How NASCAR’s Efforts After Daytona Nationwide Crash Will Impact Litigation

On February 23, at least 28 spectators were injured after a crash during a Nationwide Series race at Daytona International Speedway sent debris flying into the crowd.  Since the crash, NASCAR has reportedly begun investigating what mechanisms led to the crash and subsequent spectator injuries.  To do this, NASCAR is not only working to reconstruct driver Kyle Larson’s car, but is also working with fencing experts to determine how the track’s fencing may have played a role in the number of fans injured.

Hearing that NASCAR is taking these measures may have caused the injured spectators’ ears to perk up.  Reports indicate that numerous injured spectators have consulted with lawyers over the possibility of suing NASCAR for the injuries they sustained.  These individuals may believe that subsequent measures taken by NASCAR to improve the fencing around Daytona International Speedway may bolster any case they have against racing’s governing body.  However, such is not the case.

Given the amount in damages that potential litigants will likely demand against NASCAR, it is likely that a lawsuit would be filed in federal court.  Thus, the federal rules of evidence would apply.  The rule at issue here is Rule 407:  Subsequent Remedial Measures.  Notably, Florida’s state rules of evidence has a similar rule, Florida Statute § 90.407.

Rule 407 provides:

“When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction.  But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.”

In the case of potential lawsuits injured spectators may file against NASCAR, Rule 407 is notable.  Any lawsuit filed against injured spectators will more than likely include a claim of negligence.  This negligence claim will expectantly be based in part on an argument that not having higher fences at the racetrack was negligent on NASCAR’s part.  Should NASCAR in the coming days or months take the subsequent remedial measure of heightening the fences, potential plaintiffs could not use evidence of those measures to show that NASCAR was negligent in this instance.

From NASCAR’s perspective, the existence of Rule 407 is beneficial.  It is beneficial because NASCAR can make the necessary improvements to Daytona International Speedway in the wake of the crash without fearing that doing so will improve plaintiffs’ likelihood of success in litigation.  It is for this reason that Rule 407 exists.  However, as noted by the exception to Rule 407, plaintiffs will still likely raise any adjustments to Daytona International Speedway made by NASCAR in the wake of the accident during the course of litigation.  Most likely, plaintiffs will raise evidence of any subsequent remedial measures to negate any argument that such measures were impossible to complete.

Analysis of this small issue goes to show the battle that NASCAR stands to fight after the February 23 crash.  Not only must it evaluate the cause of the crash and research measures that could better protect fans, it must consider how those measures may impact its looming court case.  Thus, it’s safe to say that NASCAR’s lawyers will be putting in heavy hours in the coming months.

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A Look at Spelman College’s Decision to Drop its Athletics Program

By:  Kaitlyn Kacsuta, Ruling Sports Intern (Twitter:  @KRKacsuta)

During the fall of 2012, while many female athletes were celebrating the 40th anniversary of Title IX legislation, Spelman College announced that it would end all of its NCAA Division III sports programs, effective as of the 2013-14 school year.  Administrators at the historically black women’s college have instead decided to re-allocate the $1 million intercollegiate sports budget to a health and wellness program for all students.  While there are only 80 students participate in its Division III athletic program, this change is aimed at providing life-long assistance to Spelman students – where the school estimated that one out every two students suffers from high blood pressure, Type 2 diabetes or obesity.

Spelman is currently a member of the Great South Athletic Conference, a women’s-only Division III conference.  Not unlike other Division III programs, Spelman student-athletes are not scholarship athletes, nor are they recruited.  Notably however, Spelman is the first college in years to end its NCAA intercollegiate athletics programs.  While there are undoubtedly benefits to expanding the health and wellness programs available at colleges, do those benefits outweigh the costs of ending intercollegiate athletics at a school?  After all, Title IX was created so that female student-athletes would have an opportunity to compete on an even playing field.  Though Title IX will not be at issue in Spelman’s decision – because schools and university that have historically admitted only members of one sex are exempt from Title IX’s requirements, it is intriguing to consider how ending an athletic program for the benefit of an improved university-wide health and wellness program may impact female student- athletes.

