Darren Heitner, who most of you probably know from his work with Sports Agent Blog and Forbes, recently put out a book called How to Play the Game: What Every Sports Attorney Needs to Know. The book discusses the laws that govern the sports industry, from contract drafting and negotiation to antitrust issues, intellectual property matters, and labor law concerns. It also discusses the role of players’ associations, the power of sports commissioners, sports betting regulations, and more.
Darren was nice enough to share an excerpt from Chapter 1, “Collective Bargaining” that goes into great detail specifically around the NFL concussion litigation. In addition, we are going to give away a free copy of his book. If you want a chance to win, simply tweet this blog post with the hashtag #howtoplaythegame (the tweet button/counter at the top left corner of this post should already be set up with the hashtag). Then on Friday morning at 10AM, I’ll select one random tweet as a winner. And of course, you can always purchase a copy of the book here.
NFL Concussion Litigation
“A collective bargaining agreement is a powerful thing—so powerful that it can effectively slam the court door shut on the former players’ claims against the National Football League.”4
—Paul Anderson, Proprietor of NFLConcussionLitigation.com
Baseball may still be considered America’s pastime, but football, in the form of the NFL, has become the biggest professional sports business in the United States, with annual revenues of roughly $9 billion.5 The NFL has gone from a league raking in annual revenue of $6.5 billion in 2006 to its record-breaking revenue of $9.2 billion in 2012.6 However, the long-term success of the NFL and the sanctity of that reservoir of money was put in serious jeopardy when a slew of former NFL players and their spouses filed complaints against the NFL and NFL Properties for the league’s alleged mishandling of a lingering concussion problem that has had devastating consequences for the limbs and brains of those who played in the past.7
The very first NFL concussion-related lawsuit was filed on August 7, 2011, with seven former professional football players and their wives serving as the initial plaintiffs.8 As of June 1, 2013, more than 4,800 former NFL players had become plaintiffs in over 240 concussion-related lawsuits spread across the United States.9 Including said players’ spouses, the number of plaintiffs increased to more than 5,800 altogether.10
Months prior to the first NFL concussion-related lawsuit being filed, I proposed to the managing partners at my former law firm that we should file a complaint against the NFL and expose the league to what I believed to be plausible liability. After creating a thorough outline and mastering my pitch, I was shot down. The partners were concerned about the longterm substantial costs of representing players on a contingency basis, with no guarantee of ever collecting a dime, against the behemoth of the NFL at the time of the article, for the league to have met the union’s demand and end the lockout, it would have taken “just 3.2 million annually,” which is “a tiny fraction of the N.F.L.’s $9 billion in annual revenue.”) and its high-profile attorneys who would be paid whatever was necessary to defend the league so as to be able to continue to offer its product to the masses. It was an early experience in learning not only how to play the game, but the types of factors considered by those with decision-making power and the influence those factors have in determining whether certain issues are worthy for particular individuals to take on. Despite the potentially large windfall of money on the table for the law firm had they accepted the task of representing the damaged players, the firm weighed the risk versus reward and concluded that the litigation was not worth the cost and time commitment.
Although I did not become counsel for any of the former players who eventually attached their name to the NFL concussion litigation, many attorneys jumped at the opportunity. They saw it as a chance to represent the players who claimed that the NFL either should have known about the lingering harmful effects of multiple head injuries or knew about the ravaging significance of multiple blows to the head, all while making a concerted effort to feed players faulty information.11 These attorneys looked to articles such as the one written by Bennet Omalu, who wrote in the peerreviewed journal Neurosurgery that scientific evidence exists to prove that the type of repeated blows to the head that football players suffer while on the field could cause severe, debilitating brain damage.12 Three scientists on the NFL’s payroll, as members of the NFL’s Mild Traumatic Brain Injury Committee, responded by making a concerted effort to have Omalu’s article retracted.13 They disagreed with the findings, said there were seriousflaws with the study’s conclusions, and even went as far as to claim, “We own this field. We are not going to bow to some no-name Nigerian with some bullshit theory.”14
Omalu’s article was published in July 2005. Two years later, the NFL released an outline concerning the steps it had taken to address the long-term effect of concussions.15 The outline included an excerpt from a new “NFL Player Concussion Pamphlet” for players and their families to get a better understanding of the symptoms of concussions, and it outlined the ways to better detect when a player was suffering from a concussion.16 Nestled near the bottom of that pamphlet were the statements “It is important to understand that there is no magic number for how many concussions is too many” and “Research is currently underway to determine if there are any long-term effects of concussions in NFL athletes.”17 Plaintiffs and their respective counsel pointed out that the independent studies had already provided insight in this particular area, yet those in power at the NFL chose to ignore the evidence that was right in front of them. Even worse, argued the plaintiffs, was that the NFL went the extra step by seeking to discredit the independent findings.
