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.
FACTS:
- 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[1] 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.
[1] 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.
Exclusive Contribution by Eric M. Sable, Esq.
Yesterday, after approximately a year and a half since the earliest federal lawsuit was filed, the first live court action in the NFL Concussion Litigation kicked off in Philadelphia. Judge Brody of the U.S. District Court for the Eastern District of Pennsylvania held oral arguments regarding the NFL’s motion to dismiss the tort claims of roughly 4,000 former players. (For background reading on preemption, click here.) Let’s examine yesterday’s events:
All Star Cast
Yesterday’s oral arguments featured two legal heavyweights. Paul Clement, a former U.S. Solicitor General, argued on behalf of the NFL. David Frederick, a former Assistant Solicitor General and law clerk to Justice Byron White, represented the former players. Both have argued countless cases before the U.S. Supreme Court and are universally regarded as two of the nation’s preeminent appellate orators. As a result, the routine district court hearing definitely had a high-stakes feel to it.
Despite the professional legal talent, Judge Brody did her best to cultivate a laid-back environment, joking with the attorneys at the outset of the hearing that they should feel free to remove their ties and jackets due to the heat. Frederick obliged; Clement did not.
Framing the Issues and the Kline Doctrine
According to Frederick, during its existence the NFL had assumed the role of “guarantor of player safety” by enacting rules and equipment standards. Contrary to its role as steward of the sport of football, the players criticize the league for publicly monetizing and glorifying violence in its NFL Films productions.
Clement preferred to classify this case as one about workplace safety in an industry where conditions were subject to collective bargaining. Clement also countered the accusations of the NFL monetizing violence by emphasizing that the players union receives a portion of the profits from NFL Films.
However, the majority of the discussion yesterday focused on binding precedent from the Court of Appeals for the Third Circuit — Kline v. Security Guards, Inc., 386 F.3d 246 (3d Cir. 2004).
In Kline, unionized employees brought a lawsuit against their employer for using video and audio surveillance equipment to illegally record them. The employer argued that the employees’ state law claims were preempted due to the collective bargaining agreement. However, the court found that the dispositive question was whether the claims required any interpretation of the collective bargaining agreement (“CBA”), and in this case it concluded that because the employer did not cite to any specific provisions requiring interpretation, resolution of the employees’ state claims were not dependent upon analysis of the CBA. Thus, complete preemption was unwarranted.
Similar to Kline, the retired players argue that the NFL’s duty to its players – and failure to achieve that duty – is not specifically described in the CBA. Rather, it arises in the context of the NFL acting as the “superintendent” for the sport of football, and being in the unique position of having access to information on the neurological risks of concussions. According to Frederick, the NFL breached its duty to the players when it concealed this information, failed to warn its players, spread misinformation, and set up a “sham” Mild Traumatic Brain Injury Committee in 1994.
The NFL attempts to distinguish Kline by arguing that here it is impossible to determine the scope of the NFL’s duty (as well as the union’s, the NFL member clubs’, or its players’ duties) without interpreting the CBA. Whereas the subject of the dispute in Kline was not mentioned in the CBA, in this case the CBA features health and safety provisions. Here, the NFL asserts that “the CBAs, in comprehensively assigning roles and responsibilities for regulating player safety, create a scheme in which the duties of any single actor, including the NFL, can be defined only by assessing the overall allocation of duties.”
Judge Brody, however, interjected by asking whether the CBA was specific enough to cover the players’ claims. While Clement preferred to speak in broader terms, he did mention return-to-play rules and certain notification mechanisms specified in the CBA as provisions that require interpretation in determining the scope of the NFL’s duty to its players. Clement also mentioned several times that the CBA allocates the responsibility of player health and safety to the individual member clubs and argued the players cannot just sidestep the preemption issue by reaching over the clubs to the sue the league.
Gap Years
Judge Brody was also particularly interested in hearing about the NFL’s position on those who played during the periods where no CBA existed — i.e., pre-1968 and 1987-1993 players. Without a CBA the argument for preemption becomes weaker.
While Clement acknowledged that this is a difficult issue for the NFL, he stressed a “fundamental difference” between those players who played solely during the gap years, and other players, like the late Dave Duerson, who were in the league before, during, or after these gap years. Clement also asserted that those players still receive benefits under the most recent CBA. Meanwhile, Frederick emphasized the fact that these gratuitous remedies are offered to the players do not divest them of a duty owed.
