Tag Archives: NFL

The saga of Adrian Peterson

November 23, 2014

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By Jeanine Ball – Thompson Rivers University 2L JD Student

NFL star running back Adrian Peterson, who has been touted as one of the best players in the NFL will face a hearing on the fate of his future with the League this coming Monday.

In early September, allegations broke that Peterson abused his four year old son. His son was injured when hit by a wooden switch or stick, including bruising and cuts on his body. Peterson was indicted for reckless or negligent injury to a child. Last week he bargained for a plea deal to a lesser charge of misdemeanor assault. The terms of the plea included 80 hours of community service work, two years of “deferred adjudication” (which is similar to probation), a fine of $4,000, and a requirement to attend parenting classes.

Throughout the ordeal Peterson has been suspended from his team, the Minnesota Vikings, while still receiving his annual salary of $11.25 million.

Issues of race, domestic violence, and the intense scrutiny on professional athletes have brought this story to a fevered pitch on social media.

Peterson has had a chaotic year. His two year old son was murdered in October of 2013. Peterson returned to play just days later. Since the indictment for abuse of his four year old son in September, his arrest was considered after he admitted to “smoking a little weed.”

Now he has pled guilty. What does this mean for his future in the NFL?

The NFL guidelines for domestic violence were amended in August following the Ray Rice scandal. A six game suspension is now the punishment for a first offence (it was previously just two games). The player’s union on Peterson’s behalf is arguing for immediate reinstatement. Neither option seems a just solution under the circumstances.

Peterson offered some justification for his actions towards his son as Peterson used disciplinary techniques used on him as a child growing up in Texas. His mother has defended his actions and has emphasized they were acts that were motivated by love. She has been quoted as saying, “When you whip those you love, it’s not about abuse, it’s about love. You want to make them understand that they did wrong.” Regardless of his personal history, causing harm to a child contravened both United States federal and international Law. A $4,000 fine to an individual making a salary of $11.25 million and some hours of community service and probation time is not a significant penalty considering the circumstances of the offender.

Likewise, a six game suspension may serve a purpose in terms of deterrence, but the time involved is insufficient to allow substantive recovery or reconciliation for Peterson with his family. A leave of absence from his team and the NFL would give him time to receive counselling and increase the chance for him to restore a healthy relationship with his son and focus on parenting out of the media glare. Continuing to play in the NFL is not a context that will allow Peterson to rehabilitate from these personal issues.

In order to move towards positive outcomes, the discussion should shift to a focus on healing at a number of levels. Seemingly forgotten in the hysteria around Peterson’s punishment is that a four year old boy was physically and emotionally abused and that concern for his rehabilitation – not those of his famous father back into the NFL – should come first.

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Concussion Lawsuits: Is settling fair for the players?

November 23, 2014

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By Ryan Monty – Thompson Rivers University 3L JD Student

A recent concussion lawsuit filed against the Barrie Colts of the Canadian Hockey League reminds us that no contact sports league in North America, professional or otherwise, are immune to these legal proceedings. John Chartrand, a former player for the Colts, claims the medical staff of the team was negligent in clearing him to play even though he suffered a concussion in a car accident only days earlier. Although Chartrand’s original injuries occurred off the ice, it is still relevant in questioning the medical procedures and the culpability of the team and league when assessing the risks of allowing an athlete to return to play after suffering a head injury.

What amount of liability should the leagues governing these sports accept? One argument is that the players accept the inherent risks when playing contact sports like hockey. Any injuries or long-term side effects are their responsibility to deal with because it was their choice to participate. However, others argue the leagues were aware of the risks, and had more information regarding the long-term repercussions of head injuries than what was available to the players, making the teams culpable for allowing players who had recently sustained a concussion to return to play too soon. They also claim the leagues had the money to prevent players from suffering these on-field injuries but ultimately failed to do so. The National Football League settled a lawsuit with 1,400 former players for nearly $1 billion but as the case was not decided by a court, there isn’t an answer to what the duty of care is owed, if any, by the leagues and teams to their players, if they breached their standard of care, and what amount of compensation would be fair.

