A year in review: US sports law - personal injury, safety, stadiums and venues (Part 6)

Friday, 05 August 2016

This article provides a broad overview of legal issues relating to personal injury, safety, stadiums and venues in the United States of America between May 2015 to May 2016. This content of this article originates from the presentation by Professor Matt Mitten at the annual conference of the Sports Lawyers Association ("SLA") in Los Angeles in May 2016.

The content of this article originates from the presentation by Professor Matt Mitten at the annual conference of the Sports Lawyers Association ("SLA") in Los Angeles in May 2016.

For the ease of our readers we have broken down each topic presented by Prof Mitten into a series of articles. The the full update covers the following topics:

Agent Regulation and Team Sports – Labor Matters;
Team Sports - Non-Labor Matters;
Individual Sports College, High School and Youth Sports;
Title IX/Gender Equity & Civil Rights;
Intellectual Property & Broadcasting;
Personal Injury and Safety, Stadiums and Venues;
Sports Betting/Daily Fantasy Sports;
International & Olympic Sports Miscellaneous.

The SLA, a non-profit, international, professional organization whose common goal is the understanding, advancement and ethical practice of sports law. Each year in May the SLA hosts an Annual Conference at which the above topics are presented and debated.

Personal Injury

Gregory Hill v. Bert Bell/Pete Rozelle NFL Player Retirement Plan (5th Cir. 2015)

The Fifth Circuit denied the appeal of former NFL running back Gregory Hill. Hill had been denied a higher level of disability benefits according the NFL’s retirement

plan. The court affirmed the district court’s decision, stating that Hill did not show the plan administrator abused its discretion. Hill was trying to obtain better benefits under the NFL’s retirement plan, because of “unrelenting pain in his lumbar and cervical spine, shoulders, knees, hips, elbows, hands, feet and ankles,” all of which he claims are related to his playing career. According to the NFL’s retirement plan when Hill filed his claim, “inactive” benefits were given to retired players whose injuries potential came from areas outside the NFL, while "degenerative” benefits were given to retired players whose injuries came about from their time in the NFL. (Law 360 8.19.15)

Concussion Litigation and Safeguards

In In Re National Football League Players Concussion Injury Litigation, 2016 WL 1552205 (3d Cir.), in the Third Circuit approved the NFL concussion settlement that will provide nearly $1 billion in value to the class of retired players, which it found to be “fair, reasonable, and adequate.” (Approximately 1% of class members objected and approximately 1% of class members opted out.) The settlement has three components: (1) an uncapped Monetary Award Fund that remains in place for 65 years and provides compensation for retired players who submit proof of certain diagnoses (a retired player does not need to show that his time in the NFL caused the onset of the Qualifying Diagnosis); (2) a $75 million Baseline Assessment Program for 10 years that provides eligible retired players with free baseline assessment examinations of their objective neurological functioning; and (3) a $10 million Education Fund to instruct football players about injury prevention. It recognizes six Qualifying Diagnoses: (1) Level 1.5 Neurocognitive Impairment; (2) Level 2 Neurocognitive Impairment; (3) Alzheimer’s Disease; (4) Parkinson’s Disease; (5) Amyotrophic Lateral Sclerosis (“ALS”); and (6) Death with CTE provided the player died before final approval of the settlement on April 22, 2015 (by federal district court). The court rejected objections that the exclusion of CTE as a Qualifying Diagnosis for future claimants and no compensation for mood and behavioral symptoms associated with CTE (aggression, depression, and suicidal thoughts) are unfair: “It is a testament to the players, researchers, and advocates who have worked to expose the true human costs of a sport so many love. Though not perfect, it is fair.” Nine former NFL players have appealed the panel’s ruling and are seeking an en banc hearing before the full Third Circuit.

On April 29, 2016, a New York State Court judge ordered the commencement of discovery in the lawsuit between the NFL and its insurers over whether they are liable to cover the NFL’s obligations in the roughly $1 billion concussion litigation settlement. It is the first time the NFL is subject to discovery over what it knew about the health risks of concussions and playing football. The insurers argue that the NFL knew of the risks of playing football, so its insurance policies do not cover the settled claims.

A Missouri federal court dismissed a consolidated putative class action by former NFL players alleging that the NFLPA hid evidence linking concussions from playing NFL football to long-term neurological damage and asserting civil conspiracy, fraudulent concealment, fraud, negligent misrepresentation, negligence, negligent hiring, negligent retention and medical monitoring claims. The court ruled in favor of the NFLPA because plaintiffs’ claims are preempted by federal labor law and are untimely under the applicable statute of limitations period. (Law 360 8.18.15).

