By Dr. Jimmy Sanderson
I am sure many of us remember when the now infamous 2011 NFC Championship game between the Chicago Bears and Green Bay Packers, when Bears quarterback Jay Cutler received significant criticism for not finishing the game after sustaining a knee injury.
Many of us also probably remember watching Washington Redskins quarterback Robert Griffin III during a 2013 playoff game against the Seattle Seahawks continuing to play after sustaining a knee injury before being removed from the game.
For me, my colleague Dr. Melinda Weathers, and a team of undergraduate students in the Department of Communication Studies at Clemson University, these two incidents provided a compelling opportunity to examine how the print media talked about players’ injury decisions.
In the study we conducted, we examined 177 news articles that reported on these two incidents to see how these two quarterbacks were framed by the media.
Not surprisingly, Cutler was portrayed as a sissy, the severity of his injury was questioned, and he was blamed for it. However, what was interesting is that many more articles shifted the blame away from Cutler to other people in the Bears organization, and – one of the key findings for us – was that there was significant support for Cutler for not returning to the game.
With Griffin III, only a small portion of the reports assigned any responsibility to him. Rather, the blame was shifted to Coach Mike Shanahan and other Redskins officials, including team doctors, and the severity of his injury was emphasized. Griffin was also positioned as hero for his resiliency in fighting through injury that – and another key finding here – was part of the game.
Our results are not exhaustive and much more work needs to be done. However, they do offer a starting point for conversations about the role the media can play in the way we talk about injuries in football and there were a couple of key takeaways for us in this research.
First, it was surprising to see significant support for Cutler, especially given how much criticism he received from his peers. The press can play a role in shifting attitudes about health issues – and when we consider how many kids participate in football – injuries in football are a public health issue – we wonder if the press begins to praise players who do not continue to play through injuries and put their health first, if that might have a trickle down effect?
Second, while there was evidence of shifting narratives about playing through pain, there was still the notion that playing through injuries, regardless of the long-term consequences, is privileged. For example, one report about Griffin noted that, “In the macho world of the NFL this earns much street cred.”
One of the issues with health and safety in sports, but particularly football, is that the culture is at present, incompatible with players advocating for their health. Speaking up for oneself is often seen as “unmanly” and this norm perpetuates through all levels of football to predispose players to not seek attention, even when their own well-being is at stake.
Equating manliness with playing through pain, no matter the cost, has too long gone unquestioned and the press may begin to sow the seeds for a culture change by doing so.
Can a player still be “tough” and put their health first? That is the big question facing the culture of football.
Dr. Jimmy Sanderson is an Assistant Professor in the Department of Communication Studies at Clemson University. His research centers on the influence of social media and sports with particular emphases on sports media, sports organizations, and communicate between athletes and fans and he is beginning research on concussion and health issues in sports. His work has appeared in multiple academic journals and he also is the author of It’s a Whole New Ballgame: How Social Media is Changing Sports published by Hampton Press. Connect with him on Twitter @Jimmy_Sanderson
A significant victory was won today on behalf of our clients and all employees of Missouri. We are one step closer to obtaining justice for players that are suffering from cognitive injuries due to the ongoing denial and cover up by the NFL and its members clubs. The Court, in effect, determined that professional-sport teams are not immune from liability.
On May 14, 2014, Chief Judge Catherine Perry issued an Order remanding Green, et al v. Arizona Cardinals Football Club, LLC, 4:14-cv-00461-CDP (E.D. Mo.) (“Green”), to the Circuit Court for the St. Louis, Missouri, from which it was removed. Doc. #33, 4:14-cv-00461-CDP. The District Court denied defendant’s motion to stay proceedings and remanded Green over the defendant’s objections.
