On March 31 of last year, San Francisco Giants fan Brian Stow allegedly was attacked and  sucker-punched by two L.A. Dodgers fans after an opening-day game between the two clubs at Dodgers Stadium.  His head hit the pavement, leaving Stow with a fractured skull and brain trauma.  Doctors placed him in a medically-induced coma for several months.  According to Stow’s attorneys, the attack has left Stow with permanent brain injury and severely limited  movement.  Today, he is wheelchair-bound and reportedly will require 24-hour nursing care for the rest of his life.  Only recently has he begun to write and try to speak.  A former paramedic, he is unable to support himself or his family.

In May, Stow filed suit in Los Angeles Superior Court seeking $50M in damages against the Dodgers, Dodgers owner Frank McCourt, and several others.  Stow asserts that the Dodgers were negligent, among other reasons, for failing to provide adequate security, failing to provide adequate lighting, and promoting a half-off beer sale that promoted violence.  He also claims that the Dodgers fired 300 security staff shortly before the assault, and he submitted sworn declarations from eight other Giants fans alleging that they had difficulty in finding security personnel to respond to threats against them during the game.  He also argues that one of Stow’s assailants was involved in two prior incidents that day and that the Dodgers should have ejected him from the ballpark hours before he attacked Stow.  Many people online report a long-term tolerance by the Dodgers of a significant “thuggish” element at the ballpark. 

In opposition, the Dodgers have argued that stadium security was at record levels on opening day and that they had no way to anticipate the attack.  Further, they deny any half-off beer promotion.

In June, the Dodgers filed for bankruptcy in Delaware, resulting in a stay of the L.A. case.  Under a reorganization plan filed by the Dodgers, et al., McCourt and other Dodgers officials would be released from legal liability for any actions they took in their official capacity as team representatives that may have contributed to Stow’s injuries.

On February 3rd of this year, the Dodgers moved in the Bankruptcy Court for a motion disallowing all of Stow’s claims, arguing that Stow cannot win the L.A. case as a matter of law because Stow cannot prove a link between security issues and the beating.  In response, Stow’s counsel has asked the Bankruptcy Court to yield to Los Angeles Superior Court. 

For several  reasons, the Bankruptcy Court is likely to allow the L.A. suit to run its course:  First, the case has obtained nationwide attention, and federal judges are not immune from media-generated pressure.  If the court stops the L.A. action, some will claim that the court hijacked the jury-trial process.  Second, the Dodgers recently disclosed documents establishing the existence of insurance of over $300M, which is more than enough for a verdict in favor of Stow.  Third, the Dodger bankruptcy is unusual in that the owners will be flush with money after reorganization.  Reports cite many interested buyers, with a predicted sale price as high as $2 billion for the franchise.  Finally, the Dodgers reportedly have admitted that, in all likelihood, all creditors will be paid in full from sale proceeds from the sale.   Bankruptcy judge Kevin Gross already has hinted at the likely outcome, noting that the Dodgers will have a considerable task in convincing him "that there are absolutely, positively no facts that could result in liability under California law."  Hearings on the matter are scheduled for March 7th and March 21st.   A hearing regarding the proposed reorganization plan is set for April 13th, and sale of the franchise is scheduled for April 30th

 

Bill Staar is a partner in the Boston office of Morrison Mahoney LLP, Chair of DRI's Sports Law & Entertainment Group, and a member of the Sporting Goods Manufacturers Association’s Legal Task Force.  He concentrates in the areas of product liability, construction disputes, toxic torts, and general business litigation. He also is a member of DRI's Product Liability, Commercial Litigation, and Construction Law Committees.

 

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In 1997, New York passed N.Y. Unconsolidated Law §8905-a, a statute that prohibits professional “combative sports,” including mixed-martial arts (MMA) events and associated activities.  Even speech that promotes MMA is barred.  On Nov. 15th, after more than a decade of failed efforts trying to have the law repealed via legislative means, several plaintiffs filed suit in the SDNY challenging the constitutionality of the statute.  They include (1) Zuffa, LLC, d/b/a the Ultimate Fighting Championship (UFC), the largest promoter of MMA in the U.S., and (2) several MMA fighters, including Ms. Gina Carano, often called the “Face of Women’s MMA,” #16 on Maxim Magazine’s 2009 “Hot 100” list, and, hopefully, an incurable future stalker of mine.  They allege that the law, which targets only pro MMA and exempts boxing and standard martial arts altogether, violates several constitutional protections, including the freedom of speech and equal-protection clause.  The UFC wants to stage events in New York, regardless of how that is made legal.  Says UFC Vice President Mark Ratner, "Every arena small and big has been asking us to come, and it's just nonsensical that the sport has not been approved yet."  Mr. Ratner likely will get his wish soon.  The law looks to be doomed, either through judicial action or via the lawmakers and other forces that brought it to life.  


1.  History and Growth of MMA

MMA, which involves both striking and grappling, often is described as a combination of boxing, Greco-Roman wrestling, and at least a half-dozen different martial arts, including kickboxing, jiu-jitsu, and judo.  Fighters face off in a boxing-type ring and score points by landing blows.  As in boxing, MMA matches end when one combatant (a) "taps out" - meaning he or she leaves the ring voluntarily – , (b) is knocked out, or (c) when time expires, at which judges select the winner. 

MMA traces its roots both to Greek and Roman sport of  Pankration, which featured a combination of grappling and striking skills, and the various forms of martial arts that evolved in East Asia over a millennia ago.  In the 19th and early 20th centuries, it remained a minor sport in many parts of the world, but steadily gained momentum in Japan and Brazil.  The late Bruce Lee is sometimes called the “father” of MMA because he combined the best of boxing, karate, judo, and other martial arts to create “the style of no style.”  In 1990, Mr. Arthur Davie, a Los Angeles advertising executive, former Marine, and fan of MMA since seeing a bout between an Indian wrestler and a Thai boxer when on leave during duty in Vietnam, began exploring the idea of whether MMA could be brought to the greater world stage.  In 1993, with the help of several people, including the Gracies, a famous Brazilian family known for its dominance of Vale Tudo ("anything goes" in Portuguese), Mr. Davie “officially” introduced MMA in the U.S. 

During its early years in the U.S., MMA was a lightly-regulated and self-described “no holds barred” sport.  It offered a feral, non-stop, all-body combat alternative to the hands-only and regularly-boring boxing, which often involved bouts dominated by opponents leaning on one another in something akin to a slow and sweaty prom dance.  MMA was limited to pay-per-view and obscure cable channels.  Over the next 15 years, it steadily grew, not only in terms of popularity, but in organization, safety, and professionalism.  In 2008, CBS introduced MMA to network TV via an EliteXC event that drew 6.8M viewers.  FOX recently inked a seven-year deal with UFC and hosted a network event that peaked with 8.8M viewers.  MMA now reportedly appears on television in 155 countries and in 22 different languages.  In January, approximately 1.4 million people watched a single MMA event on pay-per-view that reportedly grossed $110 million.  HBO is now allegedly interested in airing MMA events.  No longer a pariah sport, it is now sponsored by the U.S. Marines, Dodge, and Harley-Davidson.  

2.  Of Politics and Pugilists

MMA’s early efforts to gain popularity created a polarizing effect that ultimately led to the creation of §8905-a.  Having no advertising budget, it promoted the “savagery” of MMA and adopted catch phrases such as “no rules” and "Two men enter.  One man leaves."  In so doing, it created shock value that turned legitimate press into free advertising.  MMA was the real version of the fake “wrestling” that Americans had been watching for decades.  Like a highway accident, the MMA fascinated some and repulsed others.  Unfortunately, the “others” included concerned a large block of NY legislators, who compared MMA to cockfighting.  ''I think extreme fighting is disgusting. It's horrible," New York Mayor Rudy Giuliani said at the time. “[T]his is way beyond boxing. This is people brutalizing each other.''  Others politicians jumped on the bandwagon, and the law passed quickly.

