This page will highlight the works of current and former law students who have published law review notes on concussion litigation. Please contact me if you are interested in publishing your piece.
About the Author: Spencer Anderson is a JD/MBA candidate at the University of Iowa with an anticipated graduation date of May 2013. Spencer is pursuing a career in Basketball Operations and has had a number of intern experiences including: Iowa Athletic Department in Compliance Intern, BusinessofCollegeSports.com Intern, Basketball Operations Intern with the Indiana Pacers, and Senior Sports Solutions Group Intern at STATS, LLC. He enjoys fantasy sports, playing basketball, traveling, and volunteering with Big Brothers Big Sisters and Junior Achievement. Spencer graduated with High Distinction in Finance and Economics from the University of Iowa.
Summary: This paper explores whether NCAA institutions have a duty to warn student athletes about the potential long term effects of participation by exploring the issues presented in the Arrington v. NCAA case. Focusing on the dangers of concussions and providing an overview of current concussion research, a comparison of how the NFL and NCAA have responded to the long term health implications of post concussion syndrome (PCS) is discussed. Each legal issue from the Arrington case is analyzed along with possible defenses for the NCAA and its member institutions. Finally, the paper concludes with a recommendation of the probable outcome of the case and ways the NCAA can decrease the risks of long-term mental health complications for student athletes.
About the Author: Clark Belote is a J.D. candidate at T.C. Williams School of Law at the University of Richmond, graduating in May 2014. He graduated from the University of Virginia in 2011 with a B.A. in Environmental Thought & Practice. He is a current member of the University of Richmond Law Review and University of Richmond Moot Court Board. After law school, he plans to pursue a career practicing in civil litigation in the Tidewater region of Virginia. He also enjoys surfing, snowboarding, and golf.
Summary: On January 31, 2012, the Judicial Panel on Multidistrict Litigation issued an order consolidating several lawsuits against the National Football League into one “master” case of Multidistrict Litigation. These lawsuits, from over 4,000 players, all claim tortious conduct on the part of the NFL resulting in neuro-degenerative disease and injury to professional football players. The NFL moved to dismiss the case on the grounds that federal labor law preempts the players’ state law claims.
This note examines the merits of these claims and defenses, and concludes that the court will likely dismiss the plaintiffs’ claims. It details the history and recent rise in football-induced concussion litigation. The note then addresses the specific claims the plaintiffs made against the NFL in their master complaint and discusses the issue of federal preemption and the NFL’s motion to dismiss on that basis. Finally, the author predicts that the trial court will grant the motion to dismiss, and discusses the future implications of the court’s ruling.
About the Author: Sean Dotson recently graduated from Tulane Law School, graduating with the sports law certificate. He also attended Tulane for his undergraduate studies, finishing with a degree in history and minors in business and spanish. Sean has worked with Impact Sports Management, Friedman & Salisbury Sports Management, and Phillips Teague Sports & Entertainment. He also spent time as a law clerk in workers compensation court with the Louisiana Workforce Commission in 2011. Sean was substantially involved with the sports law program at Tulane, writing for the Sports Law Newsletter and Sports Law Weekly, serving as the secretary of the sports law society, and assisting in the production of Tulane’s Baseball Arbitration Competition.
Summary: Concussions in sports, from youth sports up to the highest professional levels, have become a serious issue following the advancements in technology and neuroscience. A concussion is an injury to the brain that results in a temporary loss of normal brain activity. Second impacts, an injury that registers before the brain is completely healed, and repeat concussions can increase the mortality rate from concussions up to 50%. These cases go towards proving the brain is infinitely complex, and injuries affecting it must be regulated more rigorously in order to maintain the safety and welfare of players. One issue that obstructs better legislation and guidelines concerning concussions in sports is the ongoing lack of complete comprehension of the injury. Another problem is the US Constitution’s enumeration of powers; federal legislation providing a uniform, national standard in this area of public health would infringe upon police powers granted to the states. Regardless of what level of football, the burden still falls to the player, coach, training staff, or family to recognize and admit a problem. Most football-related concussions have led to lawsuits at every level of the game that primarily come down to negligence, assumption of risk, or breach of warranty. To avoid concussion issues, the NFL should take a more active role in concussion legislation and head injury guidelines at all levels of the sport. Players, coaches, and other parties need to be better educated in order to combat both the risk of concussion and better manage the injury as it arises.
