On August 28, 2011, we lost our beloved son and brother Derek Sheely to a sports-related brain injury. It is inconceivable to us how, with all the attention on concussions, there is still no unified enforcement to prevent dangerous drills, stop false safety claims, or ensure proper medical attention to concussed athletes. We are haunted by the knowledge that Derek’s death was preventable, and we feel an obligation to share lessons that could prevent other children from suffering Derek’s fate.
- The Sheely family
A copy of the lawsuit can be found here: Derek Sheely, et al v. NCAA, et al
On July 8, 2013, with the highly anticipated ruling on the NFL’s motion to dismiss looming, Judge Anita Brody took many by surprise when she ordered the parties in In re National Football League Players’ Concussion Injury Litigation to mediation. Despite any undertones that the order may have revealed toward Judge Brody’s likely disposition on the matter, the order gives the parties a unique opportunity. With settlement seemingly a distant possibility prior to the order, the parties now avoid years of painstaking litigation by crafting a resolution through mediation or, at the very least, develop a better understanding of the issues (which may pave the way for a settlement further down the road). And as the mediation begins, the parties can build upon the professional sports industry’s recent embrace of mediation as a dispute resolution mechanism. Mediation contributed greatly to resolutions in the recent labor disputes of the NFL, NHL, and MLS (and was also used during the NBA’s labor dispute, albeit with less success). In the NFL’s recent mediation experience during the league’s labor dispute, the owners and players took part in three separate mediations. Those specific sessions can serve as a guidepost for the parties in the NFL concussion litigation as they attempt to resolve their issues through mediation.
Mediation, a form of alternative dispute resolution (“ADR”), is a self-determinative process, similar to negotiation (though instead with a neutral party at the helm), in which the parties determine a resolution rather than a judge, jury, or arbitrator. Despite being court-ordered in many instances, mediation is still voluntary. If a party withdraws from mediation, the litigation simply resumes. Moreover, the mediator cannot disclose anything said or done during the mediation to the court or to others (with some exceptions relating to the well-being or safety of others), and the discussions have no legal effect. Though mediation seems straightforward, for it to succeed in an industry as unique as professional sports, each party (including the mediator) must be cognizant of the many factors that can affect respective motivations and strategies and, in turn, a resolution.
For the NFL concussion litigation, in particular, the success of the mediation can easily be determined at the outset when appointed mediator and retired federal judge Layn Phillips decides how to conduct the proceedings. He can have the parties (whomever they send as representatives) appear at each session face-to-face (“joint sessions”) or in separate rooms with the mediator as an intermediary (“shuttle diplomacy”), or he can choose to utilize a combination of the two. Joint sessions may spur an immediate starting point. However, they are not appropriate in all situations, especially where the underlying emotions or nature of the issues may detract from fruitful discussions and cloud the path to settlement (As a former ADR professor of mine and mediator tells parties, “Mediators are not therapists”). Shuttle diplomacy also presents obstacles, as it too may impair the parties’ ability to engage in candid dialogue. The lack of face-to-face discussions was a common complaint among players in the two failed mediations in the NFL’s labor dispute. There, as a last ditch effort, the parties engaged in several marathon joint sessions, which ultimately aided in the parties’ reaching a settlement.
With the NFL concussion litigation, the gravity of the claims at issue (i.e., wrongful death, fraudulent concealment, fraud) may suggest that it be more prudent and practical to separate the parties. Still, wading through the complex issues of the case may not be feasible if the parties are separated given the number of parties involved and the time and money that is required for any protracted discussions. These are all factors that Judge Phillips must consider when deciding how to conduct the mediation; a decision that may seem trivial but will undoubtedly have a great impact.
Another seemingly insignificant yet determinative wrinkle to the process is the parties’ commitment to confidentiality. Surely, the media has and will continue to report on concussions in the NFL, which have rightfully become a matter of great public interest. Still, the order to mediate explicitly requires that the parties refrain from any public disclosure regarding the discussions. The decision to leak details of the talks or to wage a publicity war while mediation is ongoing not only violates the court’s order but also eliminates any semblance of trust between the parties. For example, in the NFL’s labor dispute, the court imposed a confidentiality order regarding the mediation, yet both the parties and the omnipresent “anonymous sources” routinely disclosed intimate details of the talks. This hindered any progress and, not surprisingly, contributed to the failure of the first two mediations. Only once the parties made an effort to maintain confidentiality were they able to reach a mediated settlement.
The high-profile nature of the NFL concussion litigation assures that there will be similar confidentiality issues. Neither the media nor the public are bound by the order and undoubtedly have no intention of respecting it, so it is up to the parties to prevent any detailed information from being disclosed. If media reports surface with any details of the talks (nothing has leaked as of yet), take that as an early indication that not all parties are serious about mediating toward a resolution and that the parties will find themselves back in court.
Lastly, imperative to the success of the mediation is the parties’ preparation for and approach to the discussions. More specifically, a concept or strategy that often gets overlooked in negotiation (and, in turn, mediation) is grasping the value of one’s “best alternative to a negotiated agreement” (“BATNA”). Simply put, this concept consists of a calculated balancing of the relative extrinsic and intrinsic benefits that settlement and its alternatives offer. If a party’s BATNA will lead to a better result than a projected settlement, that party is best served to follow the alternative. But as the circumstances of a dispute change, so, too, do parties’ interests, the relative balance of power, and whether settlement does, in fact, outweigh the alternatives.