Depending on whom you believe, other forces beyond the anti-violence crowd were at work.  New York was, and is, a world hub of professional boxing, having hosted at Madison Square Garden some of the greatest boxing matches of the 20th century.  Some supporters of MMA claim that NY politicians were overtly influenced by some of the most powerful people in the boxing industry, who viewed MMA as a threat to boxing’s future.  Former UFC promoter Campbell McLaren alleged that the enacting of the law “was done in a very illegal and bogus manner.”

3.  Legal Arguments

The plaintiffs argue that the ban is unconstitutionally vague, irrational, and violates various other protections, including the freedom of speech, the freedom of expression, the commerce clause, and the equal-protection clause.  

Irrationality and Equal Protection  

The plaintiffs claim that the law, if it ever was rational, is now really irrational because the claimed impetus for §8905-a, i.e., protecting professional MMA athletes from a no-rules barbarity, is all but gone.  They assert that today's professional MMA bouts are highly monitored and governed by new rules for fighter safety, including weight classes and timed rounds.  UFC even provides accident insurance for its athletes and covers injuries suffered both inside and outside of the gym or arena.  The plaintiffs also argue that MMA is actually safer than other, more mainstream contact sports, such as boxing, ice hockey, equestrian sports, football, and rodeo, all of which are legal in New York.  Further, they contend that with grappling and wrestling such an integral part of MMA, many fighter's careers can last much longer than those of boxers because fighters do something other than throw punches to the head and body.  Further, unlike football, opponents have to fight face-to-face, vastly reducing the likelihood of a blind-side hit.  

If supported by substantial evidence, all of this raises substantial equal-protection issues.  During a February 2011 interview with MMA radio, NY Assemblyman Robert Reilly (D-Latham), the loudest anti-MMA voice in the state, appeared to have conceded as much:  “Well, . . . I do want to not be, um . . . too contentious when I say this. . . . but today I don’t think professional boxing . . . would be legalized in many states today because of the danger to the fighters.”  

Nonsensical Law

The logic behind other aspects of the law is elusive.  Why does it only apply only professional MMA?  Says Barry Friedman, one of the plaintiffs’ attorneys, "Amateur bouts under the statute seem to be fine.   It's just professionals that are banned, so it sort of doesn't make any sense on its own terms."  Why is the mere promotion of professional MMA banned under the law?  Will New York citizens wilt if they see an ad for an MMA bout?  They already are able to watch MMA on television.  If the goal is to protect the populace from violent images, NY may as well try banning many other violent things, including violent movies, TV shows, and video games. 

Freedoms of Speech and Expression 

According to Atty. Friedman, no court has ever directly confronted the question of whether athletes have a First Amendment right to be seen in action.  “It’s martial artistry,” he said. “The nature of martial arts is a lot like dancing.”  "The First Amendment protects what's called expressive conduct, which is doing physical things that express ideas, with anything from a parade to a dance being protected.  Our argument here is that mixed-martial arts constitute expressive conduct.  I can't think of another example of a sport that's safe and regulated, and has been banned."  

Even if the law is found not to infringe on the freedoms of speech and expression, it is difficult to argue that it does not impinge upon personal liberties.  All pro MMA athletes are adults who freely choose to participate and operate in a controlled private environment.  As one online commenter stated, “What are we trying to do, protect fighters from themselves? What's next, New York legislating the amount of force used in hockey checks or football tackles?  Get the hell out of the way and let these adults do what they want to do.   The money [that pro MMA could bring to NY] is a secondary benefit.  Our liberty to do what we want, accepting the consequences, is the more important issue.”

4.  Time for Law to “Tap Out”

In one way or another, §8905-a is on its way out.  If the SDNY does not reject the statute, for one or more of the following reasons, others soon will succeed in having MMA exempted from it.  

First, in the midst of the worst national economy since the Great Depression and an NBA season that appears to be lost, New York, generally, and the Madison Square Garden owners and workers, especially, need every dime they can collect.  As stated by UFC CEO Lorenzo Fertitta, "Denying fighters the chance to exhibit their training and skills before a live audience and denying thousands of New Yorkers the ability to watch their favorite fighters perform live is not only an injustice to them, but to the local markets that would reap tremendous economic benefits from hosting competitions.”  Said Derek Crouse, of bleacherreport.com, “For a city that loves to tax everything, why wouldn’t they jump on the golden goose of the UFC, whose popularity is skyrocketing faster than anything in sports?”  Finally, with state budgets being slashed and all state employees being asked to do more with less, don’t the offices of the NY Atty. General and NY Dist. Atty. of New York and have better things to do than defend this statute? 

Second, the forces of business that donate to political campaigns eventually will convince NY lawmakers to rewrite the law.  With both CBS and FOX supporting MMA, other large media entities will not be far behind.  Further, expect the news arms of both companies to start reporting about the “ridiculous” NY law.  And if one needed any further sign that the Apocalypse is upon the supporters of §8905-a, on November 5th, USA Today reported that Don King is entering the realm of MMA.   That’s THE Don King - the face of boxing promotion for the last half-century and an ardent critic and detractor of MMA for the last two decades.  King now calls MMA a "sophisticated barbarism," and stated "I'm looking forward to doing [MMA], too, and creating a competition between the UFC and whatever I call the MMA company that I put together." He predicted that MMA will complement, but never overtake, the "sweet science" of boxing.  Ignore the sweet hype.  This is the functional equivalent of boxing leadership facing reality and throwing in the towel. 

Third, where economics and business lead, politics generally follow.  As a group, New York Republicans largely have supported MMA for years.  Several efforts to overturn the ban through legislation have stalled out for various political reasons, including the latest attempt over the summer.  In May 2011, the New York State Senate, which is slimly held by Republicans voted overwhelmingly (42-18) in favor of a bill that would sanction pro MMA, but the bill stalled in the Assembly Ways & Means Committee, which includes Mr. Reilly and reportedly is controlled by Democrats.  Mr. Reilly and his colleagues find themselves on an increasingly- lonely island.  Even the most liberal Democrats in the country are pushing for pro-MMA’s entry into New York.  In 2010, Harry Reid, Democratic Senator of UFC’s home state of Nevada, told the AP that UFC bouts were well-regulated “fair street fights” with “somebody watching every move [the athletes] make.”  He added, “I'm going to see what I can do to help [professional MMA] in New York.  I'm aware of the issue, . . . I know a few people in New York[, and] I'm going to see if I can talk a little sense to them.”  So far, sense has not prevailed. 

Bill Staar is a partner in the Boston office of Morrison Mahoney LLP, Chair of DRI's Sports Law & Entertainment Group and member of the Sporting Goods Manufacturers Association’s Legal Task Force.  He concentrates in the areas of product liability, construction disputes, toxic torts, and general business litigation. He also is a member of DRI's Product Liability, Commercial Litigation, and Construction Law Committees.

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NBA Lockout: The Latest

Posted on October 20, 2011 02:19 by Bill Staar

NBA owners and players continue to try to execute a new collective-bargaining agreement (CBA). The first two weeks of the regular season are gone. On October 10th, NBA commissioner David Stern cancelled all games originally scheduled from Nov. 1 through Nov. 14. Although some see light at the end of the tunnel, nothing clearly has indicated an imminent end to the lockout. While the parties are locked up in mediation, the rest of us are fed secondary related stories, some less entertaining than others. 

A. Close to and End?
A 16-hour marathon mediation session stretched from 8 a.m. Tuesday morning to 2 a.m. Wed. morning. The sides reportedly remain divided mostly by two issues -- the division of revenues and the structure of the salary cap system. Despite federal mediator George Cohen’s request that all parties remain silent, vague reports of "significant progress" have been whispered from the lips of alleged insiders. In the last CBA, the players took a 57% share of revenues. They have since offered 53%. The league wants a 50-50 split, which increases to a 51% share to the players if certain revenue projections are met. Talks resumed on Wednesday morning and will continue on Thursday. One prominent NBA veteran agent/attorney, Steve Kauffman, said he has noticed an increase in calls from NBA teams in recent days looking to "expediate" contract talks with assistant coaches. Kauffman sees this as an indication that owners believe something big is about to happen. 

