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Volume 20 No. 42

Leagues and Governing Bodies

They are the NFL’s mushrooms, seemingly popping up around every corner at a moment’s notice. Concussion lawsuits — 68 of which have been filed between July 2011 and last week — encompass more than 1,800 former players ranging from hall of famers to has-beens.

Easterling (in 1975) committed suicide last month.
Photo by: AP IMAGES
Already percolating beneath the surface of the NFL’s money and popularity machine, the lawsuits took on an even greater significance last week, with both the league’s severe discipline of four players in the New Orleans Saints bounty scandal and the tragic reported suicide of veteran linebacker Junior Seau. Part of the reason the NFL is coming down hard on the Saints, many insiders in the sport believe, is to send a message that it takes player health and safety seriously. And while the factors that played into Seau’s story were unclear late last week, his death — on the heels of the suicides of Ray Easterling, one of the concussion plaintiffs, and Dave Duerson, whose family subsequently sued the league — has resulted in fingers being pointed at the wear and tear of the game as a culprit in the 43-year-old’s demise.

The ex-players suing the league last month asked a federal judge to begin depositions immediately because of their risk of death and dementia, even though she has not yet agreed to allow the lawsuits to continue.

Dorsett is one top name involved.
If the players succeed in charging the league with hiding the risks of playing the game, the NFL could face what experts say potentially could be billions of dollars in exposure, akin to the asbestos and tobacco cases of yesteryear. Players are seeking payments to cover medical monitoring, care and damages — but that could be years away, if at all. The NFL is moving to dismiss the cases, contending they are pre-empted by labor law that requires the complaints be settled through dispute-resolution mechanisms contained in NFL collective-bargaining agreements.

That path, however, won’t be without challenge, experts say.

“I approach the NFL argument with some measure of skepticism,” said Bill Gould, former chairman of the National Labor Relations Board and currently a Stanford Law School professor who has written extensively on sports law. “The mere fact that there is a CBA with dispute-resolution procedures is only the beginning [of the analysis].”

The NFL points to the Korey Stringer case as proof. In 2001, Stringer, a Minnesota Vikings lineman, collapsed and died during a hot training camp workout. His family sued the league, but a federal court dismissed the case, ruling it fell under the CBA, though other lawsuits connected to his death proceeded and ultimately were settled.

“[A] federal court, in Stringer v. National Football League, considered a claim against the NFL nearly identical to this — premised on the NFL’s alleged failure ‘to minimize the risk of heat-related illness,’ and ‘establish regulations’ to ensure ‘adequate care and monitoring of players suffering from heat-related illness’ … [and] held that plaintiff’s claim was completely preempted by [labor law],” the league argued in November in federal district court in Philadelphia where many of the concussion cases have been consolidated. The league’s motion will be renewed later this year, following the further consolidation of the cases.

The NFL’s lead counsel on the matter is Paul, Weiss, Rifkind, Wharton & Garrison.

The top plaintiff firms include Hausfeld; Anapol Schwartz Weiss Cohan Feldman & Smalley; and the Locks Law Firm. The firms must sort through their pecking order of case issues and submit a new master complaint by June 8. Riddell, the helmet maker, is named in several of the lawsuits, so among the decisions to come is whether to include the company as a defendant alongside the NFL.

The league wants discovery to stretch through 2018, contending it needs to depose each player, assess his medical records and determine how any alleged injuries were suffered. The players have suggested discovery through 2014 and last week asked Judge Anita Brody to begin depositions immediately for players at risk of dementia or dying.

The original case before Brody is the Easterling class. Easterling committed suicide last month.

Experts are split on what Brody will do. “The types of procedures the former players are saying should have been in place are clearly terms and conditions of employment that require the employer-teams to bargain with the union over,” said Gary Roberts, a former NFL outside counsel who now teaches at Indiana University. “This makes for a powerful defense.”

Key Dates in
Concussion Litigation*

Wednesday: Plaintiffs pick co-lead counsel
June 8: Plaintiffs must submit a master complaint
June 19: Plaintiffs may file a request for discovery
Aug. 9: NFL and helmet manufacturer Riddell may file a motion to dismiss
Oct. 10: Plaintiffs may respond
Nov. 26: NFL and Riddell may file replies

* This is the schedule for the cases consolidated in the U.S. District Court for the Eastern District of Pennsylvania, in Philadelphia. The NFL is seeking to have cases that have been filed at the state level moved to federal court, at which point they would be consolidated in the Philadelphia court.
Michael Hausfeld, one of many attorneys for the former players, counters that the issues the players are suing over were either not known at the time of those CBAs, or the NFL misled the players.

“[The CBA] is not intended to focus on medical care issues, specifically those that manifest itself outside the term of employment,” he said.

And what of the period between 1989 and 1993, when a CBA did not exist? The NFL is contending that terms and conditions of previous and subsequent CBAs should apply.

Many top former players are suing, with some reports suggesting that all pre-1993 players might ultimately become part of the class. Top names include Tony Dorsett, Jim McMahon and Alex Karras.

Paul Anderson, a graduating law student whose website has become a must-read for those following the lawsuits because of its depth and daily updates, concluded that both sides have good arguments. But, he added, “the safe money is on Judge Brody not dismissing the cases.”

She could rule by the end of the year on that question, and if she does not dismiss, the league is likely to appeal. But if the cases proceed, the league could settle, as the risk of a massive damages and inherent negative publicity from trials could be too great.

