The Sandra Day O’Connor College of Law at Arizona State University will host our 3rd Annual Conference on Sports and Entertainment Law. Speakers and Panelists from all over the country will present and discuss the most critical issues in the fields of Sports and Entertainment Law. We’re pleased to announce that former Phoenix Suns Owner Jerry Colangelo and Attorney Jared Bartie (Arent Fox, NY Office) will be delivering a Joint Keynote Address. To see information about previous Conferences, click here.

• Date: Saturday, October 27, 2012
• Time: 9am – 6pm, followed by a reception for all attendees and speakers
• Location: Armstrong Hall, Sandra Day O’Connor College of Law at Arizona State University Campus – Tempe, AZ
• Registration: Please register through the Paypal button below. CLE credit available for attorneys!

Below is the list of confirmed panels and their panelists. Click for Biographies.

Panel: Amateurism

By: Stuart Dean

Hypocrisy can be defined quite simply as ‘saying one thing but doing another.’  Given that definition it is all too easy to see the hypocrisy in the NFL’s decision to use officials this season that no reasonable person would consider qualified: at practically the very same time as that decision was made the NFL announced the results and penalties for the investigation of the bounty system of the New Orleans Saints, an investigation purportedly undertaken in the interest of player safety.  Yet, by locking out its regular officials and fielding replacements with resumes that apparently include stints with the Lingerie League and various high schools and small colleges, the NFL effectively sent a message that player safety does indeed have a price–one that it is not willing to pay notwithstanding having not merely the ability but indeed the obligation to do so.

With respect to the concussion litigation, the implications of such hypocrisy cannot be overstated.  Very much at issue in that litigation is the ‘knowledge’ and ‘intent’ of the collection of legal entities that constitute the NFL as the defendant.  Proving the very real brain injuries of the plaintiffs in that litigation is sadly, and ironically, quite easy relative to defining and demonstrating what the NFL’s knowledge or intent may have been at any given time.  That is because there is, of course, no actual ‘brain’ or ‘mind’ of the NFL that can be examined; to speak of the knowledge or intent of the NFL unavoidably calls upon the audience, whether judge or jury, to accept a certain level of inference and abstraction from the actual evidence.  In this regard, however, the NFL’s behavior over the past several months has provided the plaintiffs with the evidentiary equivalent of manna from heaven.

Perhaps the most obvious element of this manna is the very fact that it is so easy to appreciate the otherwise abstract idea of the NFL’s mind, that is, its knowledge and intent.  It is a lesson taught again and again with every game that is played, and with every call that is made with hesitation or in error.  Far from being an abstraction, the NFL is a quite real presence now for all too many people.  While it may not be fair to put any one face on the ‘person’ that is the NFL, it is fair to speak of it as one very hypocritical entity.

The fact that the NFL presents itself so obviously and repeatedly as a hypocrite is of vital importance to the concussion litigation.  A key element of the plaintiffs’ claim is that the NFL defrauded players by hiding what it knew about brain injuries in order to avoid the costs incurred in acknowledging such injuries and to continue to make money promoting games.  Essential to proving fraud on the scale that the plaintiffs allege is establishing a pattern of deceit that undercuts the validity of any formal statement or contract.  In essence, as you can prove the NFL has lied in any one instance, it becomes progressively easier to prove it lied in another.  Ultimately such a line of argument can allow for the terms of contracts and even the provisions governing the insulation of various legal entities and their respective officers and owners to be disregarded in determining liability.  The patent hypocrisy of the logic underlying the decision to use unqualified officials makes that line of argument much easier to pursue than ever before.

As important as understanding the relevance of the NFL’s recent behavior for the substance of the fraud claim of the plaintiffs in the concussion litigation is the implication it has for the procedural posture of that litigation right now.  The NFL recently filed a motion to have the federal court dismiss the plaintiffs’ claim, arguing that the arbitration provisions of one or more of the CBAs to which the plaintiffs are party control.  Yet, the NFL’s blatant disregard for getting it right on the field casts this tactic for shifting the claims from federal court to an arbitration panel in an entirely different light than it might have had before.  For relative to the procedural apparatus of a federal court proceeding, arbitration is the legal equivalent of the Lingerie League.  The NFL is thus being, if nothing else, consistent in its behavior.  It does not want to pay for real officials if it does not have to and it certainly does not want to face a real judge and jury if it does not have to do so.

To be sure, the relevance of the NFL’s recent bad behavior to establishing liability for many of the older concussion claims could be challenged.  The concussion litigation, however, should not be viewed as having any one time line.  The potential membership of the class of plaintiffs is ever growing; there is no reason to doubt that some players from this season have or will have reasons to join.  For them, the NFL’s use of replacement officials is directly on point.  Indeed, whatever the NFL may or may not have known in the past, by now it knows that there is a lengthy latency period before brain trauma symptoms emerge.  The NFL, as well as others involved in football around the country, should consider the history of how asbestos litigation evolved; over time the growing number of plaintiffs in such litigation has overwhelmed an ever shrinking pool of solvent defendants.  Could that happen with concussion litigation?  It is hard to say but at a minimum it should serve as a reminder that short term considerations often look absurdly trivial in comparison to long term considerations of liability.  The figures that I have seen discussed as being in dispute with the regular officials indeed look absurdly small compared to the liability exposure for using officials who, far from being reasonably suited to officiate NFL games, apparently in some cases did not even meet the standards of the Lingerie League.  Obviously, the NFL sees some logic in that.  I do not.

