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