For example, in the NFL’s labor dispute, the first two mediation attempts occurred while the district court and court of appeals, respectively, were close to issuing significant rulings in each case. Despite the uncertainty involved, each party seemed to believe that their BATNA—continuing with litigation—outweighed settlement. But by the third mediation, the parties’ alternatives had changed. Without a settlement, the parties would be faced with a prolonged lockout. As their alternatives narrowed, the parties became more aware of and focused on engaging in interest-based bargaining (i.e., exploring mutual gains), which ultimately aided in a resolution.
Similarly, the NFL concussion litigants find themselves mediating with the court’s pending ruling on the motion to dismiss in the backdrop. Either side may adopt the belief that they are better off waiting for Judge Brody’s ruling rather than to mediate. But if the parties were to adopt an interest-based bargaining approach, they may find settlement at this early stage of the litigation to be advantageous. Consider the many nuanced issues of the dispute. Even if the litigation were to survive past the motion to dismiss stage, the court may simply be unable to provide the parties with adequate remedies. For instance, the plaintiffs’ claim for medical monitoring presents several obstacles for the plaintiffs from both a practical and legal standpoint. Across the aisle, the NFL is undoubtedly aware of the effect that prolonged litigation and factual discovery may have on its future liability, image, and, ultimately, bottom line (see, for example, the recent internal emails from the NCAA concussion litigation). Mediation enables the parties to address these issues and contour a mutually-favorable resolution.
If the NFL concussion litigants are to maximize the benefits of mediation, they must be mindful of the foregoing factors, which are by no means exhaustive. Even if the effort does not lead to an immediate settlement, the parties’ candid dialogue, respect for confidentiality, and willingness to engage in interest-based bargaining can pay dividends in the future. The experience may provide the parties with a better understanding of the underlying issues or interests, temper expectations, and serve as a catalyst for future settlement.
By: Daniel S. Goldberg, J.D., Ph.D.
Thanks so much to Paul for the pulpit! By way of introduction, I’m Daniel S. Goldberg, and I’m an assistant professor in the Brody School of Medicine at East Carolina University. I’m trained as an attorney (with experience as a defense attorney in mass-tort litigation), as an historian of medicine/public health, and as a public health ethicist. I’ve been interested in ethics and concussions in American football for at least the last five years. You can read more about my work here.
A prior paper of mine, published in a bioethics journal in 2008, addressed the ubiquitous conflicts of interest that exist in the N.F.L. and how they influence concussions top to bottom, from league and team policy down to individual treatment and return-to-play considerations. If you’re interested, you can download the full paper free of charge here.
I was fortunate to have a second paper on the subject published in the last month or so, this one addressing the strategy apparently deployed by the NFL and most other agents of regulated industry involved in 20th c. occupational health disputes. This strategy is known as the “manufacture of doubt.” It involves the mobilization of an enormous amount of resources all devoted to creating doubt regarding both the probability of the harm in question occurring and the magnitude of that harm if it were to occur. By creating doubt in the policy arena, industry can argue that given the uncertainty, regulation is unwise pending the development of further facts.
As I note in the article, this is a particularly poor standard for public health policy because of the undeniable fact that epidemiologic evidence is always uncertain. That uncertainty inheres in the field itself because determining epidemiologic causation is one of the more difficult tasks we face. If we waited for knock-down drag-out proof that a given exposure caused a given health problem, we would barely implement any public health policies at all. These facts are encapsulated in what is known as the precautionary principle, which basically means that when we have a serious public health risk, we intentionally relax our evidentiary standards and intervene to ameliorate the risk substantially.
If the manufacture of doubt sounds familiar to you, it should — it has been used most vigorously and most effectively by the tobacco industry. David Michaels, an epidemiologist and twice-appointed executive official, actually entitled a book on the subject, taken from a memo written by a tobacco company official: Doubt Is Our Product.
A few more additional points. First, although this blog is devoted to the NFL concussion litigation, I want to insist that what we are dealing with is a bona fide population health problem. This is not simply a private employment dispute (although it is that). Literally millions of children and adolescents play American football, and it is undisputed that developing brain are at higher risk of mTBI and of more severe sequelae as a result of those concussions. Football-induced mTBI is a major public health problem. (And TBI in general is distributed highly unequally along lines of class and race, a point I develop in the article).
Second, information is enormously powerful in context of public health. If the information the tobacco industry possessed regarding the true dangers of tobacco consumption had been widespread public knowledge in the 1950s, 1960s, and 1970s, it is difficult to contest that many hundreds of thousands of lives could have been saved (a number that represents only a fraction of the active smokers during this time).
So if we have a major public health problem, and if the regulated industry in question possesses information valuable to informing public discourse on how the risk of its product should be evaluated and managed, it dramatically undermines effective public health leadership for the industry to keep that information private. (We all know why industries involved in mass-tort litigation do so – but this is an ethical claim, that they ought not do so).
Finally, this last point leads me to the current posture of the litigation. Most of the commentary on the NFL concussion litigation focuses on the potential dollar amount of the payout, either as judgment or settlement. If I am advising the NFL – and I am most certainly NOT – I am less concerned about this amount. The NFL basically prints its own money. Even a mammoth settlement or judgment is unlikely to derail the finances to the point that the entire endeavor itself becomes questionable (which did happen in the case of the asbestos industry). Although this is beyond my area of expertise, my understanding is that true valuation experts tend to think that the goodwill a company possesses is literally its highest-value item. It is all about the brand, as they say.
And I cannot for the life of me understand how the NFL is willing to go through the discovery process, which would be likely to result in millions of pages of documents becoming public record. This process has done far more to tarnish the public image of the tobacco industry than any settlement ever could. So I have trouble seeing why the NFL would be willing to risk the public disclosure of its knowledge and conduct regarding the risks its workers faced of brain injury.
