Head Games: Previewing the Upcoming Legal Battles Over Concussions in College Sports


Although the thrills of March Madness have provided a brief respite, the NCAA’s ongoing legal crises are difficult to ignore. While the federal investigation into recruiting practices in men’s college basketball[1] may be the center of attention, there is pending litigation on other issues that has the potential to redefine the relationship between college athletes and their schools. These include the In re: National Collegiate Athletic Association Athletic Grant-In-Aid Cap Antitrust Litigation antitrust case—better known as Jenkins v. NCAA[2]—which could rollback the NCAA’s amateurism regulations even further than O’Bannon did[3], and the “single school/single sport” concussion cases filed by hundreds of players against their former schools and athletic conferences.[4] The concussion litigation, which is separate from the NCAA Concussion Settlement[5] that is currently awaiting implementation[6], has the potential to clarify a school’s duty of care to its athletes and provide monetary relief for thousands of former football players.[7]

Previous Litigation and the NCAA Concussion Settlement

Similar to the NFL[8] and NHL[9], the NCAA and its member institutions have been the subject of an increasing wave of concussion-related complaints amid mounting evidence linking contact sports to diminished brain health and other neurocognitive issues.[10] The lawsuit that sparked the recent uptick in concussion litigation in college sports came from former Eastern Illinois football player Adrian Arrington, who in 2011 sued the NCAA for its “negligence and inaction with respect to concussions and concussion-related maladies sustained by its student-athletes.”[11] Other players followed suit[12], and the cases were consolidated in an Illinois federal court and later settled in 2014.[13]

As currently constituted, the NCAA Concussion Settlement provides all former NCAA athletes—not just football players—with medical monitoring for concussion-related injuries (the settlement has not yet been implemented due to procedural delays[14]). The settlement agreement contains two important caveats:

1) It does not provide monetary compensation to athletes concussed while playing in the NCAA[15], but
2) It allows former athletes from a single sport (e.g., football, lacrosse, hockey) to seek financial damages from their school and/or athletic conference in separate lawsuits.[16]

These carve-outs motivated a wave of “single school/single sport” lawsuits, which were consolidated in the same Illinois federal court as the NCAA Concussion Settlement and are being overseen by the same judge. [17]

Single School/Sport Cases

Over 100 “single school/single sport” cases have been filed to date, arguing that schools, athletic conferences, and the NCAA (“Defendants”) had a duty to ensure athletes’ safety given the extensive research on the dangers of concussions, but “failed to educate…[college] football players of the link between TBIs in amateur football and chronic neurological damage, illnesses, and decline.”[18] The players assert breach of contract, negligence, fraudulent concealment, and unjust enrichment claims [19] and seek damages for the past, present, and future effects of their injuries.[20]

Though the cases have been consolidated, the court has not yet decided whether to certify a class against the NCAA or against a particular conference or school. To help resolve that issue, the parties have selected two “sample” cases apiece that can best indicate whether the “single school/single sport” complaints should move forward on a class basis.[21] These test cases will proceed through motions, discovery and, if necessary, trial to determine how best to approach the remainder of the cases. At present, the four sample cases (“Sample Cases”) have been selected and are currently in the motion to dismiss phase.[22]

Arguments, Defenses, and Potential Outcomes

In the Sample Cases, the key allegation of the Player-Plaintiffs is that the Defendants “owe[d] a duty of care to safeguarding the well-being of its student-athletes,”[23] yet only recently implemented concussion management procedures. The players attempt to establish such a duty by recounting how the NCAA was founded in response to player safety concerns in collegiate football[24] and reciting several of the NCAA’s purported core values regarding athlete health.[25] In particular, the players cite the NCAA’s “Principle of Student-Athlete Well-Being,” which states, “each member institution [is responsible for]…protect[ing] the health of, and provid[ing] a safe environment for, each of its participating student athletes.”[26] In their motions to dismiss, the Defendants do not confront these claims directly, but variously argue the Player-Plaintiffs’ claims are time-barred, that no contract exists between the athlete and school/conference/NCAA, and cannot be adjudicated in the jurisdiction in which they were filed.[27]

Whether the “duty” alleged by the players in these cases exists is yet unclear. The Third Circuit held in Kleinknecht v. Gettysburg College[28] that a university had a “special relationship”[29] with a player who is “participating as an intercollegiate athlete in a sport for which he was recruited”[30] and owed the player a “duty of reasonable care,”[31] while the Tenth Circuit ruled in Orr v. Brigham Young University that BYU did owe one of its football players a heightened duty of care based on his athlete status.[32] But the duty of care pendulum has swung further in the athletes’ favor, a trend exemplified by a 2017 ruling in a former collegiate lacrosse player’s suit against the NCAA in New York state court.[33] In a novel holding, the New York court determined the NCAA “owed a duty of reasonable care to the plaintiff” due to its “significant control over the rules of play and equipment…”.[34] Since the lacrosse players were not permitted to use protective headgear during competition, the court rejected the NCAA’s argument that the players assumed the of risk of participation.[35] Analogizing this holding to the current concussion litigation could be useful for the Player-Plaintiffs: the alleged failure to educate athletes on the long-term dangers of concussions and implement appropriate safeguards is comparable to the prohibition on protective equipment in lacrosse in that both deprive athletes of tools (be it science or equipment) that could have shielded them from the risks of their sport. A March 2018 ruling by the California Supreme Court—which found that “universities have a special relationship with their students and a duty to protect them from foreseeable violence during curricular activities”[36]—could also work in the athletes’ favor.

The law is more settled on the contract issue—most courts recognize a contractual relationship between students and their universities[37]—but whether it was breached remains a question of fact. Moreover, because there may be substantially greater variation in the contracts between college athletes and their schools or conferences than there is, for example, between NFL players and their league and teams[38], a concern over whether sufficient commonality exists to proceed on a class basis also arises. Further implicating the commonality issue is that the NCAA is a far less centralized organization than a professional sports league, meaning policies on concussions could vary widely between schools and leagues.