Two years after the release of the NFL’s pamphlet and four years after Omalu’s article was published in Neurosurgery, the Committee on the Judiciary in the U.S. House of Representatives held a hearing on the legal issues relating to football head injuries. At the hearing, NFL commissioner Roger Goodell reiterated what was said in his two-year-old pamphlet. Before the Committee, Goodell stated, “If I have had more than one concussion, am I at increased risks for another injury? Answer: Current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems if each injury is managed properly. It is important to understand that there is no magic number for how many concussions is too many.”18 The immediate response was one of concern, and it promptly raised the stakes based on the NFL’s perceived actions (or lack thereof) regarding the lingering concussion problem. Representative Linda Sanchez of California compared the NFL’s stance on concussions to that of the tobacco companies of the past that continually denied a link between smoking and damage to health.19 Sanchez also urged the NFL to embrace that independent studies demonstrated a high correlation between number of blows to the head in football and cognitive impairment.20 Goodell largely avoided responding directly to the representative’s line of questioning.
Fast-forward to July 10, 2012. Many NFL concussion-related cases had already been filed, and New York Giants chief executive officer John Mara was still holding onto the notion that the NFL had no knowledge of the long-term effects of suffering multiple head blows during play, despite whatever independent research was available.21 “But the notion in these lawsuits that we knew there were long-term effects and we withheld that information is ridiculous,” said Mara.22 “Is there some kind of cause and effect? I don’t know, I’ll let the medical experts tell you that; common sense would tell you that there is. But to say we knew it and withheld it, I really find that objectionable.”23
The Omalu study, the “NFL Player Concussion Pamphlet,” the Committee on the Judiciary in the U.S. House of Representatives hearing transcript, and the statements by Giants CEO Mara make up a small section of the plethora of documents and information that could have become available if a discovery process had begun as part of the concussion litigation against the NFL. However, the plaintiffs had a major hurdle to pass before the discovery process was to begin. Most important was that the various lawsuits were consolidated into a master complaint in the Eastern District of Pennsylvania by a Case Management Order, which effectively turned the individual pending matters into multidistrict litigation for the purpose of handling pretrial procedures.24
On July 28, 2012, the NFL filed a motion to dismiss all the lawsuits filed by former players based on a claim that the collective bargaining agreement (CBA) signed between the NFL Management Council and the NFL Players Association (NFLPA) governed the players’ concerns, which the NFL labeled as a “labor dispute.”25 If the court granted the NFL’s motion, it would not have been the first time a court found that a complaint should have been dismissed for failure to make use of a grievance procedure established in a CBA or dismissed as preempted by Section 301 of the Labor Management Relations Act.26 Granting the motion would have also largely erased much of the perceived gains that the plaintiffs’ attorneys may have won up to that point in the litigation. Jurisdictional challenges are quite common for litigators in the practice of law and can be another significant bump in the road for practitioners who are attempting to successfully play the game.