Some of the NFL players in the deal mentioned above are opting out because they believe the amount is insufficient. The process is also being stalled by players who are launching legal action against the deal itself in the hopes of preventing it from going through. As reported by USA TODAY, this has pitted the lawyer for the players, Craig Mitlick, against former players like Sean Morey. Mitlick believes that Morey, and players like him, are being greedy and hurting the other plaintiffs by delaying money that would fund their much needed medical treatments, while Morey feels the deal is not enough and is benefitting third parties, like the lawyers involved, too much. It is impossible for us to know who is right without the proceedings of a trial, but with the sheer amount of players seeking compensation, and the still relatively unknown extent of the long-term damages of concussions, the potential that former players accepting a deal from the leagues which is less than fair is increasingly more probable.

There is also the question of why no star players have been involved in any of these suits. Surely the settlement amount would be significantly higher with more high profile players attached. The highest profile athlete to date would have been Dan Marino, the former superstar quarterback of the Miami Dolphins. He was attached to a lawsuit against the NFL, along with 14 other players, but ultimately decided, days after the suit was made public, to remove his name from the list of plaintiffs, claiming it was a big misunderstanding.

Is it possible that higher paid athletes aren’t exposed to the same level of risk as other players? Unlikely. It’s more plausible that they do not want to alienate the game that made them rich, along with the fact that many former elite players, Marino included, end up working for the league or teams after retiring which makes the preservation of a positive relationship essential. This is where I believe the fallacy lies – the players, who are suffering from quantifiable damage, are either left with taking less than they should, or forced to suffer through the pain, holding out for a better deal because the players are not a unified group. There is no solidarity between the lower tier athletes and the elites, and until there is, or until one of these suits finally goes to trial, the players might not get the compensation they deserve.

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Dangerous Soccer Celebrations Raise Questions About the Future of Goal Celebration Rules

November 9, 2014

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By Brittany Corwin – Thompson Rivers University 3L JD Student

Late last month, Peter Biaksangzuala, an Indian soccer player from the Mizoram Premier League, celebrated an equalizing goal against Chanmari West FC with several flips. He landed one of these backflips on his head, leaving him unconscious and with severe spinal cord damage. Several days later, on October 19, 2014, Biaksangzuala tragically passed away due to complications from the injury.

In response to Biaksangzuala’s death, FIFA’s Medical Committee warned that it would be pushing for a new rule to ban such celebrations as backflips and somersaults because they pose a safety risk to players.

Currently, “Celebration of a goal” under Law 12, ‘Fouls and Misconduct’ of the ‘Laws of the Games’ currently states:

“While it is permissible for a player to demonstrate his joy when a goal has been scored, the celebration must not be excessive. Reasonable celebrations are allowed, but the practice of choreographed celebrations is not to be encouraged when it results in excessive time-wasting and referees are instructed to intervene in such cases.”

Further, this section of the ‘Law of the Games’ specifically mentions that players should be cautioned for such actions as making provocative or inflammatory gestures, removing one’s shirt or climbing on a perimeter fence, to name a few.

As you can see, the current rules are focused on avoiding excessive celebration and celebration that may be considered as wasting time, unsportsmanlike or inappropriate. There is no indication of safety as a concern relating to players’ methods of goal celebration.

The lack of safety consideration is eye opening, since Biaksangzuala’s tragic death is an indication that goal celebrations can be dangerous and can result in catastrophic outcomes. However, this raises the question of what FIFA should do in response to events like Biaksangzuala’s and prevent them from occurring again.

FIFA stated that it would be issuing a “directive” warning players not to perform such celebrations. Afterwards, the FIFA Medical Committee will then begin writing a proposal to ban celebratory somersaults and backflips. However, Dr. Michel D’Hooghe, chairman of FIFA’s Medical Committee, stated that he presumed the directive would not be effective in ensuring players avoid these actions, but instead he suggested that these celebrations need to be made illegal.

