In 2013, Cleodis Floyd was victorious in an arbitration against the National Football League Players Association after the union denied his NFL agent application. The union did not want to certify him because Floyd was previously convicted of fraud.
The NFL has been in a ongoing battle with the NFL Players Association (NFLPA) regarding concussions and chronic traumatic encephalopathy (CTE). In 2015, a movie called Concussion, which starred Will Smith appearing as Dr. Bennet Omalu, documented the nightmare effects CTE can have on former players.
Dr Ann McKee, a neuropathologist, examined the brains of 202 deceased football players, including 111 that played in the NFL. 110 out of those 111 players were found to have CTE. CTE is a degenerative disease believed to be caused by repeated blows to the head, something NFL players are quite familiar with. Memory loss, confusion, depression, and dementia are just a few of the many symptoms caused by CTE.
The symptoms differ among the cases and problems might not arise until years after the blows to the head have stopped. The players in this study range from players who died as young as 23 and who died as old as 89. The list includes 44 Offensive and Defensive Linemen, 20 Running backs, 17 Defensive backs, 13 Linebackers, 7 Quarterbacks, 5 Wide-Receivers, 2 Tight ends, 1 Kicker, and 1 Punter.
It is not surprising that linemen topped the list. Almost half of the players on the field make up either the Offensive or Defensive Line. Furthermore, linemen knocks heads on most of their plays, and brain trauma experts say “the accumulation of seemingly benign, non-violent blows – rather than head-jarring concussions alone – probably causes CTE.”
Dr. McKee and other researchers say that a correlation between suicide and CTE has not been firmly established. However, suicide unfortunately is not uncommon among players who suffer from CTE. A former Linebacker Junior Seau killed himself with a gunshot to his chest back in 2012.
The basis of the long-fought battle over concussions and CTE is that the belief that NFL knew of the risks and concealed them. In 2016, Jeff Miller, the NFL’s senior Vice President for health and safety policy said “the answer to that is certainly, yes,” regarding whether or not there is a link between football and CTE.
Furthermore, 87 percent of the total 202 brains that were studied were found to have CTE. Aside from the 111 NFL players, these other 91 players studied were from the Canadian Football League, semi-professional players, college players, and even high school players. “[E]ven those with mild cases of CTE, exhibited cognitive, mood and behavioral symptoms.”
According to Dr. McKee, “[i]t is no longer debatable whether or not there is a problem in football – there is a problem.” Parents are worried for their children, especially those fathers who formerly played in the NFL. USA Football, the national governing body for amateur football, is paving the way to make the game safer, teaching safer methods of tackling, and also promoting playing flag football instead of tackle.
It is a lot easier to steal a laptop than it is to hack into a corporate database. The Internet erupts every time a hacker compromises data of millions of customers, but it remains silent when a laptop containing data of thousands of employees is stolen. However, that is not the case when an athletic trainer for the Washington Redskin’s had their unencrypted, but password protected laptop stolen in Indianapolis, IN during the NFL Combine.
The National Football League (NFL) and the Washington Redskins informed the general public, on June 1, that in Late April a Redskins trainer’s backpack was stolen from the trainer’s car. The stolen backpack contained a laptop storing up to 12 years of NFL players’ medical records, a zip drive, and certain hard copy records of NFL Combine medical examinations.
The NFLPA, the league, and the Redskins all released statements that conveyed that no player’s financial, medical, and personal records have been compromised. However, the Redskins’ statement made the mentioned that they have yet to “locate and notify players who have been impacted.”
It may be difficult to determine what specific information is at risk, but there is still the potential that the information is sensitive. With that being said, certain information players may not want to be known to others could have been compromised and potentially released.
Legal ramifications could arise from a hypothetical release as the incident can be seen as a breach of player’s privacy. The players trusted the league and team to protect their medical records and the league failed to take reasonable steps to protect that information.
Fault here would rest on the NFL because of the subject matter of most of the data, and the lack of stringent league wide standards and policing. The data here is mostly about the NFL Combine. The Combine is conducted by an outside party, but is considered a league event. It was league’s responsibility to protect the records of the athletes participating in each Combine, therefore the incident is a breach of the players’ privacy.