The “single school/single sport” concussion litigation is far from over— it could take years before trials are reached[39]—but it remains deserving of keen attention because of its potential to fundamentally alter the legal relationship between college athletes and their schools. It could also create significant financial liability for schools if players are permitted to receive monetary damages through settlements. As a result, schools may look to improve their concussion protocols and add specific language regarding concussion management procedures in athletes’ financial aid agreements. Institutions might also introduce arbitration clauses, liability waivers, and other language restricting athletes’ ability to seek legal redress for injuries suffered during their careers.

Author Biography:

Cameron Miller is a graduate of Arizona State University’s Master’s of Sports Law & Business Program. Before attending ASU, Cameron was a college athlete at Stanford University, where he ran track and field/cross county while majoring in History.

[1] Mitch Sherman, Everything you need to know about the college basketball scandal, ESPN.com (February 23, 2018), http://www.espn.com/mens-college-basketball/story/_/id/22555512/explaining-ncaa-college-basketball-scandal-players-coaches-agents.

[2] In re Nat’l Collegiate Athletic Ass’n Athletic Grant-In-Aid Cap Antitrust Litig., 311 F.R.D. 532 (N.D. Cal. 2015).

[3] O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049 (9th Cir. 2015).

[4] In re Nat’l Collegiate Athletic Ass’n Student-Athlete Concussion Injury Litig., No. 1:16-cv-08727 (N.D. Ill. Jan. 4, 2018).

[5] In re Nat’l Collegiate Athletic Ass’n Student-Athlete Concussion Injury Litig., 314 F.R.D. 580 (N.D. Ill. 2016).

[6] Diana Novak Jones, NCAA Concussion Deal Delayed 5th Time Over Notice Issues, Law360 (March 8, 2018), https://www.law360.com/articles/1020035/ncaa-concussion-deal-delayed-5th-time-over-notice-issues.

[7] Steven M. Sellers, NCAA Football Concussion Cases Heat Up, Bloomberg News (October 19, 2017), https://www.bna.com/ncaa-football-concussion-n73014471184/.

[8] In re Nat’l Football League Players’ Concussion Injury Litig., No. 2:12-MD-02323-AB, 2015 WL 12827803 (E.D. Pa. May 8, 2015).

[9] In re Nat’l Hockey League Players’ Concussion Injury Litig., No. 0:14-md-02551-SRN-BRT (D. Minn. Mar. 9, 2018).

[10] Mo Costandi, Striking Evidence Linking Football to Brain Disease Sparks Calls for More Research, Scientific American (August 3, 2017), https://www.scientificamerican.com/article/striking-evidence-linking-football-to-brain-disease-sparks-calls-for-more-research/.

[11] Third Amended Class Action Complaint at 1, Arrington v. Nat’l Collegiate Athletic Ass’n et al., No. 1:11-cv-06356 (N.D. Ill. Feb. 27, 2018).

[12] John Solomon, Who’s suing the NCAA? AL.com database of concussion lawsuits by ex-players, AL.COM (February 6, 2014), http://www.al.com/sports/index.ssf/2014/02/whos_suing_the_ncaa_alcom_data.html.

[13] Rachel Axon, NCAA has settlement agreement in concussion lawsuit, USA TODAY (July 29, 2014), https://www.usatoday.com/story/sports/college/2014/07/29/ncaa-concussion-lawsuit-settlement-75-million/13309191/.

[14] Novak Jones, supra Note 6.

[15] Axon, supra Note 13.

[16] Id.

[17] Sellers, supra Note 7.

[18] Plaintiff’s Complaint and Demand for Jury Trial at 14, Burns v. Stanford University, et al., 4:16-cv-03805-KAW (N.D. Cal. Sept. 1, 2016).

[19] Id. at 20-29.

[20] Id. at 29.

[21] See Sellers, supra Note 7.

[22] The test cases are: Weston v. Big Sky Conference, Inc. et al., No. 1:17-cv-04975 (N.D. Ill. Mar. 12, 2018); Richardson v. Southeastern Conference et al., No. 1:16-cv-09980 (N.D. Ill. Mar. 12, 2018); Langston et al. v. Mid-America Intercollegiate Athletics Ass’n et al., No. 1:17-cv-04978 (N.D. Ill. Mar. 13, 2018); Rose et al. v. Nat’l Collegiate Athletic Ass’n et al., No. 1:17-cv-01402 (N.D. Ill. Mar. 13, 2018).

[23] Plaintiff’s Class Action Complaint and Demand for Jury Trial at 5, Weston v. Big Sky Conference, Inc. et al., No. 1:17-cv-04975 (N.D. Ill. June 8, 2017).

[24] Id. at 5.

[25] Id. at 6-7.

[26] Id.

[27] Defendant’s Reply in Support of Motion to Dismiss for Lack of Personal Jurisdiction at 2, Weston v. Big Sky Conference, Inc. et al., No. 1:17-cv-04975 (N.D. Ill. Dec. 14, 2017).

[28] 989 F.2d 1360 (3rd Cir. 1993).

[29] Id. at 1367.

[30] Id. at 1368.

[31] Id. at 1367.

[32] 108 F.3d 1388 (10th Cir. 1997).

[33] Peter Keating, Legal ruling adds intrigue to NCAA concussion settlement, ESPN.com (Nov. 23, 2017), http://www.espn.com/espn/otl/story/_/id/21518800/legal-ruling-involving-women-lacrosse-adds-intrigue-ncaa-concussion-settlement.

[34] Greiber v. Nat’l Coll. Athletic Ass’n., 600400/17 (Sup. Ct., Nassau Co. Sept. 5, 2017).