If FIFA makes backflips and somersaults illegal in the celebration of a goal, it would definitely help deter players from performing them and reduce those specific injuries as result. However, what about the other celebratory actions that result in injury but do not involve flips of any sort?

While Biaksangzuala’s celebration tragically resulted in his death, other sports have recently seen injuries during athlete celebrations as well. For example, on October 26, 2014, defensive end Lamarr Houston of the National Football League Chicago Bears suffered a season-ending ACL tear in his right knee while celebrating a sack against the New England Patriots. A month prior in another NFL game, Stephen Tulloch of the Detroit Lions similarly tore his ACL after celebrating a sack against the Green Bay Packers, rendering him unable to play for the year.

These sack celebrations were little more than a couple skips and jumps, which is quite the opposite of Biaksangzuala’s backflip. However, they resulted in significant injuries that left the athletes out for the season or year.

Celebrating one’s success, whether it is a goal or an amazing play at just the right moment, is inherent in the sport. Everyone wants to celebrate their successes and I am certain that in that moment these players do not consider the dangers that may arise from their celebrations.

Celebration is spontaneous and players take their own risk when choosing how to celebrate. It is such an exciting moment for the player, team and his or her fans and thus, making a long list of celebratory actions illegal takes away this spontaneity.

Even if backflips and somersaults were banned, as Dr. D’Hooghe suggested, there are no changes to rules of celebration that could address all the dangers that could possibly result from a player celebrating his or her success. The NFL sack celebrations are a prime example of this.

Celebration is inherent in the game of soccer, and sports in general, and backflips and somersaults should not be made illegal. Players take their own risk when they choose their celebration and while all possible injuries cannot be preventable or foreseeable, these players need to be aware of the possible dangers that could arise. Hopefully, Biaksangzuala’s tragic death will open players’ eyes to the real dangers that can materialize and they will think twice about taking the risk of throwing a flip and opt for a lower risk celebration instead.

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Place Your Bets: Blurring the Line Between Sports Wagering and Fantasy Football

November 9, 2014

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By Geea Atanase – Thompson Rivers University 2L JD Student

In 1992, the United States passed the Professional and Amateur Sports Protection Act (PASPA) (also known as the Bradley Act), which federally bans sports betting with the exception of sports lotteries in Oregon, Delaware, and Montana, as well as licensed pools in Nevada. States that had operated casinos for ten years prior to the introduction of the Bradley Act were also given one year to pass laws legitimizing sports betting, but New Jersey, which is home to the infamous Atlantic City, failed to pass such laws.

Until now, that is.

Governor of New Jersey Chris Christie recently approved legislation that allows state licensed casinos and racetracks to offer sports betting to patrons, and for the state, the new law could not have come at a better time. Revenue from gambling at the once sparkling Atlantic City is close to half of that in 2007, and the rapid closing of casinos has led to cuts to thousands of jobs. The legitimization of state-sponsored sports wagering could breathe some much-needed life into a struggling economy, and in the past, state senators from Iowa, Rhode Island, and Missouri have attempted to repeal the PASPA as well. In fact, New Jersey State Senator Raymond Lesniak filed a lawsuit in 2009 claiming that the PASPA unconstitutionally discriminates against all but the four states that allow sports betting, which led to voter approval of a repeal of the Act.

Although dissatisfaction with the PASPA appears to be widespread, both professional and amateur sports leagues have a different story to tell. The NCAA, NFL, NBA, MLB, NHL, and other leagues filed a motion to stop New Jersey from offering sports wagering, citing the conflict with the PASPA as the reason for seeking the injunction. The onus was on the leagues to show that they would suffer ‘irreparable damage’ if the state expands sports betting, and they were granted the injunction on this basis.

Although the NBA and NFL refused to comment, ESPN gambling writer David Purdum has stated that the leagues have been fighting against a repeal of the PASPA for several years, and they fear that the expansion of sports betting will hurt the integrity and credibility of their respective sports. However, proponents of the PASPA repeal argue that the legitimization of sports wagering can only help the integrity and credibility of sports in the US.

