On March 11, 2013, the National Football League and the General Electric Co. announced that they are teaming up to create a Head Health Initiative that will provide $60 million dollars to assist leading neurologists in researching traumatic brain injuries and developing technology able to monitor these ailments.  $40 million will go towards developing imaging technologies, and the remaining $20 million will be available to others who seek to prevent, identify, and develop treatments for brain injuries.  Athletic apparel company Under Armour will also be providing $5 million dollars in support for the cause.

Jeff Immelt, GE Chairman and CEO, indicated that scientific support for the research would be top-notch.  “We’re trying to do this with the best minds anywhere in the world,” he noted in a news conference.  He declared that the funds would utilize GE’s expertise in sophisticated diagnostic imaging technology to increase general scientific knowledge on brain functions, noting “With this initiative, we will advance our research and apply our learning to sports-related concussions, brain injuries suffered by members of the military and neurodegenerative diseases such as Alzheimer’s and Parkinson’s.  Advancing brain science will help families everywhere.”

NFL commissioner Roger Goodell also expressed satisfaction with the initiative, stating: “The NFL has made tremendous progress in making the game safe and more exciting.  But we have more work to do.  Our collaboration with GE and Under Armour . . . puts us on an accelerated path to progress . . that will benefit athletes, the military, and all members of society.”

On October 31, 2012, lawyers representing thousands of former NFL players filed an opposition brief to the NFL’s current motion to dismiss pending in U.S. District Court in Pennsylvania, insisting that based on the gravity of the harm incurred, their lawsuit against the League must be allowed to move forward.  The brief rejected the NFL’s contention that the action was essentially a labor dispute that needed to be resolved under the league’s collective bargaining agreement.

The Plaintiffs accused the NFL of “orchestrat[ing] a disinformation campaign,” insisting that the League “knew that players were exposed to risks of severe neurological injuries yet did nothing to prevent them.”  However, the League has, time and again, publicly denied that it knew of any long-term dangers posed by concussions.  Further, the NFL insists that it did not intentionally lie to players about the potential side effects.  Instead, it stated that it delegated the decisions about players’ conditions and return-to-play decisions to individual team doctors and trainers.

At this point, U.S. District Judge Anita Brody must decide how to proceed with the extremely cumbersome litigation.  If a settlement is not reached and the case is not dismissed, it is possible that the individual cases could be returned to the multiple districts where they originated forcing the parties to proceed with separate trials.

Ex-players reply to NFL’s motion to dismiss cases

On Tuesday October 30th, the NCAA Board of Directors announced the adoption of a new enforcement structure that, among other things, creates additional levels of infractions, enhances accountability for head coaches, and seeks to punish violators with sanctions that more appropriately align with the actions that occurred.  The most striking of these new initiatives, to be implemented beginning in August of 2013, is the creation of the new four-tiered structure for violation classification.  

Under the current model, violations are classified as either major or secondary.  The new system sets forth violations as follows: Level I, Severe breach of conduct; Level II, Significant breach of conduct; Level III, Breach of conduct; and Level IV, Incidental issues.  A copy of the NCAA’s press release may be found here.  This new structure is the product of a year-long effort by the thirteen-member Board comprised of presidents, athletic directors, and conference commissioners.   President Mark Emmert described the changes as part of a devotion to “protecting the collegiate model,” in part by “remov[ing] the ‘risk-reward’ analysis that has tempted people.”   

These changes come on the heels of increasing external pressure for a more consistent and transparent process, with a number of major infractions cases serving as the backdrop for this magnified criticism.   Greater accountability and stricter sanctions is undoubtedly a step in the right direction when it comes to enforcement of what would be considered major infractions under the current framework.  The NCAA should be applauded for taking measures to ensure consequences for coaches who plead ignorance while violations blatantly occur on their watches.  But at the same time, the new violation structure is troublesome.   Despite admirable efforts to construct a better system, this new four-tiered structure for violation classification fails to ameliorate many of the common concerns expressed with respect to NCAA Bylaws and enforcement of the same.  Hopefully, this will be cleared-up with the upcoming changes to the substantive “rules” in the Bylaws.    