So … that’s it for now. If Paul is kind enough to permit me, I may offer another blog post or two in the upcoming weeks, especially as I have begun to write yet another paper on this subject. But I’d like to hear from y’all. What do you think?
The NFLPA announced that Ben Utecht won his injury grievance against the Cincinnati Bengals. The arbitrator ruled that Utecht was returned to play too soon after suffering a concussion.
The language used by the arbitrator is intriguing. According to the NFLPA, the arbitrator held that Utecht “had not been sufficiently tested, both in his aerobic and strength reconditioning program, nor had he been tested in sport specific activities which would be a more accurate means of determining whether the damage caused by the concussion had ‘cleared.’”
Though I’m not privy to the facts, I wonder if the “testing” included ImPACT. Could there have been a false positive that caused the team to allow Utecht to return too soon? Based on the ruling, it appears that the medical staff failed to ensure that Utecht was fully asymptomatic.
It’s disheartening that a staff of medically-trained professionals would overlook and/or disregard certain tests that are so fundamental to a proper return-to-play evaluation.
Despite the loss, the NFL quickly seized upon the ruling to make a statement that the NFL Concussion Litigation should be decided by an arbitrator as opposed to a jury.
“The decision demonstrates that our collective bargaining agreements provide players with comprehensive remedies for football-related injuries, including injuries related to concussions,” NFL spokesman Greg Aiello said in a statement to Pro Football Talk.
I think the ruling is probably a win for both sides, although it tips more in favor of the players.
The grievance procedure – which was collectively bargained for – worked well in Utecht’s case, and it looks like a fair result was reached.
It could set a player-friendly precedent for future concussion-injury grievances. Any player that is released may now try to point to a prior concussion and argue that he was “returned to play too soon” or his concussion was “mistreated.” Of course, there will have to be some type of causal connection, but it at least creates a colorable argument.
This, in turn, will require teams–if they aren’t already doing so–to meticulously document any concussion, the players’ concussion history and his various treatments. Which, in the long run, will hopefully increase the health and safety of the players.
The NFL will use this case in future civil litigation to argue that the CBA and its grievance procedures are perfectly suited to handle concussion issues, and therefore the court should dismiss the claims for failing to exhaust the grievance procedures.
This may carry some weight for mere negligence claims, but allegations of gross negligence, fraud and/or concealment (i.e. the NFL Concussion Litigation) should overcome the preemption/arbitration argument.
Notwithstanding the arbitrator’s decision in Utecht’s case, the Bengals’ medical staff and the NFL do not deserve a free pass.
The wrongful conduct occurred in 2009, at a time in which the NFL was still not taking concussions seriously.
Indeed, the “standard of practice” applied in Utecht’s case was endorsed by the Mild Traumatic Brain Injury Committee.
Specifically, two conclusion made by the MTBI Committee may have been applied in Utecht’s case:
Returning to play after a concussion “does not involve significant risk of a second injury either in the same game or during the season.”
“Many NFL players can be safely allowed to return to play on the day of injury” and that “the current decision making of NFL team physicians seems appropriate for return to the game after a concussion.”
This same “current decision making of NFL team physicians” was ruled to, arguably, fall below the standard of care.
The arbitrator rejected the team’s contention that a less rigorous testing procedure-which was endorsed by the MTBI Committee-should have been applied.
Taking a logical leap, the arbitrator effectively discredited the MTBI Committee’s conclusions and team decision making.
The plaintiffs’ lawyers would be wise to point to Utecht’s case as yet another example of the NFL failing to protect the players – placing its business interests above the players’ health and safety. It also sheds light on why players are so reluctant to place their medical decisions in the hands of team physicians.
Whose interests are they looking out for? Apparently not the players.
In any event, hats off to Utecht and the NFLPA for vindicating a player’s rights.
In a hail-mary-like play, Judge Brody Ordered the players and the NFL to engage in mediation to determine IF a resolution is possible.
Though a resolution is unlikely – at this early stage of the game – this Order signals a few things.
First, instead of ruling on the NFL’s Motion to Dismiss on July 22, as previously scheduled, Judge Brody decided to hold off.
I think she knows, and she wants the parties to be aware, that both sides are vulnerable. Now is the time to stop the train before it begins its tumultuous path to protracted years of litigation. More deaths. More pain. More suffering. More money expended on legal fees.
This, in turn, implies that her forthcoming ruling is NOT going to be in favor of the NFL. It indicates that Judge Brody is going to DENY the NFL’s Motion to Dismiss — at least in part, if not in full.
Second, Judge Brody is giving the NFL a wake-up call before things get heated. I think she believes the players’ claims have merit — even beyond a motion to dismiss.
Step VIII in the Ten Steps to Better Case Management: A Guide for MDL Transferee Judges states, “[a]s soon as you are satisfied that plaintiffs’ claims have at least some arguable merit,” suggest mediation.
Well, Judge Brody—the transferee judge—did just that. She is satisfied the players’ claims have merit.
Merit does not equate to SUCCESS, yet.
It does, however, give the plaintiffs’ a key to the NFL’s potential dirty laundry. DISCOVERY is on the horizon if a resolution is not found.
Either the NFL can keep its dark secrets sealed, or it can roll the dice and push forward with discovery. The plaintiffs’ lawyers’ leverage increases as they inch toward a jury trial(s).
Third, mediation is not binding. Both sides go into mediation with their own agendas and inflated egos.
It’s an early opportunity for the parties to size each other up.
The players will have a dollar figure in mind, likely north of $8 BILLION. And, the NFL will also have a resolution in mind: another charitable trust.
Whether actual dollars are discussed and proposals exchanged during the course of the next two months will be up to the Honorable Layn Phillips.