Would the expansion of sports wagering to include placing bets at casinos and racetracks truly cause irreparable damage to the integrity of sport? Not likely. Between 1984 and 2013, casinos in Nevada recorded $64.4 billion on sports bets, and since 1989, the total amount won on football bets is just over $1.1 billion. Purdum noted in an interview on ESPN that only about 1% of the money that is bet on sports in the US is wagered legally in Nevada; given that Nevada has already raked in billions of dollars on sports betting, the potential for other states to follow suit (should sports betting become legal) looks promising.

Additionally, when the NFL sought an injunction in 1976 to prevent Delaware from allowing casino patrons to bet on football games, Judge Stapleton found no “threat of immediate irreparable injury” to the NFL and refused to grant the order. Rather than tread on the integrity of sport, expanding state sanctioned sports wagering would funnel some of the illegally bet money into state economies and add some legitimacy to practices that occur with or without legislative approval.

Interestingly, the NFL wholeheartedly supports sports wagering when the league is able to claim a piece of the pie. Forbes estimated that people in the U.S. spent $15 billion playing Fantasy Football in 2013, and while the NFL does not directly claim revenue from that amount, it is still able to capitalize on this form of sports betting in other ways. More than half of those who take part in fantasy sports report watching significantly more games, buying more tickets and spending more money at stadiums.

Additionally, in 2006, the NFL entered into a $600 million deal with Sprint in order to allow football fans to use their phones to monitor drafts, and recently, the New England Patriots entered into a partnership with DraftKings, a fantasy sports website. As Marc Edelman at Forbes also notes, the lines have blurred between fantasy sports and sports gambling: “TradeSports has begun to allow users to compete head-to-head based on their ability to predict a number of ‘yes or no’ bets based on a single NFL game – something that sounds similar to head-to-head parlay betting. The NFL has not uttered a public word about this.”

It seems obvious that the NFL is less concerned with ‘irreparable injury’ to the league and the integrity of sport than it is with maintaining a monopoly on a market from which it stands to gain. As Edelman also notes, the NFL’s fight against the expansion of sports betting in New Jersey misses the mark if the league actively endorses Fantasy Football and implicitly endorses other forms of online betting. In the future, perhaps the NFL should put its money where its mouth is and pursue legal action against those who truly threaten the league with ‘irreparable injury.’

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Two Stones, One Ray-ven

October 11, 2014

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By Michael Truong – Thompson Rivers University 3L JD Student

Recently, the National Football League (NFL) has come under intense scrutiny not for the violence on the field but off of it. Ray Rice, a running back for the Baltimore Ravens, is at the centre of the NFL’s domestic violence controversy.

Early in 2014, Rice was arrested for assaulting his then-fiancée and now wife, Janay Palmer. Shortly after, TMZ released a video of Rice dragging an unconscious Palmer out of an elevator. The NFL responded by suspending Rice for two games. In September of 2014, TMZ released a more complete video, which showed Rice punching Palmer in the face rendering her unconscious and then dragging her out of the elevator. The Baltimore Ravens terminated Rice’s contract while the NFL suspended him indefinitely.

There is little doubt that Ray Rice deserves a significant punishment from the league. That much is clear. Given that NFL Commissioner Roger Goodell initially punished Rice with a two-game suspension, should he have been able to substitute the two-game suspension with an indefinite one based solely on the new video evidence? While Section 4 of Article 46 of the NFL Collective Bargaining Agreement (NFL CBA), also known as the “One Penalty Rule”, bars discipline of a player for the same act by both the Commissioner and the team, there is no similar provision in the NFL CBA that addresses whether the Commissioner can alter punishments already handed down. The NFL Constitution and the NFL Personal Conduct Policy are also silent.