Ultimately, most liability would arise from the fact that the computer was not encrypted. The federal government has minimum standards for “covered entities,” which utilize the use of disclosure of protected health information (PHI). The League may not be a “covered entity,” for the Department of Health and Human Services, yet a suit could potentially be brought to a state court in a situation that information from the laptop was to surface.
PHI involves all individually identifiable health information including an individuals past, present, or future physical or mental condition, and information. Even though the league may not be a “covered entity,” subject to those regulations, they must implement appropriate standards to prevent the use or disclosure of that information to third parties. In these circumstances, the unencrypted laptop would not meet the minimum standards.
A similar situation occurred in 2015 when an employee of the Cancer Care Group (CCR), had their unencrypted laptop containing patient’s PHI stolen. In that case the Department of Health and Human Services as well as the Office of Civil Rights believed that CCR did not devise of proper standard to reduce the likelihood of protected health information being promised. CCR settled with a $750,000 fine and an order to take stringent corrective action in order to correct the deficiencies in their policies.
Both the Federal Government and the NFL/ NFLPA emphasize the need for encryption because it is truly the only to protect the data on a computer. To an outsider, the data is indecipherable, thus making it essentially a foreign language. Had the data on the laptop been encrypted there would be no potential harm to the league or the players.
Regardless if the thief knew what they were getting; the NFL can face fines like CCR did on a state level. This is just another issue that the NFL can add to their large plate.
Compare the following stats:
Player A: 84 receptions, 1,492 yards, 17.8 avg. yards/catch, 12 TDs
Player B: 86 receptions, 1,215 yards, 14.1 avg. yards/catch, 16 TDs
Player C: 52 receptions, 850 yards, 16.3 avg. yards/catch 13 TDs
If you guessed that Player A and Player B were two of the top receivers for the 2013 NFL season for their respective teams, you would be correct; however, if you assumed that both players played the same position, you would be wrong. Player A is Calvin Johnson, widely regarded as the top wide receiver in the NFL, a notion the Detroit Lions seemed to agree with when the team made him the highest wide receiver in NFL history, signing him to an eight-year contract worth up to $132 million dollars, with $60 million guaranteed. Player C is Vernon Davis, recent mini-camp holdout for NFC runner up, the San Francisco 49ers. Davis recently expressed his reasoning for holding out on Sports’ Illustrated MMQB. Therein he states “In 2010 I signed a five-year, $37 million contract extension with $23 million guaranteed [which at the time] was the biggest contract for a tight end in league history.” Four years later, Davis is holding out because he believes he is currently worth more based upon his production showing that he has been playing at a higher level since signing that record-setting deal.
Here’s the problem: Player B is Jimmy Graham, high-flying receiver for the New Orleans Saints. Looking at the statistical discrepancy between Vernon Davis and Jimmy Graham from this past NFL season, one would assume that whatever contract Jimmy Graham receives from the Saints in this off-season would greatly eclipse Davis’ record setting contract from 2010. Furthermore, based upon his recent string of injuries that has hampered his production over the past two seasons, it follows that Jimmy Graham should be set to receive much more than Rob Gronkowski, the New England Patriots tight-end who agreed in 2012 to what is now known as the richest contract for a tight end in NFL history: 6 years, $53 million, with $16.5 million guaranteed. However, that is not what Graham is seeking. He does not want to be paid based upon being known as the top tight end; he wants to be compensated for being one of the top receivers in the league.
Arbitrator Stephen Burbank is hearing arguments from the NFL Players Association (NFLPA) and the NFL Management Council regarding whether Graham should be officially labeled as a tight end or wide receiver for purposes of the franchise tag placed upon him by the Saints. Pursuant to the language of the NFL Collective Bargaining Agreement (CBA), the contract for a player whose teams has used the franchise tag is determined as such:
(ii) Exclusive Franchise Tender. The Exclusive Franchise Tender shall be a one year NFL Player Contract for (A) the average of the five largest Salaries in Player Contracts for that League Year as of the end of the Restricted Free Agent Signing Period that League Year…for players at the position…at which he participated in the most plays during the prior League Year, or (B) the amount of the Required Tender under Subsection (a)(1) above, whichever is greater.
