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Week In Review

By Chris Helsel

After Nearly Two Years, Federal Judge Approves National Football League Concussion Suit Settlement

On Wednesday, Judge Anita B. Brody of the U.S. District Court for the Eastern District of Pennsylvania approved the settlement of a lawsuit brought by more than 5,000 retired National Football League (NFL, league) players against the league. The suit alleged that the NFL was aware of the permanent health risks associated with concussions but hid those dangers from its players.

The settlement provides payments of up to $5 million to former players who display symptoms of a handful of neurological disorders. It also provides for medical monitoring of players to determine if they qualify for payment and $10 million for concussion education.

The two sides originally reached a settlement in August 2013, but the court rejected both that agreement and another more recent offer. In rejecting the first two settlement agreements, Judge Brody first insisted that the league remove the cap on payments, then called for the removal of a limit on how much could be spent on medical monitoring.

During settlement negotiations, the NFL sought to include not only the 5,000+ plaintiffs, but also all other retired players in order to avoid future litigation of the same issue. Numerous former players - most notably Junior Seau, who later committed suicide and was found to have suffered from a degenerative brain disease - opted out of the settlement in order to continue the legal battle on their own.

In her ruling, Judge Brody called the settlement "fair, reasonable and adequate." An appeal is expected, which brings the interests of some retired players into contrast with those of their co-plaintiffs. As no payouts will be made until all appeals are exhausted, many currently-suffering retired players would prefer to end the case and take their money now, rather than continue to push for a better deal.

Appeals must be filed within 30 days from the date of the decision. Any appeal would likely not be heard for at least six months. If no appeal is launched, retired players could start filing claims within 90 to 120 days.

Opponents of the settlement believe that it should be broader and include more medical conditions, as well as a provision allowing for future scientific discoveries. Further complicating matters is the fact that Chronic Traumatic Encephalopathy (CTE), a progressive degenerative brain disease linked with the deaths of many former players, can only be diagnosed posthumously.

However, proponents of the settlement insist that the deal represents the best available scenario for the retired players. Not only will those retirees who are currently suffering finally have access to much-needed funds, but also there is no guarantee that the players would have prevailed at trial. Notably, Judge Brody declined to rule on the NFL's argument that the case should be dismissed because the collective bargaining agreement reached between the players and the league governed the dispute and precluded litigation. Courts tend to show great deference to labor agreements reached through collective bargaining, and other judges have sided with the NFL on this point in the past. In the current case, plaintiffs' attorneys in favor of the settlement noted that Judge Brody may well have done the same, had she ruled on the issue prior to the two sides reaching a settlement.

Additionally, if the case went to trial, affected players would need to conclusively demonstrate that the concussions they received that led to their current suffering occurred while they played in the NFL (that is, not during their high school or college careers, or from any activity other than playing professional football). The current settlement, on the other hand, does not require documentation of how the affected player suffered his concussion(s). In fact, the current deal does not even require the players to prove that they actually suffered a concussion at all.

Kevin Turner, a retired running back with amyotrophic lateral sclerosis (a progressive neurodegenerative condition also known as Lou Gehrig's disease), hopes that the settlement will be implemented as soon as possible so that he and other former players can begin to receive payments promptly. "What matters now is time, and many retired players do not have much left," he said. "I hope this settlement is implemented without delay so that we can finally start helping those in need."


Facing Government Opposition, Comcast and Time Warner Cancel Merger

Comcast Corp., the nation's largest cable company, announced Friday that its planned acquisition of Time Warner Cable would not go forward. This news came after federal regulators made it clear that the government would contest the deal. The proposed merger would have consolidated the country's two largest cable companies.

As soon as the $45.2 billion acquisition was announced in February of last year, consumers and advocacy groups launched campaigns urging regulators to block the merger. Opponents of the deal argued that consolidating the two largest cable companies would give one company far too much control over the pay-television and Internet service markets.

The decision to nix the deal is considered by many to be a victory for consumers and the maintenance of a competitive marketplace. "Comcast and Time Warner Cable's decision to end Comcast's proposed acquisition of Time Warner Cable is in the best interests of consumers," Federal Communications Commission (FCC) Chairman Tom Wheeler said in a statement. "The proposed transaction would have created a company with the most broadband and the video subscribers in the nation alongside the ownership of significant programming interests." He also noted that allowing the two companies to merge "would have posed an unacceptable risk to competition and innovation."

The U.S. Attorney General also supported the companies' decision to nix the merger. "The companies' decision to abandon this deal is the best outcome for American consumers," said Attorney General Eric Holder. "This is a victory not only for the Department of Justice, but also for providers of content and streaming services who work to bring innovative products to consumers across America and around the world."

Following the announcement, Consumer Reports CEO Marta Tellando released a statement celebrating the news: "Comcast never was able to make a convincing case for why the merger would benefit anyone other than Comcast."

Bloomberg News first reported last week that after a series of meetings between Comcast and federal regulators, the Justice Department and FCC were leaning toward contesting the proposed merger.