NHL concussion litigation and discovery ongoing

In re National Hockey League Players’ Concussion Injury Litigation, 2015 WL 1334027 (D. Minn.) (refusing to dismiss claims by former NHL players alleging the NHL intentionally concealed and negligently failed to inform them of the long term serious neurological risks associated with head injuries while playing hockey)

In re National Hockey League Players’ Concussion Injury Litigation, 120 F.Supp.3d 942 (D. Minn. 2015) (judicial enforcement of plaintiffs’ subpoenas served on NHL clubs requesting players’ health records) o McCullough v World Wrestling Entertainment, Inc. (D. Conn. 2016). A group of former WWE wrestlers alleged they were injured as a result of WWE's negligence in scripting violent conduct; failure to properly educate, prevent, diagnose and treat them for concussions; and concealment of known evidence suggesting a link between repeated head trauma during WWE events and permanent degenerative neurological conditions such as CTE. The court dismissed plaintiffs’ negligence claims because “under the contact sports exception [the WWE] could only be held liable for reckless and intentional conduct, and not ordinary negligence. Plaintiffs were professional wrestlers who were financially compensated to engage in an activity in which physical violence was a known and even purposeful part of the activity. They were injured by other participants in what the plaintiffs describe as a “scripted” performance and thus in a manner that the plaintiff knew or should have reasonably anticipated.” However, following ruling in the NHL case, it held that plaintiffs’ allegation that the WWE knew of a link between repeated head trauma and permanent degenerative neurological conditions but fraudulently concealed it states a claim for fraud by omission. o Arrington v NCAA Settlement. The NCAA has agreed to pay $70 million to create a medical monitoring fund to screen current and former collegiate athletes in all sports for brain trauma, but it doesn’t cover the costs of medical treatment. Judge Lee issued an opinion earlier this year conditionally granting preliminary approval if certain remaining concerns of his could be addressed and agreed upon. The most substantive concern involved the required waiver of bodily injury class action claims (the settlement allows for individuals to file negligence/bodily injury claims), although Judge Lee in his opinion seemed to recognize the difficulty of objectors to ever get a bodily injury class certified. Plaintiffs, objectors, and NCAA have been discussing these concerns and we are supposed to report back to Judge Lee in mid- May.

Beginning with the 2015-16 season, the Florida High School Athletic Association (FHSAA) is requiring students to complete free online courses regarding concussions before they are eligible to compete in any varsity or junior varsity interscholastic athletics, including non-contact sports such as golf, swimming or cross country. The FHSAA will conduct random checks to ensure coaches have certificates of completion for every player on their team. A coach that is unable to do so will be suspended from coaching until everyone on the team has taken the concussion course.

Pierscionek v. Illinois High School Association, 2015 WL 6550826 (Oct. 27, 2015)

In the first class action suit by high school athletes who sustained concussions while playing contact sports against a high school sports governing body, a Cook County Illinois trial judge dismissed all of the plaintiffs’ claims. It refused to recognize a cause of action for negligent rulemaking and ruled that the plaintiffs’ cause of action fails under the contact sports exception, which requires proof that the Illinois High School Association acted with intent to cause injury (i.e., concussion) or acted recklessly (i.e., completely outside the scope of the ordinary activity in regulating contact sports).

Dugan v. Thayer Acad., 2015 WL 3500385 (Mass. Super. Ct.)

A high school field hockey athlete asserted a negligence claim against her coach and school for head injuries she suffered after being struck in the head during a game. The coach made no attempt to determine whether the player had suffered a concussion and did not remove her from the game. Although the player had not been evaluated for her injuries, the coach allowed her to play in another game less than a week later during which plaintiff suffered another head injury. Rejecting the coach’s defense that his potential liability should be assessed pursuant to the recklessness standard, the court ruled that negligence is the proper standard: “While the fact that a coach is acting in an athletic competition may affect what the duty of care requires in a game-time setting, the better authority indicates that a player's own coach must exercise that degree of care of a reasonably prudent coach (i.e. the negligence standard) and may face liability without proof of recklessness.”

Strough v. Bedford Community School District (SD Iowa 2015)

A high school football player awarded $1 million in a negligence lawsuit against the local school district and school's nurse; largest payout for a high school athletics head injury case to date.