Stuart Dean is currently an independent consultant and writer in New York City who, among other things, also teaches yoga.  He received his JD from Cornell and previously worked at a major law firm for 7 years and a major investment bank for 6 years. 

The following article first appeared in the Concussion Litigation Reporter. To learn how to subscribe, click here.

The NFL wasn’t the only organization blindsided by a flurry of concussion-related lawsuits. On September 12, 2011, a class action was filed against the National Collegiate Athletic Association (NCAA), Adrian Arrington v. NCAA.[1] Shortly thereafter, another lawsuit was filed, Derek Owens et al v. NCAA. The cases were subsequently consolidated, and a “Corrected Consolidated Complaint” was filed naming Adrian Arrington, Derek Owens, Mark Turner[2] and Angela Palacios as plaintiffs for the putative class.

The crux of the complaint alleges that the NCAA was negligent in safeguarding student-athletes from the risks of concussions. The complaint asserts four counts: negligence, fraudulent concealment, unjust enrichment and medical monitoring.

The plaintiffs specifically allege that the NCAA failed to (1) educate coaches about proper tackling techniques; (2) educate coaches, trainers and student athletes as to concussion-like symptoms; (3) implement system-wide return to play guidelines; (4) implement guidelines for screening and detecting head injuries; (5) implement legislation addressing the treatment and eligibility for athletes that have sustained multiple concussions; and (6) implement a support system for athletes who are “unable to either play or even lead a normal life,” according to the complaint.

According to the NCAA’s website, it has consistently implemented rules and guidelines to protect and educate student-athletes about concussions. In 2010, the NCAA passed legislation that required all member schools to adopt a Concussion Management Plan. Nevertheless, the plaintiffs argue that these guidelines ring hollow because the responsibility for reporting concussions falls on the athletes, as evidenced by NCAA Rule 3.2.4.17.

The plaintiffs seek to represent two nationwide classes.

First, “All former NCAA student-athletes who sustained a concussion(s) or suffered concussion-like symptoms while playing sports at an NCAA school, and who have, since ending their NCAA careers, developed chronic headaches, chronic dizziness or dementia or Alzheimer’s disease and/or other physical and mental problems as a result of the concussion(s) suffered while a player and who post-college have incurred medical expenses from such injuries.”

Second, a nationwide medical monitoring class that consists of “All former and current NCAA student-athletes who have suffered a concussion or concussion-like symptoms while playing sports at an NCAA school.”

And, in order to address the NCAA’s unique governing structure, the complaint designates the NCAA as the class representative of its members, which is defined as, “The NCAA and all members of the NCAA that have sports teams in which student-athletes participate”[3]

It is important to note, that the putative class is NOT limited to football players; it includes ALL student-athletes. In fact, one of the class representatives, Angela Palacios, is a former women’s soccer player, who played at Ouachita Baptist University.

The NCAA responded to the complaint on December 21, 2011, basically denying the majority of the allegations. The NCAA argues that the plaintiffs will be unable to certify either class because it will require a fact-intensive analysis of each plaintiff’s alleged injury, his/her knowledge regarding concussion risks and each plaintiff’s reliance on the alleged fraudulent concealment — all valid arguments.

Generally, class actions seeking personal injuries are almost impossible to certify due to the lack of commonality. The plaintiffs seek to get beyond this hurdle by attempting to certify a medical monitoring class. The NFL concussion litigation plaintiffs are trying a similar tactic. The NCAA litigation may provide a strategic glimpse at how the class certification process will shape out in the NFL concussion lawsuits.

The parties started discovery but have spent a substantial amount of time arguing over the proper protocol for electronically stored information. Even after two months of motion practice and Magistrate Judge Brown’s ruling regarding the protocol, the plaintiffs continue to dispute the method of production.

The NCAA asserts that it has approximately 150 gigabytes of data — approximately 19 million documents — ready to be produced once the court rules on the plaintiffs’ objections. Based upon this relatively minor dispute, it is equally clear that the parties will be fighting tooth-and-nail throughout the litigation.

On September 13th, federal Judge John Lee ruled in favor of the NCAA, and essentially blasted the plaintiffs for litigating such a minor issue. Thus, the NCAA will soon be delivering millions of documents worth of data to the plaintiffs. The plaintiffs are hoping to find several smoking-gun memos, just like the lawyers recently did in the names and likeness NCAA litigation.

The NCAA designees were scheduled to be deposed in July and August 2012, and the NCAA also plans to depose the class representatives at or around this time. It is unclear whether these deposition have been taken place.

The parties have proposed to extend fact discovery 6 months, with an estimated completion date of January 2013. Once fact discovery is complete, the class certification process will begin. Based upon the parties’ proposed schedule, briefing for class certification will likely span all of 2013. Following the court’s ruling, and if the court certifies the proposed class, the NCAA plans to file a motion for summary judgment.

Finally, the parties estimate a jury trial will take two to four weeks, and the NCAA also notes that trials for individual class members would take “several years.”

There is undoubtedly a long litigation battle ahead, and just like the plaintiffs in the NFL concussion lawsuits, the plaintiffs, here, face an uphill battle if they hope to score big.