giving up their right to sue in exchange for no compensation:
The overwhelming majority, approximately 15,000, are not compensated because they never contract a compensable disease. – Class Counsel’s Analysis, p. 4
On Wednesday, the Third Circuit will hear the first challenge—of presumably many to come—to the proposed NFL Concussion Settlement.
The request for review was lodged by the so-called Sean Morey Intervenors who have publicly challenged the settlement’s terms on numerous fronts.
The NFL and Class Counsel oppose this request for review, arguing that the appeal is premature.
The Third Circuit identified the issues it intends to hear on Wednesday:
[T]he court directs counsel to be prepared to address at oral argument on September 10, 2014, whether, under Fed. R. Civ. P. 23(f), this court may exercise jurisdiction over an interlocutory appeal challenging settlement class certification where the lower court has issued a preliminary order conditionally certifying the class but has not yet held a final fairness hearing. Counsel also should be prepared to discuss the merits of this appeal, in addition to this jurisdictional question.
In other words, much of the argument will likely focus on a threshold procedural issue that will hinge on whether the Third Circuit has jurisdiction to hear the present dispute. Or, as the NFL and Class Counsel contend, the petition is premature and it should not be addressed until after a record is fully developed by Judge Brody; i.e., after the fairness hearing and an order granting or denying final class certification.
More importantly, the Third Circuit will also hear the merits of the appeal. This is, in essence, a full frontal attack on the proposed settlement. Sean Morey’s group asserts three central points, which they contend “doom” class certification:
1) The deal compensates only certain individuals diagnosed with CTE, while ignoring hundreds and perhaps thousands of others;
2) An award can be reduced by up to 75% if a player has suffered a stroke – despite the fact that a contributing factor could have been the NFL’s allegedly illegal administration of Toradol; and
3) Players who played in the NFL Europe – who were subject to the same fraudulent conduct and policies – will receive no credit for those seasons.
Legal minutia aside — make no mistake — this is argument is very significant.
Courtroom football is back! And it’s sure to include a long appellate season — after a hard-fought regular season in the lower court.
*Oral Arguments are scheduled to be made by the following parties:
Petitioners (aka Sean Morey, et al) – Steve Molo
NFL – Brad Karp and/or Bruce Birenboim
Class Counsel – Samuel Issacharoff
Let me play Coach – Lawyers Representing Clients in the Sports World
Tuesday, September 23, 2014 • Seminar 4:00 – 5:40 PM • Soccer Match 7:00 PM Sporting Kansas City Stadium, One Sporting Way, Kansas City, KS 66111
Credit: Missouri – 2.0 Hours / Kansas – Pending Cost: $135 KCMBA Member* $155 Non-Member*
Fee includes CLE seminar, tour of the stadium, tickets to the soccer match (Sporting KC v. Real Esteli) in the Coors Light Cold Zone, and all-inclusive food and beverages (brats, hot dogs, pretzels, popcorn, peanuts, nachos, soda, water, draft beer).
Register by clicking here.
Join us for a panel discussion with some of the local experts on cases they are working on, and the legal issues currently facing the sports world. We will talk to Greg Cotton from Sporting Kansas City regarding his in-house role, and delve into the recently concluded O’Bannon v. NCAA trial and the new cases filed against the NCAA and conferences such as the Big 12 seeking a free market for the payment of college athletes. We will also address the recently filed concussion cases against the NFL and the NCAA and so much more.
3:30 PM Registration
4:00 PM Seminar
5:40 PM Adjourn
7:00 PM MLS Soccer Match (Sporting Kansas City v. Real Esteli)
Leon Versfeld, Versfeld & Hugo, LLC
Greg Cotton, Sporting Kansas City
Mit Winter, Polsinelli PC
Paul D. Anderson, The Klamann Law Firm
William (Bill) C. Odle, Shook Hardy & Bacon LLP
As the science of concussions and their long-term effects advance, so too does the many ways in which a criminal defendant may seek to be set free.
Criminal defendants and their lawyers are looking to prior sport-related brain injuries as a causative factor for the illegal behavior.
According to the Observer-Reporter, former high school football player, Jordan Clemons, is facing the threat of the death penalty after being charged with brutally murdering his girlfriend.
Clemons’ lawyer recently filed a motion with the court citing his client’s extensive history of brain injuries, including multiple concussive and sub-concussive blows from football. His lawyer requested that a neurologist and psychologist evaluate his client.
The court, correctly, granted his request.
Clemons’ lawyer explained the purpose of his motion, “Diminished capacity is often the phrase used when a defendant’s state of mind does not meet the legal requirements for first-degree murder, which requires a premeditated, willful and deliberate killing with specific intent to kill. If capacity is diminished but a defendant is found to have committed the act, it falls to a lesser degree of murder.”
While not a complete defense, Clemons’ lawyer is seeking medical evidence to establish that his client lacked the necessary mental state to be found guilty for first-degree murder, which could potentially allow the jury to find Clemons guilty of a lesser charge such as second-degree murder. It also sets the stage for the introduction of mitigating factors if Clemons is found guilty of first-degree murder.
This could mean the difference between life in prison and death.
A recent decision by the Alaska Court of Appeals highlights the necessity of investigating a client’s brain-injury history.
In Starr v. State, A-11250, 2014 WL 2834502 (Alaska Ct. App. June 18, 2014), a woman was convicted of second-degree murder after stabbing her boyfriend. She subsequently sought post-conviction relief, contending that her lawyer provided ineffective counsel by failing to investigate her concussion history. In her motion, the defendant included an affidavit from a neuropsychologist who opined that Starr’s “behavior surrounding the stabbing was consistent with her having suffered a concussion.” Id.
In reversing the trial court’s decision to deny the defendant’s application for post-conviction relief, the Court of Appeals admonished the trial court for violating the defendant’s due process rights when it “skipped Starr’s failure-to-investigate claim…[and] deprived Starr of the opportunity to establish that she has actually suffered a concussion and that the concussion had impacted her culpability….” Id.
This case breathes new life into the word “competency.” A lawyer clearly has an ethical obligation to investigate his or her client’s brain-injury history and pursue all possible defenses.
As evidenced by the recent cases like Clemons and others, lawyers are taking this ethic seriously.
Expect Titus Young’s lawyers to assert this defense as well.