In its filing, the NFL’s undersigned attorneys wrote, “For almost 45 years, professional football players have played under CBAs, painstakingly negotiated through their union, that set forth the parties’ understanding and agreement on how, among many other things, player health and safety will be protected,”27 in an effort to persuade the court that it was not the proper jurisdiction to adjudicate the cases brought by the myriad plaintiffs. The NFL took the position that the grievance procedure (mandatory arbitration) was collectively bargained for; thus, former players had no right to bring their claims in state courts across the United States. The plaintiffs’ attorneys countered that the players’ claims were not subjected to the previously executed CBAs because the documents were signed while the NFL was fraudulently concealing the consequences of multiple blows to the skull.28
Judge Anita Brody, sitting in the Eastern District of Pennsylvania and selected to preside over the case, ordered the parties to mandatory mediation upon receipt of the parties’ full briefing on the NFL’s motion to dismiss “to determine if consensual resolution” was possible.29 The mediation was to be controlled by former U.S. District Judge Layn Phillips, with the parties compelled to report back to Judge Brody with a progress report by September 3, a mere two days prior to the scheduled start of the 2013 NFL regular season.30
The NFL and the thousands of plaintiffs reached a proposed settlement five days prior to the parties’ deadline to report back to Judge Brody.31 A settlement effectively relieved Judge Brody from making a ruling on the NFL’s motion to dismiss the lawsuits through its theories based on labor law. It also at least temporarily allowed the NFL to escape what could have been a very damaging discovery process should the court have denied its motion. Alternatively, by coming to terms on a proposed settlement, the plaintiffs may have been relieved from having to guess whether the NFL’s eventual affirmative defenses, including but not limited to assumption of risk and causation, would be persuasive to a jury.
The total sum of the proposed settlement was valued at $765 million, with $675 million of those funds being directed to compensate former players who have suffered cognitive injury or to their families.32 If the settlement agreement goes forward, roughly 50 percent of the settlement proceeds will be distributed to the players and/or their families within three years and the remainder to be paid out over a span of 17 years.33 All players who were retired by the time that Judge Brody granted preliminary approval of the settlement would be entitled to take a baseline medical exam (the funding for such exams to also be taken out of the total proceeds contemplated by the settlement) to determine whether they qualify for an award and how much that award would be based on the type of harm sustained.
As discussed, most of the attorneys for the former players who sought compensation from the NFL were working on a contingency basis, providing their services without compensation for a period of time, with a hope that a large settlement or verdict would line their pockets with millions of dollars.34 Part of the settlement agreement included a provision that called for legal fees and litigation expenses to the plaintiffs’ counsel, with amounts to be set by the District Court. While the proposed settlement agreement remained sitting in front of Judge Brody, a new issue arose concerning the payment of attorneys’ fees to the plaintiffs’ counsel. Judge Brody ended up appointing a special master to make a determination as to whether lawyers for the former NFL players were planning to “double-dip” by earning fees through a provision in the proposed settlement agreement in addition to a percentage of their clients’ earnings via existing contingency fee retainer agreements.35 The concern over double-dipping has led to squabbles between attorneys serving as counsel to a variety of former players in addition to causing a rift between many plaintiffs and their lawyers. The ultimate consequence is a delay in the potential resolution of highly contentious litigation with individuals who desperately need monetary assistance to cover medical bills and attorneys continuing to offer their services with the hope of an eventual payday. Meanwhile, the law firm of Paul, Weiss, Rifkind, Wharton & Garrison never risked entering the litigation without receiving payment for its services; the firm earned large sums of hourly fees based on the representation of the NFL in the dispute.36
Finally, the proposed settlement does not mark the end for the NFL when it comes to concussion litigation. The proposed settlement did not represent an admission by the NFL of liability or that the plaintiffs’ injuries were caused by football and simply meant that the parties wished to compromise their claims and defenses rather than through litigation. However, it did not take the option of continuing to litigate against the NFL completely off the table. Players who were not yet retired by the time the settlement proposal was approved may still make claims for injuries sustained.37 Further, any of the former players within the class represented may be able to opt out of the class and continue against the NFL if they believe that they will not be justly compensated for their particular claims.38 George Washington University Law School Professor of Public Interest Law, John Banzhaf, says that he has been told that more than 2,000 retired NFL players may refuse to accept the proposed settlement, which may not only serve to prevent the proposed settlement from ever going into effect, but also renew the issue over whether the former players’ claims are preempted by prior collective bargaining agreements between the players and NFL teams and once again cause the NFL to become concerned about the opening of a discovery period.39 Further, new lawsuits continued to be filed by former NFL players against the NFL despite the pending status of the settlement agreement. In late December 2013, 26 former NFL players filed a new lawsuit against the league, which purportedly included several players who had already opted out of the class of plaintiffs expected to be a part of the pending settlement agreement.40
Darren Adam Heitner, Esq. is a Partner at Wolfe Law Miami, P.A. who is licensed to practice on the state and federal level, and primarily focuses on sports, entertainment, and intellectual property litigation and transactional work. He is also the Founder/CEO of sports and entertainment consulting firm Dynasty Dealings, LLC, Professor of Sport Agency Management at Indiana University Bloomington, Contributor at FORBES, and Founder/Chief Editor of Sports Agent Blog, a leading niche industry publication.