Outlook
From my time spent working in three different courts, I learned that it is futile to forecast a ruling based upon judge’s questioning at oral argument. Nevertheless, the players must be feeling confident considering the amount of focus on Kline.
While there are many ways in which Judge Brody can rule, one thing is certain: she will take her time crafting a careful, reasoned decision. Perhaps we will see some segment of the case — the fraud claims and the “gap” players — survive preemption.
And let’s not forget about the NFLPA, who thus far have escaped culpability. When asked multiple times about the NFL’s responsibilities for player safety, Clement strategically put it in the context of a shared role with the players, the NFLPA, and the NFL member clubs. Reading between the lines, if this case gets past the motion to dismiss stage, expect the NFLPA to be impleaded.
Judge Brody concluded the hearing by stating that she “will rule when I sort these things out for myself.” There certainly are many issues at play and the motion to dismiss hinges on her interpretation of the preemption doctrine as enumerated in Kline and the line of cases coming before it. While a ruling is not expected for several months, the entire trajectory of this case — and potentially billions of dollars — hangs in the balance.
The views expressed in this article are solely attributable to the author. Eric M. Sable, Esq. is admitted to practice law in Pennsylvania and New Jersey. He is in the process of establishing his law practice. In May 2012, he graduated with magna cum laude honors from Widener University School of Law in Wilmington, Delaware. While at Widener, Eric served as the Editor-in-Chief of the Delaware Journal of Corporate Law and clerked for Justice Henry duPont Ridgely at the Delaware Supreme Court. Follow him on twitter @EricSable.
The mudslinging begins. A report by ESPN attempted to create a controversy where, really, none exists.
The headline grabber: “Researchers Consulted with Law Firms.”
The premise: Dr. Cantu and Chris Nowinski – co-directors of the Center for the Study of Chronic Traumatic Encephalopathy (CTE) – consulted with an army of plaintiffs’ lawyers. The same lawyers that are suing the NFL.
Well, duh.
That’s what lawyers do – they consult with experts. Much of the former players’ case involves the NFL’s alleged concealment about the risk of brain damage. And, for years, allegedly denying the findings of Dr. Bennet Omalu and Boston University.
So, of course, the plaintiffs’ lawyers would seek the advice of experts — from the experts that spend all of their time studying and writing peer-reviewed studies on CTE.
A significant portion of the medical community led by the NFL believes their findings are overblown and, perhaps, biased.
Thus, the NFL has felt compelled to calm the “fears” of CTE.
Dr. Mitchel S. Berger, a member of the NFL Head, Neck and Spine Committee told ESPN, “The BU Group, their whole existence — their funding — relies on perpetuating that it’s a fact if you play football you’re going to have some form of cognitive impairment….So it’s very, very difficult to accept it because it is so biased.”
Dr. Cantu aptly responded, “Mitch Berger, with all due respect, is full of s—. No, not with respect.”
In my opinion, the take away of this report is simply this: The battle of the experts is beginning to play out in the court of public opinion.
This is generally left for the courtroom, but it appears the NFL is ready to start litigating this issue in the media.
Although this report is factually accurate, and indeed newsworthy, the hysteria it has created is unfounded.
I see nothing wrong with Nowinski or Cantu consulting with the plaintiffs’ lawyers. This “conflict” should not, in any way, cast a dark cloud on the important research BU is doing.
Except for a few blanket talking points, the NFL and their lawyers have refrained from talking about the merits of the concussions lawsuits. But, lately, the NFL and their lawyers have flashed their hand.
A few weeks ago, NFL spokesman, Brian McCarthy, strayed from his usual script and shot a few holes in the players attempt at seeking class certification.
McCarthy told The Wall Street Journal, “These claims—like personal injury claims generally—cannot be decided on a class-wide basis because they turn on individual issues such as each player’s medical condition and injury history.”
On that point I’d have to agree.
The players will have a very difficult time certifying a class action because concussion and neurological injuries are inherently individualized, and each player has had various amounts of exposure. The conduct of the NFL has also changed or “evolved” overtime.
The NFL’s white-shoed lawyer, Brad Karp, also recently weighed in on the science by taking a swing at the players’ claims when it comes to the issue of causation.
Karp explained to the DC Bar, “as extensively detailed in the evolving medical and scientific literature, the causes of cognitive impairment and other brain–related issues are not known.”
“Cognitive impairment may result from a wide range of potential causes—ranging from injuries to the developing brain sustained in childhood or adolescence, to genetics, to drug or substance abuse, to aging, to high blood pressure, or to myriad other factors.”
