0.44% of NFL Brains

When The New York Times reports that 110 out of 111 NFL brains (99.09%) have chronic traumatic encephalopathy (CTE), everyone pays attention. Mothers worry about their kids. Some worry about their jobs. Senate subcommittees investigate. The Times article covers Dr. Ann McKee’s recent article in the Journal of the American Medical Association, “Clinicopathological Evaluation of Chronic Traumatic Encephalopathy in Players of American Football” (JAMA. 2017;318(4):360-370) in dramatic fashion, illustrated with pathology slides of tissue samples from the brains of former football players and anecdotal information about them. Such claims are certain to be fuel for CTE litigation and cries to ban tackle football.

Let’s put this in perspective. About 25,000 men have played American professional football. So, 110 is roughly 0.44%. Even if the real number is double, the outcome remains a statistical nonentity.

In all fairness, the study points out some of its limitations; for example, “Ascertainment bias associated with participation in this brain donation program.” Inclusion was based entirely on exposure to repetitive head trauma eliminating any form of “control” group, a necessary element of any scientific study. The authors also disclose that “public awareness of a possible link” between head trauma and CTE “may have motivated” some participants. Finally, the authors acknowledge that the study is not representative of the population of all American football participants, as most play only at the youth or high school level, whereas the majority of the donors played at the professional level. The study data somewhat illustrates that point: CTE was found in none of two pre−high school participants and three of 14 high school participants (21%).

Breaking It Down

The 800-pound gorilla in this room is suicide. Suicide among former football players gets major media attention (Junior Seau and Aaron Hernandez) and has spawned a cottage industry of CTE litigation against every level of the sport from NFL down to Pop Warner. The study tries to correlate neuropathology with “clinical observations” − information drawn from “retrospective interviews” with family members of deceased donors. Observations are grouped as cognitive, behavioral or mood or both, and signs of dementia. Suicide was identified as the cause of death in 10% of the study group. “Suicidality” (ideation, attempts or completion) is identified among 33% of the study group. Some might conclude that if you play football you are 33% more likely to contemplate or attempt suicide and 10% more likely to succeed.

In fact, the rate of suicide mortality among retired NFL players is substantially lower than in the general population. An investigation performed at the National Institute for Occupational Safety and Health (NIOSH) and published in 2016 (Lehman, et al.) found that among players retired since 1987, the suicide rate is 6.1 / 100,000. Among players retired since 2005, it’s 12.5 / 100,000. Among average American men, the rate since 2014 is 20.1 / 100,000. One would conclude that since 2005, NFL players are 48% less likely to commit suicide than the general population, and since 1987, 70% less likely. The study covered those who played for five years or more.

Of note, drugs are assessed by standardized mortality ratio – the increase or decrease in mortality with respect to the general population. “If playing in the NFL (for a minimum of five seasons) were treated like taking a drug, it would reduce the standardized mortality (measured 30 years later) by half!” Samadani, Brain Injury and Football, Reality v. Perception. THSCA presentation, 2016.

Similar studies have been done at the college level where the NCAA maintains a robust database. A nine-year study published in October 2015 (Rao, et al.) observed that as against a rate of 12 / 100,000 among 18−22-year-old non-college individuals, the suicide rate among college students was 7.5 / 100,000. Among male NCAA athletes, the suicide rate was 2.25 / 100,000.

Another study dispels the notion that CTE is a path to neurological deficit. Published in Acta Neuropathol, “Histological Evidence of CTE in a Large Series of Neurodegenerative Diseases” (Ling, et al., 2015) observed that (1) CTE prevalence in people with neurodegenerative diseases (11.8%) was the same as in controls (12.8%); (2) patients with CTE died at a mean age of 81 years and “most positive cases [were] likely to be clinically asymptomatic”; and (3) CTE is found under the microscope in equal proportions of healthy, normal, asymptomatic people as it is in people with dementia and other diseases. For those worried about doing the right thing by their kids, a study published in December 2016 in Mayo Clinic Proceedings (Savica, et al., “High School Football and Risk of Neurodegeneration: A Community-Based Study”) found that among 438 football players followed for 50 years, the risk of dementia was the same as for members of the chorus, glee club or band.