Assuming that Wednesday’s and Thursday’s talks fail, it is not clear as to the next deadline that will result in the loss of additional portions of the season. Some have speculated that the informal deadline is the end of this week, although no one from the league has claimed as much. 

B. Delay Breeds Nonsense
The continued delay has led to some unintended and regrettable comedy on behalf of the players and at least one of their supporters. The players recently launched a "Let us play" Twitter campaign, which reportedly often pleads for "fairness." Apparently, this is supposed to conjure images of a small powerless child being locked in his room by a evil parent. C’mon, guys.

Even more disturbing is a bizarre statement by sportscaster Bryant Gumbel at the close of his HBO Real Sports television show earlier this week. Casting impartiality to the wind, Mr. Gumbel accused Commissioner Stern of standing in the way of a solution to the league's labor dispute:

If the NBA lockout is going to be resolved anytime soon, it seems likely to be done in spite of David Stern, not because of him. The NBA's infamously egocentric commissioner seems more hell bent lately on demeaning the players than on solving his game's labor issues. His efforts are typical of a commissioner who has always seemed eager to be viewed as some kind of modern-day plantation overseer, treating NBA men as if they were his boys. . . . His moves are intended to do little more than show how he's the one keeping the hired hands in their place.

Mr. Stern is a tough negotiator. To be sure, he has threatened to cancel games and followed through. He does not bluff. Stern also allegedly has said that the players are being misled by their union. Is that in poor taste? Maybe. Is it a legitimate negotiating tactic, especially if he believes it to be true? Of course. None of this makes Mr. Stern a racist, much less a man who desires to a plantation overseer. 

Mr. Gumbel’s comments are shameful, and unless he is prepared to offer evidence of Mr. Stern’s racism, he should issue an apology to Mr. Stern immediately. Sadly, he now joins a growing list of African-American sports writers and athletes who scream racism whenever black athletes don’t get their way. This list includes Jason Whitlock, who in 2010 alleged accused the NCAA of slavery in its investigation of Reggie Bush for actions in violation of NCAA standards, i.e., "Reggie Bush is Kunta Kinte, a runaway slave." It also includes Minn. Vikings running back Adrian Peterson who, in March of this year, reportedly told Doug Farrar of Yahoo Sports the following in response to a question about ongoing labor negotiations with the NFL: "It's modern-day slavery, you know?" This from a guy scheduled to make about $10 million in 2011. I’ve never heard of slaves making anything close to that type of money. Where are they? Where do I sign up? 

C. Potential Third-Party Suits
The city of Memphis reportedly is considering bringing a lawsuit against the NBA if the league cancels more games or the entire 2011-12 season. The Memphis Grizzlies needed city bonds to help put together their home at the FedEx Forum, and the city's taxpayers stand to foot a hefty $18M bond-payment bill if the entire season is cancelled. They city also is considering raising property taxes to pay for the bonds. 

D. Top Players To Play Overseas? 
Any continued work stoppage is not going to harm the pockets of the league’s top players. According to ESPN, LeBron James, Kobe Bryant and Dwyane Wade are among the locked-out NBA stars who could be making a world tour during what would have been the first two weeks of the season. Citing unnamed sources, the US-based sports network's website said plans were in the works for groups of NBA superstars to play between October 30 and November 9 in London, Macau, Australia, and Puerto Rico. Two games would be played in Australia and London, and all games would be played in venues of at least 15,000 seats. Among the others who reportedly could be involved are Derrick Rose, Carmelo Anthony, Chris Paul, Amare Stoudemire, Chris Bosh, Paul Pierce, Carlos Boozer, Rajon Rondo, Blake Griffin, Russell Westbrook, Kevin Durant, and Kevin Garnett.

Bill Staar is a partner in the Boston office of Morrison Mahoney LLP. He concentrates in the areas of product liability, construction disputes, toxic torts, and general business litigation. He is a member of DRI's Product Liability, Commercial Litigation, and Construction Law Committees, Vice Chair of DRI's Sports Law Group, and member of the Sporting Goods Manufacturers Association Legal Task Force.

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Lockout, The Sequel: NBA Season at Risk

Posted on September 27, 2011 04:52 by Bill Staar

In March, following failed efforts to negotiate a new collective-bargaining agreement (CBA), the NFL owners locked out the NFL players.  After five months of lawsuits, posturing, and bargaining, both sides kissed, made up, and went back to work.  The football season was saved, and all was right with the world (well, except the world economy, conflict in the Middle East, and rumors of Paula Abdul’s imminent return to television.)  Sports reporters allowed fans to relax for a bit, but issued a warning: a looming basketball war was right around the corner.  And this was no bluff.  A similar scenario occurred in 1998, when 50 regular-season NBA games were lost before the two sides executed a new CBA.

The NBA labor dispute has been simmering for some time.  The last NBA CBA was signed in 2005.  In August 2009, negotiations on the next CBA commenced.  On July 30th of this year, the existing CBA expired.  The following day, NBA owners locked out players from training camp. Since then, little has happened, save for some hand-wringing.   

On September 23rd, that changed when NBA owners announced that they were cancelling forty-three preseason games scheduled to go forward between 10/9 and 10/15.  If the parties fail to reach an agreement by the close of September, all remaining pre-season games will be lost.  If the standoff continues through the first week of October, the regular-season schedule, which starts on November 1st, will be at risk.

What’s It About?

Money, mostly.  What else?  According to some reports, 2010 was the most successful NBA season ever, with league revenues approaching almost $4 billion.  That’s more income than some small countries and Oprah (maybe) see annually.  The details of the fight are as follows:

1.  Dividing the Pie 

By far, the most important issue driving the dispute is the division of revenues.  Owners want to change the 57-43 percent revenue breakdown that currently favors the players.  The most recent NFL CBA flipped a 51-49 split in favor of the NFL players to a 53-47 split in favor of the NFL owners. In lobbying for that change, NFL owners claimed, in part, that the change was justified by a need for the owners to invest more money into stadiums and other long-term football-related investments.  NBA owners now want a similar deal. NBA Commissioner David Stern claims that changes are needed because the league lost $300M last year. (If I had gone to business school instead of law school, I might understand how an enterprise could make $4B during its “most successful season ever,” and yet “lose” $300M during that same year.)  Alleged insiders claim that the NBA players have given significant ground, but that the parties remain substantially apart. 

2.  Contract Length

The NBA owners wants to limit the length of guaranteed contracts to 3-4 years, down from the current maximum length of 5-6.  In this respect, NBA contracts would look more like NFL deals than those for Major League Baseball. 

3.  LeBron Backlash

Small-market owners insist on creating some device to keep a superstar with his existing team similar to the "franchise tag" in the NFL.  Doing so would limit high-profile free agents from jumping to bigger markets and leaving destruction, mass depression, and torn-up season tickets in their wake. 

4.  Salary Cap

Owners claim that the imposition of a salary cap would make the league more competitive by preventing wealthier clubs from hording talent.  To prevent penny-pinching owners from directing all dollars into their own bank accounts, the spending floor for each team would be 75% of the cap. 

At the end of the day, expect a victory for the owners.  They likely will concede on some of the lesser issues, but they will receive a majority of the revenues going forward. 

Legal Issues

Now for the sideshow that only attorneys care about: The legal disputes forming part of the owner-player NBA battle mirror those that arose during the NFL conflict.   