The NCAA Bylaws are often denounced as too lengthy and too complex, and deservedly so.  Moving from a two-tiered violation structure to a four-tiered system, if not matched-up with more common sense in rule substance, is an obvious step backward, and is counterintuitive if the desired outcome is a more workable framework.  Increased confusion is even more likely when one considers the near endless interpretations that could be attributed to the definitions describing each tier.  For example, consider the difference between a violation that “threatens the integrity of the NCAA,” versus a violation that merely “provides more than a minimal, but less than a substantial…advantage.”  One definition classifies a Level I violation, while the other corresponds with Level II, but is there really a difference?   The definitions may mean something different to a coach versus someone in compliance at a school or enforcement at the NCAA, so how then is the goal of deterrence met for the problem that President Emmert describes as a calculation of risk vs. reward made by coaches who currently do not have sufficient risk to their livelihoods or respective programs.

Under this system, inconsistencies may abound to an even greater degree than under the current model.  This is likely to complicate the NCAA’s investigative measures, which is problematic given the Association’s already limited resources; resources so limited that some have even suggested that the NCAA get out of the enforcement business altogether (for a more in depth discussion of this proposal, see this well-done piece by Attorney Stephen A. Miller, recently published in The Atlantic).  Finally, if the NCAA is really student-athlete first, then this measure does nothing to address the countless Bylaws that punish student-athletes for technical violations that provide no competitive advantage, and do little more than burden an already overwhelmed enforcement staff.  Again, it is worth pondering, is an “incidental issue” even worth sanctioning?  I hope that reforms not just in terms of a scholarship enhancement, but in terms of rules affecting student-athletes’ behavior on a day-to-day basis are addressed in the coming months.

Since the NCAA has chosen to divert its attention first to the method in which these intricate and often superfluous regulations are classified, my worry is that dealing with the substance later will lead to a continuance in seeing violations shoe-horned into a rigid framework that sometimes, but does not always fit.  For those that desire more consistency in results, do you want the NCAA to have something akin to Federal Sentencing Guidelines, or more common sense in results?  I am not yet convinced that the new enforcement structure will get us more common sense in results, which many (myself included) would like to see as opposed to more rigidity.

Over time, perhaps this will prove to be a positive step toward a streamlined, consistent, and fair process.  For now though, a more detailed systemization of the NCAA’s enforcement structure only seems to complicate matters further if there is not significant overhaul to the substance of the rules themselves.  While my experiences may leave me a bit biased, until we see a comprehensive reassessment of the actual Bylaw language (promised in the next few months), I foresee this self-proclaimed “overhaul” as little more than a re-branding exercise.

Originally published on Sportslawblog *Hat tip to Brian Konkel for his work on this piece.

The National Football League recently filed a motion to dismiss a lawsuit filed by Alterra America Insurance Co. in New York State Supreme Court, arguing that the excess insurer did not have the requisite standing to add additional insurers as parties to its New York action, since the NFL is already pursing an action against them in California.

With the preseason underway and the regular season right around the corner, football fans are gathering in front of their TVs and crowding stadiums across the country with copious amounts of food and drink watching the big game.  Legal observers will have their own action to watch although this is likely to last several seasons.    

Shortly after the NCAA’s imposition of unprecedented sanctions against Penn State, I wrote in this space about the myth of due process protection in the NCAA arena. Essentially, the NCAA, as a private voluntary association of member institutions, is not a state actor and is not bound by state or federal constitutional constraints. Since NCAA member institutions appear to have validated President Mark Emmert’s unilateral punishment (through the NCAA Executive Committee and Division I Board of Directors), and Penn State consented, affected parties were left with very little recourse. Now, it appears that the Paterno family intends to challenge this notion. For various reasons, the family is unlikely to succeed either through an administrative appeal or in court.

