Gladwell on PEDs

Malcolm Gladwell has a piece in The New Yorker (which he defends on this podcast) that basically lays out in detail an argument I've made previously--there is no good reason that performance-enhancing drugs are outlawed when performance-enhancing medical procedures (e.g., Tommy John surgery or eye surgery to improve vision) are permitted and that people with random genetic benefits (for example, an Olympic cross-country skier with a genetic mutation that over-produces red blood cells, which provides a tremendous advantage in endurance sports) are allowed to benefit from them. It is definitely worth a read, as is the new book The Sports Gene by journalist David Epstein, which Gladwell is reviewing in this piece.

People (particularly present and former players, who should know better) often criticize PEDs as short-cuts and PED users as lazy; the player used drugs instead of putting in the hard work of making himself a great player. In fact, many PEDs actually are all about hard work; the reason cyclists blood dope is so their bodies can work harder for longer and the benefit of steroids is to allow players to work-out longer and become stronger. When Lance Armstrong insisted "I am on my bike busting my ass six hours a day", he was telling the truth; the doping was what made it humanly possible for him to do that much work.  On the other hand, we don't think of genetic advantages (say, especially good eyesight for a Major League hitter) as a short-cut, but as a natural tool that the player then must maximize through hard work. The point of PEDs is to level that genetic advantage, which he then maximizes through hard work. What's wrong with that?

140 Law - Legal Headlines for Thursday, September 5, 2013:

Here are the leading legal headlines from Wise Law on Twitter for Thursday, September 5, 2013:

• My post today at SlawTips - Ah, September
• Ohio Man Can Be Listed As Spouse On Husband’s Death Certificate, Judge Rules
• Do American Lawyers Need Less Law School?
• Legal marijuana: How could it work?
• Jesse Kline: Rethinking Canada’s approach to drugs and alcohol
• Visible minority lawyers still ride the pine instead of the Bench — why?
• Police charge Mississippi man who allegedly exposed 300-plus to HIV
• Legal Business Development: 4 Reasons Your Team Will Resist Change
• Check Your Credit Report to Combat Identity Theft
• Right-to-work law would boost Ontario manufacturing- Sun News Network (and hurt employees - gjw)
• Nazi war crimes investigation in Germany to examine 30 former Auschwitz personnel
• Ex-Ky. bar prez reprimanded for ‘brazen misrepresentations’ in office, conflict in priest case
• Overstuffed Wal-Mart grocery bag led to woman’s death, husband's suit alleges
• Did Durham NC police chief say defense lawyer deserved to be shot? City probes allegation
• Man charged with stealing baby grand piano from Toronto hospital

- Elysia Cherry, Legal Assistant

Visit our Toronto Law Office website: www.wiselaw.net

Next up for concussion litigation: The NCAA

The agreement between the NFL and more than 4,000 former players to settle a lawsuit over concussions for $765 million does not end the issue. Four more players -- Jimmy Williams, Rich Mauti, Jimmy Keyes and Nolan Franz -- filed a federal lawsuit in New Orleans on Sunday accusing the league and helmet maker Riddell Inc. of hiding evidence about the dangers of brain injury.

That case could be folded into the larger settlement, the lawyer in that case said.

But no such luck for the NCAA, which faces its own class action by three former players, Chris Walker and Ben Martin of Tennessee and Dan Ahern of North Carolina State. This is not the first case to make the claim that the college football governing body failed to educate players about the risk of concussions. But what makes it interesting is that the lead attorney is Michael Hausfeld, who is also handling the O'Bannon case that accuses the NCAA of using athletes' images and likenesses without just compensation.

Here's the full release from Hausfield:

PRESS RELEASE

Hausfeld Files Medical Monitoring Class Action for Former College Football Players

Chattanooga, TN (September 3, 2013) -- Hausfeld LLP filed a medical monitoring complaint today on behalf of certain former NCAA football players seeking medical monitoring related to brain injuries caused by repeated head trauma.  The complaint alleges that the NCAA had a duty to the former players to educate them about the risks of concussions; to establish protocols to prevent, mitigate, monitor, diagnose, and treat brain injuries; and to offer education and needed medical monitoring to its former players.  The complaint further alleges that the NCAA failed to meet its obligations to the former players and these players are suffering the dramatic consequences of that neglect today.

Three former NCAA football players are bringing the case as representatives of a class of all former players.  Each of the former players suffered concussions, is at significant risk of brain injury, and is in need of medical monitoring.  Two of the named plaintiffs, Chris Walker and Ben Martin, played defensive-end for the University of Tennessee from 2007-2011.  Walker and Martin recall repetitive head trauma in scrimmages, practices, and games during their careers.  The third representative, Dan Ahern, played offensive guard for North Carolina State from 1972-1976.  Ahern recalled being flown from Pennsylvania to Raleigh for hospitalization after suffering a concussion in a game against Penn State during his senior year. 

Lead counsel on the complaint, Michael Hausfeld, stated “The NCAA has not taken the necessary steps to protect these former players even though the medical tools to assist them have been available for some time.  It is not too late now for the NCAA to offer important education and needed medical testing to these former players.”

The complaint seeks a court-supervised, NCAA-funded, comprehensive medical monitoring program to benefit former football players.  The class is limited to players who did not go on to play professional football in the National Football League as those players are covered by a separate proposed settlement.

