NFL concussion litigation in court

by Walter Olson on April 9, 2013

It reaches an important juncture at a hearing in federal court in Philadelphia today, where a judge will be asked to decide whether litigation is pre-empted by collective bargaining and arbitration law. The choice of counsel — frequent Supreme Court advocates David Frederick and Paul Clement — suggests the high stakes. [Washington Post] Earlier here, here, etc.

{ 15 comments }

1 Ron Miller 04.09.13 at 9:49 am

This case is very troubling for plaintiffs: Sherwin v. Indianapolis Colts, 752 F. Supp. 1172 (N.Y.D.C 1990). In this case, a federal court said an arbitration agreement is an arbitration agreement looking at the same language. And the “SOL” to bring a claim on these is, I believe, a draconian 90 days.

I’ve gotten around the CBA in a claim against an NFL team by claiming waiver. But I don’t see waiver here.

2 Richard Nieporent 04.09.13 at 4:59 pm

I wonder which side the Associated Press writer favors in this lawsuit, the NFL

The NFL will be represented Tuesday by Paul Clement, a former U.S. solicitor general under President George W. Bush who has fought gay marriage, gun-control measures and President Barack Obama’s state health care mandates before the Supreme Court.

or the players?

Players’ lawyer David Frederick, an Obama ally, has taken consumer protection fights over investor fees and prescription drug warnings to the high court.

The characterization of the two lawyers by the AP is beyond the pale. Would it be unreasonable to point out that the previous cases taken by a lawyer are not relevant to whether or not his client is innocent or guilty?

3 William Nuesslein 04.10.13 at 5:26 am

@ Richard Nieporent

You are right in your assertion that the previous cases taken on by a lawyer is irrelevant to the issue of guilt.

But the litigation here has apolitical dimension. Being a champion for the “little” guy is a lucrative industry.

What gets me is that the athletes in professional wrestling have their un-helmeted heads pounded against the floor of the ring and smashed into corner posts. They are often picked up and thrown out of the ring completely. Yet Hulk Hogan seems OK.

4 Chip 04.10.13 at 10:52 am

Hulk Hogan seems ok?! Dude, you ain’t been payin’ attention.

5 Ron Miller 04.10.13 at 12:29 pm

I’m with Chip. These guys have awful injuries, including head injuries, and are dying young in massive number. I can’t believe more people are not paying attention to this. Because it is absolutely insane.

But I agree with Mr. Nuesslein that this in not a political issue. And I disagree with Richard that the AP loaded the story…. unless you presuppose one is bad and one is good. Most red state conservatives would view the AP description of Clement as heroic.

6 wfjag 04.10.13 at 2:09 pm

@William Nuesslein:
“What gets me is that the athletes in professional wrestling have their un-helmeted heads pounded against the floor of the ring and smashed into corner posts. ”

When your measure of damages will involve some sort of before and after comparison, why would you take a Pro Wrestler’s case?

7 Ron Miller 04.10.13 at 3:56 pm

Why on earth would professional wrestlers, as a class of people, be more likely to have brain or other injuries before their wrestling careers? Spoiler alert: these are highly paid actors who, in the course of their jobs, are required to perform physical high risk stunts. If you are an injured wrestler, you must have had the injury before you began wrestling?

Based on evidence that has been made public, I don’t think the NFL players have viable claims and I don’t think any wrestlers do either (although I don’t know any facts). But this is an attack that has absolutely no foundation.

8 wfjag 04.10.13 at 5:25 pm

“Why on earth would professional wrestlers, as a class of people, be more likely to have brain or other injuries before their wrestling careers? ”

Well, they didn’t become brain surgeons, did they? And, unlike NLF players, they seldom attend college first. Admittedly, the NCAA’s academic standards may not be the most rigorous, but, like passing the Bar Exam, there is a minimum standard to start with. Accordingly, there’s something to use as a “before” when measuring a before and after.

9 Richard Nieporent 04.10.13 at 8:46 pm

And I disagree with Richard that the AP loaded the story…. unless you presuppose one is bad and one is good. Most red state conservatives would view the AP description of Clement as heroic.

Really, now Ron. One lawyer is portrayed as anti-gay, anti-gun control in the wake of the Sandy Hook massacre and anti-health care and the other is portrayed as pro consumer protection and you think that the characterization of Paul Clements is not meant to be a pejorative? I hope you are a little more perceptive when you are in court.