About the Author: Catherine Keely Dunn recently graduated from the Charleston School of Law in May 2013. Catherine received a B.A. in Psychology from the University of Notre Dame in 2005 and a B.S.N. from the Medical University of South Carolina in 2007. During her time in law school, Catherine served as the Student Works Editor of the Charleston Law Review and was an active member of the Trial Advocacy Board, competing in several advocacy competitions. Prior to law school, Catherine worked as a pediatric nurse for three years. Catherine’s nursing background, in addition to her summer clerkships in the field of health care law, led her to write a Note on informed consent with regards to human biological materials, which was published in the Student Works Edition of the Charleston Law Review in 2012. Catherine intends to pursue a career in health care litigation.
Summary: This Note briefly describes the stories of Willis McGahee and Mike Webster to illustrate the wide-ranging consequences of football-related concussions. Part II offers a medical overview of concussions and the long-term cognitive effects they can cause. Part III discusses the basis for the controversy surrounding concussions and football generally; Part III also specifically outlines the current lawsuit between former NFL players and the NFL and its procedural history to date. Part IV analyzes the ineffectiveness of litigation as a remedy to the concussion dispute. Finally, Part V proposes a solution to the problem of compensating NFL retirees for concussion-related neurological injuries that is favorable to both the players and the NFL. Specifically, this paper proposes that the NFL create a victim relief fund, modeled after the September 11th Victim Compensation Fund, to compensate former NFL players with football-related neurodegenerative injuries. To generate money to compose the relief fund, this paper suggests that the government strip the NFL of its tax-exempt status and create the fund from the federal tax dollars paid by the NFL. Alternatively, the government could allow the NFL to remain a tax-exempt charitable organization, but require that NFL membership dues be funneled into the relief fund rather than enriching the NFL franchise owners.
About the Author: Jeremy Paul Gove is a J.D. Candidate at Vanderbilt University Law School graduating in the Spring of 2013, where he serves as the Senior Managing Editor for the Vanderbilt Journal of Entertainment and Technology Law. A 2010 University of Michigan graduate with B.A.s in History and Political Science, Mr. Gove is a sports enthusiast, especially for his Michigan Wolverines. He is now serving as the legal contractor for OverDog, Inc.
Summary: In 1952, the New England Journal of Medicine published a study stating that a player should not continue playing professional football after suffering three concussions. As players continue to get bigger, faster, and stronger, the number of concussions has increased. In response to this problem, the National Football League (NFL) commissioned a study run by scientists and NFL team doctors to determine the long-term effects of concussions. That committee determined that no long-term repercussions exist after experiencing a concussion while playing NFL football. Despite the scientific community’s critiques of the study, the NFL used the committee’s findings to create the league’s return-to-play guidelines, as well as other player safety rules. Further cementing skepticism of the committee’s findings, in 2005, Neurosurgery published an article linking concussions suffered during an NFL player’s career to cognitive deterioration based on autopsy results of a former player.
The NFL vigorously denied the Neurosurgery article’s conclusions and attempted to discredit the writers. The NFL continuedto use its flawed committee studies to craft league rules, despite the growing chorus in the medical community citing its flaws. Because the NFL used these findings to craft its safety rules, it exposed the players to unnecessary risk. This Note will show that the NFL acted both negligently and fraudulently towards its players, and the players should file a lawsuit in order to recover compensation for the harm that the league caused them. The players should file this suit in the district of Minnesota in order to capitalize on the district’s previous favorable rulings for the players in the 2011 lockout dispute with the league’s owners. This Note concludes that the players should succeed and win damages first for their pain and suffering, and second, to punish the NFL for its wrongful behavior.
About the Author: Rick Meyer is a rising third-year evening-division student at New York Law School. He serves as the evening-division liaison of the schools’ Sports Law Society and is a co-chair for the planning and coordinating of the 4thAnnual NYLS Sports Law Symposium. He graduated cum laude from Quinnipiac University in 2008 with degrees in Political Science and Broadcast Journalism and received his master’s degree from New York University in Sports Business.
Summary: In August of 2011, the first NFL concussion related lawsuit was filed. At the time of this writing, there are nearly 90 lawsuits with approximately 2,300 plaintiffs. Many of these lawsuits have been consolidated into a ‘Master Complaint’ coalescing the players’ claims against the NFL, NFL Properties, and Riddell. This paper focuses solely on the lawsuit brought against the NFL. It analyzes the allegations of the master complaint in conjunction with the preemptive force of section 301 of the LMRA. Part I provides an overview of the allegations set forth in the master complaint, examining why the plaintiffs believe their suit against the NFL should be permitted to proceed in tort. Part II lays out section 301 of the LMRA, the Supreme Court’s standard for preemption, and why the NFL will likely assert it as a defense. Part III examines the relevant case law to illustrate why several cases brought against the NFL and their member clubs have been permitted to proceed in tort while others were preempted. Part IV applies the law to the allegations of the master complaint to determine whether the plaintiffs’ claims can survive preemption. Finally, part V examines the NFL’s potential liability if the plaintiffs proceed to trial and receive judgments in their favor.