Despite Comcast's failure to complete the merger, Time Warner Cable is still considered a potential takeover target by other companies, such as renowned cable executive John Malone's Charter Communications. Industry experts believe that given the complexity of the current cable/Internet market and rapidly advancing technology, it is likely that many smaller cable companies - such as Cox, Cablevision, Charter, and Bright House - may consolidate in the near future.


Despite Dismissal of Criminal Charges, NFL Suspends Greg Hardy for 10 Games Following Domestic Abuse Allegations

NFLcommissioner Roger Goodell announced Wednesday that Dallas Cowboys defensive end Greg Hardy has been suspended for 10 games following an internal investigation into allegations of domestic abuse.

As documented in numerous recent "Week in Review" posts, in July 2014 Mr. Hardy was found guilty by a North Carolina judge of assaulting a former girlfriend, Nicole Holder, for allegedly striking her, choking her and throwing her onto a pile of loaded guns while threatening to hill her. He appealed the verdict and demanded a jury trial. The case was then dismissed when the victim refused to cooperate with authorities after receiving a financial settlement from Mr. Hardy.

Mr. Hardy, then a member of the Carolina Panthers, was placed on the Commissioner's Exempt list last season while the case was pending. He signed a free agent contract with the Dallas Cowboys this offseason.

Following the dismissal of all charges, the NFL launched an extensive investigation into the circumstances of the alleged assault. The investigation was led by the league's senior vice president and special counsel for investigations, Lisa Friel. Ms. Friel previously served as head of the sex crimes prosecution unit in the Manhattan District Attorney's office.

Under NFL rules, a player can be disciplined for violation of the league's personal conduct policy even without a finding of guilt in a criminal court.

As part of its investigation, the NFL reviewed court records, documents, exhibits, photographs, police reports and medical records, as well as opinions of medical experts. After announcing the 10-game suspension, the league said that it attempted to contact the victim, but she refused to cooperate with the investigation. The league also said that Mr. Hardy was uncooperative, failing to provide complete and accurate information and refusing to acknowledge that a financial settlement had been reached with the victim.

Following the investigation, Mr. Goodell wrote a letter informing Mr. Hardy of his suspension. Despite charges being dropped, the commissioner asserted that his decision to suspend Mr. Hardy was based "on findings that are supported by credible corroborating evidence independent of Ms. Holder's statements and testimony, such as testimony of other witnesses, medical and police reports, expert analyses, and photographs." In his letter to Mr. Hardy, Mr. Goodell wrote, "The use of physical force under the circumstances present here, against a woman substantially smaller than you and in the presence of powerful, military-style assault weapons, constitutes a significant act of violence in violation of the Personal Conduct Policy."

The league's disciplinary action also mandates that Mr. Hardy undergo a clinical evaluation by a professional of his choosing. If the professional recommends counseling, Mr. Hardy will be expected to comply and notify the NFL of his progress by providing regular evaluations.

Additionally, Mr. Goodell warned Mr. Hardy that any future run-ins with law enforcement could have dire consequences for his future as a professional football player. "You must have no further adverse involvement with law enforcement and must not commit any additional violations of league policies," Mr. Goodell wrote. "In that respect, you should understand that another violation of this nature may result in your banishment from the NFL."

Immediately following the suspension announcement, Mr. Hardy indicated that he planned to file an appeal. Additionally, the players' union (NFL Players Association, NFLPA) is reportedly considering filing a lawsuit on Mr. Hardy's behalf.

In between the time when Mr. Hardy allegedly assaulted Ms. Holder and this week's announcement of the 10-game suspension, the NFL adopted a new, stricter conduct policy in the wake of the Ray Rice domestic abuse fiasco. The union would therefore contend that Mr. Hardy was improperly punished under the new policy, when his infraction occurred while the old one was still in effect. This retroactive enforcement argument has been successfully argued by NFLPA attorneys in previous cases involving Mr. Rice and Minnesota Vikings running back Adrian Peterson.

The NFL seems to have anticipated this line of argument, however, and in announcing the suspension took care to demonstrate that the length of Mr. Hardy's suspension would be appropriate under either the current or former personal conduct policy.

Additionally, although Mr. Goodell is normally disinclined to relinquish his power to hear all disciplinary appeals, in the interest of defending against bias claims in a potential lawsuit, the commissioner may choose to appoint a neutral arbitrator to hear Mr. Hardy's internal appeal of his suspension.

The Cowboys, who signed Mr. Hardy to a one-year contract in March worth up to $13.1 million, released a statement indicating that the suspension was "something that [the club] anticipated prior to Greg's signing." The statement continued, "We respect the commissioner's ruling. Our organization understands the very serious nature of this matter. We will use our resources -- work closely with Greg and with the league -- to ensure a positive outcome.'' In a radio interview on Friday, Cowboys executive vice president Stephen Jones (whose father, Jerry, owns the club) said, "We totally support and will continue to support everything the league stands for. We've spent a lot of time, we've spent a lot of resources trying to get this right." However, he did not apologize for rewarding the troubled defensive end with a large free agent contract, making it clear where the club's priorities lay: "What we want to do is get the very best players we can get to improve this football team. Obviously defense is a focus...we think we've made all the moves that we needed to in free agency to really solidify our football team."