Of course, the plaintiffs’ lawyers countered by saying that they will be able to prove causation at trial.
The contrasting views highlight the forthcoming battle of the experts. It will take medical and causation experts to persuade the jury that the NFL’s conduct, in fact, caused or contributed to the players’ damage.
These recent public comments — by agents of the NFL — may indicate that the NFL and their lawyers are revving up the rhetoric in case Judge Brody denies the motion to dismiss. Maybe it’s a calculated PR move – by noting that a settlement is NOT in sight, and the players’ claims are weaker than they appear.
The image-conscious NFL has taken a beating in the court of public opinion. Perhaps, it is time for them to start taking shots at folks like Pat White.
In any event, before we even get to the merits, the issue of preemption and whether the players’ claims belong in court will have to take center stage on April 9th in Philadelphia.
On Saturday April 4th, the University of Miami will host its 16th Annual Entrainment & Sports Law Symposium.
I’m honored to be a panelist on “Safety First?! The Legal Implications of Concussions in Professional Sports.”
Where: Adrienne Arsht Cent for the Performing Arts; 1300 Biscayne Boulevard, Miami, Florida 33132
8:15 AM – 9 AM Registration and Breakfast
9 AM – 9:10 AM Opening Remarks, Shelby Nathan, ESLS President
9:10 AM – 10:10 AM Panel 1: Recent Developments in the Legal Landscape of Music
10:25 AM – 11:25 AM Panel 2: Media and the Law: Blockbuster Trials, Legal Commentary & The Court of Public Opinion
11:25 AM – 12:25 PM Panel 3: Behind the Scenes & Behind the Deal: The Art of Orchestrating Live Entertainment
1:30 PM – 2:30 PM Panel 4: Safety First?! The Legal Implications of Concussions In Professional Sports
2:45 – 4:00 PM Panel 5: NCAA Amateurism: Compliance and the Evolution Of the Collegiate Athletic Department
University of Connecticut School of Law – Arts, Entertainment & Sports Law Society presents: A Panel Examining The Legal Implications of the NFL Concussion Lawsuits & The Future of Football.
THURSDAY, MARCH 28, 2013 READING ROOM, WILLIAM F. STARR HALL, 12:15 PM – 2:15 PM UNIVERSITY OF CONNECTICUT SCHOOL OF LAW 55 ELIZABETH STREET, HARTFORD, CONNECTICUT
Moderator: Lewis Kurlantzick, Professor of Law, University of Connecticut School of Law
Panelists:
Daniel B. Fitzgerald ’05
Attorney, Brody Wilkinson PC
Professor of Sports Law, Quinnipiac Law School
Founder & Publisher, Connecticut Sports Law
Robert J. Romano
Attorney
President, Romano Sports & Entertainment Agency
Professor of Sports Law, St. John’s University, Quinnipiac Law School & University of New Haven
Paul D. Anderson
Attorney, The Klamann Law Firm
Founder & Publisher, NFLConcussionLitigation.com
Flyer: UConn Concussion Panel
By Brittany Beaumont
It takes less than ten minutes to reach pages eleven and twelve of Concussions and our Kids where just four convincing paragraphs serve as a wakeup call for any parent who has a child participating in youth sports. Written by Robert Cantu, M.D. and Mark Hyman (2012), this book presents solid documentation that concussions (especially multiple concussions or head injuries/trauma) should be taken seriously by parents and coaches alike. However, it appears the words from these esteemed authors are still falling on deaf ears. Not enough has been written to convince those, especially parents of aspiring young football players that it is time for the nation to wake up and demand that those in charge of full contact youth sports be held accountable for their lack of action (or reaction as the case may be) whenever a child is involved in a head injury. Time has run out for local, state, and national organizations who are responsible for promoting youth sports in America to enact simple regulations that will prevent many, if not the majority, of concussions that occur each spring and fall particularly in youth football. It is time for parents to put the safety and long term health of children ages five to fourteen as a priority and demand changes for youth football.