On May 24th, the NBA players filed an unfair-labor-practices claim against the league with the National Labor Relations Board, alleging that the league is “making harsh, inflexible and grossly regressive ‘takeaway’ demands . . . not supported by objective or reasonable factors or balanced by appropriate trade-offs.”  The union argued that the league has engaged in “classic take-it-or-leave-it bargaining . . . intended to delay action on a renewal CBA until the NBA locks out the . . . employees in order to coerce them into accepting the NBA’s harsh and regressive demands.” Players also claimed the league had exhibited “hostility” to a fair bargaining process, leaving the players to assess that back-and-forth exchanges are “futile.” 

On August 2nd, the league and owners collectively filed suit in the SDNY and their own proceeding with the NLRB, claiming that the players have failed to bargain in good faith.  Specifically, they claim that, despite 40 years of bargaining history, the defendants are seeking illegally to decertify their union for the purpose of attacking the lockout by filing an antitrust claim against the owners.  What is currently a lawful practice by the owners magically becomes an anti-trust action with union decertification.  The owners point to the same tactic tried by the NFL players, who re-certified their union as soon as the two sides struck an agreement.  

During the NFL dispute, the 8th Circuit handed the owners a victory.  One presumes that the NBA owners filed suit in the SDNY expecting that the 1st Circuit will do the same for them if the lockout continues. 

I see a pattern.  As a sports fan, it would be nice if the Supreme Court or, even better, Congress jumped in to settle the underlying issues so as to avoid our having to see them pop up again the next time a major-sport CBA expires.  This is unlikely to happen anytime soon. 

Bill Staar is a partner in the Boston office of Morrison Mahoney LLP.  He concentrates in the areas of product liability, construction disputes, toxic torts, and general business litigation. He is a member of DRI's Product Liability, Commercial Litigation, and Construction Law Committees, Vice Chair of DRI's Sports Law Group, and member of the Sporting Goods Manufacturers Association Legal Task Force.

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On August 17th, Philadelphia attorney Larry Coben filed a lawsuit against the NFL on behalf of the following seven former NFL players against the league, all of whom claim significant brain injury as a result of their time as NFL players:  Jim McMahon (QB; multiple teams, 1982-96); Charles Ray Easterling (DB; Atlanta Falcons; 1972-79), Wayne Radloff (OL; Atlanta Falcons; 1985-89); Joseph “Joey” Thomas (DB; multiple teams; 2004-10); Gerald Feehery (OL; multiple teams; 1983-89); Steve Kiner (LB; multiple teams; 1970-80); and Michael Furrey (WR; multiple teams; 2003- 09).   (Easterling v. National Football League, Inc., 11-05209, USDC, Eastern Dist. of Penn.) Atty. Coben allegedly claims that the group collectively suffers from such things as dizzy spells, headaches, and dementia, and that one client even may lose his home because of his health-related problems. The suit contains causes of action for negligence and intentional misconduct and seeks (1) monetary damages and (2) class-action injunctive relief tied to the medical monitoring of current and future players.   The Easterling case follows one filed in Los Angeles in July by seventy-five retired players who claim the league had known of the harmful effects of concussions for decades but concealed them from players until last year.

As for the damages element of his case, Atty. Coben also claims that the league has known about the dangers of concussions for many decades, but, for the sake of maximizing violence to entertain fans, it instructed players to hit with their heads, failed to properly treat them for concussions, and concealed links between football and severe brain injuries.  In pursuing an injunction on behalf of “all current N.F.L. players who have in the past and/or will in the future experience a concussion,” Atty. Coben allegedly claims that the NFL should be using blood tests both to identify those genetically predisposed to suffer concussion and to diagnose existing concussions, saying the United States military has already begun using the latter technique.

Although Atty. Coben reportedly has realized significant success in prior product-liability cases involving head injury, this suit, for a number of reasons, appears to be little more than a public-relations stunt.

A.    MONEY DAMAGES 

1.  Concussion Science is Modern

Mr. Coben’s claims to the contrary, the study of the true risks of concussion is a very recent endeavor.  To suggest that the NFL has known the full risks of concussion since the 1970s is fantasy.  Currently, concussions are receiving more attention from scientists and professional contact-sport leagues such as the NFL and NHL than they ever have.  Only recently  has science developed the tools necessary to perform the research, and many of the most serious effects of concussion, including chronic traumatic encephalopathy (CTE) do not appear until decades after the source concussions occur.  Researchers appear to be doing everything possible to learn about concussions, and helmet manufacturers are now in a frantic race that began only two or three years ago to develop protective equipment that may reduce the risk of concussion.  

2.  Teaching to Lead with Head = Nonsense

The claim that NFL coaches have been teaching players to lead with their heads seems ridiculous.  Any college player good enough to make it to the NFL already has been taught how to make a proper tackle.  This argument is akin to a  NASCAR driver complaining that his team owner failed to show him how to properly turn left. Further, the known risks of paralysis have been present far longer than knowledge of concussion, and leading with one’s helmet generally leads to missed tackles.  As a late-1980s high-school linebacker, I can personally attest that our coaches taught us to tackle with our arms and shoulders, not our heads.  Any coach who said otherwise at the professional level would have been ignored by anyone with an ounce of common sense.   

In truth, it is the players who elect to lead with their heads.  Generally called “spearing,” this technique involves a defender leaving his feet, diverting his eyes to the ground, and using the crown of his helmet to deliver a massive kinetic strike to an opponent.  The effects can be physically devastating for both the defender and the offensive target, and these hits often made SportsCenter’s daily Top 10 list or Monday Night Football’s “Jacked Up” segment (which was hosted exclusively by former NFL players, with the exception of Chris Berman).  All football coaches know, however, that for every huge hit, nine other defenders who attempt to use their helmets as weapons miss their targets, resulting in only hypothetical tackles and big gains for the offense.  Thus, any NFL coach who promoted such a technique would not be long with the league. 

3.  NFLPA Protests

What else should NFL management have done?  Have referees throw more flags?  Suspend players?  Fine them?  The NFL is doing that right now, and the National Football League Players’ Association bellyaches virtually each time a player is fined $50,000 - $75,000 or more for a helmet-to-helmet hit or other serious offense.   And this is occurring a time in history when the effects of concussions are becoming more and more clear.  Imagine if the NFL had tried such a thing years ago, when those effects were not as clear.  

A rising tide lifts all boats, and the reality is that NFL management and the NFL players walk hand-in-hand when it comes to anything that makes the sport more popular.  When Mr. Coben accuses the NFL of wanting big hits for the purpose of drawing more dollars to the sport, he is being less than honest by failing to mention the players as the second partner in that alleged scheme.  Owners and players divide in two parts the big money pie that they collect each year, and all labor disputes between the two sides primarily have been about how much of that pie each side gets.  

4.  Causation

How does Mr. Coben intend to prove causation?  Specifically, how does he establish that the concussions suffered by his clients while they played in the NFL are the root cause of their current neurological problems?  All of the named plaintiffs began playing football in high school or college, and some even played for other professional leagues (Gerald Feehery played in the USFL before he entered the NFL; Michael Furrey played for both the XFL and Arena Football League prior to entering the NFL.)  Do they all intend to testify that they never suffered a concussion prior to entering the NFL?  Unlikely.

5.  Players Knew and Assumed the Risks

I have written a fair number of articles related to concussions and read many more, and I have yet to see any claim that the NFL ever possessed a wealth of information about concussions that the players did not.  Although both the players and the general public are learning more each day about the long-term effects of concussions, they always have known that blows to the head are very dangerous.  Crying foul at this point is a bit like someone walking into a volcano and complaining that no one told them it was hot.  These guys knew what they were getting into.   NFL players stand to make millions of dollars each year, and they choose to risk serious injury or death to collect those millions.  It has been that way for half a century or more.  I have yet to read or watch an interview of an ex-NFL star who stated that, knowing even what he knows today, he would not have taken the same chances. 