Non-Profit Second Stage Buys Helen Hayes Theater, Settling Litigation

Second Stage, a non-profit Off Broadway theater company, has purchased one of New York's last independently owned Broadway houses, the Helen Hayes Theater, for just under $25 million. The completed sale puts to rest litigation between the nonprofit and the theater's owners, Martin Markinson and Jeffrey Tick, over whether the long-planned sale would proceed. Second Stage intends to use the classic theater to feature plays by contemporary American playwrights - specifically works by women and minorities - and hopes to begin producing shows during the 2017-18 season.

The Helen Hayes Theater, with its 597 seats, is the smallest of Broadway's theaters and has been designated as a New York City landmark. It is located on West 44th Street and opened in 1912. During its lifetime it has been renamed several times, and the new owners hope to raise money by selling its naming rights for yet another rechristening. The theater will become the sixth of the city's 40 Broadway theaters to be owned by a nonprofit.

Second Stage is expected to spend a total of $58 million on the project - of which 70% has already been raised - which will cover not only the purchase of the theater, but also renovations and upgrades as well as an undisclosed amount to settle a dispute with the owners over a delay in the completion of the sale. Renovations will begin next year. Until then, Second Stage intends to rent the theater out to other companies in order to raise additional funds.

Thus far, Second Stage had operated entirely off Broadway. Now, with the increased visibility and Tony Award eligibility that Broadway offers, the theater hopes to attract more prominent playwrights and actors.

The sale has been in the works since 2007, but was delayed (as recounted in an earlier "Week in Review" post) when "Rock of Ages" at the Helen Hayes became a smash hit and Second Stage sought an extension to complete its financing of the purchase. This brought litigation as the theater's owners sought compensation for the delay, and the judge asked the two sides to settle and complete the sale. That finally occurred last week.


Atlanta Hawks Enter NBA Playoffs Without Player who Claims Broken Fibula and Ligament Damage Caused by NYPD

In the early morning of April 8th, Chris Copeland of the National Basketball Association (NBA)'s Indiana Pacers and two others were stabbed during an altercation outside a Manhattan night club. In the commotion that followed, two Atlanta Hawks players, Thabo Sefolosha and Pero Antic, were arrested and charged with obstructing governmental administration and disorderly conduct. The police report indicates that the two men reacted aggressively to requests to clear the area. Mr. Antic, who is from Macedonia, was also charged with harassment. Mr. Sefolosha, who is from Switzerland, was also charged with resisting arrest. During the altercation with police, Mr. Sefolosha suffered a broken fibula and ligament damage in his right leg. While Mr. Antic was able to return to the Hawks, Mr. Sefolosha's injuries rendered him inactive for the remainder of the season.

In the coming weeks, the Manhattan District Attorney is expected to determine whether to pursue charges against the two players. While more evidence is expected to emerge in the form of witness statements and perhaps cell phone or storefront video, the only existing video of the altercation shows at least one officer swinging a baton. Mr. Sefolosha has denied all wrongdoing and said in a statement last week that "the injury was caused by the police."

Obviously, this case has garnered tremendous interest from police brutality activists as well as NBA fans. The NYPD's Internal Affairs Bureau (I.A.B.) has launched an investigation of the event. If the I.A.B. uncovers evidence of wrongdoing on the part of the police officers, it must then determine whether to seek discipline internally or to refer the case to the Civilian Complaint Review Board. Further, if the officers' actions are deemed to be criminal in nature, the case can be referred to the prosecutor's office as well.

Additionally, Mr. Sefolosha could decide to file a civil action against the police department.

In addition to the I.A.B. investigation, the players' union (National Basketball Players Association, NBPA) has announced that it is launching its own investigation into the incident, seeking out potential witnesses and additional video evidence in order to assist the players involved. NBA commissioner Adam Silver, on the other hand, indicated on Friday that while the NBA is in contact with the police and the players' attorneys, it will not be conducting its own independent investigation.


AC/DC Drummer Pleads Guilty To Threatening to Kill and Drug Possession

Phil Rudd, the drummer for the legendary rock band AC/DC, has pleaded guilty in a New Zealand court to charges of threatening to kill and drug possession. Mr. Rudd, who is Australian, was allegedly furious after his recent solo album flopped, firing several of his employees and threatening to kill his personal assistant. In November, police executing a search warrant found methamphetamine and cannabis at his home in New Zealand and placed him under arrest.

Although the 60-year old rocker initially denied all allegations after his arrest, he surprised observers by entering a guilty plea this week. He faces up to seven years on the charge of threatening to kill, and is currently released on bail until the sentencing hearing on June 26th.

Mr. Rudd was also originally charged with "attempting to procure murder" on the belief that he told an associate he wanted his personal assistant "taken out." However, this charge was soon dropped after prosecutors determined that they lacked sufficient evidence.


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This page contains a single entry from the blog posted on April 27, 2015 1:32 PM.

The previous post in this blog was EASL Fashion Law Committee Program - Identity Crisis! Legal and PR Aspects of Managing Brand Image in Celebrity Endorsements and Licensing Agreements [Gone Wrong].

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