[35] Id. at 8.

[36] Regents of Univ. of California v. Superior Court, No. S230568, 2018 WL 1415703 (Cal. Mar. 22, 2018).

[37] Adam Epstein and Paul M. Anderson, The Relationship Between a Collegiate Student-Athlete and the University: An Historical and Legal Perspective, 26 Marq. Sports L. Rev. 287 (2016) (finding “the contractual relationship (between athlete and school) has been well established for decades, as courts have consistently found that when a student-athlete enters into a contractual relationship with the university that they attend, they are provided with an athletic scholarship in the form of a grant-in-aid that supports tuition, room and board, and books, in exchange for the athlete’s promise to remain eligible to participate in athletics.”).

[38] Compare Fairfield University Athletic Financial Aid Agreement, General Assembly of the State of Connecticut, https://s3.amazonaws.com/sidearm.sites/fairfielduni.sidearmsports.com/documents/2017/5/22/Student_Athlete_Right_To_Know.pdf (last visited April 2, 2018) with University of Missouri Financial Aid Agreement: Sport, University of Missouri Athletics, http://sports.cbsimg.net/images/collegefootball/ScholarshipsMissouri1.pdf (last visited April 2, 2018).

[39] In re Nat’l Collegiate Athletic Ass’n Student-Athlete Concussion Injury Litigation, No. 1:16-cv-08727, ECF No. 259 (N.D. Ill. Jan. 4, 2018).

NBA Considering Location Change for All-Star Game as a Result of North Carolina Bathroom Bill

North Carolina Governor Pat McCory has come under fire recently for his support of House Bill 2 (HB2), the Public Facilities Privacy & Security Act.[1]  The bill, which was pushed through the General Assembly by virtue of a special session[2], was a reaction to Charlotte’s recent ordinance[3] that expanded civil rights to individuals on the basis of martial status, sexual orientation, and gender identity.

imgresAs might have been expected, the public outcry in response to HB2 has been deafening.  American Airlines and Wells Fargo[4], among others, have already been outspoken in their condemnation of HB2, and Bruce Springsteen[5] canceled his scheduled concerts in North Carolina.  But what could be the most financially relevant response to North Carolina is what the National Basketball Association (NBA) will decide to do with regards to its 2017 All-Star Game, which is scheduled to take place next February in Charlotte.

Why HB2 Is Controversial

Governor McCrory touted HB2 as a bipartisan bill[6] that combated the Charlotte ordinance that “defied common sense.”  So what could be the problem?

First off, “bipartisan” is a bit of an overstatement.  Although the bill passed through the Senate by a vote of 32-0[7], the unanimity was a direct result of Senate Democrats walking out of chambers rather than casting a vote.

The crux of the problem with HB2 lies with the bathroom aspect of the bill.  HB2 requires that individuals use the public bathrooms that correspond to their biological sex.[8]  The argument made by Governor McCrory and his defenders is that to allow transgender people to choose their restroom would open the door to sexual assaults in women’s restrooms.[9]  Proponents contend that there is a privacy issue as well as the issue of sexual predators.

However, the transgender community sees a bigger and more pressing problem by enacting HB2.

“If I were to walk into a men’s bathroom, I would either be told that I’m in the wrong bathroom or I’d be outed as a transgender woman,”[10] Lara Nazario, a trans woman from Charlotte, told NPR.  “This can often lead to violence or harassment, especially when there’s no protection in place for people like me.”[11]

In addition to the bathroom problem, HB2 also prevents any future laws like the one in Charlotte, blocking local governments and cities from extending nondiscrimination rights to LGBT (Lesbian, Gay, Bisexual, Transgender) individuals in the future.

Why Should the NBA Care?

Aside from the basic human instinct to care for those individuals who are being taken advantage of, the NBA has a reputation for being an extremely LGBT-friendly organization.

In 2013, the NBA became the first major American sports league to have a homosexual player on an active roster, when Brooklyn Nets center Jason Collins came out.  Former NBA center John Amaechi also came out as gay, though he did so after his playing career concluded, and has gone on to be a very vocal and influential figure in his native Great Britain.

In light of HB2, the NBA released a statement which read in part:  “We are deeply concerned that this discriminatory law runs counter to our guiding principles of equality and mutual respect and do not yet know what impact it will have on our ability to successfully host the 2017 All-Star Game in Charlotte.”[12]

Notables in the NBA community have come out and said the league should move its All-Star Game.  Basketball Hall-of-Famer, 1992 Dream Team member, TNT commentator, and Capital One commercial star Charles Barkley has been one of the most vocal opponents of holding the All-Star game in North Carolina.

“As a black person, I’m against any form of discrimination—against whites, Hispanics, gays, lesbians, however you want to phrase it,” Barkley said.[13]  “It’s my job, with the position of power that I’m in and being able to be on television, I’m supposed to stand up for the people who can’t stand up for themselves.”[14]

Seeing an opportunity to facilitate the NBA’s moving of the All-Star Game, the city of Atlanta introduced a resolution[15] requesting a relocation of the weekend festivities to Atlanta.

“We just wanted to say:  `If you guys are going to take a look at other places, consider us,’”[16] Council President Ceasar Mitchell said.  “We wanted to assure the NBA that Atlanta is open for business, and open to (all) people.”[17]

The prospect of the NBA taking the All-Star Game away from North Carolina is so plausible that when a fake ABC News story ran in early April stating that NBA Commissioner Adam Silver had given North Carolina a thirty-day window to repeal the law or else the game would be moved, multiple reputable sites quoted the fake NBA press release.

What Is Likely To Happen?