Facts and Findings

Fortunately, in court science matters. The notion that football causes CTE has been rejected by at least one United States District Court, the Eastern District of Pennsylvania, and the Third Circuit Court of Appeals. See In re NFL Players Concussion Injury Litig., 307 F.R.D. 351 (EDPA, 2015), aff’d 821 F.3d 410 (3d Cir. 2016). Judge Brody’s key findings, based on current scientific knowledge and affirmed by the appellate court, negate causation: (1) the study of CTE is nascent, and the symptoms of the disease, if any, are unknown; (2) medical research has not reliably determined which events make a person more likely to develop CTE; and (3) research has not determined what symptoms individuals with CTE typically suffer from while they are alive. In re NFL Players Concussion Injury Litig., 821 F.3d at 441.

The point: Media should not lead science. The health and psychosocial benefits of athletic activity at all ages far outweigh any perceived risk. As parents, we should encourage healthy activity. As professionals, we need to peel back what the media pushes, read the literature and understand the fundamentals.

This post was written byAnthony B. Corleto of Wilson Elser Moskowitz Edelman & Dicker LLP.
For more legal analysis check out The National Law Review.

Yes, Your March Madness Office Bracket is Technically Illegal

march madness office bracket
marc

March Madness has arrived!  The 2017 NCAA Basketball Tournaments tip-off tonight (March 15) and continue through the Women’s and Men’s National Championship Games on April 2 and 3 respectively.  With this, comes the American tradition of companies and their employees betting on tournament outcomes through office bracket pools.

As lawyers, we have to point out that your company’s March Madness pool is very likely illegal under at least three federal gambling laws (the Professional and Amateur Sports Protection Act, the Interstate Wire Act of 1961, and the Uniform Internet Gambling Enforcement Act) and many state laws.  And we would be remiss to not mention that there is a parade of horribles that could happen from permitting such workplace wagering.

With that said, the more practical reality is that office pools have become a widely-practiced and culturally accepted form of gambling, law enforcement authorities seem to have little interest in enforcing laws that technically prohibit them, and many employers view these office pools as a workplace morale booster.

For those employers – seemingly, most all of them – who will not shut down this popular practice, here are some best practices to help mitigate legal issues when sponsoring or allowing office pools:

  • Make sure that all entry fees are distributed solely to the winner or winners of the pool.  An employer, or employees organizing a pool, should never take a “cut” of entry fees.  Under various anti-gambling laws, profiting from the pool in this way raises a host of issues.

  • Limit pools to offices within a particular state.  Doing so may prevent the pool from violating federal laws, as they generally require the transmission of money or communications across state lines to be applicable.

  • Make participation completely voluntary and limit entry fees to nominal amounts.  Expensive or compelled buy-ins may encourage the predilections of employees who are problem gamblers, and expensive buy-ins may tempt those employees responsible for collecting and distributing entry fees to surreptitiously take a “cut.”  Compelled buy-ins could implicate wage and hour and religious anti-discrimination laws.  Following these guidelines helps ensure that an office pool is low-stakes and simply intended to promote friendly rivalry.

  • Do not retaliate against or single-out employees who may complain to the pools.  There are plaintiff’s lawyers out there who will try to tether an internal complaint of unlawful activity to later adverse action against the complainer.

  • Prohibit employees from gambling in other pools on company time or through company equipment.  Apart from a workplace pool, employees may choose to participate in other pools with non-employees, and there are many options to do so online (including through company-issued or owned computers).  These other pools can raise additional concerns about potential violations of the law, to the extent they involve large wagers, are structured to profit the organizer, or involve interstate communications.  Consequently, for reasons of both legality and ensuring employee productivity, employers are best served by a policy that prohibits employee gambling in other pools on company time or company equipment.

  • Consider sponsoring a free pool that provides a non-monetary award.  Although employees may not find it as interesting, an employer concerned about the legality of its office pool may consider sponsoring a pool that is free to enter, with a non-monetary award (a gift card or some other prize) for the winners.  The lack of an exchange of money in such a pool may avoid the reach of potentially applicable anti-gambling laws.

Putting legality aside, it is well-established that employee productivity takes a hit during March Madness, particularly since it is now possible to watch games online through work computers or personal mobile devices, and permitting an office pool could encourage distraction.

To accommodate employee interest in the tournaments while reducing productivity loss employers should consider airing the games in a breakroom or lunchroom. At the same time, add sports broadcasts and websites to blocked sites on company systems that monitor and limit Internet use on company-owned computers, systems and devices (certainly, gambling and unlawful activity websites should be blocked year-round).  And if productivity becomes a problem, communicate policies addressing these concerns to employees, including policies restricting viewing to non-break times or reminding employees (including those tempted to duck out early to catch a game) of applicable attendance and punctuality policies.