140 Law - Legal Headlines for Wednesday, September 4, 2013

Here are the leading legal headlines from Wise Law on Twitter for Wednesday, September 4, 2013:

• Gay Ottawa prison guard gets $98,000 for discrimination
• Edward Snowden receives whistleblowing award in Germany
• Putin vows no anti-LGBT discrimination at the 2014 Winter Olympics in Sochi
• Judge is hospitalized after attack outside courthouse
• Kansas House passes rewrite of 'Hard 50' law - Times Union
• Ohio judge says electronic will is valid
• Big Tobacco airs e-cigarette TV ads as FDA readies rules
• Fair use of artist's work in music video
• “A parking lot is not just a parking lot”: scooter accident was WSIB issue, employee’s lawsuit barred
• Ariel Castro, serial abductor, commits suicide - World - CBC News
• Lesbian married couple says South Carolina’s marriage equality ban makes them ‘legal strangers’
• Egypt Speeds Use of Trials for Jailing of Islamists
• Anesthesiologist sexually assaulted patients and no one saw? Impossible: lawyer | CTV Toronto News

- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Powerful Op-Ed by Alan Milstein in the National Law Journal on the NFL Concussion Settlement

In a new piece titled Brutality's The Winner in NFL Settlement, our own Alan Milstein looks at the broader implications of the NFL concussion settlement for The National Law Journal. 

Here's an excerpt:

What remains unsettled after U.S. District Judge Anita Brody in Philadelphia signs off on In Re National Football League Players' Concussion Litigation is whether the game itself should survive.

Fifty years ago, after boxer Davey Moore died after sustaining repeated blows to the head in a nationally televised fight, Bob Dylan asked whether the promoters, the writers and even the fans were responsible, singing their answer that "Boxing ain't to blame. There's just as much danger in a football game. It's just the old American way. It wasn't us that made him fall. No, you can't blame us at all."

Maybe. But it's worth asking whether it is even ethical to root on and support a game when we know the players are placing themselves at serious long-term risk. And even if we are not to blame, because we paid to watch the gladiators duel it out from our perch in the Coliseum, what does it say about us when we encourage young people to enter this very dangerous arena?

As bioethicist Arthur Caplan told me, the settlement "only reinforces my ethical anxiety about a league that knows its game greatly harms its players but won't fess up, and instead, talks about the 'safe' way to play the game to worried parents in its commercials." In 1905, a year when 18 athletes died in intercollegiate football, President Theodore Roosevelt threatened to abolish the game if the brutality could not be reduced. Perhaps he should have acted. 

To read the rest, click here.

140 Law - Legal Headlines for Tuesday, September 3, 2013

Here are the leading legal headlines from Wise Law on Twitter for Tuesday, September 3, 2013:

• ‘Sovereign citizen’ movement worrying officials as 30,000 claim they ‘freed’ themselves from Canada’s law
• No leniency for lawyers as appeal court restores counsel’s contempt finding for Mareva breach
• Style and Legal Writing
• Russians charge 24 y.o. under anti-gay propaganda law
• Canadian Judicial Council to review how discipline process works
• In the practicePRO Lending Library: The Lawyer’s Guide to Increasing Revenue
• Ont. Appeal: Bright line must delineate responsibilities where lawyer shares duties with client
• Groia’s appeal accuses LSUC of ‘abuse of process’
• Egypt's Morsi to stand trial on charges of 'inciting killing and thuggery' (Reuters)
• More lawyers seek greener pastures in small boutique firms
• Microsoft and Google to sue over U.S. surveillance requests
• Transgender TV Host B. Scott Sues BET for Gender Discrimination
• The Three Essential Rules for Legal Writing
• Family Law in the 50 US States
• Case report: Wrongful removal of a child pursuant to the Hague Convention
• Supreme Court of Canada getting an earful on the future of the Senate | iPolitics
• LSBC exploring idea of single regulator to include paralegals
• Individuals on no-fly list have due process rights, federal judge rules
• Litigation drives Canadian law firm growth
• The Practice-Ready Law Graduate is a ‘Fantasy,’ Says Professor
• Ontario lawyer has his name fraudulently used in bogus attempt to redirect mail from UPS
• CNE raid collects $1M worth of counterfeit goods
• Bloor West Village couple incensed after being told lawn signs are illegal
• SCOTUS Justice Ruth Bader Ginsburg to officiate at gay wedding Saturday (Associated Press)
• Mississippi sheriff indicted on 31 charges
• Federal court upholds California ban on foie gras sales]
• Bits Blog: Twitter General Counsel Leaves as Company Prepares to Go Public
• Retired supreme court justice Frank Iacobucci to lead review of Toronto police use-of-force

- Rachel Spence, Law Clerk

Visit our Toronto Law Office website: www.wiselaw.net

Will NFL Concussion Settlement Lead to League Expansion?

On Friday, I wrote an article on Forbes SportsMoney discussing one interesting way that the NFL might seek to pay off its concussion settlement -- by expanding.

In the article I note: "If the NFL can sell an expansion franchise for just $1.275 Billion — a reasonable amount in light of recent franchise sales — this amount would fully offset the cost to paying off the recent concussion settlement, even presuming a 40% tax on the franchise sale."

For those interested in learning why the NFL might go this route, as well as the historical link between legal settlements and expansion in sports, please see here.

Happy Labor Day!  And best wishes on the new academic year to Sports Law Blog's many faculty and student readers.