Had Commissioner Goodell suspended Rice indefinitely from the outset, Rice would have had far less legal flexibility because the NFL Personal Conduct Policy gives the league wide discretion to punish players for conduct detrimental to the league. Given that Commissioner Goodell did not “get it right” the first time, it seems natural that the concept of double jeopardy should warrant some consideration. While the rule of double jeopardy may not readily apply in this case, particularly because a collective bargaining agreement governs the relationship between the NFLPA and the NFL, Rice may nevertheless be able to mount a compelling argument that Commissioner Goodell overstepped his authority by essentially handing down two punishments for the same act.

According to the timeline of events, TMZ released the first security video in early 2014, Rice apologized a few months later, and then the Commissioner handed down the initial suspension. While “new” video evidence subsequently emerged, the facts of the situation remained largely unchanged. The league claimed it never saw the second video but this implies that had it seen the video, the result would have been different. In reality, the increased penalty was more likely the result of the video being released to the public and Commissioner Goodell acquiescing to public outrage.

Commissioner Goodell had access to the first video which depicted Rice dragging a limp Palmer from the elevator. How did he honestly think Palmer became unconscious? With Rice’s statements that he “made the biggest mistake of [his] life” and his actions “were totally inexcusable” alongside the video evidence, the league knew that violence was involved. Should the manner in which Palmer was rendered unconscious have justified increasing an already imposed penalty? Rice admitted his role, if not explicitly then at least implicitly, and he accepted responsibility; thus, the Commissioner’s increased penalty looks like a second punishment. If Section 4 of Article 46 of the NFL CBA precludes disciplining a player for the same act by both the Commissioner and the team, surely the “One Penalty Rule” can be read as also barring the Commissioner, or the team, from punishing a player twice for the same act.

This is supported by the apparent finality of the initial suspension. Double jeopardy hinges on the idea that an individual cannot be placed in jeopardy twice for the same offence. The assumption is that the initial punishment is final; if not, then double jeopardy does not apply. The NFL would be hard-pressed to assert that Rice’s initial two-game suspension was not the end of the matter, especially since the decision was made following a hearing and not appealed. Seeing as the NFL CBA and the NFL Constitution are silent as to whether the Commissioner can increase or substitute an already imposed punishment, the NFLPA’s next step should be to address this glaring hole.

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Richie Incognito and Bullying in Professional Sports

December 2, 2013

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By Chris Ross – Thompson Rivers University 2L JD Student

Bullying has always been a part of growing up. From the time children are in kindergarten, there are bullies and there are victims. Bullying is something that we expect to fade away as we get older and supposedly mature into grown-ups. However, at least in the National Football League, locker room bullying appears to be a widespread issue that is getting national attention due to some unfortunate circumstances.

Three weeks ago, Miami Dolphins offensive tackle Richie Incognito was suspended by the team indefinitely while the NFL investigates a situation involving Incognito and his second year African-American teammate Jonathan Martin. At the end of October, Martin went AWOL and left the team following a joke played on him by his teammates in the team cafeteria and has yet to return the team. According to reports, the reason for Martin’s departure was bullying and hazing from teammates, allegedly lead by his “best friend” on the team, Richie Incognito.

The most damning piece of evidence against Incognito is the transcript of a voicemail he left on Martin’s phone. The voicemail said: “Hey, wassaup, you half n—– piece of s—. I saw you on Twitter, you been training 10 weeks. [I want to] s— in your f—— mouth. [I’m going to] slap your f—— mouth. [I’m going to] slap your real mother across the face [laughter]. F— you, you’re still a rookie. I’ll kill you.”

Jonathan Martin has since hired high profile sports attorney David Cornwell to represent him going forward. Cornwell alleges that Martin has been subject to a “malicious physical attack,” his sister threatened, and “daily vulgar comments” from Miami teammates. Cornwell claims that the treatment his client was forced to endure was harassment that went far beyond the traditional locker room hazing.

The Incognito-Martin situation is very difficult to judge accurately because there are so many questions yet to be answered. While Incognito has handed over text message communications with Martin indicating that Martin was not holding Incognito responsible, it is possible he simply sent those out of fear of retribution from Incognito. There is so much that we do not know about the situation and until all the information from the NFL investigation comes out, it is probably best to withhold judgement on either player.