Ultimately, the economic and societal backlash that is facing North Carolina should be enough to force Governor McCrory to reconsider HB2 before the NBA needs to make a firm decision.  The threat of losing out on the lucrative February event will give Governor McCrory plenty to think about when considering the future of HB2.  The All-Star Game alone could represent a $200 million windfall to North Carolina, as the game brought $195 million[18] to New York back in 2015.  The business sports provide to states has proven to be a very influential authority when it comes to state laws.  The National Football League was seen as a major force behind compelling Georgia Governor Nathan Deal to veto a similar anti-LGBT[19] law in March.

It is notable that Governor McCrory has already started his retreat, issuing an executive order designed to “reinstate the right to sue in state court for discrimination.”[20]  However, his executive order has not quieted the discontent with HB2.  The American Civil Liberties Union (ACLU), which has already filed a lawsuit, called Governor McCrory’s order, “a poor effort to save face.”[21]  North Carolina Attorney General Roy Cooper has publicly derided HB2 as flatly, “unconstitutional.”[22]

As pressure builds for Governor McCrory, it too is building for Commissioner Silver.  On Thursday April 14, Senators Jeff Merkley (D-OR), Mark Kirk (R-IL), Patrick Leahy (D-VT), Cory Booker (D-NJ), Tammy Baldwin (D-WI) and Patty Murray (D-WA) penned an open letter to Commissioner Silver imploring he move the All-Star Game from Charlotte.  “We cannot condone nor stand idly by as North Carolina moves to legalize and institutionalize discrimination against the LGBT community,” the letter reads.  “Nor should the NBA allow its premier annual event to be hosted in such a state.”[23]

With the public pushback increasing seemingly every day and the economic losses mounting, the most likely outcome here is that the ACLU’s case will never make it to a courtroom, and that Governor McCrory will have to water down his law before the NBA needs to make a final decision on February’s All-Star Game.

[1] Public Facilities Privacy and Securities Act, N.C. Sess. Laws 2016–3, http://www.ncleg.net/Sessions/2015E2/Bills/House/HTML/H2v4.html.

[2] Sandhya Somashekhar, Backlash Builds Against N.C. Law on Transgender Bathroom Use, Washington Post (Mar. 24, 2016), https://www.washingtonpost.com/news/post-nation/wp/2016/03/23/north-carolina-passes-bill-blocking-lgbt-protections/.

[3] Id.

[4] Id.

[5] Tom Kludt, Bruce Springsteen Cancels North Carolina Concert over ‘Bathroom Law’, CNN (Apr. 8, 2016, 6:16 PM), http://money.cnn.com/2016/04/08/media/bruce-springsteen-north-carolina-show-canceled/.

[6] Tal Kopan & Eugene Scott, North Carolina Governor Signs Controversial Transgender Bill, CNN (Mar. 24, 2016, 11:12 AM), http://www.cnn.com/2016/03/23/politics/north-carolina-gender-bathrooms-bill/.

[7] Id.

[8] Id.

[9] Id.

[10] Camila Domonoske, North Carolina Passes Law Blocking Measures to Protect LGBT People, NPR (Mar. 24, 2016, 11:29 AM), http://www.npr.org/sections/thetwo-way/2016/03/24/471700323/north-carolina-passes-law-blocking-measures-to-protect-lgbt-people.

[11] Id.

[12] Dan Klepal, N.C. Governor Takes Aim at Atlanta’s Attempt to Steal 2017 NBA All-Star Game, Atlanta J. Const. (Mar. 30, 2016, 10:04 AM), http://www.ajc.com/news/news/local-govt-politics/atlanta-city-council-bring-2017-nba-all-star-game-/nqt3Y/.

[13] Susanna Kim, Charles Barkley Wants NBA to Move All-Star Game Due to ‘Anti-LGBT’ Law, ABC News (Apr. 7, 2016, 4:51 PM), http://abcnews.go.com/Business/charles-barkley-nba-move-star-game-due-anti/story?id=38229090.

[14] Id.

[15] Klepal, supra 12.

[16] Id.

[17] Id.

[18] Kavitha A. Davidson, Was NBA All-Star Weekend a Financial Winner?, BloombergView (Feb. 18, 2015, 2:52 PM), http://www.bloombergview.com/articles/2015-02-18/was-nba-all-star-weekend-a-financial-winner-.

[19] Jon Schuppe, Georgia Governor to Veto ‘Religious Freedom’ Law as N.C. Is Sued for LGBT Bias, NBC News (Mar. 28, 2016, 5:29 PM), http://www.nbcnews.com/news/us-news/georgia-governor-veto-religious-freedom-law-n-c-sued-lgbt-n546636.

[20] Bill Chappell, N.C. Governor Signs Order That ‘Clarifies’ Controversial Gender Identity Law, NPR (Apr. 12, 2016, 3:03 PM), http://www.npr.org/sections/thetwo-way/2016/04/12/473982918/n-c-governor-signs-order-that-clarifies-controversial-gender-identity-law.

[21] Id.

[22] Id.

[23] Senator Jeff Merkley, A Letter to NBA Commissioner Adam Silver, Medium (Apr. 12, 2016), https://medium.com/@SenJeffMerkley/a-letter-to-nba-commissioner-adam-silver-902e23b61a05#.nndg4wpcx.

As the NFL Season Ends, Tom Brady and the NFL Resume ‘Deflategate’ Saga

Deflategate-PatriotsBeing an immensely popular and public entity has created serious drama for, and within, the National Football League (NFL).  In what has come to be known as “Deflategate,”[1] the NFL and New England Patriots quarterback Tom Brady, one of its marquee players, have clashed in federal courts for over a year.  After Brady’s initial four-game suspension (for his alleged involvement with the under-inflation of game-used footballs) was upheld by the NFL’s Commissioner, Roger Goodell,[2] the Southern District of New York overturned his four-game suspension,[3] prompting the NFL to appeal the district court’s reversal.  The U.S. Court of Appeals for the Second Circuit held oral arguments on March 3, 2015,[4] with the rumor out of the hearing being that Brady looks to be in trouble, as his suspension may be reinstated.[5]

One thing about the Second Circuit’s review is not in question:  this is not a review to determine if Brady participated in the deflation of footballs.[6]  The Second Circuit’s review is focused on determining if the lower court overstepped its boundary in reversing the NFL’s arbitration decision, pursuant to the NFL’s Collective Bargaining Agreement (CBA).[7]  This is primarily a procedural determination, rather than a substantive one.