“Given the potential liability and sympathetic nature of these plaintiffs, it would seem settlement would be a viable strategy at that point,” said Gabe Feldman, director of the Tulane Sports Law Program.

And given the events of last week, it would seem a foregone conclusion the NFL would never want to let these cases go before a jury.

NASCAR plans to toast its champion in Las Vegas for the next three years.

NASCAR President Mike Helton speaks during last year’s awards ceremony in Las Vegas.
The series signed a new, three-year agreement with the Las Vegas Convention and Visitors Authority to continue to host its Champion’s Week event in the city. Financial terms of the agreement weren’t available, but the Las Vegas Convention and Visitors Authority is paying NASCAR to bring the event back to the city.

The two parties have been negotiating the deal since last fall when NASCAR’s prior three-year agreement ended.

“Both sides wanted to make sure that the agreement that we have moving forward is the right one,” said NASCAR Chief Marketing Officer Steve Phelps. “They’ve got many hotels that are part of their group, and we needed to make sure as we were structuring things that we had events at a multitude of hotels.”

Julian Dugas, executive director of the convention and visitors authority, said, “When we do events, we always try to spread the love. When it was all said and done everyone realized where they were was the best place and they were in fact spreading the love.”

As it did last year, NASCAR will be holding its marquee event — the NASCAR Sprint Cup Series Awards — at the Wynn. The event will be held Nov. 30, bringing an end to a weeklong celebration of the sport that Phelps said will look almost identical to what’s been done in past years.

Events last year included a Pit Stop Tour event that featured the top 12 drivers playing a “Newlywed Game”-type competition; the annual Myers Brothers Awards Luncheon for the champion crew chief and sponsor; the NASCAR Victory Lap where the 12 drivers took their cars down the strip; and the NASCAR After The Lap event where drivers spoke on a panel for fans.

The NASCAR industry will kick off the week with the Motorsports Marketing Forum hosted by SportsBusiness Journal/Daily, which NASCAR has signed on to sponsor for the second consecutive year. The conference will be held Nov. 27-28.

Phelps said NASCAR is looking at other events it might add for fans and corporate guests, but he said it would be premature to speculate on what those might be.

In 2009, teams welcomed NASCAR’s decision to relocate Champion’s Week from New York to Las Vegas because it allowed them to reduce travel costs and leave a city where many felt, after 17 years, the event had become stale. Some team executives at the time lamented the loss of media exposure in leaving New York, but they have supported the event and used it to entertain clients and reward employees during the last three years.

The sport plans to continue to spend aggressively to encourage its fans to come to Las Vegas for the annual celebration. It promoted its Champion’s Week during radio broadcasts of races throughout the Chase for the Sprint Cup last season to encourage fans to come to Las Vegas.

It also will encourage its sponsors to promote the event through special sweepstakes. Last year, NASCAR and Ford collaborated to host a sweepstakes called “Send Me to Vegas.”

“Every year it’s going to grow, and every year we’re going to have an opportunity to use it to promote our message that we’re a champion city,” said Dugas, who added that the city also hosts the NHL’s year-end celebration. “We want Las Vegas to be seen as the place to go for sports.”

The Monster Energy AMA Supercross series managed to increase attendance and ratings this season despite losing five of its top riders to injuries for extended periods.

The season, which finished in Las Vegas over the weekend, was one of the best in the sport’s recent history. Total race attendance for all 17 events increased 3 percent from last year to 831,600. Pit attendance finished flat with last year at 266,000.

Series title sponsor Monster Energy has renewed, along with another big partner, Toyota.

Events: 17
Total Attendance:
831,600 (+3 percent)
Pit Attendance:
266,000 (flat)

The series sold out two races in Anaheim and races in Atlanta and Las Vegas. It also increased attendance in San Diego, Houston and Arlington, Texas. Its biggest decrease in attendance was for its January race in Los Angeles, which dropped 13 percent to 35,741.

The sport’s lowest-attended event was an April 14 race in New Orleans that drew 33,392 spectators. Feld Entertainment, which runs the Monster Energy AMA Supercross series, plans to eliminate the New Orleans race in 2013 and replace it with an event in Minneapolis next April. Feld Motor Sports Chief Operating Officer Ken Hudgens said the sport used to sell out races in Minneapolis in the 1990s, and he’s optimistic the race next spring will attract a good crowd.

“We’re playing to a high percentage of capacity, so to grow the series we have to grow events that have room,” Hudgens said. “We’re hoping Minneapolis will be a hit.”

The series’ decision to renegotiate its broadcast rights agreement with Speed before the season and add three live broadcasts on the cable channel helped it increase its Nielsen rating on the channel by 3 percent, to a 0.3 rating, and average viewership by 13 percent, to 385,000 viewers. Its highest-rated event of the year was Feb. 25 in Atlanta, which drew 630,000 viewers, making it the most-viewed supercross race ever on Speed.

In sponsorships, Feld this year renewed deals with two of its biggest partners, Monster Energy and Toyota. It has 80 percent of its national sponsors committed to the sport through the next two seasons, and it is looking for sponsors in the telecommunications and insurance categories, Hudgens said.

One of Hudgens’ other offseason priorities is to meet with the Las Vegas Convention and Visitors Authority about getting some financial support for the annual supercross championship in Las Vegas. Feld is committed to hold the race at Sam Boyd Stadium through 2014, but Hudgens said it will consider taking the race elsewhere after that if the sport doesn’t receive some financial support to keep it in Las Vegas.