But, if the past NFL lockouts–with the players and the referees–were any indication as to how the owners do business, I wouldn’t hold your breadth that a resolution is near.
The NFL still has an arsenal of defenses, even if discovery proceeds. There is a chance the NFL could cut the entire plaintiffs’ pool (i.e. 5,000+) in half with various defenses and motions.
The owners are asking themselves, “Why concede defeat now when we could contain cost later?”
Umm, because the NFL is image conscious and it is taking a severe beating in the court of public opinion. Because “later” could also mean multiple HUGE verdicts if these cases ever see a jury. Because football is at a “crossroads” and the NFL needs to regain control of the dialogue.
The owners could still come out of this battle unscathed–other than a few billion lost–if it never admits and/or is forced to disclose exactly what it knew and when it knew it about brain injuries. But the clock is ticking.
This leads me to my final point.
Judge Brody threw the NFL an early bone. The ball is now in the NFL’s court.
Either they can acquiesce to the players’ demands and put the NFL Concussion Litigation in the early historical chronicles of major sports litigation.
Or, dismiss the plaintiffs’ demands and “awaken a sleeping giant.”
Here’s to a resolution.
Guest Post: The ‘Anti-Concussion’ Helmet: Questionable Claims of Injury Mitigation and Obstructive Fears of Litigation
The risk of injury has made football a controversial sport since its inception. Detractors have consistently denounced the sport as one of the most dangerous and even barbarous national undertakings, dangerous to everyone who participates, from the kids playing Pee-Wee to NFL power-hitters. Fans largely accept that danger as a necessary, perhaps overstated and forgivable feature of a beloved pastime. Even among those fans, though, it would be hard to find someone unfamiliar with at least one high profile impact injury- Joe Theismann’s badly broken leg or the devastating spinal cord injuries that ended the careers of Reggie Brown, Michael Irvin, Kevin Everett, Mike Utley and Darryl Stingley, the last two suffering life-long paralysis.
More recently, the greatest measure of public attention to NFL injuries has been drawn by the high profile rash of suicides among ex-NFL players in the past few years, including Andre Waters, Jovan Belcher, Kurt Crain, Dave Duerson, Ray Easterling, OJ Murdock and Junior Seau. (Not to mention suicides by players not in the majors, like University of Pennsylvania star Owen Thomas.) Several, if not all, of the pro ball player suicides were diagnosed postmortem with chronic traumatic encephalopathy (CTE)- a terrible degenerative disease. (Because of brain trauma’s invisibility, CTE can only be diagnosed during an autopsy.)
CTE is triggered by repeated brain trauma and is responsible for a sad litany of symptoms that include depression and anxiety, confusion, intense headaches, sexual dysfunction, dementia, aggression, vision problems and light sensitivity, a host of cognitive deficits including memory loss and learning impairment, motor skill degeneration, suicidal ideation and quite possibly more we’re not yet aware of. Small doubt those symptoms explain why the prevalence of suicide by professional football players is now six times the national average.
A growing number of scientists, analysts and specialist claim that deficient helmets and a similarly deficient, decades-old certification standard system for those helmets are largely responsible for the unacceptable flood of concussive brain injuries NFL players repeatedly suffer. The group responsible for helmet certification is the National Operating Committee on Standards for Athletic Equipment (NOCSAE) and their certification process hasn’t changed in 40 years. Said process involves dropping a helmet against an anvil from five feet up to measure its effectiveness against “linear acceleration”- a straight hit.
Unfortunately, the current research suggests that most concussions and other brain injuries which contribute to permanent damage are more the result of “rotational acceleration”- a sort of brain-twisting that strains and breaks nerve cells and their axons. Current helmets are designed to withstand linear acceleration so they’re good at protecting the skull from fractures and to some degree lessening the jarring of the brain inside the skull. In 2002, helmet manufacturing giant Riddell released the “Revolution” helmet. It was touted as just that- a revolution in helmet tech and safety, fitted with more padding, etc. A study (funded by Riddell), even suggested that the Revolution reduced concussion risk by 2.3 percent.
The concussion statistics, however, remain static. Still, virtually all of the advances in football helmet “anti-concussion” technology are variations on the current helmet-protection philosophy- more padding in more places means less concussions. Of course, that doesn’t seem to be the case. Until rotational acceleration can be significantly reduced, concussions and the resultant brain damage won’t be either.
One of the most promising advances in anti-concussion technology comes from Sweden with the Multidirectional Impact Protection System (MIPS) designed by Royal Institute of Technology scientist Peter Halldin. (MIPS is also the name of the company founded to produce MIPS-enhanced helmets.) Halldin’s MIPS works, in broad strokes, by providing a sort of helmet-within-a-helmet that allows the head some “float” when impacted. That in-helmet leeway distributes the force of a collision before the hit rattles the brain around. On paper the MIPS system has worked well- it more than halved the rotational acceleration damage an un-MIPS-protected brain would suffer.
The technology has been adopted by a number of professional athletes, including some pro skiers. When MIPS representatives pitched their system to NFL (and NHL) helmet manufacturers, however, they were shocked to be greeted by leery looks and the sound of crickets. The big helmet producers, like Riddell, were apparently worried that accepting a seeming leap forward in concussion tech like the MIPS would be an admission that their current and past products are and were deficient. As Riddell was recently stung by a $3.1 million dollar suit a high school player filed after being paralyzed, the admission of helmet negligence, they fear, could open a floodgate of pro-baller suits. So there is a chance that football helmets less than half as effective at reducing brain injury than those enhanced by the MIPS are being kept in play because the latter may prove safer.