In Green, the Court held that the players’ claims were neither created by nor require the interpretation of a CBA. Id, at p. 13. As for the negligence claim, the Court held as follows:
“Unlike the negligence claim in Gore [v. Trans World Airlines, 210 F.3d 944 (8th Cir. 2000)], here the duties arise out of the common law based upon the employer-employee relationship and not out of any particular terms in the CBAs. The reasonableness of the Team’s actions towards [Plaintiff] Scott cannot depend upon an interpretation of a CBA, as Scott was never bound by the contract. It stands to reason, then, that the other plaintiffs’ negligence claims do not necessarily depend upon an interpretation of the CBAs, so far as the duties owed them and the standards applied to their claims derive from the same source as for Scott.” Id. at p.
As for the negligent misrepresentation and fraudulent concealment claims, the District Court held that, “[a]s with their negligence claims, the plaintiffs’ negligent misrepresentation and fraudulent concealment actions arise independent of the CBAs as a function of the common law and thus are not preempted.” Id. at pp. 16-17.
“Because the plaintiffs’ claims can be determined without interpreting the CBAS,” the Court stated, “I do not have subject-matter jurisdiction over this case.” Id.
Mike Florio, of ProFootballTalk.com, breaks down the ruling further,
The primary concussion litigation, with more than 4,000 plaintiffs, resulted in a proposed nationwide settlement before the question could be resolved as to whether the cases should be kicked out of court. Now, via NFLConcussionLitigation.com, one of the other concussion cases has survived the NFL’s effort to deliver an early knockout punch.
The U.S. District Court for the Eastern District of Missouri, in a case brought by receiver Roy Green (pictured) and other former members of the St. Louis (now Arizona) Cardinals, concluded that the lawsuit may proceed in Missouri state court. Which means that the discovery process will proceed.
One result of this ruling – the public will no longer be denied the right to learn what the football industry has concealed from, and misrepresented to, society.
Which means that the NFL has moved closer to the day on which it will have to disclose what it knew and when it knew it about the long-term risks of concussions.
And the impact it could have on the pending NFL concussion litigation.
The outcome also could result in the plaintiffs in the settled case to quit trying to persuade Judge Anita Brody to approve the settlement, opting instead to proceed with the litigation. If the players in that case secure the same victory Roy Green and others have realized in Missouri, the value of the claims would potentially skyrocket.
SPORTS CONCUSSION LITIGATION- LATEST NCAA AND HIGH SCHOOL
RESEARCH, DEVELOPMENTS AND FINDINGS
Wednesday, May 14, 2014
1:30pm – 3:00pm ET
Paul D. Anderson, Esq., Founder of NFLConcussionLitigation.com, Editor of Concussion Litigation Reporter
Andrew M. Blecher, MD, Director, Center for Rehabilitation Medicine, Southern California Orthopedic Institute, SCORE
Concussion Program, Van Nuys, CA
Robert W. DiUbaldo, Esq., Edwards Wildman, New York, NY
Chandler R. Givens, Esq., Edelson PC, Chicago, IL
Joseph J. Siprut, Esq., Siprut PC, Chicago, IL
- Update on current NCAA litigation
- Ramifications of NCAA litigation on the legal industry over next 5 years
- Impact of NCAA litigation on high school sports
- Plaintiff bar perspectives and trends
- Insurance issues and developments arising from sports concussions
- Latest medical observations and discoveries
- Insight/recommendations on rule changes
Cost: $129, unlimited listeners from one line. Additional phone lines are $29 each. Includes 1 CLE state per listener (Additional CLE credits $25 each).
CLE Credit: 1.5-2.0 CLE credits, depending on state requirements.
Applications are being made to all CLE states as requested by attendees.
For more information about registration, contact Bethany Corio (firstname.lastname@example.org)
On Saturday, May 10th I’ll be presenting on the Legal Issues Challenging Athletic Trainers. The registration information is below:
The 2014 MAATA Annual Symposium is scheduled
May 9-11, 2014, at The Founders Inn & Spa in Virginia Beach, VA.
And Don’t forget to sign up for our Scholarship Golf Outing!