The goal of Title IX is to establish an equal playing field and opportunities for women in education and sports.  Spelman College claims that ending Division III competition will serve a similar purpose by providing greater opportunities for health and wellness to all students, rather than a few athletes.  One of the driving factors behind Spelman’s decision is that its Division III sports teams occupy too many facilities and recourses during practice and games, limiting health and wellness program availability.

Though the hopes for Spelman are to assist its student body in leading a healthy lifestyle and improving the quality of life for black women, athletic competition serves the same purposes.  Reportedly, the graduation rate for black female athletes is approximately 74%, while the overall graduation rate for all students is just 46%.  It was estimated that during the 2010-11 school year, there were 191,131 female student-athletes that competed in NCAA Division I, II, and III programs.  Additionally, according to the 2011-12 NCAA reports, nearly 37% of all female student-athletes in the NCAA compete at the Division III level.

Therefore, with Spelman putting an end to its Division III athletic programs at the close of the semester, it will cause a ripple effect from the athletic department, on campus, throughout the NCAA, and onto young black female athletes.  Before Spelman gives up on black female athletes, they ought to give more effort to allowing both programs to continue and expand.  It is for the betterment of schools and students that health and wellness programs coexist with intercollegiate athletics.

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Your Super Bowl Reporter: What Do You Want To Know?

Here is the truth of the matter:  I wouldn’t be where I am today without all of you.

When I launched RulingSports.com on July 1, 2011, I had no idea if anyone would read what I wrote (save for my parents, who constantly remind me they are my biggest fans–they are forced to be).  Much to my surprise, more people than my two parents read RulingSports.com on its first day of existence.  And those people, and thousands more have continued to visit it over the last 18 months.  I’m aware that it is largely because of my readers and the kind people who follow me on Twitter that I am being given this opportunity to be credentialed for the Super Bowl.  Your support helped get me here.

To say “thanks” for your support, I want to go to New Orleans and dig up the stories you want answers to.  If you could attend a Super Bowl, what questions would you ask?  What would you want to know?  Where would you visit?

Tell me your ideas and your questions in the comments space below, and I will do my best to find the answers!

Be sure to follow me on Twitter (@RulingSports) as I’ll be tweeting many updates throughout the week.  You can find pictures on my Instagram account (Instagram.com/RulingSports) and my Facebook fan page (Facebook.com/AliciaJessop).  My sports business stories will be found on Forbes while my non-credentialed social interest stories will be found on The Huffington Post.  Each night, I’ll update my personal website with updates on what I experienced.

I invite you to come along with me to the Super Bowl!  It is going to be quite the experience!

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NFL Injury Report: Rob Ninkovich’s Hip Injury

Each week, RulingSports.com will analyze one NFL player’s injury.  Sports Medicine doctor, Dr. Mandy Huggins (Twitter:  @HugginsMD), will provide medical analysis of the injury.  Alicia Jessop will then break down some of the contract ramifications of the injury.

Dr. Mandy Huggins’ Medical Analysis

New England’s Rob Ninkovich made Patriots fans worry last Sunday when he left the game with a hip injury. He had to be helped off the field and did not return to the game. Recent reports, however, have indicated that the injury is not serious and he strained muscles in his hip. Unfortunately, it’s difficult to break down this injury with such a vague report, but it leads one to believe that Ninkovich will be able to return for the playoffs, especially with a bye week. He may be moving more gingerly than normal, however, as the muscles around the hip are critical for every movement he will make, such as sprinting, lateral movements, and sudden starts and stops.

Alicia Jessop’s Contract Analysis

In 2011 Ninkovich signed a two-year contract extension worth $4 million.  It marked the second time that the Patriots signed him to a two-year contract extension, the first coming in 2009.  Given this, it appears that the team is committed to him as a linebacker.  Furthermore, because it does not appear that he will miss any games because of this injury, his place on next season’s roster is as safe as it can be for an NFL player.

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The NHLPA’s Next Steps In Ending The NHL Lockout

The calendar turned to January 5 today and NHL fans have yet to see one NHL game this season.  Thanks to NHL owners locking out players, gone already is half of the season, along with the NHL All-Star Game and the Winter Classic.  Throughout the negotiations, carrots have been dangled in front of fans’ eyes, giving them hope that a season may begin in the near future.  The NHL and NHLPA have reportedly been close to reaching a new collective bargaining agreement several times.  However, each time a deal appears to be close, a new issue sprouts and the sides spread further apart.  Given that NHL commissioner Gary Bettman has self-imposed a January 11 date for a deal to be finalized in order for the season to be saved, how can the NHLPA work to end the lockout?