Even the MIPS best-case scenario, though, is no TBI or CTE panacea. One of the most frightening features of this conundrum is that smaller, “subconcussive” hits can incrementally contribute to the eventual development of CTE. So even jarring tackles that a player with a MIPS helmet takes, those doing a less profound amount of brain damage than concussive hits, can cumulatively lead to CTE without a single concussion ever being sustained.
The troubling conclusion is: it’s hard to imagine any helmet really effectively mitigating the brain-health risk posed by a 280-pound athlete slamming into someone as hard as he can. As some level of TBI seems like a football inevitability, we’re going to have to decide as a society how willing we are to accept the reality of players with brain injury.
Vincent Imhoff is a writer and Los Angeles criminal lawyer who acts as a managing partner at Imhoff & Associates, P.C. He earned his law degree at Chicago-Kent College and his undergraduate degree at Lewis University. When he isn’t writing or practicing, Vincent finds time to ski on his favorite slopes and get some jogging in.
It was just a matter of time before the NHL was facing a flock of lawsuits relating to concussions. As predicted, on Friday, the family of the late Derek Boogaard filed an explosive wrongful death lawsuit against the league alleging that the NHL failed in multiple respects.
Boogaard’s lawsuit, which was obtained by NFLConcussionLitigation.com, can be summed up in a few words: painkillers, alleged gross negligence, concussions, CTE, fighting and Toradol. A wicked combination that led to the demise of a powerful enforcer.
His lawsuit could be the impetus that forever bans fighting from the NHL, and all of hockey. His lawyers say as much, “This League needs to adapt and change so that a preventable tragedy like this never happens again.”
Although Boogaard’s case is unique, in that he was obviously overprescribed with drugs (i.e. 190 pills within a 16 day period), his lawsuit could open the floodgates to the start of the NHL Concussion Litigation.
In framing the allegations, Boogaard’s lawyer not only alleges that the NHL failed to warn Boogaard of the consequence of playing through concussions, but he also alleges the NHL failed to warn all NHL players.
Just like the NFL Concussion Litigation, other lawyers may start recruiting former NHL enforcers to take on the league. Only time will tell if this is the start of something much bigger, or if it is an isolated lawsuit limited to its tragic facts.
The initial roadmap of Boogaard’s lawsuit will follow the legal trajectory of the NFL Concussion Litigation.
First, the NHL will remove Boogaard’s lawsuit to federal court. Currently, his lawsuit is pending in Cook County, Illinois. Within 30 days the NHL will file a Notice of Removal and argue that the federal court has jurisdiction under Section 301 of the Labor Management Relations Act.
Boogaard’s lawsuit will then be removed to the federal district court in Chicago.
Second, Boogaard’s lawyer will file a Motion to Remand seeking to send the case back to Cook County.
Like the NFL, the NHL will argue that this is fundamentally a labor dispute that must be decided by an arbitrator pursuant to the grievance procedures in the CBA, as opposed to a future jury.
Third, the NHL will borrow a play out of the NFL’s playbook and argue that Boogaard’s lawsuit must be dismissed because the CBA and federal labor law preempt his claims.
Anticipating this argument, Boogaard’s lawyer asserts that the 2005 CBA “does not address the NHL’s duties to its players to monitor their general health.” In other words, like the former players in the NFL Concussion Litigation, a judge will not be required to interpret various provisions of the CBA.
Fourth, a federal judge in Chicago will be tasked with deciding whether Boogaard’s claims are preempted by the CBA, or if his case can return to Cook County for the discovery process and an eventual trial.
This will be a close call. Judge Brody’s soon-to-be-published decision may provide persuasive precedent to allow or disallow Boogaard’s lawsuit to remain in court.
Of course, the NHL will vigorously oppose any attempt at early discovery and will also forcefully seek to slam the courtroom door shut on Boogaard’s claims, and any future lawsuits by former NHL players.
If Boogaard’s lawyer defeats the NHL’s preemption argument, his case will eventually be teed up for trial to take place in Cook County in approximately 1.5-3 years.
If there ever were an ideal test case to determine whether the NHL had a duty to warn players about the long-term risks of concussions, Boogaard’s case certainly provides that avenue.
Though Boogaard’s family will face several legal hurdles, even if he gets past the preemption argument, his case could change hockey forever.
The following is a guest post from Dawn Neufeld, Esq. Over the past month, she has tirelessly worked to defeat the bill. Here’s her eloquent argument against the passage of AB 1309.
I felt like I got the wind knocked out of me today. Straight sucker punched in a brawl I didn’t know I was involved in until a little over a month ago. An early morning email informed me that California assembly bill 1309 was going before the assembly today for a vote. After watching the bill unanimously pass out of the insurance committee last week, I figured it would easily pass out of the assembly today with little fanfare or opposition. It did. And I feel sick.
AB 1309 will effectively exclude professional athletes from filing workman’s comp claims in the state of California. If passed, it will retroactively wipe out pending claims as well, some that have been in the pipeline for 4-5 years. There are approximately 1,000 pending workman’s comp claims in the state that would be precluded if the bill passes, including Ryan’s which was filed almost 2.5 years ago. We were completely unaware of the bill until we received a status update from Ryan’s attorney a little while back. That’s when I started researching the bill, unaware that it was being fast-tracked through the state assembly. The bill is on its way to the senate for consideration – no doubt it will be fast-tracked there as well.