B.    INJUNCTION

1.  Blood Tests Remain Experimental

Blood tests that can determine (1) a person’s genetic predisposition for suffering concussions and (2) whether a person has suffered a mild to moderate concussion both remain theoretical.  The former involves Apolipoprotein (Apo) E4 and other genetic markers in the management of sports concussion risk or injury outcome, and present results are unclear.  The latter test tracks the release of a specific protein linked to concussions (S100B) into the bloodstream.  Its purpose is to quickly diagnose concussions and avoid the potential harmful radiation effects of CT scans.  The U.S. Army began testing its soldiers in early 2010, and as of April 2011, a team of Cleveland Clinic researchers, led by Damir Janigro, Ph.D., had begun tests on collegiate football players.  Many scientists have called the research “very preliminary” and caution that much of the excitement about the potential test will remain only “hype” for several years to come. Dr. Robert Stern, co-director of the Center for the Study of Traumatic Encephalopathy at Boston University, reportedly said that “There is no good evidence available at this point to indicate that a specific gene or genetic marker puts people at greater risk for C.T.E.”   Stern added that there were tests being developed “all over the globe” in an attempt to more effectively identify concussions but while “blood tests are important, we’re not there yet.”  Furthermore, even if the tests gain a universal seal of approval from the scientific community, they may never see the light of day in the NFL.  As a general rule, professional athletes, one or two of whom utilize banned performance-enhancing drugs, do not like to have their blood taken for any reason.  I expect any attempts to incorporate these tests into the NFL likely to be subject to protests from the NFLPA due to a lengthy list of “concerns” that will require “discussion” for years.  

2.  Current Efforts Deemed Sufficient

A federal judge would be hard pressed to conclude that the NFL is sitting on its hands with respect to anti-concussion efforts and that he or she needs to step in.  Both the NFL and the players appear to be doing all they can to both minimize concussions and help those who are suffering from long-term post-concussion problems.  Several years ago, the NFL started the “88 Plan,” which has, to date, paid out $13M to 151 former players, each of whom may collect up to $88K per year for symptoms related to Alzheimer’s’ dementia, and ALS without respect to cause.  Also, the NFL has donated millions of dollars to the Boston University Center for the Study of Traumatic Encephalopathy (CTE), and a number of former players have committed to donating their post-mortem brains to this program as well.  Strict concussion-evaluation guidelines have been present in the NFL since 2007, and enhanced guidelines went into effect in February 2011.  An updated set of guidelines and a neuro-cognitive disability benefit plan were incorporated into the new collective bargaining agreement signed earlier this month.  

Jets linebacker Josh Mauga, who sustained a concussion last season, recently said the current concussion management program was thorough and sufficient.  He described the series of tests that he had to pass (including balance and visual exams) before he could resume exercising after his concussion.  “I did those balance and vision tests so many times,” he said. “Because any time I started to feel anything, I had to start all over again. It took me three weeks.”   

For the 2011-12 season, the NFL even has enacted kickoff rules designed to minimize head-on collisions, including one eliminating wedge blocking and another requiring that kickoffs start at the 35-yard-line instead of the 30-yard-line, which already has resulted in a great increase in touchbacks during the pre-season.  

3.  Class-Certification Problems

A number of legal experts have opined that Mr. Coben’s efforts to obtain the certification necessary for class-action status are doomed to failure.  The injuries and causation circumstances between plaintiffs are simply too dissimilar.  Mr. Coben admits that he has his work cut out for him:  "Our goal is . . . daunting. . . . We have to ultimately determine how many people are in the (legal) classes. How many people from the '70s are experiencing this, how many people from the '80s, from the '90s? And then, what are the losses?"

4.   Ultimate Decision:  Player Responsibility

Football players are adults, and each ultimately must make the decision as to how best to protect himself.  As noted by current player, Brandon Moore, “We know there is a 100 percent injury rate in this league.  If you’re not right, you need to say something.”  Every player must balance the possibility of injury against his love for the game and very significant potential paychecks.  Any player who feels that the risks are too great is free to walk away.  He always has been.  

Bill Staar is a partner in the Boston office of Morrison Mahoney LLP. He concentrates in the areas of product liability, construction disputes, toxic torts, and general business litigation. He is a member of DRI's Product Liability, Construction Law, and Commercial Litigation, Committees, vice chair of DRI's Sports Law, Specialized Litigation Group, and member of the Sporting Goods Manufacturers Association Legal Task Force.  All comments are his own and not necessarily representative of those of Morrison Mahoney LLP.


 

 

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The 136 days of lockout anxiety is at an end.  The NFL lockout is over, and the players and owners have signed a new collective-bargaining agreement.  Really, the fire went out two months ago, and we’ve just been watching the embers fade.  In May, I wrote that the Eighth Circuit’s declaration that it was likely to permit the owners to lock out the players effectively meant a sure win for the owners that would result in a speedy resolution of the ongoing labor dispute.  The court made its ruling official during the first week of June, finding that the Norris-LaGuardia Act prevents courts from issuing orders that end strikes or lockouts.  At that point, the players’ war was lost, and the owners’ relative position of wealth over the players would play the primary role in further negotiations.  The last two months really have been about little more than the players trying to save face and wrangle over lesser issues.  Others agree:

"The decision lifting an injunction was absolutely a game-changer in these negotiations," said Geoffrey Rapp, professor at the University of Toledo's School of Law. "As long as players had hope that the lockout would be prohibited by the courts, they could choose to continue with litigation -- at, essentially, no cost to themselves. The league would have to let them come to work, and paychecks would be earned. 

"But once the appellate court made it clear the lockout would not be prohibited, that made the reality of a potential lost season sink in for players. The concessions we've heard the players have made since, like dropping their share of the revenue by several percentage points, represent a real effort by the players to reach an agreement with the owners. Had the original injunction stopping the lockout been left in place, I think the players would not have faced the same pressure to adopt such an accommodating position." (Clark Judge, CBSSports.com; 7/18/11)

The major points of the new deal, which will last for a term of 10 years, are as follows:

Win for Owners

Percentage of Total Revenue
This is the big one.  Everything else takes a distant back seat.  The primary reason for the lockout was the owners demand for a bigger piece of the almost $10 billion that the league makes annually. Under the old system, owners lopped off $1 billion from the top, with players picking up 60 percent of the rest and 50 percent of all revenue. That amounted to owners receiving 49% of total revenue and players receiving approximately 51%.  Under the new agreement, there is nothing lopped off the top.  Owners now will receive 53% of total revenue versus players’ 47%.  That said, given the expected growth of the NFL, players’ total intake will continue to grow significantly.   Every NFL team is profitable, and the value of television contracts is projected to increase wildly.  

Stadium-Investment Credit
Owners who invest in modernizing their stadiums are allowed a reduction of up to 1.5 percent of revenue each year. 

Rookie Contracts
Bonuses and contracts for highly-drafted rookies will be significantly reduced with a four-year salary program and a team option on a fifth year. 

Elimination of Lawsuits
The lockout-related suit was just one of several that the players brought.  All are now extinguished.  

 

Win for Players

No 18-Game Schedule
The 16-game schedule remains, for at least another two years, when the parties will revisit the idea.  If accountants can show that an 18-game season brings in a substantially greater amount of money to the league, 47% of which goes to players, perhaps the players will change their minds. 

Cash-to-Cap Requirement
A new cash-to-cap commitment requires each team to spend at least 89 percent of its $120 million salary cap on actual player payroll. That means annual cellar-dwellers like the Buccaneers, Panthers, Chiefs, and Bills must spend millions above what they usually pay out.  This potentially could result in greater parity.  

Lifetime Health Insurance
A new program, partially funded by mandatory contributions from the players, provides lifetime health insurance for retirees.  Additionally, the package provides that players whose careers are cut short by injury can receive up to $1.5 million in compensation during the two years after the injuries occur.

Long-Term Disability Fund for Retirees
A $1 billion "legacy fund" for retired players has been created, and some of the money for those players will come from the money saved on rookie contracts.  

Lighter Practices 
Required practices, especially during training camp, are now less frequent and less strenuous.  All but a few practices during the course of the year are now no-contact.  