4. See Paul D. Anderson Consulting, LLC, The Almighty CBA, NFLConcussionLitigation.com, Aug. 30, 2012, at http://nflconcussionlitigation.com/?p=1080.
5. See Judy Battista, N.F.L. Commissioner Goodell Caught between Bad Calls and Owners, N.Y. Times, Sept. 25, 2012, at http://www.nytimes.com/2012/09/26/sports/football/nfl-commissioner-goodell-caught-between-bad-calls-and-owners.html?pagewanted=all&_r=1&.
6. See Monte Burke, Think the NFL Is in Decline Because of Head Trauma Issues? Think Again, Forbes, Aug. 14, 2013, at http://www.forbes.com/sites/monteburke/2013/08/14/think-the-nfl-is-in-decline-because-of-head-trauma-issues-think-again/.
7. Nathan Fenno and Luke Rosiak of the Washington Times have compiled a constantly updated database (at http://www.washingtontimes.com/footballinjuries/) of former players who have filed a concussion-based lawsuit against the NFL. As of their December 20, 2013, update, 4,878 former players had pending litigation against the NFL based on head injuries sustained.
8. See Darren Heitner, NFL Faces Tobacco-Like Damages Reaching Billions of Dollars in Concussion Litigation, Forbes, June 12, 2012, at http://www.forbes.com/sites/darrenheitner/2012/06/12/nfl-faces-tobacco-like-damages-reaching-billions-of-dollars-in-concussion-litigation/.
9. See NFL Concussion Litigation, Plaintiffs /Former Players, NFLConcussionLitigation.com, at http://nflconcussionlitigation.com/?page_id=274. (“As of June 1, 2013, there are more than 4,800 named player-plaintiffs in the 242 concussion related lawsuits. Including the players’ spouses, there are more than 5,800 plaintiffs, total.”)
11. See Ken Belson, N.F.L. Faces Retired Players in a High-Stakes Legal Battle, N.Y. Times, Dec. 29, 2011, at http://www.nytimes.com/2011/12/30/sports/football/nfl-faces-retired-players-in-a-high-stakes-legal-battle.html. (The article quotes Larry Coben, who represents seven retirees in the action against the NFL, saying that “the N.F.L. knew or should have known” about the neurological problems, but failed to “take any active role in addressing the issue for the players.”)
12. See Jeanne Marie Laskas, Game Brain: Football Players and Concussions, GQ.com, Oct. 2009, at http://www.gq.com/sports/profiles/200909/nfl-players-brain-dementia-study-memory-concussions?currentPage=2. (After months of extensive research on the topic, Omalu finally wrote a paper detailing his findings in an article he titled “Chronic Traumatic Encephalopathy in a National Football League Player,” which was published in a “prestigious peer-reviewed journal” called Neurosurgery.)
13. Id. (stating that three scientists on the NFL’s payroll wrote a “lengthy letter” to the editor of Neurosurgery demanding the article be retracted). The three scientists, Casson, Pellman, and Viano, said that they disagreed with the article, alleging that it had “serious flaws” and was a “complete misunderstanding.”
15. See NFL Outlines for Players Steps Taken to Address Concussions, NFL.com, Aug. 14, 2007, at http://www.nfl.com/news/story/09000d5d8017cc67/article/nfl-outlines-for-players-steps-taken-to-address-concussions.
18. See Legal Issues Relating to Football Head Injuries (Part I & II), Committee on the Judiciary House of Representatives, Oct. 28, 2009, and Jan. 4, 2010, at http://judiciary.house.gov/hearings/printers/111th/111-82_53092.pdf.