So what is AB 1309? AB 1309 was authored by Insurance Committee Chairman Perea to address abuse of California’s ultra-lenient workman’s comp system. As is, the system lends itself to abuse by allowing former professional athletes to file claims in CA even if their contacts with the state are minimal. I’ll be the first to admit that I appreciate the need to “fix” the system. I’ve heard stories of lawyers hunting down and recruiting former players to file claims. During the insurance committee hearing, Assemblywoman Torres noted that an insurance company’s statistics showed that claims paid out to approximately 2% of claimants involved former athletes whose only contact with California was their agents. They had never played for a California team, played a game in California, or even lived in California. But because of the system’s set up, they were somehow able to file a successful claim. I don’t think anyone would argue that this is fair except for those athletes and their lawyers.
So to close the “loopholes” and prohibit athletes from “taking advantage” of the system, AB 1309 was introduced. The original version of the bill would preclude a claim if the athlete played on another pro-team in another state, regardless of how long he played in California. Players like LaDainian Tomlinson, Tim Brown or the late Junior Seau would all be precluded from filing a claim because they played on out-of-state teams even though they spent a majority of their career on a California team.
Assemblyman Perea attempted to address these concerns by amending the bill to include what I’m calling the 80-8 rule. The amendment would allow players who played 80% of their career or 8 years on a California team to file a workman’s comp claim. This may seem reasonable to some, but when looked at through the reality lens of football, it’s easy to understand why the amendment is nonsensical.
- The average NFL career is 3.5 years – there are probably a handful of players who will actually play 8 years on one team, let alone 8 years total in the NFL
- The duration of most NFL contracts are 1-4 years. These contracts are not guaranteed, and players often move from team to team after being cut or their contracts expire. It’s the well-known transient nature of the league. NFL wives often joke about starting moving companies because we do it so often we’d know what we were doing (moving expenses aren’t paid for by the way). Ryan played on 8 professional football teams over the course of his 10 year career. 8 teams. His story is not unique – it’s the norm unless you’re one of the big-name franchise players like Tony Romo or Eli Manning who might play on one or two teams their whole career. Very few NFL players will spend 8 years on one team.
So while Mr. Perea’s 80-8 amendment seems reasonable on its face, it is easy to understand that when applied in the real world of pro-football, most players (including players who spend several years playing for a California team like CB Chris Johnson) would still be excluded from filing a claim.
Another major problem with the bill is that it creates a one-year limitations period for filing a claim. Professional athletes would have ONE YEAR from the time an injury is suffered/diagnosed to file the CA claim. ONE YEAR. Again, in theory, I don’t think this sounds unreasonable. But when applied to the reality of pro-football, it’s flat out ludicrous.
Football is a very physical, full-contact sport. DUH. Players get hurt all the time. It’s a miracle if a player makes it to the end of the season without getting banged up. And if you’re a guy like Ryan who isn’t a superstar and you’re constantly at risk of being replaced, you have no choice but to get out on that field and play, regardless of what hurts and how bad. When Ryan developed plantar fasciitis in both feet one season, he wasn’t thinking, “Man, I need to file that CA workman’s comp claim.” He was thinking, “I better get my *ss on that field or I’m getting cut and I won’t be able to support my family.”
Team trainers and doctors treat players after every practice, every game. Players have offseason surgery in droves. That means there’s a diagnosis by a licensed physician and that the players have one year from that diagnosis to file their claims or recovery for that injury will be barred. Again, when considered in “real life” and not legislative fantasy land, this is ridiculous.
There are some other factors to consider when looking at the limitations period. And I’m going to keep it real right now because I think it’s hard for people outside of football to understand and appreciate how devastating this law would be for former players with legitimate claims. Ryan’s last NFL season was in 2007. He attempted to play in the UFL in 2009-2010 but was plagued by injuries and was beginning to show clear signs of cognitive impairment. But he medicated (painkillers are often times easily accessible for pro-athletes) and played through the pain. The culture of football conditions these athletes to believe that being injured is a sign of weakness. They are told they have to be tough. They lose their jobs if they complain. So they deny. And deny. And deny again that there is anything wrong. I finally had to threaten Ryan with divorce if he didn’t seek medical treatment for his issues – the constant pain and post-concussion problems were taking a heavy toll on our marriage. Only then did Ryan seek help. Even now it’s hard for him to admit the havoc football has wreaked on his body. How do you file a workman’s comp claim within a year’s time if you can’t admit you’re having problems?
Another major component of AB 1309 is the retroactive nature of the bill. Once passed, all claims that don’t meet these very stringent requirements will be extinguished. Gone. Complete. Over. That means all of the time, energy and effort expended on these cases by the players, their attorneys, medical professionals, and even the CA workman’s comp system will be wasted. If Assemblyman Perea’s goal in passing this bill is fairness (as he’s stated), then the retroactivity should be a major concern for everyone.
So here’s what we’ve established so far: AB 1309 on its face sounds reasonable, but when we factor in the reality of football and the unfairness of the retroactivity, this bill is not reasonable at all. Because I lived the football life – the constant moving around, the devastating injuries, etc. – it is easy for me to appreciate why this bill is so unfair. I can also appreciate why others are a bit quicker to pull the trigger and pass it if they have no clue what life in the big leagues is like.
Last week during the insurance committee hearing on AB 1309, Insurance Committee Vice-Chair Hagman erroneously stated that NFL players have lifetime health care coverage. That is 100% false. Know how I know? Our NFL insurance will run out at the end of August and we’ll have to find affordable coverage that will cover Ryan’s pre-existing conditions and Will’s autism (we’ll ignore all of my health issues for now – it’s too depressing for me to think about). Someone else mentioned during the hearing that pro-athletes make millions of dollars as if that should have any bearing on the right to file a workman’s comp claim. But that’s also not true. It was clear to me that these state representatives, like so many other people who hear headlines of $60 million contracts, think all pro-athletes are rolling in the dough. The average NFL player isn’t making millions of dollars. I can tell you for a fact that the guys who played in the ’70′s and ’80′s weren’t making millions. Their salaries were comparable to the salaries the state representatives considering this bill are making now. It’s admittedly a good living, but the constant fallacy of the multi-million dollar athlete taking advantage of and abusing the California system is just wrong.
