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Arbitrator Rules in Favor of Ben Utecht

by Paul D. Anderson Consulting, LLC

The NFLPA announced that Ben Utecht won his injury grievance against the Cincinnati Bengals. The arbitrator ruled that Utecht was returned to play too soon after suffering a concussion.

The language used by the arbitrator is intriguing. According to the NFLPA, the arbitrator held that Utecht “had not been sufficiently tested, both in his aerobic and strength reconditioning program, nor had he been tested in sport specific activities which would be a more accurate means of determining whether the damage caused by the concussion had ‘cleared.’”

Though I’m not privy to the facts, I wonder if the “testing” included ImPACT. Could there have been a false positive that caused the team to allow Utecht to return too soon? Based on the ruling, it appears that the medical staff failed to ensure that Utecht was fully asymptomatic.

It’s disheartening that a staff of medically-trained professionals would overlook and/or disregard certain tests that are so fundamental to a proper return-to-play evaluation.

Despite the loss, the NFL quickly seized upon the ruling to make a statement that the NFL Concussion Litigation should be decided by an arbitrator as opposed to a jury.

“The decision demonstrates that our collective bargaining agreements provide players with comprehensive remedies for football-related injuries, including injuries related to concussions,” NFL spokesman Greg Aiello said in a statement to Pro Football Talk.

I think the ruling is probably a win for both sides, although it tips more in favor of the players.

The grievance procedure – which was collectively bargained for – worked well in Utecht’s case, and it looks like a fair result was reached.

It could set a player-friendly precedent for future concussion-injury grievances. Any player that is released may now try to point to a prior concussion and argue that he was “returned to play too soon” or his concussion was “mistreated.” Of course, there will have to be some type of causal connection, but it at least creates a colorable argument.

This, in turn, will require teams–if they aren’t already doing so–to meticulously document any concussion, the players’ concussion history and his various treatments. Which, in the long run, will hopefully increase the health and safety of the players.

The NFL will use this case in future civil litigation to argue that the CBA and its grievance procedures are perfectly suited to handle concussion issues, and therefore the court should dismiss the claims for failing to exhaust the grievance procedures.

This may carry some weight for mere negligence claims, but allegations of gross negligence, fraud and/or concealment (i.e. the NFL Concussion Litigation) should overcome the preemption/arbitration argument.

Notwithstanding the arbitrator’s decision in Utecht’s case, the Bengals’ medical staff and the NFL do not deserve a free pass.

The wrongful conduct occurred in 2009, at a time in which the NFL was still not taking concussions seriously.

Indeed, the “standard of practice” applied in Utecht’s case was endorsed by the Mild Traumatic Brain Injury Committee.

Specifically, two conclusion made by the MTBI Committee may have been applied in Utecht’s case:

Returning to play after a concussion “does not involve significant risk of a second injury either in the same game or during the season.”

“Many NFL players can be safely allowed to return to play on the day of injury” and that “the current decision making of NFL team physicians seems appropriate for return to the game after a concussion.”

This same “current decision making of NFL team physicians” was ruled to, arguably, fall below the standard of care.

The arbitrator rejected the team’s contention that a less rigorous testing procedure-which was endorsed by the MTBI Committee-should have been applied.

Taking a logical leap, the arbitrator effectively discredited the MTBI Committee’s conclusions and team decision making.

The plaintiffs’ lawyers would be wise to point to Utecht’s case as yet another example of the NFL failing to protect the players – placing its business interests above the players’ health and safety. It also sheds light on why players are so reluctant to place their medical decisions in the hands of team physicians.

Whose interests are they looking out for? Apparently not the players.

In any event, hats off to Utecht and the NFLPA for vindicating a player’s rights.

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