Information regarding room rates and reservations can be found by
clicking on the registration tab.
The meeting is worth up to 12 CEUs.
Check out our Educational Program
2014 MAATA Student Symposium Agenda
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On April 30th, I’ll be a panelist at a CLE in Kansas City. Registration information is below.
Join us on April 30th as we kick-off AWL’s CLE programming with presentations by our local sports law professionals, followed by a happy hour. (2.0 MO CLE Credit including 1.0 Ethics)
Session 1 (2:30-3:30pm):
Local attorneys, including Paul Anderson and Scott Hofer, spearheading and/or defending sports litigation for the KC Royals and against the KC Chiefs will provide us with a sports litigation update concerning NFL concussion litigation, and the Royals “hot dog” litigation/appeal.
Session 2 (3:30-4:30pm):
A panel of general counsel, including Daniel Crabtree (Stinson Leonard attorney and GC for the KC Royals) and Greg Cotton (GC and Chief of Staff of Sporting KC Soccer) will speak regarding their professional development, experience and challenges as general counsel, as well as ethical issues and obligations encountered in representation of professional sports teams.
The CLE and happy hour will be held at KCMBA Headquarters. Price is $60 for members/$75 for non-members. Register at www.awl-kc.org .
Updated on Feb. 28, 2014
Riddell Helmets is facing at least three consumer class actions stemming from the false-advertising campaign for the Revolution helmets.
After a similar lawsuit was voluntarily dismissed in 2012, it was just a matter of time before various class actions would be revived.
In December 2013, the first of four class actions was filed in Florida. Shortly thereafter, two class actions (Aronson and Thiel) were filed in New Jersey. Just last week, a fourth class action was filed in California – with more likely on the horizon.
The Aronson complaint seeks to certify a nation-wide class of consumers that purchased the Riddell Revolution Helmet. The other three actions, taken together, seek to certify a state-wide class in California, Illinois, New Jersey and Florida.
With several overlapping putative class actions, which all share the same factual and legal issues, it is likely that Riddell will move to consolidate all the cases by requesting that the Judicial Panel on Multidistrict Litigation create an MDL.
The lawsuits target Riddell’s false-marketing claims that arose from a 2003 University of Pittsburgh Medical Center study that stated, “athletes who wore the Riddell Revolution helmet were 31 percent less likely to suffer a concussion compared to athletes who wore traditional football helmets.”
The 2003 study was scientifically flawed on multiple fronts.
First, the co-author of the study, Dr. Joseph Maroon, stated that the study should not have been used as a marketing tool. Second, Dr. Cantu said the study “suffers from a serious, if not fatal, methodological flaw….” Third, Dr. Jeffrey Kutcher testified to Congress that the study also had systematic flaws in data collection. Fourth, Dr. Cantu and Dr. Kutcher both agreed that the study was wrought with an “inherent conflict of interest.” Finally, a study from the Cleveland Clinic found that modern day helmets – including the Revolution – were no more effective at preventing concussions than leather helmets.
Since various companies continue to engage in false marketing, the only way to eliminate this will be through the civil-justice system.
Hopefully, this litigation and others like it will stop companies from profiting off of the so-called concussion crisis.
While many organizations—NCAA, NHL and the NFL—take reactive measures, the MLB has taken steps to ensure it is not caught with its pants down, facing a multi-million-dollar lawsuit.
The Players’ Association and MLB announced that they have agreed to enact a home-plate-collision rule for the 2014 season. The rule seeks to limit violent collisions at home plate that have caused season-ending injuries, concussions and the potential for long-term cognitive impairment.
I’m not on a mission here to try to do anything except do what’s right,” [ ] “First of all, make people aware that the concussion thing is real and not just in football and hockey. It’s real in baseball, and I did a real poor job of communicating that early on. And the other thing is, let’s take a risk-reward analysis of this thing. What is the risk of the good of the game, let alone the individual, and the long-term repercussions? And what’s the reward?”