January 11 is less than a week away.  Given this, the NHLPA’s strategy at this point is apparent:  disclaiming the union’s interest and beginning the process of filing an antitrust lawsuit.  The NHLPA is in the midst of a 48-hour vote to disclaim the NHLPA’s interest as the players’ union.  This is the second time that such a vote has been taken in this lockout.  The last time the vote was taken, it passed, but the NHLPA’s executive board (namely, Donald Fehr) opted not to disclaim the union’s interest.  That decision was likely the result of Fehr’s assessment that negotiations with the NHL were progressing at the time and moving towards an end of the lockout.

However, since that time, negotiations have arguably stalled and federal mediators have begun meeting with the sides individually.  With less than a week left to salvage an NHL season, it’s likely now that players will not only vote to disclaim the NHLPA’s interest as their union, but that the executive board will in fact move forward with doing so.

If the NHLPA moves this way, it will become a trade association rather than a union for the time being.  Thus, the union will  no longer represent players in collective bargaining with the NHL for a new agreement in an attempt to end the lockout.  Rather, under the disclaimer of interest process, individual players will have the right to file antitrust lawsuits against the NHL in a bid to end the lockout.

Filing an antitrust lawsuit will not quickly end the NHL lockout.  Given the length of time an antitrust lawsuit can take to end a lockout, it is notable that it appears that this is a weapon the NHLPA has waited to pull out until the last minute.  In that regard, the NHLPA should be commended for arguably working to fairly negotiate with the NHL as a union for as long as it could.  On the flip side, though, had the NHLPA filed an antitrust earlier in the lockout, the lockout may have ended earlier.

If the NHLPA disclaims its interest as a union, the antitrust lawsuit filed by players will likely be a class action lawsuit.  The class would be defined as all NHL players, but would have named players–likely your top stars and several rookies–named in the lawsuit.  A judge’s decision in favor of the players or a settlement between the parties on the antitrust lawsuit would end the NHL lockout.  Thereafter, the players would have to vote to re-form the NHLPA as a union.  The NHLPA would then begin negotiating with the NHL the terms of a new collective bargaining agreement.  However, many of the terms of the new collective bargaining agreement would likely be reached during negotiations during the settlement process of the antitrust lawsuit.  As such, one would assume that this process would be relatively quick.

Arguably, at this stage of negotiations, there are more pro’s than con’s to the NHLPA disclaiming its interest as a union and players moving forward with an antitrust lawsuit.  For starters, the NHLPA has likely negotiated for as long as it could with no effect towards ending the lockout.  Facing the loss of an entire season, NHL players need to consider alternative options to save their time on the ice and paychecks.  At this point, filing an antitrust lawsuit would likely be the most efficient way to do this.

This biggest con to moving this route, perhaps, is that antitrust lawsuits are uncertain.  In going this way, the NHL could refuse to negotiate a settlement to the lawsuit.  Thus, a judge would decide the merits of the antitrust lawsuit.  The players would likely file their lawsuit in a forum friendly to employees.  However, they run the risk that a judge would rule that the NHL has not violated any antitrust laws during the course of the lockout.  If this were to happen, the players would arguably put in a corner.  At that point, they would have to reclaim the union’s interest and begin negotiating again with the NHL like they have been since September.  This would arguably uppercut the players in terms of the leverage they would have in negotiations.

One thing is certain:  Over the coming days, NHL fans will see much NHL news.  Unfortunately, none of it will take place on the ice of an NHL arena.

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NFL Injury Report: Ryan Matthews’ Collarbone Fracture

Each week, RulingSports.com will analyze one NFL player’s injury.  Sports Medicine doctor, Dr. Mandy Huggins (Twitter:  @HugginsMD), will provide medical analysis of the injury.  Alicia Jessop will then break down some of the contract ramifications of the injury.