 

To Be Determined
A few smaller issues still must be addressed, including rules for health care, player conduct, and disciplinary proceedings.

So, everyone can now get back to work, with the first preseason games scheduled for August 11th.  This week, teams will be busy signing free agents, Tom Brady will have his hair styled to look good for training camp, Tony Siragusa will celebrate by consuming two dozen burgers and five pizzas in one sitting, and Antonio Cromartie will exhale, knowing that his paternity checks to the eight mothers of his nine known children won’t bounce.  Most importantly, NFL fans will now sit back and relax.   

Bill Staar is a partner in the Boston office of Morrison Mahoney LLP. He concentrates in the areas of product liability, construction disputes, toxic torts, and general business litigation. He is a member of DRI's Product Liability, Construction Law, and Commercial Litigation, Committees, vice chair of DRI's Sports Law, Specialized Litigation Group, and member of the Sporting Goods Manufacturers Association Legal Task Force.

 

 

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In October 2010, I wrote in DRI’s The Business Suit that the upcoming trial of Roger Clemens for allegedly lying to Congress about his non-use of performance-enhancing drugs was an enormous waste of time and taxpayer resources, and more than a little hypocritical. On Thursday, July 14, what already was a standard government fiasco morphed into a full-blown disaster. Federal prosecutors made a mistake that resulted in the judge declaring a mistrial, which hopefully means the end of this sorry affair.

The critical facts are these:

•  In early 2008, former Clemens teammate, Andy Pettitte, told Congress that Clemens had once admitted to Pettitte that Clemens had used human growth hormone. Mr. Pettitte also testified that he subsequently told his wife, Laura, about Clemens' admission. Laura confirmed that conversation during her own Congressional deposition.

•  On February 13, 2008, Clemens testified before Congress, during which Rep. Elijah Cummings' (D-MD) read that portion of Laura Pettitte’s deposition transcript confirming Andy's account of Clemens' alleged admission. In response, Clemens testified that Pettitte “misremembered” his conversation with Clemens.

•  In a July 7, 2011 pre-trial ruling, Judge Reggie B. Walton declared as inadmissible hearsay evidence of any conversations between Andy and Laura Pettitte about Clemens’ alleged use of performance-enhancing drugs. 

•  On July 14, 2011 despite Judge Walton's decision, prosecutors played a video excerpt from Clemens' February 2008 testimony, including that portion involving Rep. Cummings' description of Laura Pettittee confirming Andy Pettitte’s account of Clemens' alleged admission. Judge Walton declared a mistrial, stating “I think that a first-year law student would know that you can’t bolster the credibility of one witness with clearly inadmissible evidence,” particularly since Clemens has said that Pettitte’s recollection of their conversation was wrong. 

How could prosecutors make such a basic mistake? This is not an inexperienced group, although it arguably is overzealous and may be politically motivated. Although he was not in the courtroom during the ruling, Ronald C. Machen Jr., currently leads the Washington, D.C. branch of the U.S. Attorney's Office. A former partner at the law firm of Wilmer Cutler Pickering Hale and Dorr, Machen was recommended for the job by Eleanor Holmes Norton (D-D.C.), who submitted Machen’s name to President Obama. Machen reportedly called Obama a "legend" at Harvard and, in 2003, was one of the first people to donate to Obama's U.S. Senate campaign, long before Obama emerged on the national political stage. Steven Durham, a graduate of Northwestern University School of Law, joined the D.C. U.S. Attorney's Office in 1992 and has been in charge of its public corruption prosecutions since 2007. Daniel Butler, who joined the justice department in 1981, has been specializing in fraud and public corruption for the past seven years and led the successful prosecution of Deborah Jeane Palfrey, known as the "D.C. Madam", in 2008. All three men have received glowing support by friends and colleagues.

In their defense, Durham and Butler argued that they had turned over the videos to the defense in early May, and Clemens’ counsel had not objected when those videos were introduced into evidence on the morning of the July 14. Regardless, failing to redact the barred footage from the video was a clear violation of the court’s order, and Judge Walton does not appear convinced that this was an innocent mistake, stating "Government counsel [should] not do whatever they can get away with doing." Further, this is not the first exercise of questionable judgment by the prosecution since the case commenced. Clemens has no prior criminal record and has been accused of no violent crime. Yet, immediately after Clemens’ indictment, the prosecution moved that Clemens, allegedly a flight risk, surrender his passport. Thankfully, Judge Walton rejected the motion.

Judge Walton has set a date of September 2 for the parties to submit motions regarding whether Clemens should be retried. Legal scholars are split as to whether a retrial would violate Clemens constitutional protection against double jeopardy. Unfortunately, millions of dollars have already been lost in preparing for the first trial. Judge Walton will have done the country a favor by dismissing a case that reportedly would have taken four weeks of the court’s time and involved a minimum of 45 witnesses, including major league baseball players, employees of several teams, as well as officials of the House of Representatives. Hopefully sanity will prevail, and Machen’s office will not seek a retrial and will instead turn its attention to more pressing matters, like prosecuting murders, rapists, and terrorists.

There is a lesson to be learned here both for trial attorneys and their clients. A very basic mistake made by at least two experienced and well-respected prosecutors resulted in a catastrophe that ultimately may cost one or more of those attorneys their jobs. Assuming the “mistake” was just that, all the attorneys needed do was carefully review the videos that they intended to show jurors. Perhaps they were too busy to do so and assigned the job to an inexperienced lower-level staff member, secretary, or intern. Auditors who refuse to pay attorneys for reviewing videos of prior litigation-related events or who declare as non-billable “administrative” work those communications between attorneys and audio-video professionals about recordings to be presented as evidence at trial should strongly reconsider. As many of us already know, these tasks are often mundane, but critical to success in the courtroom.

Bill Staar is a partner in the Boston office of Morrison Mahoney LLP. He concentrates in the areas of product liability, construction disputes, toxic torts, and general business litigation. He is a member of DRI's Product Liability, Construction Law, and Commercial Litigation Committees, Chairman of DRI's Sports Law Specialized Litigation Group, and a member of the Sporting Goods Manufacturers Association Legal Task Force.

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On May 20th, on the heels of new doping allegations against Lance Armstrong, Forbes contributor Matt Herper resurrected in a short online article a long-running debate that tends to resurface each time a notable athlete is caught using a banned performance-enhancing substance or is accused of doing so.  In his article, entitled “The Case For Performance-Enhancing Drugs In Sports," Mr. Herper appears to argue that any drug alleging to enhance the performance of an athlete should be made legal so long as the substance (1) has been proven to do what it claims to do and (2) is safe.  A quick online search reveals many writings on the subject, with compelling arguments both for those who would open the floodgates to all performance-enhancing drugs and those who would ban them.  The following is a list of arguments most often repeated by each side, although it is by no means exhaustive. 

I.  For

A.  The Value of Spectacle:  Bigger, Stronger, Faster

Whether he realizes it or not, to the average fan, bigger, stronger, and faster is always better.  During the height of the MLB steroid era, baseballs were flying out of ballparks at unprecedented rates, and batting records were being shattered. Fans flocked to ballparks, and owners profits skyrocketed.  Many of today’s running backs are bigger than linemen of the 1970s.  Any Olympics without a half-dozen records shattered would be considered by some to be a failure.

B.  Openness = Safety

 

Declaring a drug illegal just drives it underground, hidden by sophisticated masking agents.  Once underground, it is very difficult to monitor, thus increasing health risks. 


C.  Loss of Therapeutic Value

 

Some banned drugs actually have a therapeutic value, helping athletes recover from injuries quicker.  An inflexible system that draws a line in the sand and completely bans a drug having healing abilities ultimately hurts both athletes and sport. 

 

D.  Costs v. Value

 

Because of the success of masking agents, the banning-and-testing effort is a waste of time and money.  On this topic, Matt Herper states “Our ability to detect these drugs is pretty bad,” although he later admits that detection efforts are gaining ground. 