As March Madness begins, we wish you the home court advantage.

©2017 Drinker Biddle & Reath LLP. All Rights Reserved

Super Bowl 51: What to Do When Fantasy is Over and Football Fever Becomes Work Reality?

Super bowl 51Super Bowl LI is just around the corner, and many of your employees probably already have football fever. According to a January 2016 study conducted by the Workforce Institute at Kronos, 77 percent of American workers planned to watch Super Bowl 50. So whether they are cheering for the Patriot’s ninth Super Bowl appearance, the halftime show, or the much-talked-about commercials, it’s a safe bet that most of your employees will tune in to at least part of the game day programming. Here are some issues employers may want to consider as they brace themselves for game day fumbles:

1. The fantasy football pool.

Gambling is still illegal in most jurisdictions—even at work and even when it’s just over football. Federal law and most state laws prohibit gambling: the Professional and Amateur Sports Protection Act of 1992 prohibits gambling on sports in most states, and the Interstate Wire Act of 1961 has been interpreted to prohibit online betting. In some states, gambling is a misdemeanor. However, in others, while gambling is generally prohibited, gambling at work may be considered an exception under certain circumstances. Nevertheless, it’s expected that millions of workers will participate in office pools related to the Super Bowl.

Employers may want to take this opportunity to clearly delineate their policies and communicate these policies to employees. To eliminate any confusion, employers may want to relay the state law on gambling to employees and define exactly which acts are covered under the law.

2. A widespread case of the Mondays.

If your Super Bowl party goes as it should, you and your guests might have a little more Monday angst than usual. The 2016 Workforce Institute study suggested that one in 10 workers (approximately 16.5 million U.S. employees) were expected to miss work on the Monday after Super Bowl 50 and that almost 10.5 million employees had requested that Monday off.

Is there anything employers can do to curb employees’ absences on Monday? Two initial considerations when managing employee sick time requests are: (1) whether the employee has sick time available; and (2) whether the employer’s sick time policies are enforced uniformly and all employees are treated equally in terms of their requests.

Employers might be able to decrease the likelihood of employees failing to come in on Monday and create morale-building opportunities by taking some proactive steps. For example, an employer could plan a celebratory work event on the Monday after Super Bowl Sunday. Employees will be itching to talk about the ins and outs of the game and the hot new commercials anyway—they may as well do it around a football-shaped cake while wearing their favorite team’s jersey.

3. Online instant replays.

Employees are not just watching games online; they are also streaming them on social media platforms. Last year, Twitter started carrying live streams of professional football games both on its site and on its app. In 2015, Facebook launched a Super Bowl news feed consisting of a live feed, photos and videos from media outlets, posts from users’ “friends,” live scores, and other ways to interact within the Facebook community. As employees watch games online and on apps, in addition to using the company’s email to communicate, companies might experience performance degradation in their computer networks.

This is a good time to remind employees of your company’s Internet use policies as well as any policy on the appropriate use of company-issued devices such as smartphones and tablets. Whichever course employers take, they should be sure to enforce their technology policies uniformly.

With a little foresight and planning—and a few carefully implemented policies—employers can avoid the blitz when it comes to the Super Bowl and workplace productivity.

© 2017, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

Supreme Court Set to Settle Dispute over Washington Redskins Trademark Registration

Football Washington Redskins TrademarkThere has been another twist in the story of the long battle by Native American interest groups to obtain revocation of the U.S. registration of the infamous Washington Redskins trademark. This is another step in the 20-year journey that began with the initial challenges to the team name.

On Thursday, September 29, 2016, the U.S. Supreme Court granted certiorari to review the Federal Court’s ruling in the case of Lee v Tam. That case involved a rock band called “The Slants”. The leader of the band, Simon Tam, appealed the denial by the U.S. Patent and Trademark Office of the band’s request for trademark registration of the band’s name. The US PTO had denied the band’s application on the grounds that it was offensive to Asian-Americans.

The Federal Circuit Court sided with the band and overturned the US PTO’s ruling. The Court stated that the government “cannot refuse to register disparaging marks because it disapproves of the expressive messages conveyed by the marks.” This decision is summarized in more detail in our prior blog posts on that ruling.