This post discusses the district court’s reversal of the NFL’s hearing officer,[8] the Second Circuit’s review of that decision, and the labor law principles that courts generally apply in reviewing a disciplinary decision stemming from a collective bargaining agreement between an employer and a union.  This post concludes with a prediction as to how the Second Circuit will rule on the NFL’s appeal.

Why Is Brady Appealing?

After Tom Brady’s initial four-game suspension was upheld by Commissioner Goodell on appeal, Brady decided to file a lawsuit pursuant to Article III of the NFL’s CBA.  Under Article III, a player may bring a lawsuit against the NFL to challenge the impartiality of the arbitrator in hearing any player’s appeal.[9]

Here, Brady was alleging that the Commissioner was not impartial, as required under Articles XV and XVI of the CBA.  Additionally, Brady argued that he was not provided notice of a possible four-game suspension for such a violation.  Brady also argued that he did not have access to the unfiltered report itself during the appeal hearing, or access to key witnesses involved in the preparation of the report.[10]

Eventually, district court Judge Richard Berman agreed with Brady, and overturned his suspension on September 3, 2015.[11]  Judge Berman decided that the NFL did not meet the procedural requirements in Brady’s appeal, holding that they failed to provide him the requisite notice and access to key information during the appeal process.[12]  The NFL subsequently filed its appeal to the Second Circuit.

What Will the Second Circuit Be Analyzing On Appeal?

At issue in the Deflategate dispute is whether or not Commissioner Goodell’s affirming of Brady’s suspension was in compliance with the NFL’s CBA.  As stated above, Judge Berman ruled that it was not, after Brady argued that he did not have notice of the punishment, and access to the report and key witnesses.  Under the Labor Management Relations Act though, the power to interpret a CBA generally belongs to the agreed upon body as set forth in the CBA at issue.[13]  In the NFL’s CBA, the Commissioner may appoint himself as hearing officer, if he chooses, and is entitled to interpret the application of the CBA.[14]

In hearing a case in which an arbitrator would have already ruled on the issue (which is the case in the NFL because a hearing officer oversees the appeal of player discipline), courts will rarely overturn the decision of an arbitrator or hearing officer.  The arbitration procedural step is mutually agreed upon, and in general labor law, there is a “private association” principle that many courts follow in declining to interrupt a private agreement between parties.[15]  The primary thinking behind this principle is that the agreements between private parties should mean something, and should not be overturned or interfered with.[16]

This “private association” principle presents a dilemma for judges in deciding cases where an arbitrator has already made a ruling.  Although a judge may have a strong opinion in certain cases, they typically are precluded from being able to overturn an arbitrator’s decision.  This is why Judge Berman’s overturning of Brady’s suspension was fairly surprising from a legal perspective.[17]  Many laypeople in opposition of Brady’s suspension were against the suspension because of the lack of concrete evidence against Brady.  Judge Berman did not overturn the suspension due to the evidence presented though; he overturned it due to the procedural steps that were not provided to Brady—notice and access to key information.[18]

How the Second Circuit decides the NFL’s appeal will not be based on whether Brady was involved in the football under-inflation, the evidence against him, or the report itself.  Its decision will be based on whether Judge Berman overstepped his bounds in overturning the hearing officer as set forth in the CBA; and in rendering its decision, the Second Circuit will be applying a de novo standard of review.[19]  Thus, while many people will see this decision as vindicating one of the two parties’ arguments, it is truly a procedural issue to be determined by the Second Circuit, and does not ultimately reveal anything about Brady’s guilt or innocence in Deflategate.

How Will the Second Circuit Decide?

The oral arguments that took place on March 3, 2016, started by focusing on Brady’s lack of cooperation in the initial investigation, and his destroying of his cell phone.[20]  When Brady’s attorney, Jeffrey Kessler, presented Brady’s oral argument, Judge Denny Chin had remarked that “the evidence of the ball tampering is compelling, if not overwhelming[,]”[21] and followed that question up by asking “why the three-judge panel should ‘second-guess’ the arbitration, meaning Goodell.”[22]

Due to the weight that courts have typically given to arbitrators, and the deference they have usually shown them, it was surprising to see Judge Berman overturning the NFL.  As such, it is likely—based on historical precedent and reports of the types of questions the Second Circuit panel asked of Brady—that the district court’s vacation of Brady’s suspension will be overturned.

Even if the Second Circuit rules against Brady, the case can still be remanded back down to the district court, instead of an outright reversal.  Kessler, arguing on behalf of Brady, stated that it should be remanded, because Judge Berman intentionally declined to rule on three alleged missteps by the NFL:  whether Goodell was ‘evidently partial’ by delegating his authority to NFL executive vice president Troy Vincent; whether Goodell unlawfully made factual conclusions that were outside the scope of the Wells Report and Brady’s appeal; and whether Goodell expressing support for the Wells Report after its publication prejudiced Brady’s chances for a fair appeal and thus prevented Goodell from lawfully serving as the arbitrator for the appeal.[23]

An order should be coming in the next few months, which will then shape how Deflategate will progress from here.



Cole Renicker is a second-year law student at Fordham University School of Law and staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal.  Prior to attending Fordham Law School, Cole graduated from Penn State University with a degree in Business Management.

[1] Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 2015 WL 5148739, at *1 (S.D.N.Y. Sept. 3, 2015).