Right or wrong, hazing of varying magnitudes has always been a part of sports culture, whether it be at the high school, college or professional level. Nevertheless, the legal implications of this case could have a profound effect on the unique locker room culture of professional sports and the fine line that athletes walk between harmless hazing and hurtful bullying.

According to ESPN legal analyst Lester Munson, Florida law provides the basis for a civil lawsuit that would assess monetary damages against Incognito. Incognito’s use of the N-word and his threats “to kill” could qualify Martin for money damages for anyone who “has been intimated or threatened on the basis of race or color.” Florida law provides triple damages and would allow Martin to collect his legal fees from Incognito. Given Incognito’s expected earnings in the future and a possible end to Martin’s career, Munson asserts that Martin could collect as much as $15 million.

Furthermore, the fact that the Miami Dolphins organization may have known about this situation, and there are reports alleging they may have even encouraged it, could allow Martin to hold them liable as well. High profile attorney Gloria Allred has said that if the Dolphins knew of the racial or sexual harassment of Martin and failed to take action or even condoned it, they would be in violation of Title VII of the Civil Rights Act of 1964 and potentially be liable for emotional damages to Martin resulting from discrimination.

While the facts of this eye-opening situation are still murky at best, there is no doubt that professional franchises around North America have taken notice. In the November 18 issue of Sports Illustrated, editor Jon Wertheim wrote that the story is “pitting the NFL’s macho old guard against the anti-bullying movement” and that we “might be surprised at who’s winning handily.”

The locker room culture, a culture that is said to be incomprehensible to an outsider, may be forced to drastically change as a result of the Incognito-Martin fallout. Although it will be interesting to see if Richie Incognito and/or the Miami Dolphins are held legally accountable for this incident in some manner, the amount of negative attention this story has received, in both the sports and legal world, should be a catalyst to transforming the way in which locker rooms across professional sports operate.

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Owning a Player: Fantex and the Arian Foster IPO

November 23, 2013

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By Kevin Robertson – Thompson Rivers University 3L JD Student

A vast number of people grow up dreaming about becoming professional athletes but few ever reach that level.Instead they are relegated to playing sports recreationally, cheering on their team, and participating in a fantasy league.In a fantasy league a person acts as a combination of owner, general manager, and coach in an effort to run their team better then their opponent.While pride may be one the line, oftentimes there is also money up for grabs.

In American football, due to the constant injuries and changing focus of teams (say from running to passing, or vice versa) it is often necessary for a person to add or drop players based on how a person believes they will perform in future games.In a sense, a person is stating their belief over how the player will perform in the future.Simply put, if a person believes that a player will do well then they will play them.Alternatively, if the person believes that the player will not do well then they will not use them. 

In this way, a fantasy football league is similar to how a person plays the stock market.Buy the stocks that you think are going to perform well and sell the stocks that you believe are going to do poorly.When you consider the dedication that people put into researching their choices the parallels become even more apparent.

However, things are about to change.Fantex is launching a new program whereby for $10 a person can buy a percentage of a player’s future earnings. The first player to sign on with Fantex for this program is NFL Texans running back Arian Foster.In exchange for giving Fantex a 20% share of his future football earnings he will receive $10 million USD.Fantex will then take the 20% share and divide it into one million shares, which will then be sold to investors through an Initial Public Offering (IPO).

As with all things of this nature, someone is going to lose money.It’s possible that Foster will go on to have a healthy career and thus earn those who own his stock a healthy profit but it is also possible that he gets injured in his next game and never plays again.

What is fascinating and will be a huge point of contention in the future is that the contract does not only include his NFL salary but also includes any related fields.In defining related fields the prospectus for the stock gives a few examples such as broadcasting and coaching.That being said, there are a lot of things that could fall into the grey area and possibly result in disputes.If Foster opened a sports bar, which was named after him, could that be considered a related field?What about if he was selling autographs?