With all of this misinformation spreading as justification for passing this bill, it’s important to take a step back and examine who supports AB 1309. The proponents include the major sports leagues and teams who are responsible for maintaining workman’s comp insurance – the same workman’s comp insurance that would provide former players with resources to pay for their extensive post-career healthcare costs. The NFL has recently pledged MILLIONS of dollars to concussion research in the name of player safety and has rolled out an ad campaign pledging support for former players. Yet they are aggressively pushing a law that would bar these same players they claim to care about from collecting benefits because they don’t want to pay a 1-2% increase in premium costs that “might” be imposed if AB 1309 isn’t passed. Go ahead – try to make that make sense…
I had a disturbing epiphany today. I listened to a brief radio interview with Senator Darrell Steinberg who will be considering this bill in the very near future. Here’s what I got out of his comments (and the comments of the radio broadcaster) – this bill is about stopping greedy athletes with minimal California contacts from abusing the system. Greedy athletes. Minimal states contacts. Abusing the system. I’ll tell you what – the AB 1309 proponents are getting their money’s worth out of the lobbyists they’ve hired to push this bill. Now the athletes are the bad guys. The athletes who pay taxes in the state of California, who played for California teams, who live in the state, who have family in the state, who have contributed to the workman’s comp system to the tune of about $48 million/year, are the bad guys. They are spoiled rich crybabies trying to work the system. Surely the NFL isn’t the one being greedy.
Here are some important considerations:
- The NFL is a $9 BILLION/year business. That’s “billion” with a big ol’ fat “B!” I can assure you the average “greedy” football player isn’t making billions.
- California collected roughly $171 million dollars in taxes from professional athletes last year. People may not realized that out-of-state football players are double-taxed – if they travel to California, they pay taxes in their team state AND California for the money earned for that game. The state benefits from these players coming into their state but now state reps want to pass a bill that would deny these players workman’s comp benefits. And we won’t even get into the players who did play for a California team and paid out the behind in taxes who will be precluded from filing a workman’s comp claim under AB 1309.
And you would think from the banter I’ve heard that the mere act of filing a claim guarantees benefits for the former athlete. Wrong again. These guys still have to prove their claims. They have to sit through depositions and go through EXTENSIVE medical exams to determine what injuries, if any, are covered. Why not let these guys have their day in court and allow their claims to be heard?!? One reason I’ve heard is that the system is too backlogged because of all of these claims. So the fix for that is to prohibit players from filing claims? Imagine you had a lawsuit filed in a regular court that’s been pending for a couple of years, but because of backlogged dockets, the legislature decides to wipe out 95% of the cases including yours. I bet you’d be pissed – you’d want an opportunity to prove your case and be heard.
Professional athletes are being singled out and prohibited from filing workman’s comp claims because the major leagues don’t want to incur the costs of taking care of their former athletes. Yes, there is undoubtedly abuse of the system – but for every guy taking advantage of it, there are countless athletes who have legitimate claims who will not be able to file claims. Close the loopholes, tighten the requirements for filing – but do so in a manner that doesn’t exclude everyone but a handful of athletes who defied the odds and are lucky enough to meet the bill’s conditions. I’m not asking you to have sympathy for former players – I understand that’s hard. They are “multi-millionaires” after all. But I am asking that they be treated just like any other worker in California and that they aren’t singled out and held to a higher standard than everyone else because they were lucky enough to play pro sports (only 2% of college football players will play in the NFL – talent will only get you so far).
Think about it – the state of California will gain nothing by passing this law. Taxpayers aren’t paying out of pocket for these claims. But the NFL and other leagues and teams will save money on premiums while former pro-athletes will be prohibited from filing claims and receiving benefits for their injuries. It doesn’t take a rocket scientist to figure out who truly stands to benefit from the passage of AB 1309.
The full text of the proposed bill can be viewed here.
The late Derek Boogaard tragically died of an apparent overdose on May 13, 2011.
At the time of his death, Boogaard still had three years remaining on his guaranteed contract with the New York Rangers.
After his family learned the NHLPA was not going to file a grievance on Derek’s behalf to recover the $4.8 million remaining on his contract, the family sought legal counsel elsewhere.
Instead of pursing a claim for medical malpractice against the various team doctors whom, on multiple occasions, allegedly overprescribed Boogaard with painkillers (See, John Branch’s hard-hitting reporting), the family apparently received more suspect legal advice.
On September 21, 2012, Boogaard’s family filed a lawsuit against the NHLPA and Roman Stoykewych, the associate general counsel for the NHLPA.
The lawsuit was doomed from the beginning.
The family asserted a breach of the duty of fair representation (DFR) claim against the NHLPA for allegedly failing to pursue a grievance against the Rangers.
A DFR claim is extremely difficult to win. The Boogaard family had to prove that the NHLPA and/or Stoykewych acted arbitrarily or in bad faith.
But, before you can even get to the merits of the case, a party must have filed the DFR claim within 6 months from the date “a plaintiff learns or should have learned about the union’s decision” not to pursue a grievance.
The Boogaard family waited more than 6 months – they first learned that the NHLPA was not going to pursue a grievance on December 2, 2011.
Thus, it was too late, and the NHLPA’s motion to dismiss — converted to a summary judgment motion — was granted.