[2] Barry Wilner, Roger Goodell Upholds Tom Brady’s 4-Game Suspension, The Big Story (A P) (July 29, 2015, 12:33 AM), http://bigstory.ap.org/article/3a1406e0d40a4cb19a8d836c465843f8/bradys-suspension-upheld-nfl-commissioner-roger-goodell.

[3] See Nat’l Football League Mgmt. Council, 2015 WL 5148739, at *20.

[4] Michael McCann, Tom Brady Could Be in Trouble After Deflategate Appeal Hearing, Sports Illustrated, http://www.si.com/nfl/2016/03/03/deflategate-appeal-nfl-tom-brady-roger-goodell (last updated March 4, 2016).

[5] See id.

[6] See id.

[7] See E. Associated Coal Corp. v. United Mine Workers, Dist. 17, 531 U.S. 57, 67 (2000) (holding that there should be deference to a collectively bargained arbitrator’s decision in construing or applying a contract); Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504 (2001) (ruling that the Court of Appeals’ decision to overturn the arbitrator and decide the case on the merits was at odds with governing law); see also Nat’l Football League Collective Bargaining Agreement, art. XLVI §2 [hereinafter 2011 NFL CBA], https://nfllabor.files.wordpress.com/2010/01/collective-bargaining-agreement-2011-2020.pdf (providing for an agreed upon hearing officer, whose decision is final and binding over the parties, to hear players’ appeals regarding a disciplinary decision).

[8] Under art. XLVI § 2 of the NFL’s CBA, the NFL selects a hearing officer to rule on player disciplinary appeals.  The Players’ Union may suggest, or provide input into the selection of, a hearing officer, but the choice is ultimately made by the NFL.  The NFL Commissioner retains the power to appoint himself as the hearing officer for any particular appeal. See 2011 NFL CBA, supra note 7, art. XLVI §2.

[9] See 2011 NFL CBA, supra note 7, art. III.

[10] Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 2015 WL 5148739, at *11–20 (S.D.N.Y. Sept. 3, 2015).  Judge Berman determined that notice of potential punishments for certain violations needed to be conveyed to the players, and it was not provided to Brady. See id. at *15–16 (“A player’s right to notice is at the heart of the CBA and, for that matter, of our criminal and civil justice systems.”).  Additionally, Judge Berman determined that the Commissioner’s failure to permit Brady to cross-examine material witnesses, and not permit Brady access to the primary investigative files ran contrary to fundamental arbitral procedures. See id. at *16–20.

[11] See Nat’l Football League Mgmt. Council, 2015 WL 5148739, at *1.

[12] Id. at *20.

[13] See Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 88 F. Supp. 3d 1084, 1089–90 (D. Minn. Feb. 26, 2015).

[14] See 2011 NFL CBA, supra note 7, art. XLVI §2.

[15] “A most dramatic illustration of this principal occurred in Carr v. St. John’s University, 17 A.D.2d 632, 231 N.Y.S.2d 410 (1962), where the court refused to interfere with a university’s decision to expel Catholic students who had participated in a civil marriage ceremony.” Jan Stiglitz, Player Discipline in Team Sports, 5 Marq. Sports L.J. 167, 174 n.38 (1995). See generally Jeffrey A. Durney, Fair or Foul?  The Commissioner and Major League Baseball’s Disciplinary Process, 41 Emory L.J. 581 (1992); Christopher J. McKinny, Professional Sports Leagues and the First Amendment:  A Closed Marketplace, 13 Marq. Sports L. Rev. 223, 236–37 (2003).

[16] See Stiglitz, supra note 14, at 174 n.38.

[17] See Lester Munson, NFL Appeal of Brady Decision Could Lead to Precedent-Setting Court Ruling, ESPN (Sept. 3, 2015), http://espn.go.com/espn/otl/story/_/id/13572474/nfl-appeal-tom-brady-decision-lead-precedent-setting-court-ruling-lester-munson-writes. But see Nat’l Football League Mgmt. Council, 88 F. Supp. 3d at 1090–92.  The difference between Deflategate, and past situations where NFL arbitrators have been affirmed or reversed, is that the Commissioner was the one to hear Brady’s appeal, after having significant involvement in his initial punishment. See generally Nat’l Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 2015 WL 5148739, at *1 (S.D.N.Y. Sept. 3, 2015).

[18] Nat’l Football League Mgmt. Council, 2015 WL 5148739, at *11–20.

[19] Encyclopaedia Universalis S.A. v. Encyclopaedia Britannica, Inc., 403 F.3d 85, 89–90 (2d Cir. 2005) (“Where a district court denies confirmation of an arbitral award, we review its findings of fact for clear error, and its conclusions of law de novo.”).  The de novo standard of review is the most lenient standard, and makes it more likely that a lower court’s decision will be overturned.

[20] McCann, supra note 4.

[21] Id.

[22] Id.

[23] Id.

Don’t Race to Resolution: NASCAR as an Example of Respectful Restraint

Of late, the NFL has been as difficult to turn away from as a car crash. Between Ray Rice, Adrian Peterson, Greg Hardy, Roger Goodell, ESPN, and sponsor dissatisfaction– to list just a few hot-button issues – the American public has been unable to stop talking about the challenges the league finds itself facing. And the tide of constant attention shows no signs of stopping, as the outrage over Husain Abdullah’s unsportsmanlike conduct penalty for post-touchdown prayer demonstrates.