As well, there are a couple of other things that could pose problems in the future.The contract does not expire so Foster will be giving 20% of football related income to Fantex for the rest of his life.While the freedom of people to enter into contracts on their own volition is well established, the shear length of the contract will likely bring up concerns.One issues is that Foster has in effect “sold his soul to the devil” for a one time monetary payment.The contract only ends if he pays back the full amount plus a penalty.He cannot get out of the contract without Fantex’s agreement.In this way, if he retires within 2 years of signing the contract for any reason other than injury, illness or medical condition Fantex can unilaterally cancel the contract and demand repayment of $10.5 million USD.

In Foster’s case his contract might only be for 20% of his future income but what would happen if it were for more?Say 50% or 100%?There is something morally wrong for a society that has moved past slavery to then allow a person to become indebted to another for life.

It is unclear whether college players will sign up with Fantex.While the NCAA has been adamant that they are not interested in paying the players for their services, it would be hard for a lot of the players to turn down a lump sum payment even if the terms were not favorable in the long run.

In fact, it would be possible for a college player to game the system in a certain situation.Taking Foster’s contract as an example, a college athlete could get a lump sum payment and then pay it back (along with the penalty) with a signing bonus if they make it into the league and get a large contract.A strategy such as this would be very smart if the player knew that they had an even larger endorsement deal coming in the near future.Once again, legally this would be a grey area in that Fantex is registering each player under the Securities and Exchange Commission, which has strict rules governing insider trading.As well, with college players there may be issues due to them being minors.

Like many things in sports, the IPO into Arian Foster will garner a lot of money for some people, even if it isn’t in the best interest of the game or society.

The prospectus for the IPO is available to read here and contains some very interesting information not only on his health but also his contracts with both the NFL and endorsement deals. 

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Ask not for whom the bell tolls

January 6, 2012

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The words “Ask not for whom the bell tolls” should be ringing loudly at NHL headquarters following John Branch’s excellent expose (click here, here and here for the links) on Derek Boogaard, fighting in hockey, and brain injuries last week in the New York Times. I wrote an article in The Globe and Mail (click here to read it) earlier this year that suggested the NHL is vulnerable to a lawsuit on similar grounds to that which has been launched against the NFL.

The NFL’s concussion crisis was put into the spotlight starting in 2007 by Alan Schwarz of the New York Times. Schwarz has since written dozens of articles for the Times about brain injuries in football. As Ben McGrath of The New Yorker (click here for the piece) wrote last year, ‘Credit for the public’s increased awareness of these issues must go to the Times, and to its reporter Alan Schwarz, whom Dr. Joseph Maroon, the [NFL Pittsburgh] Steelers’ neurosurgeon and a long time medical adviser to the league, calls “the Socratic gadfly in this whole mix.”’ Schwarz’s reporting sparked and catalyzed change in the NFL’s approach to brain injuries. The league is now named in about a dozen concussion-related lawsuits.

The NHL has been painfully slow to implement real changes that would reduce the occurrence of brain injuries. Just like the hockey enforcer who is tapped on the shoulder by his coach or just knows he must answer the bell, the NHL has got to see that the writing is on the wall (on in this case, splashed on the pages of The New York Times), that the time is nigh for change and know that the bell tolls for thee.

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A (head) shot across the NHL’s bow?

August 9, 2011

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The Globe and Mail – Canada’s national newspaper – just published a piece I wrote relating the NFL lawsuit to the concussion crisis in the National Hockey League (click here for the article). Here are a few excerpts:

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Seventy-five former players sued the National Football League last month, alleging that the league failed to warn and properly protect them from the long-term brain-injury risks associated with football-related concussions. They say the NFL was negligent in failing to exercise its duty to enact rules regulating postconcussion medical treatment and return-to-play protocols and to enact reasonable rules to protect players against the risk of brain trauma.

No doubt the NFL lawsuit will raise eyebrows and blood pressure at the National Hockey League’s head offices in New York. And if it doesn’t, it should. Although hockey and football are different sports governed by different rules, the fact is they’re cut from the same cloth of contact sports. Perhaps the threat of litigation will force the NHL to rethink its approach to head injuries.