About the Author: Christopher Ryan Uhle is a J.D. Candidate at the Michigan State University Colleger of Law graduating in the Spring of 2013, where he serves as the President of the Italian American Legal Fellowship. Christopher graduated from Bowling Green State University in 2005 with a B.A. in Journalism. Uhle is a life long sports fan, a passion passed down from his grandfather and great grandfather, former professional baseball players. Following graduation, Uhle aspires to work in products liability law.
Summary: In 2011, the first lawsuits regarding NFL Players’ long term brain injuries were field. Buried behind the marquis defendant the NFL, Helmet manufacturer Riddell has been sued under numerous theories of liability. This note, using theMaxwell v. NFL case that started is all as a case study, examines the rocky road ahead in the concussion litigation. Included in those theories are the strict liability design, manufacturing, and failure to warn defect claims. This note analyzes those claims and identified the significant weaknesses that could ultimately result in Riddell being held not liable.
In addition to analyzing the claims, the note also explores the multiple affirmative defenses Riddell is likely to pursue. These defenses include the statutes of limitations for claims, assumption of the risk, preemption, as well as comparative negligence. For the former players, getting into a court may be a victory in itself as they will have to overcome overwhelming odds to get through even the motion to dismiss portion of the current Multidistrict litigation in the Eastern District of Pennsylvania.
Summary: To date, there has been a constant increase in the average number of NFL concussions reported per week from the years 2009-2012. How can this be true? The NFL has seemingly taken measures to combat NFL concussions by prohibiting face-masking (grabbing a player’s helmet by the face mask), banning head-slaps, and outlawing “spearing” (leading with the top of the helmet when hitting or tackling another player.) Could more have been done to prevent the current NFL concussion lawsuit? These are some of the issues that I will address in this paper. The primary focus, however, will be how to negotiate with someone when there is a power imbalance. Power imbalances in negotiations cause the less powerful negotiators to walk away from the negotiating table feeling dissatisfied and angry.
About the Author : Alexandra Veuthey graduated from the University of Neuchâtel, Switzerland, in February 2007, and passed the bar in July 2009. During her studies, she was a research assistant for Professor Denis Oswald, and a scientific collaborator at the International Centre for Sports Studies (Centre International d’Etude du Sport, CIES). After completing her legal training in 2009, she returned to work on a new research project at that institute.
She also served as a graduate teaching assistant and as the CIES/FIFA Master Law Module Coordinator. She has worked in several law firms in Switzerland (curent law firm: Reymond & Associés, Lausanne).
As the author of numerous published works, particularly in Sports Law, she has spoken at international conferences (France, Switzerland), and taught within the CIES/FIFA International University Network (Senegal) and the CIES/FIFA Master (Switzerland).
Her international experience includes in addition the recent completion of an LL.M at the University of Melbourne.
This E-book explores the thorny issue of concussion in sport from a legal point of view. The potential long-term medical complications associated with multiple concussions can potentially include, according to some experts, memory loss, impulse anger-control problems, disorientation and even dementia. The gravity of the situation is notably illustrated by American football (managed by the National Football League), where a wave of suicides among players and veterans, together with the intervention of the American Congress and the judiciary, have recently hit the headlines. Other sports, such as boxing, ice hockey, Australian Rules Football, soccer or even rugby, are also concerned to varying degrees.
The author argues that if the NFL’s management of concussion was highly open to criticism in many respects until the recent intervention of the Congress, it constitutes now ironically – despite a few shortcomings – an example for other leagues to follow. Furthermore, the NFL case has already had a beneficial impact. It has led the main sports actors, researchers and even the governments to further question players’ safety. However, much remains to be done, certain leagues being currently in great difficulty tackling this issue.
Swiss Online Review Jusletter: Quelle protection pour les athlètes blessés? Analyse du cas de la National Football League à la lumière du droit suisse, Jusletter, 27 January 2014, by Alexandra Veuthey
This article has the same topic as the E-book mentioned above. However, it is an updated version and it is written in French. In addition, the situation is hypothetically transposed in Switzerland.