But amidst the focus levied on the NFL, one very real car crash has received a relative fraction of public scrutiny: the August 9, 2014 sprint car accident that resulted in the death of twenty-year-old driver Kevin Ward, Jr. at Canandaigua Motorsports Park in upstate New York. Ward was killed when he climbed out of his stalled vehicle and was struck by the right rear tire of a car driven by celebrated NASCAR driver Tony Stewart. On September 24, 2014, an Ontario County grand jury found no basis to indict Stewart on charges of both second-degree and criminally negligent homicide. Ontario County District Attorney Michael Tantillo also revealed that toxicology reports showed that Ward “was under the influence of marijuana” at the time of the race at levels sufficient “to impair judgment.” Stewart, who will likely face a civil suit from Ward’s family, was not subjected to a toxicology test after the race. Although he voluntarily sat out for three NASCAR Sprint Cup races after the incident, Stewart faced no formal punishment from NASCAR, in part because the Canandaigua race was not a NASCAR-sanctioned event. NASCAR allowed Stewart to make his own decision as to whether to compete, although it did promptly change its own race rules to curb drivers’ ability to walk on the track after a crash. Stewart finished in the top ten in four subsequent races, and indicated at a recent press conference that he has no plans to leave racing.

NASCAR’s restraint stands in sharp relief to the NFL’s reaction to criminal claims involving its own athletes. Although it faced questions of serious delay in the Ray Rice matter, the NFL was quick to impose severe game-day penalties upon other players after they were charged with criminal behavior. Most recently, Adrian Peterson was placed on the exempt/commissioner’s permission list following multiple allegations of child abuse, and may not be able to return to the Vikings at all this season. NASCAR certainly had similar latitude to punish Stewart under its broad contractual behavioral policy, which prohibits engaging in activities “detrimental to the sport.” However, rather than suspend Stewart even out of an abundance of caution, the organization instead chose to wait out the formal investigation into the Canandaigua accident

Of course, there are obvious differences between the Stewart matter and the Rice, Peterson and Hardy cases: all three NFL players faced criminal charges at the time of their suspension. But despite the accidental nature of Ward’s death and the absence of a criminal indictment, Stewart has not emerged as beyond reproach. Stewart is characterized as one of NASCAR’s most divisive drivers, known for his aggressive racing style. Indeed, the driver faced criticism after Ward’s death from industry professionals and fans alike after an amateur video documenting the accident was released; these individuals argued that Stewart drove too close to Ward to intimidate him, with unintended horrific results. “Tell me how a NASCAR star totally forgot what caution means,” proclaimed Ward’s aunt in an open letter after Tantillo released his statement. Clearly, enough concern existed about the incident to prompt a formal grand jury investigation. And yet, NASCAR took the ostensible risk of allowing Stewart to make his own participation decisions regarding future formal organization events.

Stewart’s culpability for Ward’s death is, without question, a far cry from the intent behind the injuries inflicted by Rice, Peterson and Hardy. And certainly, NASCAR’s hands are cleaner than the NFL’s when it comes to making information about a star’s behavior public. But this case, combined with current NFL controversies, begs a very important question: how and when should professional sports associations respond to allegations of criminal conduct by their athletes off the field? And, as technology improves, should governing bodies wait for the wheels of justice to begin turning before they take action themselves?

While it is easy to characterize NASCAR’s refusal to suspend Stewart as a lapse in judgment or hand-wringing inaction – particularly because Stewart’s ability to drive safely was under investigation – the Stewart matter may in fact represent an admirable expression of restraint and confidence. As much as they may like to do so, professional sports associations cannot control the behavior of athletes when they are “off the clock.” Further, they walk a fine line when reacting to activities that take place beyond league-sanctioned activities, even when that behavior affects the organization’s public image. Suspension – with or without a corresponding loss in income – represents a valuable tool in projecting what kind of behavior such associations will tolerate. But knee-jerk official punishment for behavior not undertaken during a sanctioned event, particularly where no criminal charges have been imposed, also represents a slippery slope of encroachment into the often-limited private lives of employees. NASCAR, like the NFL, was presented with indisputable video evidence of questionable behavior by one of its athletes outside of the scope of a sponsored activity. NASCAR’s inaction, though, unlike the NFL’s, turned out to be the right move; the Ontario County grand jury investigation returned both a lack of culpability for Stewart and shifted some of the responsibility for the tragedy onto Ward. Suspending Stewart right away, as NASCAR rightly recognized, could have alienated both a popular driver and fans from the league once the investigation concluded. NASCAR followed its gut and let independent forces handle independent behavior, with positive results and without unnecessary regulation of Stewart’s private matters. Regardless of the result, both Stewart’s case and the NFL’s personnel problems represent a valuable opportunity. Fans of any professional sport can and should hope that the media attention for NASCAR and the NFL will prompt the formulation of clear, fairly applied league standards regarding athlete participation during an independent investigation for off-field (or track) behavior.


Appalling or Appropriate? An Analysis of the Merits of Ray Rice’s Appeal

On September 15, 2014, it was announced that Ray Rice plans to appeal both his indefinite suspension and termination from the Ravens in the wake of domestic violence charges. While Rice is not currently with a club, he is still a member of the NFL Players Association (NFLPA); therefore, the NFLPA will be assisting Rice in his appeal. Previous grievances and suspensions provide a valuable illustration of the potential merits of Rice’s appeal.

The facts are still unclear in the entire situation. But, as we can gather, the timeline of events and evidence are as follows:

  • February 19, 2014: A video emerges of Ray Rice dragging his unconscious fiancé (and now current wife) Janay, out of an elevator in a hotel in February.
  • June 16, 2014: Rice and his fiancé both have a meeting with Roger Goodell to discuss the circumstance of the situation.
  • March 27, 2014: Rice is indicted on third-degree aggravated assault charges. He pleads not guilty May 1, 2014.
  • July 24, 2014: Rice is punished by Goodell and must serve a two game suspension. Rice is not punished by his team.
  • August 28, 2014: The NFL announces a new standardized penalties for domestic violence and sexual assault by any league personnel: a six-game suspension and indefinite suspension for first-time and repeat offenders, respectively. On the topic of the Rice suspension, Goodell announced “he didn’t get it right.”
  • September 8, 2014: A second video emerges, detailing exactly what happened in the elevator, including a full view of Ray striking his fiancé. Roger Goodell increases the suspension from two games to an indefinite suspension. The Baltimore Ravens terminate Rice’s contract.
  • September 10, 2014: The Associated Press reports that, while Goodell levied a new suspension in light of new evidence, and because the video was “starkly different” than Ray’s account of the situation, Goodell or his office had knowledge of the second video tape since April.