Robert Back v Belt High School

The family of Robert Back is suing Belt High School, where Back played football, after he was paralyzed after incurring a traumatic brain injury on September 12, 2014. The family alleges that Belt High School’s head football coach, athletic trainer, and Benefis Health System are the reason Back sustained his injuries. The lawsuit alleges that these individuals made many mistakes during the “return-to-play” process after a player sustains a concussion. The week prior to sustaining his debilitating injury, Back incurred another head injury and was taken to a Benefis emergency room where they diagnosed him with a “minor closed head injury.” Later on in the week, Back was diagnosed with a concussion and had a doctors not that stated he was not able to play football until September 15. Montana law “requires athletes to stop showing concussion symptoms, receive a medical evaluation and have written clearance to return to play after suffering a concussion.” Back’s family allege that the protocol was not properly followed. Back’s family is suing for $20 million in damages. Currently, Back is paralyzed and is in need of around the clock care. (Athletic Business Journal 3.19.16)

Based on a private doctor’s opinion that he did not exhibit any sign, symptom, or behavior associated with a concussion, a New Mexico state judge issued an injunction prohibiting a high school football player from being medically ineligible to play in the 6A New Mexico state championship game. He previously suffered a head injury, which the football team’s athletic trainer identified as a concussion. His high school had refused to allow him to play in the state championship game pursuant to a New Mexico law requiring concussed high school athletes to go through medical protocols and not playing in a game for no less than a week after experiencing a concussion. After obtaining the injunction, the plaintiff and his parents permitted the football coach to determine whether to play him, and the coach allowed him to participate in one play during the state championship game play.

Mehr v. FIFA, 115 F.Supp.3d 1035 (N.D. Cal. 2015)

Dismissing negligence claims against worldwide, national, and state soccer governing bodies because “[p]laintiffs have alleged no basis for imputing to any defendant a legal duty to reduce the reduce the risks inherent in the sport of soccer, or to implement any of the “Consensus Statement” guidelines or concussion management protocols, and have alleged no facts showing that any defendant took any action that increased the risks beyond those inherent in the sport”).

Pyka v Pop Warner Little Scholars, Inc. (WD Wis. 2015) Settlement.

Pop Warner, the nation's largest youth football program, has settled its first and only concussion- related lawsuit for less than $2 million - brought by a mother who claimed her son committed suicide because of brain injuries he received from playing football in the league. After Joseph Chernach died at age 25, an autopsy was performed on his brain, which revealed he suffered from chronic traumatic encephalopathy, or CTE, and post- concussion syndrome. Chernach played Pop Warner football for four years, beginning when he was 11. Pop Warner allegedly failed to train coaches and trainers to spot relevant symptoms, and as a consequence, Chernach was never removed from play despite multiple head injuries.

Crystal Dixon et al v. Pop Warner Little Scholars Inc. et al, Cal. Dist. Ct., No. BC526842

Plaintiffs filed a complaint against the defendants claiming: “(1) Negligence; (2) Respondent Superior; (3) Negligent raining, Supervision, and Retention and (4) NIED and Class Claims; (5) Violation of the Consumers Legal Remedies Act, Cal. Civ. §1750, et seq.; (6) Violation of Cal. Bus. & Prof. Code § 17200, et seq. and (7) Violation of Cal. Bus. & Prof. Code §17500, et seq. against defendants.” Court denied Defendants’ motion for summary judgment on all claims, except negligent infliction of emotional distress claim that was granted.

Bruce v. Cohon, 2016 BCSC 419

The British Columbia Supreme Court Player dismissed a former Canadian Football League (CFL) player’s tort claims against the CFL, its member clubs, and its former commissioner seeking compensation for depression, anxiety, headaches, insomnia and delusions allegedly caused by injuries he sustained while playing CFL football because they “arise from the 2014 Collective Agreement and can only be resolved through the grievance and arbitration process.”

The CFL and its member clubs are also being sued by more than 100 current and former CFL players in Ontario in a similar class action lawsuit. (Globe & Mail 2.24.16)

MLB Safety Netting Litigation: Payne v. Office of the Commissioner of Baseball, N.D. Cal., No. 4:15-cv- 03229 (2015)

An Oakland A’s season-ticket holder filed a class-action suit seeking to obtain better protection for baseball fans from flying baseball bats and balls. The complaint states that MLB has not listened to the safety warnings of fans and its own players. The suit claims that 1,750 injuries could be prevented each year. No monetary relief is requested, only that MLB install netting at every professional and minor league teams’ stadium from foul pole to foul pole by the start of the 2016 season. (Law 360 7.14.15; SBD 7.13.15).

University of Texas at Arlington v. Williams, 459 S.W.3d 48 (Tex. 2015)

In a premises liability action involving a spectator who was injured while attending a competitive sports event on state university property, the court held that the recreational use statute did not protect a state university from premises liability; the court also held the statute does not apply to competitive sporting events and their spectators.

