Tag Archives: nflpa

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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Sports Lawyers Association Conference to Touch on Concussions

The Sports Lawyers Association’s 39th Annual Conference will be held May 16-18 in Atlanta, Georgia.

Not surprisingly, concussions and the legal impact of head trauma on professional athletes will be among the topics.

Speaking on the May 16 panel are Dr. Kevin Crutchfield and Tim English.

Dr. Crutchfield is one of the country’s foremost experts on concussions and how they affect the brain. He is the director of the Comprehensive Sports Concussion Program for LifeBridge Health in Baltimore, Md., where he provides care to athletes suffering from concussions. Dr. Crutchfield also serves as an independent neurologist for the NFL’s Baltimore Ravens, MLB’s Baltimore Orioles and MSL’s D.C. United.

English is the senior staff counsel for the NFL Players Association. For the past 27 years, he has been responsible for handling NLRB matters and other labor law issues for the NFLPA including filing and litigating player grievances involving contract, injury and disciplinary disputes.  English has also been a long-time member of the NFLPA’s health and safety committee.

Moderating the panel will be Richard Berthelsen, former general counsel for the NFLPA..

To learn more about the conference and how to register, visit http://www.sportslaw.org/events/conference.cfm

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Attorneys Lay Out Case for ‘NFLPA’s Continuing Complicity and Moral Failure’ on the Concussion Issue

(Editor’s note: what follows is a brief intro to a story written by Michael Hausfeld and Swathi Bojedla of Hausfeld LLP, which appears in the July issue of Concussion Litigation Reporter. Each monthly issue will feature six to eight stories on the legal strategies being deployed by practitioners in the concussion litigation space.)

With the recent filing of the master amended complaints in retired players’ concussions litigation against the NFL, a common question concerns whether the NFLPA should be a target of litigation. Thus far, the NFLPA has escaped scrutiny and legal action based on their failure to protect retired players from both the occurrence of concussions during their playing days as well as the short- and long-term effects of traumatic brain injury after their playing careers have terminated.

NFLPA’s Commitment to Provide Detection, Treatment and Care for Traumatic Brain Injury

The link between repeated head injuries and chronic traumatic encephalopathy, or CTE, has long been known in the academic world. For example, a 1962 study showed a heightened incidence of CTE in boxers, and a similar study the following year found that neurological damage stemming from repeated head injuries manifested in the form of dementia and impaired motor function. However, until recently, the NFL ignored established medical evidence, instead choosing to refute or deny the link between repeated head trauma and the myriad symptoms facing retired NFL players. During that same time, the NFLPA was silent despite their knowledge of the mounting evidence of retiree injury and medical causation.

Recently, the NFLPA has acknowledged its own failure to protect retired players and to promote their health and safety. In 2009 and 2010, the United States House of Representatives’ Committee on the Judiciary held hearings to investigate the legal issues relating to football and head injuries. During those hearings, NFLPA Executive Director DeMaurice Smith testified that, “as Executive Director, my number one priority is to protect those who play and have played the game. There is no interest greater than their health and safety.” Smith noted that the NFL had spent years suppressing and denigrating legitimate medical studies that detailed the link between repeated concussions and long-term side effects. He went on to acknowledge that the NFLPA “in its past has not done its best” and that the union was “complicit in the lack of leadership and accountability” in terms of acknowledging and dealing with traumatic brain injury and its effects on retired players.

In his testimony to Congress, Smith made a pledge to retired players: “To men like John Mackey and Brent Boyd and to the families of Mike Webster and Andre Waters, and other players that suffered and continue to suffer daily, I commit and we commit to this as our mission. We will not fail them or their families.” The NFLPA took the stance that they would protect and promote the health, safety, and welfare of retired NFL players. This promise has, to this day, remained unfulfilled.

NFLPA’s Continuing Complicity and Moral Failure

Despite Smith’s testimony that the NFLPA owed an “obligation” to “prevent, treat and manage the long-last effects of these injuries”, the NFLPA continued to block retirees’ efforts to enact meaningful change…

(To view the rest of this story in the July issue and have access to future proprietary articles, subscribe by visitinghttps://concussionpolicyandthelaw.com/subscribe/)

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