E.  Equity

Those who really want banned drugs will find a way to get them, resulting in an inequity for those who cannot acquire them.  Making these drugs available for everyone levels the playing field.

 

F.  Supplements & Vitamins v. Performance-Enhancing-Drugs:  A Slippery Slope

 

Why are vitamins and supplements like creatine, amino acids, glutamine, citrulline, caffeine, and dozens of other publicly-available products legal when hormones, steroids, and other performance-enhancing drugs are not?  What about apparel like sticky gloves that allow wide receivers to haul in passes or swimwear that is more resistant to drag than human skin?  Don’t all of these things provide a competitive advantage to whomever uses them?  Who decides what is legal and what is illegal?  Isn’t the criteria subjective?  Opening the floodgates to all such products eliminates these problems.

 

G.  Drugs In Sports is Nothing New

 

Those who believe that the introduction of performance-enhancing drugs into sports is a newly-introduced disease that threatens to undermine those sports are kidding themselves.  The practice has been occurring since sport began.  In ancient Egypt, the hooves of Abyssinian donkeys were ground up and boiled in oil.  Ancient Olympians reportedly ate live bees and sheep testicles.  In the 19th century, boxers regularly took heroin.  For the last 50 years, professional soccer and baseball players have been known to regularly take amphetamines to fight fatigue.

 

II.  Against

 

A.  Negative Medical Side Effects

Although Mr. Herper calls for officials “to experimentally monitor new [drug] entrants, . . . for both efficacy and safety,” that is easier said than done, even after one determines what “experimentally monitor” means.  Scientists always are creating new drugs, and the negative health effects from any particular enhancement can take decades to appear.  For this reason, the FDA usually takes years to issue approval of a drug, after determining that the benefits of a proposed drug outweigh its risks.

By example, anabolic steroids once were legal and openly used by many professional athletes, primarily wrestlers and bodybuilders. Steroids are now known to have many negative side effects, including high blood pressure, coronary artery disease, liver damage, testicular atrophy, stunted skeletal growth, acne, and the appearance of male features in women, e.g., deepening voice, facial hair, and body hair. 

B.  Overstressing Other Body Parts

The increased levels of muscle mass achievable with modern drugs are overstressing bodies in a number of ways.  Bones, tendons, and ligaments often cannot cope with the muscle growth around them.  The average NFL lineman now weighs over 300 lbs., and knees often buckle under the strain.  Sometimes, even the muscles themselves break down.  Hall of Fame baseball player and all-time stolen-base leader Rickey Henderson denies ever having used a banned substance.  Regardless, he had massive muscular legs compared to other players and was notorious for frequent hamstring pulls.  On this topic, the late sportscaster George Michael said the following during a speech in 2007:  "[I]n 2002...17 percent of total baseball payroll went to guys who were on the injured list with muscle tears, muscle strains, ruptured Achilles tendon, and on goes the list. [Dr. James Andrews] said that we have had a 200 percent increase in just the five years prior to 2002. Baseball owners paid $370 million to players who were not able to play. Most of them according to Dr. Andrews, were related to their use of anabolic steroids.  And you now want to admit--legalize it, and govern it?”

Perhaps the biggest concern stemming from the increased size and speed of enhanced modern-day athletes is the increased risk of concussion.  More mass and speed means more force.  More force applied to more heads means an increased risk of concussion frequency and severity.  The growing size and speed of players in both the NHL and NFL often are regularly cited as major factor for what appear to be increasing concussion rates in those leagues.

 

C.  Effect on Children

 

Whatever the risks of drug use to adults, an even greater concern is their effects on children.  As all parents know, “Do as I say, not as I do” rarely wins the day when dealing with kids, and the use of drugs by adults will be seen as tacit approval of their use by children.  The potential dangers are severe and go well beyond the possibility of a 15 year-old field-hockey player being able to grow a thick, luxurious mustache.  This was a key factor in Congress’ passing of the Clean Sports Act of 2005.  Said Tom Davis, JD, US Representative (R-VA), “[The] legislation . . . is aimed at not only getting rid of performance enhancing drugs on the professional level, but also to send a message loud and clear to the young people of America: Steroids are illegal. Steroids are dangerous. They can be deadly. And there is no place for them in our sports leagues or on our school grounds."

 

D.  Increased Costs

Medications alleged to aid performance to those making millions of dollars in professional sports are unlikely to be inexpensive.  Legalizing banned substances only will result in an increase in the total number of dollars being spent on these products.  It also will result in me purchasing more stock in Pfizer. 

E.  False Equity

 

Legalizing banned substances will not level the playing field.  Some teams and athletes will be capable of affording them, others will not.  Also, the most effective regimens are also the most sophisticated and expensive.  As a result, those people and organizations with the most money would benefit most from the legalization of these products, and the gap between the haves and the have-nots only would widen.  As stated by Joe Lindsey, of Bicycling Magazine, “[W]herever you draw the line, something, some technique or substance, will always be off-limits. And so you've merely moved the line, not erased it.”

 

F.  Feeding Addiction and Abuse

 

Most banned substances are not chemically addictive, but they can become psychologically addictive.  The desire to win can become overwhelming, and using chemicals to achieve one’s goals is far easier than spending many hours running around a gym or lifting weights.  Drug abuse, both in terms of the number of drugs taken and dosages, could grow to crisis levels and result in many of the same social ills that result from chemical addiction to street drugs.

 

G.  Undermining the Very Concept of Sport

 

Historical use of enhancers is not a persuasive reason to legalize currently-banned drugs because the starting effectiveness of modern drugs are fundamentally changing and potentially destroying sports.  As stated by Thomas H. Murray, PhD, President of The Hastings Center for bioethics, “natural talents and their perfection are the point of sports.” Carl Djerassi, PhD, of Stanford University, agrees, arguing that sports are being changed “from a competition of athletes to one of chemists, where the emphasis will shift abruptly from body to mind.”  Says psychotherapist Jay P. Granat “The purity of sports, the beauty of sports is about athletes competing with a sound mind and a sound body. We don’t want the athlete with the best chemist, best pharmacist, or the best transfusionist to be the champion."  Would the NFL allow quarterbacks to wear exoskeleton arms permitting 100-yard laser-like throws?  Should long-distance runners be allowed to compete using motorcycles? 

 

III.  The Winner

 

For me, the Against group wins.  I have no desire to see my teenage daughters pop a few pills and suddenly be able to bench press more weight than I can.  Further, as a Yankees fan, I prefer to keep in place the asterisks that accompany the 2004 and 2007 “championships” of their arch-rivals.  In all seriousness, the advantages and risks of modern-day drugs are just too great.  To be sure, it can be difficult to determine where nutritional supplements end and performance-enhancers begin.  That it may be difficult does not justify quitting in making a reasoned attempt to draw that line.  Further, careful exceptions should be made for those drugs that help prevent injury or help injuries to heal quicker.  As for the claim that legalization is warranted because of the difficulties of testing and something far less than a 100% success rate in catching cheaters, that type of thinking would result in the elimination of 99% of all criminal statutes.   Laws and rules are made to serve both as walls and guideposts.

 

Bill Staar is a partner in the Boston office of Morrison Mahoney LLP. He concentrates in the areas of product liability, construction disputes, toxic torts, and general business litigation. He is a member of DRI's Product Liability, Construction Law, and Commercial Litigation, Committees Chairman of DRI's Sports Law Specialized Litigation Group, and a member of the Sporting Goods Manufacturers Association Legal Task Force.

 

 

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NFL Owners Driving Toward the Goal Line

Posted on May 19, 2011 04:54 by Bill Staar

Earlier this week, the Eighth Circuit gave the NFL owners another win in their legal feud with NFL players.  For those of you who don’t have the slightest clue as to what this lockout is all about, please see my DRI article of May 4. For the rest of you, I’ll turn back the clock two months.