Ray Rice’s appeal will likely be centered primarily on two claims. First, he may assert that his suspension constitutes double jeopardy, or stated otherwise, that he being punished twice for the same transgression. Section 4, Article 46 of the NFL Collective Bargaining Agreement (CBA) states that “the Commissioner and Club will not both punish a player twice for the same act or conduct. The Commissioner’s action will preclude or supersede disciplinary action by any Club for the same act or conduct.” The language does not explicitly prohibit double jeopardy by the Commissioner or the Club separately, but there is reason to believe this clause precludes it.

One of the most prominent double jeopardy arbitration decisions was issued by arbitrator John Feerick, a Fordham University School of Law professor and former dean. The case concerned the suspension and contract termination of Golden State Warriors player Latrell Sprewell for choking coach P.J. Carlesimo. Feerick found that the suspension and the termination of the remainder of Sprewell’s three-year contract was “excessive” in combination. While Feerick reinstated Sprewell’s contract, he recognized that the Commissioner’s suspension was necessary, and reduced Sprewell’s suspensions from 82 to 68 games (the remainder of the current season). Beyond the question of double jeopardy, the Sprewell holding creates an interesting discussion about the potential reinstatement of Rice’s contract with the Ravens. NFL and NBA contracts differ in a crucial way: NBA contracts are guaranteed, whereas NFL contracts are not. Therefore, the Warriors did not have the flexibility to part ways with players that the Ravens have right now.

The double jeopardy facet of Rice’s appeal will ultimately turn on whether or not the second video tape is considered “new evidence.” Some lawyers feel this concept is erroneous in this case simply because even if the Commissioner’s office only saw the second video recently, it does not affect what anyone suspects of Rice. Rice was punished for striking his fiancé, which the second video only confirms.

The second argument that Rice will likely assert in his appeal is that the NFL failed to follow its own precedent for instances of domestic abuse. As sports law scholar Marc Edelman points out, Rice’s suspension is clearly in line with other instances of domestic disputes under former commissioner, Paul Tagliabue.

Rice could draw support for his precedent argument from the case of Steve Howe. The arbitrator in that case stated, “[d]eterrence, however laudable an objective, should not be achieved at the expense of fairness.”Howe challenged a lifetime suspension by Major League Baseball due to failed drug tests. Baseball promised to test Howe a certain way because he suffered from Attention Deficit Hyperactivity Disorder, but the MLB failed to adhere to the agreed-upon testing policy. Like the Sprewell case, arbitrator George Nicolau found the lifetime suspension to be an excessive punishment, holding that Howe’s 119 day already-served suspension was sufficient. Rice may argue that his increased suspension is, like Howe’s, excessive and merely a result of public criticism, as opposed to past precedent and the terms of the CBA.

In dealing with Ray Rice, the NFLPA has been very quiet. In any statements made publically, Demaurice Smith (NFLPA Executive Director) and the union have stayed neutral. However, like it or not, the NFLPA cannot remain neutral in this scenario. No matter how abhorrent the NFLPA considers Rice’s actions, they are a union and bargaining representative of the players, and are therefore charged with a duty of fair representation. This duty does not, however, mean that the NFLPA must file a grievance on Rice’s behalf if Rice requests it (generally, this duty is unenforceable for independent workers). Rather, it only means that the NFLPA cannot act arbitrarily, discriminatorily, or in bad faith. Courts have generally given deference to union decisions because the bargaining process necessarily involves compromises, including some that come at the expense of some workers over others. In this instance, the NFLPA cannot simply decide not to file a grievance on Rice’s behalf without any reason at all; but, the union must only assert a reasoned decision to omit filing.

Bad precedent is what truly renders the NFLPA’s reaction a moot point. The NFLPA exists precisely to prevent due process violations, something Rice risks experiencing during his appeal. There is, as the union contends, a distinction between supporting a player’s right to due process under the CBA and supporting the action underlying the league’s concern. The greater problem would arise if the union failed to respond to an actual due process violation committed by the NFL. The league may be free to intensify suspensions because of public outcry, or where different information comes to light during a player’s suspension. If Rice and the union fail to persuade the arbitrator that Rice should not be suspended or should receive a lesser punishment, they will likely appeal to federal court to challenge the decision.

Speculation regarding Rice’s suspension and appeal has already caught the eye of both teams and the Commissioner. After a second allegation of child abuse surfaced, Minnesota Vikings running back Adrian Peterson was very recently placed on the “Exempt List/Commissioner’s Permission List.” The Commissioner has the authority to place a player on this list under particular circumstances. Placement allows that the player not count against the 53-man active roster, and it also allows the player to get paid, which distinguishes it from a suspension. Peterson is not the first player to be added to this list; Michael Vick was placed on it 2009, and the Carolina Panthers will most likely add defensive lineman Greg Hardy to the list prior to his appeal of a domestic violence conviction.

Regardless of the result of Rice’s appeal, it is abundantly clear that public sentiment is driving the NFL to make policy changes. These changes will, at the very least, start with a panel on domestic violence and sexual assault established by Goodell. This panel is currently comprised of three experts (out of what is expected to be four experts in total). The experts, Lisa Friel, Jane Randel and Rita Smith, will “help lead and shape the NFL’s policies and programs relating to domestic violence and sexual assault.” Although it risks committing due process violations, the NFL may finally be responding to the problem of domestic disputes in a proactive and meaningful manner.