Dr. Mandy Huggins’ Medical Analysis

San Diego Chargers RB Ryan Mathews unfortunately suffered yet another injury on Sunday, this time a left clavicle (collarbone) fracture. As you may recall, he suffered a fracture of the right clavicle during the preseason. Clavicle fractures are classified by location of fracture: distal (outer) third, middle third, or proximal (closer to the midline) third. The location of Mathews’ fracture has not been reported, but it is most likely in the middle third. These fractures occur with direct trauma or after a fall onto the shoulder and are very painful. Localized pain, swelling, and a deformity (bump) are seen, and x-rays confirm the diagnosis. Unless the ends of the bone are significantly displaced (do not line up with one another), most clavicle fractures heal fairly well in 4-6 weeks. There is a period of immobilization, though, to allow the bone to heal back together. Needless to say, Mathews will be out for the remainder of the season.

Alicia Jessop’s Contract Analysis

Matthews was signed to a five-year deal by the Chargers in 2010.  Matthews’ contract is worth $25.65 million contract and includes $15 million in guarantees.  The good news for Matthews, thus, is that a significant portion of his contract is guaranteed, so he arguably will not be hurting financially.  The bad news, though, is several things.  First, the bulk of Matthews’ base salary in his contract comes in the 2013 and 2014 seasons, where he’ll earn $1,195,500 and $1,478,250 in base salary, respectively, on top of other bonuses built into those years.  Thus, it is of utmost importance that Matthews fully rehabs so that he can come back in 2013 and play through 2014.  Additionally, another issue is that his continuous bouts with injuries may hurt his earnings potential moving forward.  Matthews was targeted as being the “heir apparent” for LaDainian Tomlinson.  If he continues to be dealt the blow of injuries though, he may not surpass L.T.’s career success.

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NFL Injury Report: Fred Jackson’s MCL Injury

Each week, RulingSports.com will analyze one NFL player’s injury.  Sports Medicine doctor, Dr. Mandy Huggins (Twitter:  @HugginsMD), will provide medical analysis of the injury.  Alicia Jessop will then break down some of the contract ramifications of the injury.

Dr. Mandy Huggins’ Medical Analysis

Fred Jackson, RB for the Buffalo Bills, left the game Sunday with a right knee injury. It was later reported that he has a grade II medial collateral ligament (MCL) injury and will not return for the rest of the season.

The MCL provides stability on the medial, or inside, portion of the knee joint. It originates on the end of the femur (thigh bone) and inserts onto the tibia (shin bone). Similarly, there is a lateral collateral ligament (LCL) on the outside portion of the knee that provides lateral stability. Injuries to the MCL usually occur as a result of valgus force to the knee (think of this as pressure from lateral to medial; for example, in the right knee, the force would be from right to left). They are classified into grade I, II, or III injuries. A grade I injury is a mild sprain with pain but no laxity or instability. A grade II injury involves more severe injury to the ligament with some medial laxity seen, whereas a grade III injury involves more extensive or complete tearing of the ligament. Fortunately, surgery is typically not required, but the length of recovery is more prolonged with more severe injuries. Treatment includes a hinged knee brace for support and protection, as well as a period of rehabilitation for range of motion and strength.

Alicia Jessop’s Contract Analysis

While there arguably is never a good time for an injury in the NFL, the good news for Jackson is that he just signed a three-year contract extension in May.  That contract extension was worth $8.7 million.  This is arguably good news, as if he were looking for a contract extension or new contract after this season, he would likely be offered significantly less money.  Jackson was plagued by injury throughout the season, which is demonstrated by his career-low 3.8 yards per carry average. 

Even though Jackson signed a contract extension, only $3 million of the $8.7 million is guaranteed.  His base salaries in 2013 and 2014 are $2.15 million and $2.45 million, respectively.  In each of those years, his contract also allows for extensive bonuses.  Thus, in order for him to truly receive the “bang” out of his contract extension, Jackson needs to return next season.

One thing about Jackson, is that he is certainly a fighter.  Originally undrafted out of a Division III school, in his five seasons in the NFL, Jackson has racked up impressive stats.  Furthermore, he has previously suffered and returned from a season-ending leg injury.  So, one can expect that Jackson will rehab and be back on the gridiron next year.