- On March 11, the collective-bargaining agreement between the NFL owners and players, which had been in effect since 2006, expired.  Because no follow-up contract had been agreed to, the owners locked out the players. 

- On April 25, US District Judge Susan Richard Nelson, sitting in Minneapolis, issued an injunction that lifted the lockout, finding that the lockout would cause irreparable harm to the players.  In essence, this required the NFL to resume normal operations. The owners immediately sought and received an expedited appeal to the Eighth Circuit, Court of Appeals.

- On April 29, in a 2-1 decision, the Eighth Circuit, located in more conservative St. Louis, reversed the lower-court’s order and issued a two-week stay of the injunction issued by Judge Nelson.  As a result, the owners reinstated the lockout. 

- On Monday, May 16, the Eighth Circuit extended its stay, which will remain in place until June 3, when the court will hear final arguments on Judge Nelson’s decision of April 25.  Two of the three judges hinted that June 3 is merely a formality and that reversal of Judge Nelson’s decision is almost a certainty, stating:  “We have serious doubts that the district court had jurisdiction to enjoin the league’s lockout, and accordingly conclude that the league has made a strong showing that it is likely to succeed on the merits.”

June 3 appears to be a sure win for the owners that will allow them to continue to lock out the players indefinitely.  As a practical matter, this means, among other things, no signing of free agents, no trading of players, and no contact between coaches and players.  If it continues, it also will mean no training camp and no 2011-12 NFL season.

Now that the die appears to be cast, most pundits believe that the players must concede and reduce their demands.  The Washington Post’s Amy Shipley summarized their choices as follows:  “If faced with a loss at the appellate level, the players would have to decide among three nerve-rattling options: [1] appealing to the Supreme Court, a certainly risky and possibly lengthy process; [2] pressing forward with their antitrust lawsuit in front of Nelson while the lockout continues; or [3] sitting down and negotiating a deal.”  Time is not on the players’ side.  Most cannot afford to lose a paycheck for the upcoming season, and they are playing chicken with a group of multi-millionaires and billionaires who can fund this war much longer.  Further, the second option probably is futile, given that the same Eighth Circuit judges eventually would hear that lawsuit on appeal and probably find for the owners whatever the lower-court ruling.

Training camps are scheduled to open in late July.  Expect the parties to strike a deal shortly. 

Bill Staar is a partner in the Boston office of Morrison Mahoney LLP. He concentrates in the areas of product liability, construction disputes, toxic torts, and general business litigation. He is a member of DRI's Product Liability, Construction Law, and Commercial Litigation, Committees, vice chair of DRI's Sports Law, Specialized Litigation Group, and member of the Sporting Goods Manufacturers Association Legal Task Force.

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I’m a huge fan of pro football, but labor law is not my area of expertise, and the mainstream press has done a terrible job of explaining to the general public how the NFL and its players find themselves in the midst of the first NFL work stoppage since 1987.  As far as I can tell, after picking through dozens of stories about the dispute, the following is the CliffNotes version of what is going on.  Also, after doing so, I no longer blame the press so much.  It probably would be easier to describe how the Large Hadron Collider works.

• In 2006, NFL team owners and the NFL Players Association signed a five-year collective-bargaining agreement (CBA) that significantly increased player pay and benefits over the prior contract.  Under the 2006 CBA, players' salaries accounted for roughly 60 percent of total revenue. 

• As time passed, the owners came to the conclusion that they had struck an unfavorable deal.  They certainly were not going broke, but debts for stadium construction, other costs, and a slumping economy that was not allowing revenues to keep pace with costs were taking a toll.  They longed for a "healthier" deal to allegedly “promote league growth.”

• In early 2011, the owners proposed a new contract allegedly having three main parts:

(1) Upward Revenue Adjustment for Owners

The primary goal for owners is to keep more of the total NFL revenue for operating and investment expenses, which amounts to about $1 billion off the top of the league’s annual revenue of over $9 billion, before salaries and other expenses were paid.  Players would continue to get a 60-percent share of the remaining dollars.  In real terms, however, without a dramatic increase in revenue, that would mean an estimated 18% reduction in the total amount of money available to pay player salaries.  The NFLPA rejected this proposal, instead wanting to keep the status quo.

(2) 18-Game Regular Season

Owners want to add two regular-season games and eliminate two preseason games, thus generating hundreds of millions more dollars in TV and attendance revenue. Players argue that their bodies take enough of a toll as it is. Owners are prepared to increase roster limits and decrease mandatory offseason workouts to accommodate the extra pounding.

(3) Rookie Wage Scale

Owners want an NBA-like rookie wage scale, whereas 1st-round draft choices are assigned salaries according to their draft position. The first overall pick receives more than the second pick, the second more than the third, and so on. Each contract would be for two years, with a team option for the third and fourth seasons, with built-in raises every year to compensate for increases in the average salary. Reportedly, the NFLPA is open to this. 

• On February 15th, the owners filed a claim with the National Labor Relations Board, seeking damages and arguing that the NFLPA, a union, had failed to bargain in good faith.

• On March 11th, the ’06 CBA ended, and no new CBA had yet been agreed to.  As a result, the owners imposed a 45-day lockout, i.e., they would not allow the players to work or enter the owners’ facilities for any reason. 

Further, the NFLPA immediately decertified itself as a union and became a trade organization.  That tactical maneuver facially allowed ten named players, including Tom Brady, Drew Brees, and Peyton Manning, to commence an anti-trust lawsuit against the owners in the USDC, Minneapolis.  That suit seeks, among other things, (1) an injunction against the lockout, which stands to cause irreparable harm to their careers, (2) treble damages potentially worth hundreds of millions of dollars for alleged wrongdoing by the owners going back years, and (3) the ability of players to declare their existing contracts null and void if the NFL fails to pay them.  In response, the owners claim that the suit has no merit and, more importantly, that the suit is an improper legal ruse designed to avoid jurisdiction over the NFLPA by the NLRB. 

• On April 25th, US District Judge Susan Richard Nelson issued the injunction lifting the lockout, finding no evidence in support of the owners’ claims that the lockout would not cause irreparable harm.  The owners immediately sought and received an expedited appeal.

• On April 29th, in a 2-1 decision, the 8th Circuit Court of Appeals, located in more conservative St. Louis, reversed the lower-court’s order and issued a temporary stay of the injunction.  As a result, the owners reinstated the lockout.  On June 3rd, that court again will hear oral argument and then decide whether the stay should be permanent.  Analysts expect the owners to present two primary arguments, i.e., (1) that the players are not irreparably harmed, by presenting opinions from players who might welcome the lockout as a break from training camp and (2) that in tossing the lockout, the owners are denied an economic option allowed by law, just as employees can choose to strike.

• In the meantime, the parties are under court order to return to Minneapolis on May 16th and participate in court-sponsored mediation before U.S. Magistrate Judge Arthur Boylan. 

The first preseason game is scheduled for Aug. 8, and all parties have voiced a strong desire to resolve their differences well before then.  I, for one, hope that happens.  It’s an incredible travesty to see millionaires and billionaires fight light this.  Also, no one has mentioned the real irreparable harm that will be done if the season is cancelled:  Hundreds of NFL cheerleaders will be forced to sit home, pom-poms in hand, and have no one to cheer to.  As Americans, we simply cannot let that happen.  Finally, I can only collect a year’s worth of tears for so long.  If my San Diego Chargers again fail to reach the Super Bowl, all will be well, and I can unleash those tears as I do annually and profusely.  If the season does not happen, however, I’ll be forced to watch Marley & Me several times in December. 

 

Bill Staar is a partner in the Boston office of Morrison Mahoney LLP. He concentrates in the areas of product liability, construction disputes, toxic torts, and general business litigation. He is a member of DRI's Product Liability, Construction Law, and Commercial Litigation, Committees, vice chair of DRI's Sports Law, Specialized Litigation Group, and member of the Sporting Goods Manufacturers Association Legal Task Force.


 

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