19. Id. See Dave D’Alessandro, Giants Owner John Mara Discusses NFL Brain Injuries, NJ.com, July 10, 2012, at http://www.nj.com/ledger-dalessandro/index.ssf/2012/07/giants_owner_john_mara_discusses_nfl_brain_injuries.html.
24. See Paul D. Anderson Consulting, LLC, MDL Proceedings Are Set to Begin, NJ.com, Mar. 9, 2012, at http://nflconcussionlitigation.com/?p=316.
25. See NFL.com Wire Report, NFL Asks Federal Judge to Dismiss Concussion Lawsuits, NFL.com, Aug. 30, 2012, at http://www.nfl.com/news/story/0ap1000000056716/article/nfl-asks-federal-judge-to-dismiss-concussion-lawsuits. (The article states that in its 40-page motion to dismiss, the NFL called the concussion litigation a “labor dispute.”)
26. See Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 105 S. Ct. 1904, 85 L. Ed. 2d 206.
28. See Darren Rovell, NFL Files Motion to Dismiss More Than 140 Concussion Lawsuits, ESPN.com, Aug. 30, 2012, at http://espn.go.com/nfl/story/_/id/8314320/nfl-files-motion-dismiss-more-140-concussion-lawsuits (stating that the attorneys for the players argued that “the case belongs in the legal system because the collective bargaining agreement doesn’t protect the league against the players’ claim of fraudulently concealing the dangers of concussions, a charge the league denies”).
29. See Jeff Blumenthal, Judge Orders NFL, Ex-Players to Mediate Concussion Suits, Philadelphia Bus. J., July 8, 2013, at http://www.bizjournals.com/philadelphia/news/2013/07/08/judge-orders-nfl-ex-players-to.html.
31. See Darren Heitner, Breaking Down the Proposed $765 Million NFL Concussion Lawsuit Settlement, Forbes, Aug. 29, 2013, at http://www.forbes.com/sites/darrenheitner/2013/08/29/breaking-down-the-proposed-765-million-nfl-concussion-lawsuit-settlement/.
34. See Andrew Brandt, The NFL’s Concussion Conundrum, ESPN.com, Oct. 17, 2012, at http://espn.go.com/nfl/story/_/id/8513300/the-issue-concussions-nfl-not-going-away.
35. See Mark Fainaru-Wada and Steve Fainaru, Concerns over Lawyer Pay in NFL Deal, ABC News, Dec. 16, 2013, at http://abcnews.go.com/Sports/concerns-lawyer-pay-nfl-deal/story?id=21235222.
36. See Brian Baxter, The Score: Dodgers’ Fees, Concussion Suits, and Penn State Alums, AM Law Daily, Feb. 12, 2012, at http://amlawdaily.typepad.com/amlawdaily/2012/02/the-score.html (stating that the NFL has “turned to lawyers led by Paul, Weiss, Rifkind, Wharton & Garrison chairman Brad Karp” to defend them in the concussion litigation).
37. See Daniel Fisher, NFL Concussion Settlement Ends the Best Cases, but Not All of Them, Forbes, Aug. 30, 2013, at http://www.forbes.com/sites/danielfisher/2013/08/30/nfl-concussion-settlement-ends-the-best-cases-but-not-all-of-them/.
38. See Matthew Futterman, Deal in Concussion Suit Gives NFL a Big Victory, Wall Street J., Aug. 29, 2013, at http://online.wsj.com/article/SB10001424127887324463604579042980915590474.html.
39. See Darren Heitner, NFL Concussion Lawsuit Settlement Agreement Stalled By Judicial Intervention, Forbes, Dec. 17, 2013, at http://www.forbes.com/sites/darrenheitner/2013/12/17/nfl-concussion-lawsuit-settlement-agreement-stalled-by-judicial-intervention/.
40. See David Barron, Former NFL Players File Suit Against League, Houston Chronicle, Dec. 19, 2013, at http://blog.chron.com/sportsupdate/2013/12/former-nfl-players-file-suit-against-league/.