The NFL CBA is a legally enforceable contract signed between the players and owners. Therefore, when interpreting its language, the words should be given their plain and ordinary meaning, unless it is determined that the language is ambiguous. When ambiguous, interpreters must look outside the language of a contract in order to determine the true intent of the parties when they agreed upon its language. However, it is apparent that, under the NFL CBA, compensation for a player placed under the franchise is determinative of where the player spent most of his time on the field.
Using the language of the CBA, Graham’s main argument is that he should considered a wide receiver based upon the fact that he lined up either in the slot or out wide 67 percent of the time during the 2013 NFL season. Stated differently, because Graham spent more than two-thirds of 2013 NFL season playing various wide receiver positions, and not lining up as a tight end, he should be compensated as such. While the Saints counter is that the team drafted Graham as a tight end, his Twitter biography lists himself as a tight end, and tight end is the position that he made the made the Pro Bowl under, based upon how the language of the CBA is constructed, such an argument would seem only to show that Graham is a tight end by name, but not by use. The difference in the amount of money Graham stands to make depending on the arbitrator’s ruling is substantial. If Burbank sides with Graham and decides he should be labeled as a wide receiver under the franchise tag, based upon the numbers released by the NFL for the 2014 season, Graham stands to make $12.312 million for the upcoming season. However, if the Saints are able to persuade Burbank otherwise, Graham would have to settle for $7.035 million.
While one of the Saints’ arguments relies on the basis that Graham’s Twitter profile states he is a Saints tight end, other corners of social media shows that other members of the Twitter community view Graham as a wide receiver as well. Michael David Smith, managing editor of Pro Football Talk, believes that the language of the CBA makes this an easy decision for the arbitrator ruling in Graham’s favor. Vernon Davis also states that he believes Jimmy Graham should be paid as a wide receiver in an article shared on procanes.com. If the Saints are going to rely on the Graham’s Twitter handle to persuade Burbank to label him as a tight end, it follows that other social media arguments should also play a role in order to help clarify this truly intriguing situation.
Graham’s designation is not only important to him, personally, but also to the grand scheme of the league. Over time, the tight end position has been revolutionized with the emergence of NFL teams drafting ex-college basketball players to play the position. Just this past year, NFL fans were able to witness the breakout season of Denver Broncos tight end, Julius Thomas. Drafted in the fourth round by the Broncos in 2011, Thomas had not played collegiate football prior to the year 2010, but did play four seasons for the Portland State basketball team, where he was twice named to Big Sky All-Tournament Team. It is not unimaginable to envision the Broncos utilizing Thomas in role more similar to Graham as he further progresses in the league. Therefore, whatever decision that Burbank makes may play a role in determining how teams will utilize players in hybrid roles in the future.
“Thirty years from now, I don’t think it will be in existence. I could be wrong. It’s just my opinion, but I think with the direction things are going – where [NFL rules makers] want to lighten up, and they’re throwing flags and everything else – there’s going to come a point where fans are going to get fed up with it.” Bernard Pollard, safety for the Baltimore Ravens, has a bleak outlook on the future of the NFL, and it all stems from the NFL seeking ways to make the game safer for its players.
With this one comment from a hard-hitting safety, a tragic autopsy report, and a slew of lawsuits, it seems as if the NFL’s concussion risks are once again back in the public eye.
The National Institutes for Health recently analyzed the brain tissue of the late Junior Seau, and determined that prior to Seau’s suicide, he suffered from chronic traumatic encephalopathy (CTE). The Boston University Center for the Study of Traumatic Encephalopathy classifies CTE as a degenerative disease of the brain that can only be detected by autopsy. The disease is commonly found in athletes and is caused by repeated brain trauma. This repeated jostling of the brain causes brain tissue to progressively degenerate and causes a build-up of an abnormal protein called tau. Typically CTE shows symptoms in the form of memory loss, confusion, impaired judgment, impulse control problems, aggression, depression, and progressive dementia. Gina Seau, Junior’s ex-wife, has said that Junior exhibited many of these symptoms leading up to his eventual suicide.