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The Logic Behind Paul Tagliabue’s Saints Ruling

Nearly nine months after the NFL announced it had evidence demonstrating that the New Orleans Saints engaged in a pay-for-play program, former NFL commissioner Paul Tagliabue overturned the suspensions of four players allegedly involved in the program.  In making his determination, Tagliabue acknowledged that three of the four players engaged in “conduct detrimental to the league” and that current NFL commissioner Roger Goodell could have punished this conduct with fines.  However, Tagliabue’s decision to overturn the players’ suspensions appears to rest heavily upon his findings that it was team personnel and coaches who were at the helm of the pay-for-play program, rather than players.

Tagliabue’s findings are notable, because they were likely determined by a logic that was dictated by his professional background.  Tagliabue is an attorney.  It was likely Tagliabue’s legal background and a legal doctrine learned during the first year of law school which likely guided him in reaching his decision today. 

The doctrine which Tagliabue likely relied upon is called respondeat superior.  Under the theory of respondeat superior, an employer is responsible for the actions of an employee that are performed within the employee’s scope of employment.  Respondeat superior allows a third-party wronged by the acts of the employee to commence legal actions against the employee and its employer.  Arguably, the actions allegedly committed under the alleged pay-for-play scheme occurred within the scope of the Saints players’ employment.  Tagliabue likely found that unless Saints coaches and personnel were allegedly encouraging the players to engage in the pay-for-play program, that they would have been unlikely to have done so themselves.  While using respondeat superior as an approach to decide the case before him would have arguably allowed Tagliabue to find both the Saints personnel/coaches and players liable, it appears that Tagliabue found that the players were merely just following their principals’ orders.

Tagliabue’s findings today present some concerning possibilities.  By vacating the players’ suspensions in their entirety, Tagliabue arguably sent the message that players do not need to fear suspensions when they follow their coaches’ orders–regardless of how dangerous those orders might be.  This possible precedent is somewhat scary, as coaches may recognize that they can push the limits when it comes to what they ask players to do, and only risk their own career stability.  Arguably, this in and of itself would prevent most coaches from engaging in the type of behavior that allegedly occurred in New Orleans.  However, for those whereupon the pressure to win is great enough, today’s ruling might give them enough of an incentive to move forward with dangerous plans.

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Guest Post: Forming Your Support Team: Power in Numbers

By:  Todd Burach, Ruling Sports Contributor  (Twitter:  @ToddBurach)

For college football players with dreams of a pro career, now is the time to interview and select representation in preparation for the next level. Agent services leading up to the draft include pre-draft training, draft promotion, and contract negotiation, all vital towards securing a coveted potential first contract. The decision on which agency to go with will be a game-changer for most, and having spent a lifetime preparing for this opportunity, prospective draftees ought to work with the best agents available.   

In addition to selecting an agent when forming a support team, professional athletes will have to think about the many other business aspects that come with earning a living from pro sports. For one, players will need to establish a strategy for managing their new personal wealth. Immediate decisions about budgeting, saving, and investing will be made, all with fundamental implications towards securing long-term financial stability. Additionally, such a unique and fragmented income stream requires diligent, expert accounting work. Players pay taxes to essentially every city and state in which they play, road games included. “NFL players typically file in 10 to 12 jurisdictions. The NBA is somewhere between 16 and 20.”[1]

Independent of whom an athlete chooses to represent them in these professional matters, and why they may decide to go in one direction or another, one thing is undoubtedly certain: selecting independent professionals to manage each aspect of business matters, rather than one to control multiple functions, is prudent. Professional athletes should avoid entrusting too much responsibility to any one advisor.

Here are two reasons why this tactic is important and can go a long way towards protecting a player’s well-being.

Work with Specialists

The unique scenarios that encompass the business needs of professional athletes require expert attention. Athletes have complicated tax responsibilities, with multi-state filings and profits coming from different avenues including, but not limited to, endorsements and appearances. Additionally, athletes have a distinctive career income stream, with the vast majority of wealth earned in an early, condensed period. Spending and saving decisions will have to account for this salary plateau. To complicate matters further, athletes are high profile individuals. Thus, mistakes are magnified publicly and can influence marketability, a vital aspect of post-playing income potential. Successfully navigating these waters demands expert attention. You would not be a professional athlete and a lawyer at the same time. The fact of the matter is to be the best at a profession requires 100% of an individual’s time and effort. For that reason, athletes should hire focused, subject matter experts for each position on their professional advisor team.