The same conclusion is likely to be reached in the appeal filed by individual members of the Board of Trustees. The Board members contend that the NCAA violated their “fundamental” due process rights, but again, this is a misconceived notion. The Board members further argue that the consent decree is null and void since President Rodney Erickson lacked the legal capacity to agree to the sanctions and did not properly consult the Board. Even if true, this likely has no bearing on the NCAA’s ruling, and similarly, a court would likely find that Erickson was acting with apparent or actual authority to bind the University. The Board may elect to take internal action against Erickson and is well within its rights to do so, but it is difficult to foresee a scenario that would result in a re-adjudication of the punishment rendered against Penn State that would produce a more favorable result for Happy Valley. Given the reputational damage that the University has already suffered, perhaps that is for the best. 

As originally published on Sports Law Blog  Hat tip to law clerks Brian Konkel and Jane Kwak for their assistance on this piece.

As to whether the punishment fit the crime in the imposition of punishment on current student-athletes and coaches that had no fault here, it is difficult to equate Jerry Sandusky's heinous actions and subsequent cover-up with standard NCAA violations that go to competitive advantage. Therefore, I can see why many people are having trouble with the punishment being levied against the innocent members of the football program in Happy Valley. Let's put that aside for the moment, though, to clear away some of what I consider to be misinformation and misinterpretations of this latest NCAA headline. In addition to punishment itself, Mark Emmert's executive declaration of Penn State's punishment on Monday left many on the sidelines enraged over (1) a lack of "due process" and (2) setting a bad precedent for future NCAA enforcement matters. As to (1), "due process" is not accorded to member institutions in the NCAA process, and I do not believe that (2) should concern current and future alleged rule-breakers in standard areas of violation such as recruiting, benefits, academic eligibility, amateurism, etc.

The National Hockey League playoffs are underway, and the League is experiencing unprecedented media coverage as a result of the $2 billion dollar contract it signed with NBC last spring.  But with newfound popularity, comes newfound criticism, and the tensions of playoff hockey have only exacerbated the onslaught from both players and pundits.  Most of the commentary has centered on a perceived lack of consistency in officiating and enforcement, and of course, at the center of all of this is the League's concussion problem.  Last week, the League office drew heat after Nashville Predator's Defenseman Shea Weber was not suspended for deliberately slamming the head of Detroit Red Wings Forward Henrik Zetterberg into the glass.  Perhaps heeding these criticisms, the League responded this weekend with a three-game suspension for Carl Hagelin of the New York Rangers, after he elbowed the Ottawa Senators' Daniel Alfredson, causing a concussion.  Some commended the NHL for taking a tougher stance with the Hagelin suspension, but the repercussions handed down have been widely inconsistent.  Given that the League has been beset by concussion concerns with its biggest stars such as Sidney Crosby, and in light of the brewing litigation against the NFL by its former players, the NHL would do well to establish a consistent and strict policy with respect to blows to the head.

The release of this audio recording raises numerous issues.  Williams' career was already in serious jeopardy prior to the release of this recording, but now, he is virtually un-employable.  His rhetoric and tone exceed that which would be considered normal locker room speak, and leaves little doubt that bounties were indeed taking place.  Williams called for specific injuries to numerous San Francisco players, even suggesting players should attempt to go for the head of concussion-prone wide receiver Kyle Williams.  With the multitude of lawsuits already filed against the NFL related to concussion issues, this is pretty damning for Williams, the Saints, and the League as a whole.  It is possible, and perhaps even likely, that Commissioner Goodell could turn Williams' current indefinite suspension into a lifetime ban.  It seems as though Goodell has ample evidence to do so at this point, and he may need to take such a step to remain consistent with the NFL's present crusade in support of player safety.  

To that end, Goodell clearly has authority to discipline Williams, consistent with the NFL's Standard of Conduct: 

The smooth transition of NFL jersey production responsibilities from Reebok to Nike hit a snag this week with the filing of a lawsuit by Nike against its rival. Nike filed suit in federal court against Reebok over Reebok’s swift production of Tim Tebow-New York Jets jerseys after Tebow’s trade to the Jets. The trade announcement on March 21st left an extremely tight window of time for Reebok to capitalize on the deal before its contract with the NFL expires on April 1, 2012.