“I don’t know how it’s all going to play how except for the fact that we think it’s the right thing. And the right thing is to try to keep our guys on the field.”
Although there is no firm scientific data that proves this rule will reduce concussions, common sense clearly dictates that it will.
Unlike the NCAA, which repeatedly makes empty promises about player safety and simultaneously manufactures doubt about enacting hit limits, MLB has chosen not to wait.
MLB recognizes the threat and has taken proactive measures to ensure their players are protected at all levels.
I applaud MLB for placing player safety over profit. Perhaps this will be a wake-up call to the NCAA and NHL. Players are being exposed to needless brain trauma. Stop the excuses and live up to your professed obligations.
As lawyers fight for a seat at the table to negotiate a global settlement in the NCAA concussion litigation, an overlooked affidavit illuminates the NCAA’s historical failures.
A group of plaintiffs’ lawyers (hereinafter, the “Latecomers”) recently filed pleadings with Judge Lee seeking to halt settlement negotiations so that they can “adequately” represent the interest of pre-2004 football players.
The filing comes on the heels of the formation of the NCAA concussion MDL and against the backdrop of settlement talks between the Arrington lawyers and the NCAA (hereinafter, the “Negotiating Group”).
The Latecomers claim that there is a fundamental “intra-class conflict” that impedes the current Negotiating Group from reaching a global settlement that adequately represents all potential class members. Essentially, the Latecomers want a seat at the table because they believe their clients and hundreds of thousands of other former NCAA athletes that played prior to 2004 will be left without a voice.
The Negotiating Group contends that these accusations are without merit; rather, this is merely an attempt by a group of “copy-cat lawyers” to obtain a slice of the attorneys’ fees that may be awarded if a settlement is finally approved.
Both side’s arguments have merit.
The Arrington lawyers have represented to the MDL Court that they are negotiating a settlement on behalf of all former student athletes in all 50 states. However, their class certification motion seeks to represent only a class of post-2004 student athletes that played in 18 jurisdictions (i.e. jurisdictions that allow for medical monitoring without the necessity of proving an actual injury). The NCAA similarly has expressed its desire to settle the litigation on a global basis. “The only basis on which the NCAA is going to settle is all sports for all times and all jurisdictions,” the NCAA’s attorney told Judge Lee.
On the other hand, there is a real concern that certain comments (e.g. that pre-2004 claims lack merit) by the Arrington lawyers could hinder them from negotiating a deal that zealously advances the interests of all student athletes.
While there arguably is a strong inference that the Latecomers are just being opportunistic and seeking a windfall from any potential settlement, Rule 23 jurisprudence does support their position, to an extent. That is, during settlement negotiations, as opposed to after a deal is struck, it is essential that the negotiating parties are free of any interest that may be antagonistic to the interests of all class members. By publicly discounting the claims of pre-2004 players, there is a threat that a settlement could be struck that is detrimental to this allegedly abandoned group.
The Negotiating Group disagrees, arguing that Rule 23 provides adequate safeguards—such as the ability to object—to ensure this does not occur. The Negotiating Group also argues that any additional negotiators could potentially derail the settlement talks.
As an aside, the Latecomers’ argument would also necessitate the inclusion of additional sub-class counsel for all pre-2004 student athletes that played in any contact sport. The Latecomers are only representing football players, so their altruistic solution only solves a fraction of the purported problem.
On balance, and taking the representations regarding settlement negotiations as true, the threat may be artificial as opposed to real. If a global settlement occurs, it will apparently include all former and current student athletes that ever played a contact sport at any NCAA school. The remedy will merely be medical monitoring (i.e. neurological and neuropsychological evaluations), as opposed to CASH.
Thus, whether a student athlete played in 2009 or in 1989 for one season or four seasons, the remedy will be the same: medical monitoring. Unlike the inadequate NFL proposed settlement, it does not appear that there will be a compensation fund that entitles the players to cash payouts.
