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Former NFLer Makes it Rain

2012 September 4

Former-player-turned lawyer is making it rain, and no, not in the strip club. After playing eight fairly successful years in the NFL, Mickey Washington pursued a law degree and now runs his own firm.

On Monday, he filed a concussion-related lawsuit against the NFL on behalf of 17 living players and 2 deceased players.[1] The lawsuit is led by 3-time Pro Bowler Larry Centers.

According to his firm’s website, Washington worked in a legal capacity at the National Football League Player’s Association where “he participated in negotiations over the NFL Collective Bargaining Agreements.”

This explains the clever pleading used by Washington in the complaint. The plaintiffs assert eight counts, the most notable being “conspiracy to defraud.” The plaintiffs allege that the NFL, member clubs, Mild Traumatic Brain Injury Committee and others conspired to conceal the long-term risks about repetitive concussive and sub-concussive blows. This is a standard allegation among the several lawsuits, but Washington artfully tries to shoot a hole in the NFL’s preemption argument.

The plaintiffs, here, allege the conspirators had three main goals. First, “to discourage talented players from retiring and to persuade all players to return to football games regardless of the concussions and brain trauma sustained.” Washington, as a former player, probably knows this first hand, but he, presumably, got out of the NFL before experiencing significant brain damage.

Second, drawing on his negotiating experience with the NFLPA, Washington writes and the plaintiffs allege, “[a]nother objective of the conspiracy was to prevent persons bargaining on behalf of players to have sufficient knowledge to demand that policies, procedures, and conditions be included in the CBAs and other contracts that were sufficient for the protection of players in connection with brain trauma and concussions.”

In other words, but for the NFL misrepresenting to the players that there wasn’t a link between concussions and brain damage (i.e. dementia, CTE, etc.), then the NFLPA would have negotiated for increased cognitive benefits or sought to implement these prior to the most recent CBA — which does provide for benefits under the 88 Plan.

Although this partially addresses a question I posed in my interview with Forbes, it still has potential holes. For example, the NFLPA had — or reasonably should have had — independent studies at their disposal, linking concussions to long-term cognitive decline, and they could have brought these studies to the bargaining table.

Nonetheless, Washington’s argument may show that the prior CBAs are a product of fraud, and thus cannot be used to bar the players’ lawsuits. Whether concussions and brain damage were even discussed at the bargaining table, and therefore had a material effect on the negotiations is unknown, but it will certainly be discovered once, and if, the plaintiffs get to the discovery stage of litigation.

Finally, the third objective of the co-conspirators strikes at the heart of the NFL’s motion to dismiss, “which was to deprive players of their right to seek damages for concussion-related injuries in court by using the Collective Bargaining Agreements as a purported future bar to any civil court action by players,” according to the complaint.

Whether this strategic pleading will be sufficient to overcome the NFL’s motion to dismiss will ultimately have to be decided by Judge Brody. Washington foreshadows some of the arguments that the plaintiffs will use once they respond to the NFL’s motion to dismiss

On a final note, it is remarkable to see how many former NFL players went on to get a law degree after the game. Some of them are suing the NFL, such as prominent sports agent Ralph Cindrich and Brad Culpepper. Others, like Washington, Bob Stein and Hall of Famer Ron Mix are advocating on behalf of former players while having successful careers as lawyers. Lastly, don’t forget about the Honorable Alan Page, who sits on Minnesota’s Supreme Court, and the late Byron “Whizzer” White who sat on the “highest court in the land.”

[1] Washington is not a plaintiff, and the two deceased players are Johnny Bailey and Johnny Lewis.

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