In an article by James Swift (2012), Is the Gridiron Too Dangerous For Children? Experts Address Youth Football Safety, he includes the following, “While the National Football League (NFL) has made several sweeping changes to its player safety regulations over the last decade, Dr. Cantu said those standards aren’t being replicated in youth football” (Swift, 2012). In fact, the NFL’s Commissioner, Roger Goodell, in his recent state of the NFL annual address in New Orleans prior to Super Bowl XLVII, commented on remarks made by President Barack Obama who indicated he would not allow his own children to play youth football if he had sons (The Miami Herald, 2013). Goodell noted that, “he welcomed recent comments by President Barack Obama about football safety, and said there are constant improvements constantly in treating head injuries. He said the game can be made safer while making football better” (The Miami Herald, 2013). Goodell “welcomes” the statements; but what has he done to help promote change for those youth football players that may one day ascend to the professional level? Can we assume the ratio of those innocent young athletes who start out at age four or five that actually make it to the professional level is so miniscule that it is not an important topic on his agenda? Perhaps that is the reason for his lack of reaction to even our President’s obvious concern. But surely there is someone in the rich and powerful NFL who can see the need to take advantage of the resources that organization has to reach out to almost anyone with an interest in football – especially those naïve and uninformed parents of young football hopefuls?
Take for example the shot after shot during the coverage of Super Bowl XLVII of Goodell sitting with the young nine year old girl who acclaimed national attention when her video was uploaded to YouTube playing football against nine-year-old boys in a pee-wee football league. Evidently she must have made those other nine-year-old boys looks pretty bad as she has been called a “football phenomenon” (Carson, 2013). Goodell has treated her to a few other NFL games this season touting her as an inspiration for girls to play football. Imagine the coverage he could amass if he had also entertained a young football player of about ten years old who had been the victim of multiple head injuries? What a warning statement that could have made at this week’s Super Bowl – especially if the announcers chimed in with words of warning to parents to watch for signs of concussions.
But instead of relying on announcers and Goodell to be held accountable for the lack of regulations in pee-wee and youth football leagues across the country, parents may ultimately be the ones who have to signal change.
And here are the reasons why: (1) According to the Mayo Clinic, “Your brain has the consistency of gelatin. It’s cushioned from everyday jolts and bumps by the cerebrospinal fluid that it floats in, inside your skull. A violent blow to your head and neck or upper body can cause your brain to slide back and forth forcefully against the inner wall of your skull” (Mayo Clinic Staff, 2011). Not to oversimplify this definition but a parent can relate to gelatin, right? (2) According to Cantu and Hyman (2012), “Concussions also trigger a complicated chain of chemical and metabolic reactions, which are known as the neurometabolilc cascade of concussion. This process confuses the brain, throwing off its ability to regulate, to transmit signals, and to send messages that control how we think and what we remember” (p. 6). After a concussion, regardless of the severity, a parent needs to watch for those symptoms notifying teachers as well.
In my home state of Georgia, an end of course test is required in all grade levels and if a student does not pass in grades 3, 5 and 8 s/he is not allowed to move to the next grade level even if he has maintained an “A” average all year. With high stakes testing, parents need the knowledge to understand the importance of notifying educators if his child has suffered any type of bump to the head. Here is another example and although it depicts an older teenage soccer player, it is relevant to this discussion. A personal friend could not spell bus for three days after a concussion on the soccer field a week before her state mandated high school graduation test. Fortunately for her, one could say, her concussion caused her to black out momentarily just before halftime. She kept playing but after five minutes at halftime, she could not remember her name and was sent via helicopter to the hospital. She received a medical excuse so she did not have to take the graduation test until she had fully recovered. Since very few make it to the big leagues to play professional ball, academics should come first and even a slight concussion could cause havoc in the classroom especially during testing. You cannot expect an eight-year-old boy to explain to his teacher why he was not feeling “right”, could you? The teacher would probably assume the child just wanted to go home to avoid taking the test.
That task to inform teachers and all other caregivers would be the responsibility of an informed and caring parent. (3) Cantu and Hyman (2012) also write that players as young as five “suit up” for Pop Warner football through its Little Mite division which is a full-contact tackle league with approximately 16,000 players across the nation. Further they write, “A medical journal explaining the precise dangers of organized football to the brains of young children,” would have been included in their book, but the “cultural phenomenon is so new that it has yet to be studied”. They add, “We simply cannot gauge the long-term effects for these little ones. That alone is reason to keep children so young off the gridiron” (Cantu & Hyman, 2012, p. 30). Just because there is not decades of medical research does not mean parents, youth football coaches, and related organizations are off the hook.