10 Ron Miller 04.11.13 at 9:39 am

I completely disagree. People of good faith are on different sides of these issues. I don’t think pointing that out is pejorative. I think it is telling that you think it is.

11 Ron Miller 04.11.13 at 11:17 am

You think the evidence is clear that wrestlers, as a class, are less educated than professional football players? Again, there is zero foundation for this.

12 Frank 04.11.13 at 2:34 pm

Concerning pro-wrestling, perhaps those who comment are unaware that the participants are not actually having “un-helmeted heads pounded against the floor of the ring and smashed into corner post”. These illusory activities are part of the entertainment provided whereas in football which is an actual sport, the players do not train and rehearse making it look like they are genuinely hitting each other – they are genuinely hitting each other.

While not all pro wrestlers perhaps not even most are former college athletes, certainly college sports contribute wrestlers to the pro ring – just one instance is Kurt Angle a two-time NCAA Division I wrestling champion and 1996 Olympic free-stle gold medalist.

13 wfjag 04.12.13 at 12:08 pm

“You think the evidence is clear that wrestlers, as a class, are less educated than professional football players? Again, there is zero foundation for this.”

Actually, Ron, there is evidence of this.

You’re probably only familiar with Pro Wrestlers such as appear on WWE televised events. People like “The Rock” who flexed his pecs to fame on TV, and is doing the same in the movies. He’s a media savie guy, and may even be able to parlay that into being elected Governor of a state, someday. If an Iron Pumper with a funny name and accent can do it, it’s not out of The Rock’s reach.

However, most Pro Westlers operate as independents, and if they are associated with an organization at all, it is an independent wrestling organization. You can locate more info on those on Wikipedia. They come and go pretty quickly. You’ll find these people wrestling at rented armories and H.S. gyms. If they get paid anything, it is a highly divided part of the box-office take, for a small (50 or less people) audience, after the expenses are paid. If you’re interested in even more info, you can buy DVDs of past events from the guy hawking them from the trunk of his car outside the event. This level of pro wrestler needs to keep his day job. He doesn’t have the Fx and fancy moves of someone on TV with the WWE. The blood is his — the crowd demands it, and, in candor, smashing your nose into someone’s knee is a risky thing to do, even if the guy doesn’t intend to spread your nose across your face. As Forrest Gump put so well — “It happens.”

There’s no insurance coverage — not workers comp, or med, or anything else. There’s no money to cover travel costs or hotels or meals. And, if you want to know about the financial rewards — check the wrestlers facebook and other social media pages. Most appear to qualify for foodstamps if they have a family. And, of course, if there is lit, you can also find out the facts via discovery. It is a much grittier life than even as shown in O’Roark’s movie — and Marisa Tomey isn’t there to comfort her injured hero, either.

The NFL, NHL and NBA use college teams as their feeders. Even if a player isn’t pro caliber, he’s completed at least some college before his 5 years of eligibility run out. As a sport, college wrestling in no way resembles “pro wrestling”, so college isn’t the feeder. Consequently, the overwhelming numbers pro wrestlers don’t pursue degrees past H.S. (if they even have a diploma). As a result, NFL, NHL and NBA players are much better educated than the average pro wrestler (and, they also have Players Unions that are looking after things like retirements, insurance, etc., which is something else most pro wrestlers don’t have going for them).

14 William Nuesslein 04.14.13 at 3:08 am

For goodness sake, Frank, I know that WWE is Entertainment and not sport. Still, one fellow had friends body slam him a number of times just to prove to himself that he could take the jostling in the ring.

Wrestlers, real or fake, do not get the fist pounding to the head of boxers, and brain injury among boxers is obvious. But they do get hit by folding chairs as Garrison Keillor used to point out with respect to Governor Jesse Ventura.

My point is that the recent interest in concussions in NFL play has, in my opinion, more to do in setting up a public acceptance of money transfers, which transfers are so lucrative to the plaintiffs lawyers. Professional football has been around long enough for veterans of the sport to show the signs of dementia as occurs in non-football veterans.

15 Ron Miller 04.15.13 at 12:11 pm

wfjag, I had no idea. You post certainly proves that wrestlers are dumber than football players. That was like a virtual epidemiological study. Proof positive. I mean, critics would say that, you know, you offered no evidence at all – not even anecdotal evidence – to support your thesis. But we know better.

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