The ruling by the Federal Circuit Court was particularly important to Native Americans and tribes because it was contrary to the prior ruling by the Fourth Circuit Court in a case challenging the Washington Redskins trademark. In that case, Pro-Football, Inc. v Amanda Blackhorse, et al, the Court had sided with the US PTO on the same issue. The Court found that the Redskins trademark was disparaging and invalidated its federal trademark registration.

That case is still pending. Thus, the ruling by the Supreme Court on the validity of the US PTO ruling in Lee v Tam will have important consequences (indeed, it will most likely be decisive) for the Pro-Football case.

The Supreme Court, as in almost all actions granting certiorari review, did not state any reasons for its action, but it is typical for the Supreme Court to accept cases involving issues of national impact when there has been a split in the lower courts. It is good to see that the high court appreciates the importance of this controversial matter, and we will all have to wait and see what the result will be.

ARTICLE BY Fred Schubkegel of Varnum LLP

© 2016 Varnum LLP

Warning: Don’t Use Trademarked Olympic Hashtags, Images

Olympic hashtagsWith all of the hype and public attention paid to the Olympics, you and your employees should be aware of the rules that govern the use of hashtags and images related to the Olympic games. The U.S. Olympic Committee (USOC) and the International Olympic Committee (IOC) have historically been very aggressive in policing any use of the Olympic trademarks, images, and hashtags. This year’s games are no exception.

In the last few weeks, the USOC has sent a number of letters to companies that sponsor athletes (who now happen to be Olympians) but have no sponsorship relationship with the USOC or the IOC warning them not to discuss the games on their corporate social media accounts. Companies have specifically been told that they cannot use the trademarked hashtags “#Rio2016” or “#TeamUSA” in any of their postings. The letters also warn companies not to reference Olympic results or to repost or share anything from the official Olympic social media accounts, this includes use of any Olympic photos, logos, or even congratulatory posts to Olympic athletes. While media companies are largely exempt, all other commercial entities should carefully monitor their social media accounts for any Olympic commentary.

Olympic trademarks are the subject of intense legal protections around the world and the IOC and USOC will pursue alleged offenders regardless of their size. In fact, previous enforcement actions have ranged from trademark suits against small restaurants with the word “Olympic” in their names to issuing cease and desist letters to companies that used trademark hashtags such as #Sochi2014 during past games. Guidelines about Olympic brand usage can be found by clicking here.

© Copyright 2016 Armstrong Teasdale LLP. All rights reserved

NFL Commissioner’s Powers Affirmed in Eighth Circuit Ruling on Adrian Peterson Suspension

Adrian PetersonNFL-appointed Arbitrator Harold Henderson’s decision to uphold Commissioner Roger Goodell’s suspension of Minnesota Vikings running back Adrian Peterson for alleged child abuse was proper, The U.S. Court of Appeals for the Eighth Circuit has ruled. NFL Players Association v. National Football League et al., No. 15-1438 (8th Cir. Aug. 4, 2016).

The decision marks a further affirmation of Commissioner Goodell’s authority and almost unlimited power to discipline players pursuant to the terms of the current collective bargaining agreement between the League and its players association.

As Boston College Law Professor Warren K. Zola commented, “The power of the NFL commissioner strengthens as 8th Circuit determines ‘fundamental fairness’ is subordinate to collective bargaining.”

The Eighth Circuit’s decision overturned U.S. District Judge David Doty’s February 2015 decision vacating Arbitrator Henderson’s decision to uphold Goodell’s suspension of Peterson for the remainder of the 2014 season after Peterson pled no contest to a charge of misdemeanor reckless assault child abuse charges in November of that year.

The National Football League Players Association (NFLPA) had filed a grievance against the NFL on Peterson’s behalf following the suspension, asserting that Peterson should have been disciplined under the League’s prior conduct policy, which authorized only a maximum two-game suspension. Goodell’s appointed arbitrator rejected that argument and upheld the suspension.

The NFLPA had argued before the Eighth Circuit that Judge Doty had properly ruled that the League misapplied a domestic abuse policy enacted after Peterson’s alleged wrongful conduct in violation of the League’s collective bargaining agreement. A three-judge Eighth Circuit panel disagreed, reversing Judge Doty’s decision and concluding the district court had improperly vacated Arbitrator Henderson’s decision upholding the suspension.

The Eighth Circuit stated,

“We conclude that the parties bargained to be bound by the decision of the arbitrator, and the arbitrator acted within his authority, so we reverse the district court’s judgement vacating the arbitration decision.”