Toney Stewart Sued By Ward Family For The Death Of Kevin Ward Jr. (Kevin A. Ward Sr. et al. v. Anthony Wayne Stewart, No. CA-2015-000280)

The family of the deceased Kevin Ward Jr. is suing Tony Stewart for striking and killing Kevin about a year ago during a NASCAR race. The Ward family filed a wrongful death lawsuit against Stewart in Lewis County Supreme Court in New York. The incident occurred when Stewart caused the decedent’s car to crash initially. Following the crash, Ward exited his vehicle and while on the racetrack, was struck by Stewart’s vehicle. The complaint states that Stewart “acted recklessly in revving his engine and not steering clear of Ward Jr.” and asserts four causes of action: “wrongful death; terror, pain, and suffering prior to death; intentional/reckless conduct; and gross negligence.” (SBD 8.9.15)

Tynes v. Buccaneers Ltd. P’ship, 2015 WL 5680135 (M.D. Fla.)

Former NFL kicker Lawrence Tynes sued the Tampa Bay Buccaneers after contracting a virulent strain of methicillin-resistant staphyloccus aureus (“MRSA”) at One Bucs Place (a Buccaneers club training facility) while rehabbing following a surgery. Because his Florida premises liability and negligent misrepresentation claims against the club do not arise out of the NFL CBA and are not preempted by §301 of the Labor Management Relations Act of 1947 (“LMRA”), a federal district court remanded his suit to state court.

Boogard v. National Hockey League, 2015 WL 9259519 (N.D. Ill.)

Illinois tort claims against NHL on behalf of deceased former player alleging the NHL negligently failed to protect him from head trauma; stop team doctors from injecting him with Toradol, which purportedly makes concussions more likely and more dangerous; and prevent him from becoming addicted to opioids and sleeping pills are preempted by §301(a) of the LMRA.

Bouchard v. USTA, E.D.N.Y., No. 1:15-cv-5920 (2015)

Eugenie Bouchard, a professional tennis player, suffered a severe head injury from a slip and fall in the physiotherapy room after winning her mixed-doubles match at the 2015 U.S. Open Tennis Championships, which caused her to withdraw from the tournament. She is claiming the defendant’s negligent maintenance of the floor, on which there was a “slippery, foreign and dangerous substance,” caused her to slip and fall.

Invasion of Privacy Litigation: Erin Andrews v. Marriott International Inc. et al., No. 11C4831 (Tenn. Cir. Ct. 2016))

In March 2016, a Nashville jury awarded Erin Andrews $55 million in damages arising out of a 2008 stalking incident and peeping tom naked video of her on the internet.

Terry Gene Bollea v. Gawker Media LLC et al., No. 12-012447-CL (Fla. Cir. Ct. 2016)

Former professional wrestler Hulk Hogan was awarded $115 million in compensatory damages and $25 million in punitive damages against the website Gawker broadcasting an unauthorized videotape of him having sex, which is being appealed. (Law 360 4.5.16)

Jason Pierre-Paul v. ESPN Inc (Fla. Cir. Ct. 2016)

NFL player Jason Pierre-Paul is suing ESPN and reporter Adam Schefter liable for violating his privacy under state and common law, alleging they improperly obtained his medical records regarding the amputation of his right index finger after injuring his hand in a fireworks accident on July 4, 2015. The lawsuit states that a settlement has been agreed to between Pierre-Paul and the hospital that disclosed his medical records. (Law 360 2.27.16)

Stadium and Venues

Franchise Relocation and New Stadium Construction o Milwaukee Bucks

Governor Walker has signed a bill to subsidize the arena, which could cost the public twice the amount originally projected (half of the estimate $500 million price). The arena was approved approximately one month following a $250 million budget cut from the University of Wisconsin System. The stadium is looking to be used to spark development in Milwaukee. The city plans to build an entertainment district surrounding the stadium. (NY Times 8.14.15)

NFL Club Owners Approve Rams Move to Los Angeles

The NFL owners approved a plan by the Rams to move from St. Louis to

Inglewood, California. Owners voted 30-2 in favor of a $1.86 billion proposal to relocate to Inglewood. The proposed relocation would be at a location approximately ten miles south of downtown Los Angeles. The league provided the San Diego Chargers the opportunity to join the Rams in a potential stadium sharing agreement, but if the team does not agree to join the Rams in the joint stadium option by January 2017, the option to do so would then be provided to the Oakland Raiders. The league stated that whichever team does not move would be eligible for a $100 million in support to build a new stadium in its current city.