Judge Lee has informed the parties that he intends to rule on the above dispute prior to or at the March 5, 2014 hearing.
Finally, the most intriguing part of the court filings is an affidavit submitted by Dr. Robert Stern. The affidavit was included by the Latecomers to substantiate their position that pre-2004 student athletes have real claims and they are entitled to relief.
As an indictment on the NCAA leadership, Dr. Stern opines:
The NCAA and its leadership has known for two or more decades of the long-term risks associated with concussions and other brain trauma experienced by collegiate and other football players, and that medical intervention, brain trauma prevention strategies, and concussion management, may reduce the risk of subsequent brain disease and injury and related cognitive, mood, and behavioral impairment.
Accordingly, it is clear that the NCAA and its leadership have failed to live up to its founding principles of protecting student athletes for far too long. As you may recall, the NCAA did not take any action on concussions until 2010, and even then, it only issued toothless guidelines that have left member institutions scratching their head. And when it comes to schools egregiously violating NCAA rules, the NCAA does NOTHING. Instead, it spends its resources chasing down sandwich violators and ensuring that its labor force goes unpaid and medically unprotected from the real dangers of concussions. After all, that is the real meaning of modern-day amateurism: grave injustices.
As one concussion MDL reaches the stage of resolution, another battle is set to begin. Following a similar path of the NFL, the NCAA Concussion Litigation has reached a point where the consolidation of multiple lawsuits into a single forum has been ordered.
In late December 2013, the Judicial Panel on Multidistrict Litigation ordered all pending putative class actions against the NCAA to be transferred and consolidated to the Northern District of Illinois.
As we saw with the NFL Concussion Litigation, when there are multiple lawsuits pending throughout the country, it is most efficient for the cases to be sent to a single forum in front of a single judge.
Philadelphia is the battleground in the NFL litigation and the “referee” is the Honorable Judge Anita B. Brody. For the NCAA litigation it will be Chicago, with the Honorable Judge John Z. Lee presiding.
The genesis of the NCAA litigation is slightly different, which has triggered in fighting amongst the plaintiffs’ lawyers. (Forthcoming article: Motion Filed to Halt Settlement Negotiations) The Arrington case, filed more than 2 years ago, has advanced the players’ claims significantly. The lawyers engaged in a voluminous amount of discovery, uncovering damning communications that undoubtedly showed the NCAA’s betrayal of the student-athletes.
The Arrington lawyers were able to advance the case to a point where the NCAA was publicly humiliated and concerned that class certification was a real possibility. The NCAA raised the white flag, initially, and it was announced that the parties were heading to mediation. Catching word of this, other lawyers around the country started to file putative class actions — whether this was done for altruistic reasons or to represent non-proposed-class members’ claims (i.e. pre-2004 student athletes) is debatable.
Against this backdrop, MDL No. 2492 In Re: NCAA Student Athlete Concussion Injury Litigation was formed.
The first step in multidistrict litigation is the development and appointment of a leadership structure. Judge Lee has ordered the parties to identify two Lead Counsel to represent the players.
In the NFL litigation, Chris Seeger and Sol Weiss fill this role. As you saw, these lawyers basically have all the power, so it is clearly a coveted role to assume.
Multiple lawyers will obviously be vying for these two positions. Since two factions have apparently formed—i.e. the Arrington lawyers vs. all the others—the court may be inclined to appoint a representative from each faction.
By making these appointments, it may be the first step in resolving some of the bickering that has developed. If the parties cannot reach an agreement by February 24, 2014, Judge Lee will be forced to make the decision at or before the March hearing.
That initial pretrial conference is scheduled for March 5, 2014 at 2 pm. This hearing should iron out whether resolution viz-a-viz the ongoing mediation with Judge Phillips will remain fruitful or if protracted litigation is necessary.