Upon learning of the diagnosis, Gina Seau and her four children filed suit against the NFL and Riddell Inc. (helmet manufacturers) in California Superior Court in San Diego. The suit alleges that the NFL was aware of the evidence and risks associated with repeated brain injuries, but ignored the information and concealed such information from players. It also alleges that “although the NFL voluntarily assumed its role as the unilateral guardian of players safety, the NFL has exacerbated the health risk to players by promoting the game’s violence and lauding players for returning to play despite being rendered unconscious and/or disoriented due to their exposure to sub-concussion and concussive forces.”
The Seau suit is by no means alone in this fight against the NFL for player safety. In February, the estate of former Chicago Bears player Dave Duerson filed a very similar suit upon finding that Duerson had also been diagnosed with CTE following suicide. Along with Seau’s and Duerson’s lawsuits, nearly 190 other lawsuits by almost 4,000 NFL players have been consolidated into one class action suit in federal court in Philadelphia. United States Eastern District Judge Anita Brody is scheduled to hear oral arguments pertaining to this class action suit in early April of this year.
Although much of this is happening in the present, the fight for player safety, especially the fight against concussions and progressive brain damage, is not a new fight. Sports Illustrated, all the way back in 1978, wrote, “As football injuries mount, lawsuits increase, and insurance rates soar, the game is headed towards a crisis.” This warning was repeated in 1994, and Sports Illustrated called concussions, “the silent epidemic of football.” The attention to the issue, though, really gained its steam in the early 2000’s. In a 2000 survey, it was reported that 51% of players had been knocked unconscious more than once, and that 73% of those players were not required to sit on the sidelines following the injury. Until recently, it seemed as if the NFL was not addressing the concussion conversation. In 2007, the NFL produced a pamphlet that stated “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.” Unfortunately, nothing indicates that the concussions sustained by former and even current NFL players were managed properly. Players were not required to sit out following a crushing blow, but rather, many simply waited for the initial wooziness to pass, and then reentered the game.
In 2009, for the first time (and a whopping 15 years after Sports Illustrated highlighted the concussion epidemic), the NFL acknowledged that long-term effects existed from multiple concussions. Roger Goodell, NFL Commissioner since 2006, soon mandated that players with concussion-like symptoms could not return to play without being cleared by a neurologist whom was not affiliated with the team. Although this was the first step in a long process towards keeping athletes safe, is it too little, too late? By this time, lawsuits had already been filed, and the class-action suit was well on its way. Upon filing the class-action suit, the NFL attempted to have the case dismissed from the courts, arguing that an arbitrator, under the terms of the NFL collective bargaining agreement, should hear the action, since the litigation reflects a labor dispute. Oral arguments regarding this issue are set to be heard on April 9th.
Lawsuits aside, the NFL is still faced with the issue of how to keep players safe. There is always going to be the continuous struggle between how to keep the players safe and how to keep the game “safe.” The players themselves are increasingly confronting the issue of player safety, and it has been reported that nearly 600 players have pledged their brains to science for research. But for every 5 people who want the NFL to continue implementing the new rules to keep the players safe, there is somebody with an idea like Bernard Pollard that if the game gets too “soft,” the NFL will lose its fans. The game of football is inherently violent; there is no way around that, but there are ways to mitigate the risks, and the NFL has begun to make efforts to do that. For now though, the NFL must make it the number one priority to keep their players safe. That does not mean that this has to be done solely through the implementation of rules, but the NFL must also make sure that each and every injury is dealt with in the proper manner.
It is likely that the class action lawsuit will eventually settle out of court, but the NFL still stands to lose significant money throughout the process in addition to public sentiment. For years, the issue was not addressed, and now the NFL must tackle it head on, by protecting the players doing the tackling on the field.
The following article was written by Spencer Wingate.