Oakland Raiders Exploring Potential Relocation to Las Vegas o San Diego Chargers Development/Relocation Plans

The Chargers are now seeking to build a new stadium in downtown-San Diego instead of relocating to Los Angeles or developing on a proposed site in Mission Valley. Mission Valley is where Qualcomm Stadium, the Chargers current stadium, is located. Team officials have been in discussions with the San Diego Mayor and other city officials. The Chargers have discussed a $1.1 billion stadium proposal in Mission Valley, but believe downtown is more beneficial to the team and community. Chargers officials have not ruled out potentially moving to Los Angeles and joining the Rams in their stadium. If the Charges do not come to an agreement with the Rams within a year, then the Raiders will have the opportunity to join the Rams. The NFL has offered both the Raiders and the Chargers $100 million to be used on a new stadium and each teams current city. (Law 360 2.23.16)

The Chargers have started a voter initiative to help them obtain voters for their proposed stadium/convention center hybrid. The initiative is looking to persuade voters to approve of a $1 billion stadium and convention center that would be located in downtown San Diego. The Charges state that they will pay $650 million of the $1 billion cost of the new venue ($300 million of which will come from the NFL) with $350 million being asked to be paid by the city through tax increases. The Chargers state that if the city puts $350 million towards the new venue, the team will lease the stadium for thirty years. The Chargers want to place the initiative for a new venue on the November voting ballot. To be able to get on the November ballot, the Chargers “will need 66,447 valid signatures from registered Sand Diego voters by mid-June, a number determined from 10 percent of registered voters.” (Law 360 3.30.16)

St. Petersburg’s City Council approved an agreement by a 5-3 vote between the city and the Tampa Bay Rays to search for other stadium locations. The Rays could look for potential options in surrounding Pinellas and Hillsborough counties. This agreement significantly reduces the likelihood of a Rays relocation outside of the Tamp Bay-area. Tropicana Field, the Rays’ current stadium was built in 1990 and is currently one of MLB’s oldest stadiums. Some have suspected that a reason for the team’s low attendance record is due to the outdated facility. A similar agreement was proposed in 2014, but was ultimately not approved. The agreement is fairly detailed, but has some portions of importance. One portion of the agreement states that the Rays would still pay $4 million if it does not play home games at Tropicana Field in 2018, $3 million yearly from 2019-2022, and $2 million yearly for 2023-2026. The Rays also commit to not leave Tropicana Field prior to 2018. In addition, the team also has to give the city a process document that provides a general description of the Rays’ evaluation process for potential stadium locations within sixty days of execution of the agreement. (Law 360 1.15.16).

UNLV and Las Vegas Sands Propose a Plan to Build $1.3 Billion Stadium

The University of Nevada at Las Vegas and Las Vegas Sands are looking into building a $1.3 billion stadium near the Las Vegas strip. The parties’ proposal claims that a new stadium that could house an NFL team could bring in billions of dollars for the city. It appears that the stadium venture would still require a large amount of public funding. It has been estimated that the stadium would require approximately $780 million in public funding. While the university would greatly benefit from a stadium much closer to campus, it appears the main goal would be to house an NFL team. There are opponents to this proposal, and not just local citizens worried about the public money being used towards a sports stadium rather than improving the cities infrastructure. The MGM Grand Las Vegas hotel and casino oppose the stadium, believing the money could be better spent on other areas, such as “expanding or renovat[ing] the city’s convention center.” (Braden Campbell,Las Vegas Sands Details $1.3B UNLV, NFL Stadium Plan, LAW 360 (Mar. 25, 2016).

Litigation Arising Out of Franchise Relocation

Pudlowski et al. v. St. Louis Rams LLC et al., No. 1622-CC00083

The now Los Angeles Rams have been sued by four former fans the day after the NFL’s approval of its move to LA. The fans alleged the owner and top executive misled Missouri fans who purchased merchandise, tickets, and concessions under the impression the team would stay in St. Louis. The fans filed the lawsuit on behalf of potentially thousands of Missouri’s residents who made purchases between April 2010 and January 4, 2016. The suit provides a number of quotes over the years by Rams’ owner Stan Kroenke and Rams’ COO Kevin Demoff. The plaintiffs argue that the defendants never informed their ticket and merchandise buyers, while vehemently denying their desire to move. The plaintiffs allege the club violated Missouri’s Merchandising Practices Act, which prohibits misrepresentation and false promises when selling merchandise. (Law 360 1.14.16)

Envision LLC et al. v. St. Louis Rams LLC, No. 4:16-cv-00262 (E.D. Mo. 2016)

A February 9, 2016 class action complaint on behalf of thousands of former Rams season ticket holders whose personal seat licenses (PSL) are valid through the 2014 season but now are unusable because the Rams relocated is seeking reimbursement of their pro rata value from the club.