Let’s hope the NFL suit will prompt the NHL to get rid of head shots from hockey. Enrolment in youth hockey is declining. The reasons are myriad, but there’s no doubt that hockey violence and its effect on kids’ brains is a factor in their parents’ decisions. The NHL’s influence on youth hockey is unmistakable, and kids will mimic what’s modelled. The league does a disservice by not doing more.

Real change in youth hockey and the pros will only occur after the NHL breathes in the smelling salts, gives its head a shake and eliminates head shots from the game. And if the league continues to skate its way around this issue, perhaps the long reach of the law in the NFL case can knock some sense into the NHL.

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NFL sued for failure to protect ex-players from concussions

July 22, 2011

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As speculated in Ben McGrath’s excellent piece in The New Yorker on 31 January 2011 (click here for the article), a group of 75 retired NFL players and many of their wives sued the National Football League and helmet manufacturer Riddell in the Superior Court of California three days ago (click here for the CNN piece and here for the New York Times article).

The lawsuit alleges that the players ‘did not know the long-term effects of concussions’ and relied on the league to protect them. ‘For decades, defendants have known that multiple blows to the head can lead to long-term brain injury, including memory loss, dementia, depression and (chronic traumatic encephalopathy) and its related symptoms.

‘This action arises from the defendants’ failure to warn and protect NFL players such as plaintiffs against the long-term brain injury risks associated with football-related concussions. This action arises because the NFL defendants committed negligence by failing to exercise its duty to enact league-wide guidelines and mandatory rules regulating post-concussion medical treatment and return-to-play standards for players who suffer a concussion and/or multiple concussions.’

The plaintiffs are critical of a study commissioned by the NFL Committee on Mild Traumatic Brain Injury whose published results in 2004 showed ‘no evidence of worsening injury or chronic cumulative effects’ from multiple concussions. In a related study, the committee found that ‘many NFL players can be safely allowed to return to play’ on the day of a concussion if they are without symptoms and cleared by a doctor.

The lawsuit alleges that the NFL study is ‘completely devoid of logic and science [and] … contrary to … 75 years of published medical literature on concussions.’

‘By failing to exercise its duty to enact reasonable and prudent rules to protect players [and warn past players] against the risks associated with repeated brain trauma, the NFL’s failure to exercise its independent duty has led to the deaths of some, and brain injuries of many other former players, including plaintiffs.’

The suit alleges that the NFL failed ‘to regulate practices, games, equipment and medical care so as to minimize the long-term risks associated with concussive brain injuries.’ It is further alleged that the ‘defendants acted with callous indifference to the rights and duties owed to Plaintiffs … [and that the] defendants acted wilfully, wantonly, egregiously, with reckless abandon and with a high degree of moral culpability’ in either ignoring medical research on the subject or for not disclosing to the fullest extent what was actually known.

The plaintiffs are mindful of NFL Commissioner Roger Goodell’s testimony to the US Congress in October 2009 where he didn’t acknowledge a connection between head injuries on the football field and later brain diseases even though there was compelling evidence to the contrary. The lawsuit accurately notes that US Representative Linda Sanchez, D-California, ‘analogized the NFL’s denial of a causal link between NFL concussion and cognitive decline to the tobacco industry’s denial of the link between cigarette consumption and ill health effects.’

The suit also contends Riddell’s helmets were defective because they didn’t ‘provide adequate protection’ from concussions. The plaintiffs will no doubt try to rely on representations made by the helmet manufacturer in their marketing during the period in which they played. The plaintiffs would have to argue that they relied upon these fraudulent claims reasonably believing that the helmets either substantially reduced or eliminated altogether the likelihood of sustaining a concussion. For what it’s worth, Riddell’s current website (as of 22 July 2011) makes no such absolute claims that wearers of their helmets will not suffer a concussion during a collision whilst playing football.

NFL spokesman Greg Aiello said the league ‘will vigorously contest any claims of this kind’ and Riddell will not comment on the pending litigation.

This is going to get very interesting.

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