The NFL Players Association has filed a twofold grievance against the NFL, appealing the suspensions handed down to Jonathan Vilma (New Orleans Saints), Will Smith (New Orleans Saints), Anthony Hargrove (Green Bay Packers), and Scott Fujita (Cleveland Browns) for their involvement in the Saints bounty program. On August 4th 2011, the league and players association entered into a new collective bargaining agreement (CBA). According to Article 43 of the new CBA, the NFLPA has the right to appeal NFL Commissioner Roger Goodell’s ruling, as it involved player suspensions. The NFL has stated that the pay for performance program lasted from 2009- 2011. The NFLPA states that according to Article 3 Section (b) of the new collective bargaining agreement, the players cannot be liable for their actions before August 2011:
The NFL, on behalf of itself, the NFL, and the NFL Clubs and their respective heirs, executors, administrators, representatives, agents, successors and assigns, releases and covenants not to sue, or to support financially or administratively, or voluntarily provide testimony of any kind, including by declaration or affidavit in, any suit (including any Special Master proceeding brought pursuant to the White SSA and/or the Prior Agreement) against the NFLPA or any of its members, or agents acting on its behalf, or any member of its bargaining unit, with respect to conduct occurring prior to the execution of this Agreement.
Therefore, they allege the players should be released from their penalties from conduct prior to the agreement between the two sides. They contend that even if the language in Article 3 Section (b) does not stipulate the players are not accountable for past acts, the suspension cannot be brought on by Goodell. The grievance states the issue at hand is being “paid for performance” so it is a cap violation. The system arbitrator, University of Pennsylvania law professor Stephen Burbank, should have ruled on the matter. They are stating that since Goodell did not have the right to hand down the punishment for the violations, they should not be upheld.
Last, the NFLPA references Article 46, Section 1 (b) of the CBA; punishments for unnecessary roughness or unsportsmanlike conduct on the field should again not be determined by Goodell, but a designee of the commissioner. This stance notes even if the first two assertions are not applicable, the appeals must be handled by Art Shell or Ted Cottrell, the league’s hearing officers.
The NFLPA is taking a strategy to establish two separate objections that will remove the player suspensions out of Goodell’s hands. The grievance asserts the issue at hand is undetermined payments, so it should be decided by the cap arbitrator. If that is deemed false, then the nature of the actions – roughness and unsportsmanlike conduct – mean the league’s hearing officers must rule on the appeals. Being that the NFLPA has a responsibility to not only the players accused but also the players targeted, the grievance never refutes the players were involved in a bounty program. The strategy allows them to not take either side but attempt to bring the players together against the league. They are claiming the conduct is not punishable; although if the league proves it is, then Goodell should not have handed down the punishments nor should he able to rule on the appeals.
The NFL has since responded to the grievance citing that they expect the arbitrators to reject the union’s assertions. They contend the players are accountable for their dangerous conduct and the disciplinary process negotiated in the CBA, not even a year ago, must be upheld. During the lockout last year, the NFL and NFLPA never could see eye to eye on a number of issues like the disciplinary process. They were eventually able to negotiate a new ten-year CBA. However, a lack of coordination and communication resulted in a power struggle that threatened to endanger the 2011-2012 season. The union desired to reduce Goodell’s authority. They were unsuccessful, as other issues took greater importance in their minds and the commissioner retained his power. The issue for the league is much more than unnecessary roughness, unsportsmanlike conduct, or a cap violation. The bounty program left the league legally liable as their players were intentionally being targeted and their safety was in danger. The Saints had been warned to stop, yet continued and tried to cover up their actions. Now, once again, the league and players association are on two different sides of the spectrum. They are struggling to work together and unfortunately back in a power struggle where they appear more as foes than allies.
The following article was written by Alex Mitrani.
As many are aware, the NFL is currently facing a barrage of concussion lawsuits from former players. Former players are claiming that the NFL failed to disclose the risks of concussions and/or failed to take steps to protect the players from concussions. The NFL argued before the U.S. Judicial Panel on Multidistrict Litigation that these claims should be resolved via the collective bargaining process. The league’s reasoning for keeping these claims out of court is simple: It is trying to save money. If the NFL is unlucky in keeping these claims out of court, it could cost the league millions in a settlement and/or verdict as well as bad publicity for not doing more to protect its players. Also, the league is aware that if these claims are heard before a jury, that the “emotional factor” could play a vital role. Hearing the stories of these former athletes and how their lives were affected as a result of these concussions could affect the jury’s ability to fairly apply the law.