Even a plea for equitable relief was unavailing.
The court, according to documents first obtained by NFLConcussionLitigation.com, stated that the Boogaard’s “quest for an attorney was lackluster at best.”
Geez, talk about rough justice — never mind the fact that the parents were likely still grieving over the death of their child. I’m sure the last thing on their mind was filing a lawsuit. Sometimes, however, the law can just be plain rough, but the judge applied the law and he got it right, although it may seem unfair.
Despite this and other allegations asserted by the Boogaard family, the court found that “no extraordinary circumstances existed” to excuse the family for not filing suit within 6 months.
Therefore, Boogaard’s lawsuit was barred by the statute of limitations and his case was dismissed with prejudice.
In other words, the NHLPA and Stoykewych won on a “technicality.” Though, it’s unlikely the Boogard family would have been successful on their DFR claim, in any event.
Although their lawsuit was dismissed, I still think they have a potential wrongful death suit against the NHL and various team doctors – assuming the New York Time’s report is true.
At only 28 years old, Boogaard, a fierce enforcer, was diagnosed with CTE.
It’s certainly conceivable the multiple fisticuffs to the head, masked by the deadly concoction of painkillers, mixed with the gross negligence of others were the contributing causes of Derek’s death.
Unfortunately, without the benefit of a meritorious lawsuit and the discovery process, we may never know whether others were, at least partially, responsible for Derek’s tragic and untimely demise.
 Though time is quickly running out. New York’s wrongful death statute of limitations is two years. In other words, it may expire on May 13, 2013.
A jury’s verdict in Colorado may end up sending shockwaves throughout the sports-manufacturing industry, and the “booming business of concussions.”
Riddell Helmets was found liable on a failure to warn claim asserted by the family of Rhett Ridolfi, according to The New York Times.
The facts are sketchy and the legal theories are a bit blurred; without the benefit of reviewing the pleadings, this is what can be gleaned from various news accounts.
In 2008, Rhett Ridolfi was participating in a “Machine Gun Drill” where he sustained a concussion. After complaining about headaches, his coaches allegedly ignored Ridolfi’s plea for help and allowed him to return to practice later that afternoon.
Ridolfi subsequently collapsed and required emergency surgery to reduce swelling and bleeding of the brain.
Ridolfi’s medical expenses were more than $3.2 million, and he now walks with a brace, is limited in body function and has impulse and behavioral problems, according to Trinidad News.
After a nine-and-a-half day trial, the jury awarded $11.5 million in damages, which Riddell is responsible for $3.1 million.
It’s unclear if the other defendants – Trinidad High School and coaches – are on the hook for the remaining portion of damages.
Ridolfi’s attorney claimed that the re-furbished helmet was defective — pointing to the padding on the front of the helmet –, and also that Riddell failed to inform Ridolfi about the risk of concussion.
Riddell recently defeated a similar product defect case, so it was probably confident it could do the same here.
The jury, indeed, rejected the manufacturing/design-defect claim, but it found the failure to warn claim compelling – it’s unclear if a negligence or strict liability theory, or both, were asserted.
In order to succeed on a failure to warn claim, a plaintiff has to convince the jury, among other things, that the product was unreasonably dangerous because of (1) a lack of a warning or (2) the warning was deficient.
The determinative issue is whether “the information accompanying the product effectively communicates to the consumer or user the dangers that inhere in the product during normal use and the dangerous consequences that can or will result from misuse or abnormal use of the product.” See, American Law of Products Liability.
Although Riddell has had a warning label on its helmets since 2002, this warning apparently was insufficient.
The jury found that Riddell failed to warn Ridolfi about the risk of concussion.
This is a reasonable conclusion, since the majority of the public likely believes that a helmet can prevent concussions. Without an explicit warning — like the one currently used by Riddell — consumers are likely led to believe that the helmet has the ability to prevent or reduce concussions.
At the time of the accident, Riddell did not have its new warning label on the helmet, which explicitly states:
“Contact in football may result in CONCUSSION-BRAIN INJURY which no helmet can prevent…Do not return to a game or practice until all symptoms are gone.”
Darren Heitner has analyzed the impact of this new warning label, and whether it can be used to prove fault on behalf of the defendant. As a general rule, subsequent remedial measures are not admissible to prove a need for a better warning. See Rule 407 of the Federal Rules of Evidence.
In any event, the jury found that Riddell failed to adequately warn Ridolfi that the helmet couldn’t prevent concussion-brain injury, and perhaps that a player should not return to a game or practice until he is asymptomatic.
Although this verdict appears to be an anomaly, it could indicate that juries are placing more responsibility on manufacturers to explicitly warn about the limitations of helmets. In addition, judges may be more willing to allow a jury to decide whether a warning would be heeded, as opposed to deciding the case summarily on the papers.
The verdict will be appealed, and you can guarantee a handful of helmet manufacturers and probably the Chamber of Commerce will file amicus briefs in support of overturning the verdict.
Riddell’s spokesman told The New York Times, “We are confident that the jury would have reached a different conclusion had the Court not erroneously excluded the testimony of our warnings expert.
“We intend to appeal this verdict, and we remain steadfast in our belief that Riddell designs and manufactures the most protective football headgear for the athlete.”
Although Riddell has faired pretty well in cases involving helmet defects and failure to warn claims, (But see, Korey Stringer – failure to warn claim relating to heat strokes.) this case could set a costly precedent for helmet manufacturers and snake-oil peddlers.
According to The New York Times, a similar case is set for trial in Los Angeles. If Riddell is blindsided by another verdict, it could spell trouble for Riddell in the NFL Concussion Litigation and beyond.