Jackson Lewis P.C. © 2016

800-Meter Champion Berian Eventually Outpaces Nike Endorsement Suit… Or Did He?

runners, corporate sponsorsWorld 800-meter champion Boris Berian is seemingly capable of out-running just about anything these days. Berian is just a year removed from sprinting out of a McDonald’s kitchen and into track lore – essentially trading a fry cook apron for track shorts and blowing away the competition en route to gold at the 2016 world indoor championships. Some months later, the American track star appears to have, at least for the moment, finally put some distance between himself and his former sponsor with the news last month that Nike has decided to drop its breach of contract lawsuit against the soon-to-be Olympian. So, why did Nike split with this up-and-coming track star?

The relationship between Berian and Nike started, as these things typically do, quite harmoniously. After an unexpected second place finish at the Adidas Grand Prix in June 2015, Berian, until then having attracted attention largely for his previous work as a McDonald’s fry cook, caught the eye of several suitors hoping to sponsor him, ultimately selecting the Oregon shoe giant because it came in with the highest offer.

Yet just as quickly as runner and corporate sponsor fell in love, they puzzlingly split. As early as January 2016, Berian was spotted racing in New Balance gear. At the time, Berian’s agent explained that his client’s contract with Nike had expired and that any contractual restrictions against signing another footwear endorsement contract had lapsed.

If the middle distance champion thought he had left Nike in the dust, he was quite mistaken. In April, Nike dashed to court and filed a breach of contract lawsuit. (Nike USA Inc. v. Berian, No. 16-00743 (D. Or. filed April 29, 2016)). Berian was served with notice of the suit seemingly during the only time Nike could catch him: while the runner stood still and watched others compete at a track meet in Los Angeles.

In the complaint, Nike claimed that it had a right of first refusal to match a $125,000 sponsorship deal that Berian had signed with New Balance. Nike further alleged that it had exercised its right of first refusal and matched the New Balance offer, which included $125,000 a year plus a performance bonus, and that therefore Berian had breached the endorsement deal in eloping with New Balance. Nike further asserted that its offer was a match even if it contained reductions (which Nike stated are standard in track and field endorsement contracts) because the New Balance offer was only a brief term sheet (with omitted reductions) and not a complete contract. As a result of the alleged violation, Nike sought an order enjoining Berian from entering into an endorsement relationship with any Nike competitor and from competing while wearing or otherwise endorsing any Nike competitor’s product. Nike claims that it would suffer irreparable harm if Berian is allowed to compete in a competitor’s product, particularly in an Olympic year.

In a response in opposition to a motion for an expedited hearing and discovery on the injunction issue, Berian maintained that he had not breached the deal because Nike did not truly match New Balance’s offer. The crux of Berian’s argument focused on the insertion of the reductions clause in Nike’s offer that allowed Nike to reduce Berian’s compensation in certain circumstances relating to performance, as opposed to New Balance’s offer, which did not contain any reductions.

Nonetheless, in early June, Nike obtained a temporary restraining order barring Berian from wearing New Balance products.

That temporary victory, however, came with rather limited fanfare, a reaction that perhaps served as an indicator of what awaited Nike, both in the courtroom and out. Inside the courthouse halls at oral argument, the judge set to rule on the injunction request reportedly appeared skeptical of the merits of Nike’s case. That perceived skepticism also took the form of criticism in the court of public opinion, with members in the track community decrying the proverbial Goliath for singling out a modern-day David.

Within several weeks, however, Nike had changed course, deciding to drop the suit altogether, in the process adding another chapter to what had quickly become a tumultuous saga. Nike, while maintaining the validity of its breach claims, stated that it opted to drop the suit to eliminate any distraction for Berian who was preparing for the Olympic trials. Berian placed second in those trials and earned a trip to the Rio Olympics at summer’s end. And he did so wearing a New Balance kit.

Ironically enough, Berian’s performance in the trials means that the saga continues into the present.

Nike is the official sponsor of USA Track and Field and, as such, all track and field athletes representing the United States at the Rio Olympics will be outfitted in Nike-branded national team attire in competitions, award ceremonies, official press conferences, and other official team functions.

Berian’s prize, then, for securing a trip to Rio by placing second at the trials?

Glory, sure. And a clean Nike uniform to don at the starting line.

© 2016 Proskauer Rose LLP.