Keeping these claims out of the courts is going to be an uphill battle for the NFL if their aim is resolving through collective bargaining while the former players want resolution through litigation. If the players can justify their claims that the NFL did not provide due care to its players by failing to disclose the risks of concussions and/or failed to take steps to protect them from concussions it would be a violation of the collective bargaining agreement. Throughout the years, the NFL has made various safety changes to equipment and recently made changes to game rules as a result of increased injuries including, but not limited to, concussions. Unless these two sides can agree to a settlement out of court, this case should move forward and could provide some insight into the treatment of players in regards to injuries.
There is nothing wrong with providing legal services to retired National Football League (NFL) players. In fact, many retired NFL players have good claims for benefits and deserve representation by competent attorneys. However, if an attorney provides legal services in such a case involving payment through the NFL pension and disability plan, he/she should not expect to receive any legal fees directly from the plan itself.
Retired NFL players Marvin Woodson and Odessa Turner were given disability awards in 2008 and 2009 respectively, and stopped paying legal fees under their contingency fee arrangement to their attorney (they both used the same attorney) soon thereafter. The attorney wanted to take his fees out of the disability awards, but the 11th Circuit Court of Appeals found that the spendthrift provision in the pension and disability plan was clear and ambiguous – no benefits will be subject in any manner to assignment nor to other legal process for the debts of any retired players.
The NFL pension and disability plan’s spendthrift provision (Section 11.2) specifically reads as follows:
“No benefit under the plan will be subject in any manner to anticipation, pledge, encumbrance, alienation, levy or assignment, nor to seizure, attachment or other legal process for the debts of any player or beneficiary, except pursuant to (a) a qualified domestic relations order under Section 414(p) of the Tax Code, (b) domestic relations order entered before January 1, 1985 that the Retirement Board treats as a qualified domestic relations order, or (c) an exception required under Section 401(a)(13) of the Tax Code.”
Yesterday, John Carlson of the Seattle Seahawks was carted off of the field of play in his team’s NFC Divisional Playoff game against the Chicago Bears. Carlson suffered an injury after he landed on his head near the sideline. As discussed last month, there are enormous dangers and damaging health effects of from head injuries. The NFL may have set itself up for a fall in a future lawsuit concerning its failure to warn its athletes about the ramifications of concussions. Might football players also have a cause of action against the helmet providers?
Jon Leibowitz, Chairman of the Federal Trade Commission, is currently looking into “marketing claims that some football helmets can help reduce concussions, responding to a senator who wants the FTC to investigate what he called ‘misleading safety claims and deceptive practices’ in the sale of new helmets and reconditioning of used ones.” While the NFL may be accused of a failure to warn, helmet companies not only should fear FTC action, but also by private entities. The claims could be more than just misrepresentation based on an express warranty. Read more “Holding Football Helmet Companies Accountable For Head Injuries”
Roughly 9,000 lawsuits have been filed against tobacco companies in Florida based on claims that for many years tobacco companies failed to warn smokers about the dangers and addictive capacity of cigarettes. The class of potential plaintiffs is huge, as many people across the country have smoked cigarettes at one point in their lives. The number of people to play professional football in the National Football League (NFL) is astronomically smaller, but there could be a decently large class of potential plaintiffs who have a claim that the NFL knew about the dangers and damaging health effects of concussions, yet failed to warn about the consequences involved in suffering from concussions on the field of play.
As early as 2005, independent scientists found that multiple NFL concussions cause problems like depression and early-onset dementia. The NFL Concussion Committee argued against these findings for quite some time. A few years ago, doctors concluded that three NFL players who had passed away had Chronic Traumatic Encephalopathy (CTE), which contributed to their deaths. CTE is typically associated with people who sustain multiple blows to the head. Read more “NFL Players Receiving Adequate Warning Regarding Concussions”