If it’s the latter, then additional discovery will be planned and the putative class will be restructured to include virtually all former student athletes that played a contact sport at any NCAA-affiliated college.
At bottom, the next four weeks will be critical in assessing whether the lawyers can put aside their differences, and focus on a global resolution that will benefit all former and current student athletes.
By: Carrie Truax
Early in the film, Head Games, narrator Christopher Nowinski says, in reference to playing football, “It’s the closest thing to being a warrior without having to actually go to war.” I found this quote to be very intriguing, because to me, American culture is vividly manifested in football. Sports culture rules social interaction. Especially in the last five years, there has been a shifted focus on honoring the military in sports. Nowinski’s comment about being a warrior called to mind some very important comparisons between the two contexts. Military personnel are sent into battle with extreme protection, and trained to withstand countless physical attacks. Professional football players enter the stadium with pounds of protective equipment, prepared to make tackle after tackle. With that being said, I do not believe football players are given the same education as soldiers in battle. Lifelong illnesses, physical complications, and eventually insome cases, even death are all a result of playing professional football. Head Games made this point, but I do think it underestimates that playing professional football actually is going to war -going to war against your own body.
In this documentary, doctors and ex-professional football players band together to make a clear argument for better protection, more education, and less romanticizing in professional sports in order to alleviate the exponentially growing number of head injuries. In my opinion, the most important argument made in this film is the need for greater education. Head Games stated that 14 out of the first 15 players they studied had developed chronic traumatic encephalopathy or CTE, which results from mutiple concussions or head injuries. All of these patients were studied post-mortem, as that is the only way to clearly detect CTE. A greater need for education from the National Football League, NCAA, Pop Warner, statewide high school associations, and little leagues is perhaps the only way for changes to be made. Education and awareness about the causes of repeated distress on the brain is the only way to fully combat this epidemic.
The documentary also states that rest appears to be the soultion, yet players do not get off the field in time or in some cases – at all. At times, players well-being can be sacrificed for the good of the team, especially if the future of the season is at stake. According to Head Games, players should demand appropriate rest time and withdraw from competition if continual head trauma ensues.
Once proper education and awarenss are fully developed and intertwined in the football atmosphere, players will be more apt to reveal when they are in pain. At the same time, coaches and parents alike will be more aware of symptoms or signs of head trauma and will be more likely to protect athletes.
Finally, sports have been heavily romanticized by the media, especially in the new media age. Sporting events are not only covered live by sport media companies, but also by ameatur sport journalists, better known as fans. Social media enables fans, athletes, coaches, and sports jouranlists alike to unite on a common front to idealize sports. Networks like ESPN and FoxSports have even a greater responsibility in the glamourization of sports. All of these entities combined are guilty of romanticizing sports. Because such a heavy influence is placed on competition, and the outcome of competition, little weight is placed on injury and the need for injury awareness. Once the leaders of professional sports leagues demand control, serious sporting injuries like concussions can begin to be remedied.
Head Games challenges its viewers to consider all circumstances related to the seriousness of concussions. From the professional ranks to little league, players should watch Head Games to become aware of the conditions surrounding head trauma. Although there have been great strides in the recent past to overcome these injuries, there is still work to be done. Most importantly, the leaders of sport organizations need to place as much value in head trauma education as they do ticket sales. Concussions and CTE are issues that can no longer be ignored. I commend advocates like Christopher Nowinski for taking the first step in player awareness and education. There needs to more films like Head Games and organizations like the Sports Legacy Institute to provide adequate education and awareness, better protection, and less romanticizing in professional sports.
Carrie Truax, a native of Madison, IN, is a senior Communication Studies major at Clemson University. While at Clemson, Carrie has worked in the Athletic Communications Department for 3 years. She has also interned with the Washington Redskins and the Atlanta Falcons. Upon graduation, Carrie plans to attend graduate school and pursue a career in sports public relations.