New Research Likely to Lead to Increase of Concussion Related Litigation

As sports concussion awareness continues to gain national headlines, so too will concussion related litigation.

A study published by the Journal of the American Medical Association made headlines recently for its findings relating to the development of chronic traumatic encephalopathy (CTE) in former NFL players.[1] The research examined the brains of 111 deceased former NFL players and found evidence of CTE in 110.  Somewhat lost in the headlines was that researchers also examined brains of former football players at all levels, not just those who participated in the NFL. According to the study, evidence of CTE was found in three of the 14 brains of players who only played in high school and in 48 of 53 college players whose brains were studied. In total, of those examined, CTE was diagnosed in over 87% of former football players at all levels.

While this new research is certainly bound to affect on-going concussion litigation against the NFL and NCAA, expect it to also accelerate the trend of lawsuits against youth sport organizations and high schools relating to concussions and safety protocol.

Between 2009 and 2015, all 50 states and the District of Columbia passed laws to address the issue of concussions in youth sports, mostly modeled on Washington State’s groundbreaking Lystedt Law. This new CTE research may lead to the enactment of stricter concussion protocols.  However, more stringent standards could actually contribute to an increase in concussion related litigation. Recently, the Supreme Court of Washington (the first state to enact concussion safety laws) ruled that the family of a deceased high school football player could proceed with claims against the high school and coach for violations of the legislation based on an implied cause of action theory.[2]

While participation in tackle football may be down in recent years, according to a 2016 survey published by the National Federation of State High School Associations, football remains the number one high school participation sport in the United States. This fact, coupled with the recent CTE revelations is likely to lead to an uptick in the amount of concussion related litigation.

To learn more, contact an attorney at Fraser Trebilcock at 517.482.5800 or by clicking here to fill out this form on our website.

[1] “Clinicopathological Evaluation of Chronic Traumatic Encephalopathy in Players of American Football,”  Journal of the American Medical Association, Vol 318, No. 4, Pgs. 360-370 (2017).
[2] Swank v Valley Christian School, — P.3d —- (2017); 2017 WL 2876139 (Wash. July 6, 2017).

Detroit Updates Its Jock Tax

In March of this year, the City of Detroit officially codified its jock tax and released new income tax guidelines which clarify how professional athletes should apportion their income to Detroit for purposes of its city income tax, as well as guidance for teams on how to allocate income. Continue reading Detroit Updates Its Jock Tax

Representing the Professional Athlete: The Importance of Personal Counsel

As a former sports agent, I am often asked what it takes to become an agent. Many people assume you have to have a law degree, but while being a licensed attorney or having a law degree would be helpful, they are not prerequisites. Continue reading Representing the Professional Athlete: The Importance of Personal Counsel

Loss of Value Insurance May Prove Valuable for Athletes

According to CBS Sports, former Notre Dame linebacker Jaylon Smith recently collected on a loss of value insurance policy. Smith was projected to be a high first-round NFL draft pick but dropped to the second round, the 34th pick overall, after suffering a devastating knee injury in the 2016 Fiesta Bowl. His policy payout is believed to be $700,000.

A loss of value insurance policy protects an athlete’s future contract value from decreasing below a predetermined amount due to a significant injury or illness suffered during the term of the policy. If an athlete signs a professional contract which falls below that threshold which was a direct result of an injury or illness, the insurance company must pay the difference between the contract’s actual value and the policy’s predetermined value.

CBS Sports reports that Smith’s insurance policy covered him for a loss of value if he did not receive an NFL contract that was at least $7.2 million for four years. The contract Smith eventually signed with the Dallas Cowboys was for $6.495 million over four years. Thus, resulting in the reported $700,000 payout.

Payment for Smith’s loss of value premium was $55,000, according to CBS Sports. How this amount was paid has not been reported. The NCAA allows its member institutions to use the NCAA Student Assistance Fund to purchase a loss of value policy for a student-athlete. In addition, a prospective draft pick may take out a loan against their future earnings to pay the loss of value policy premium.

Prior to Smith, only three players have been able to collect on their loss of value insurance policy after filing a claim. For this reason, the NCAA does not directly offer loss of value insurance. Indeed, merely purchasing the insurance does not guarantee protection and it can often prove extremely difficult to demonstrate an athlete’s drop in the draft was “solely and directly” related to an injury. Keep in mind, all loss of value policies will include exclusions for pre-existing injuries, drug and alcohol use, criminal acts and/or psychological disorders and others. More unpredictable factors can also affect whether a loss of value claim is paid, including off-field issues, poor performance during the season or at pre-draft workouts and changes in professional team’s needs.

Not all professional prospects need loss of value policies. Given the difficulties in proving loss of value claims, only the very highest of draft picks would seem to benefit from purchasing the insurance. For Jaylon Smith, the loss of value policy proved valuable.

To learn more, contact an attorney at Fraser Trebilcock at 517.482.5800 or by clicking here to fill out this form on our website.