In addition, here are some other very important facts that parents need to know as included in Chapter 7 of Concussions and our Kids. Below are some of the “myths” Cantu and Hyman (2012) discuss in their book while providing specific patient examples. They explain that concussions can occur whether or not the player is knocked unconscious, and that helmets do not prevent concussions. They also clarify that a second or third concussion may or may not be more serious than preceding concussions. All concussions regardless of severity require rest and proper time to heal – especially in younger children. They remind readers that the assumption that boys suffer more concussions than girls is not always accurate (although logic states there would be more instances of concussions by boys in youth football as it is primarily a male sport – at least until there are a lot more little Sam Gordon’s on the horizon). There is no magic number of concussions that would result in a medical professional making the recommendation that a child should withdraw from sports. It’s the educated/informed parent who should monitor and keep track of all injuries to a child’s head regardless of severity and is just one more reason why Cantu and Hyman believe in educating parents and coaches. The emergency room doctor is not equipped to make that type of determination and neither is a coach. Finally the most important “myth” they clarify is that a child who experiences a concussion that may or not be initially diagnosed as such may not experience symptoms immediately. They state, parents should “continue to be alert for another week” (Cantu & Hyman, 2012, p. 114). While the health and well-being of young athletes needs to be a collective effort by coaches, trainers, league officials and doctors, but ultimately falls primarily in the hands of the parent.
Notwithstanding the lack of medical research for young athletes and the lack of apparent disregard by youth football organizations, parents need to be further informed about multiple concussions and what could lie ahead. In fact, Cantu and Hyman (2012) devote an entire chapter to Chronic Traumatic Encephalopathy (CTE). Their definition follows:
CTE is a progressive degenerative disease of the brain found in people exposed over many years to repetitive brain trauma. That trauma includes concussions, of course, and thousands upon thousands of sub concussive blows that athletes absorb over a lifetime playing football. The jolts to the brain can trigger a buildup of an abnormal for of protein called tau. The process is similar to the one that takes place in the brains of Alzheimer’s patients. (Cantu & Hyman, 2012, p. 90)
If the fear of CTE as explained above is not reason enough for parents to demand change for our youth who are engaging in football, here are nine reminders: Nathan Stiles, Mike Borich, Owen Thomas, John Mackey, John Grimsley, Lou Creekmur, Ray Easterling, Dave Duerson, and Junior Seau (Fecke, 2013). These are names that many football enthusiasts will quickly recognize as all nine had varying levels of CTE when they died (Fecke, 2013). Although in most cases, these deaths occurred when the football player was an adult, it is imperative to note once again that a child’s brain is “gelatin” and helmets do not prevent concussions – thus full contact for youth football players must stop. If impacts as adults can create CTE, imagine what multiple impacts can do to children? Again, we do not know the answer to this question. A child’s head does not reach its full size until about age fourteen – and even at age fourteen it is 90% of the size a head will be as an adult.
The assumption can be made that if adult football players do not realize or choose not to acknowledge what was happening to them, how can a mere child of five, ten or even fourteen know when the risks outweigh the rewards? Sadly one day that five-year-old pee wee player may wind up with similar symptoms whether or not he plays football for decades or just a handful of years. Remember no medical research is available that shows the long term repercussions from hard hits, repeated falls, tackles, and head to head jolts when a child is just five to fourteen years of age.
What parent could count the number of times his fourteen-year-old football prodigy has hit his head in a ten-year span assuming he began his illustrious career at age four? In reality given today’s fast-paced society, very few parents can attend every practice and every game. There has to be clear and honest communication to parents from those in charge (i.e., coaches, trainers, team moms, and referees) after all practices and games whenever there is even the slightest hint of a head injury to any young football player whether he is the star of the team or the worst on the field. Hopefully, football is reaching a turning point. Professional football would not suffer if educational warnings about the risks and rewards of playing full contact football were plastered across the sky (even if that was possible); but changes to all youth football leagues with regulations in place to prevent full contact for those football players ages four to fourteen could quite possibly save a life and one life is certainly worth saving.
There is a way to prevent a large majority of potential concussions in youth football from ever happening. If NFL Commissioner Roger Goodell’s statement, “the game can be made safer while making football better,” is true at the professional level, then surely a similar yet even safer game plan can be put into place for youth football (The Miami Herald, 2013). It is time to begin protecting the youngest on the gridiron, and it seems most apparent informed parents hold the key to signal “game over” for full contact football.
Brittany Beaumont is a junior at Clemson University, majoring in Communication Studies with a minor in Psychology. She was raised in Atlanta, Georgia and is currently a midfielder for the Clemson Women’s Soccer team. She also is a member of the Student-Athlete Advisory Committee, and is a Clemson Coalition representative for all student-athletes. After graduation, she looks forward to pursuing a career in Sports Management/Public Relations. You can follow her on Twitter @BrittBeaumont