Checks & Balances

One reason many athletes have run into financial problems in the past has been entrusting too much power to any one person. By employing a team of independent advisors who oversee and review the work of other team members, an athlete can reduce the likelihood of an advisor abusing delegated powers. This system of checks and balances is even at the heart of the United States Constitution. “It is a system that allows each branch of a government to amend or veto acts of another branch so as to prevent any one branch from exerting too much power.”[2] For instance, the Supreme Court has the opportunity to declare a law unconstitutional through a judicial review process. For an athlete, an independent accountant, in addition to filing income taxes, will provide services such as investment due diligence, cash transaction audits, and verification of portfolio valuation. Having a financial advisor perform these activities would be akin to a student grading his or her own test. The expert focus of each advisor coupled with this overlap of responsibilities provides a safety net for players. And, as Marc Isenberg notes in his book“Money Players”, ‘competent professionals who act in their clients’ best interest should not have a problem when questioned by fellow team members.’[3]

While pro athletes are teammates for their respective ball clubs, they are the de facto general managers for their individual professional advisor teams. There is no salary cap and there are no limits on roster spots. There is only an objective: formulate a team to protect, nurture, and advance the athlete’s well-being. When drafting this team, athletes should demand to work with the best at each position, while establishing accountability and control through checks and balances.

Todd Burach works in wealth management in New York City. He specializes in asset allocation and investment strategy for upper high net worth clients, including corporate executives, professional athletes and entrepreneurs.  He is a 2007 graduate of Syracuse University where he was a member of Coach Boeheim’s back-to-back Big East championship teams. In 2012, Todd completed his MBA at New York University with concentrations in Finance and Economics.


[3] “Money Players: A Guide to Success in Sports, Business & Life for Current and Future Pro Athletes.” Marc Isenberg. Page 69.

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NFL Injury Report: Brian Urlacher’s Leg Injury

Each week, RulingSports.com will analyze one NFL player’s injury.  Sports Medicine doctor, Dr. Mandy Huggins (Twitter:  @HugginsMD), will provide medical analysis of the injury.  Alicia Jessop will then break down some of the contract ramifications of the injury.

Dr. Mandy Huggins’ Medical Analysis

The media is already speculating about the leg injury sustained by Chicago LB Brian Urlacher on Sunday, reporting today that the team has already signed another linebacker. Apparently Urlacher sustained a right hamstring injury late in the game against the Seahawks, although this has yet to be confirmed.

Hamstring strains are usually classified as grade I (mild), grade II (moderate), or grade III (severe). The hamstring muscle group consists of three large muscles: biceps femoris, semimembranosus, and semitendinosus. Strains most commonly occur in the biceps femoris, and the onset is usually sudden, for example, while sprinting. Age (Urlacher is 34), fatigue, and a history of previous hamstring injury increase one’s risk for another injury. After a hamstring injury, the athlete will complain of difficulty walking, localized pain (followed by swelling and maybe bruising), and decreased strength against resistance. Imaging is not required unless a complete tear (grade III) is suspected. However, ultrasound or MRI can be used to help determine the extent of the injury and predict length of recovery. Imaging in Urlacher’s case has not been reported. Treatment includes rest from competition, stretching, and soft tissue therapy followed by progressive strengthening and core stability work. Specifically, eccentric exercises (slow, controlled lengthening of the muscle) have been shown to decrease the risk of hamstring injuries. There is no set time table for return to sport, as all hamstring injuries are different. However, full range of motion, full strength, and optimal performance on functional testing must be demonstrated before return can be considered.

Alicia Jessop’s Contract Analysis

Urlacher is in the final year of his deal with the Chicago Bears, and as such, this injury arguably could not have come at a worse time.  However, the one upside of the timing of his injury is that it comes late in the season and he will have an entire off-season to heal, if need be.  The Bears’ defense has largely relied upon Urlacher’s talents in recent years, so he and his agent can use this, along with status updates on his recovery to negotiate a new contract with the Bears or other teams.  However, as with any player, injuries factor heavily into a team’s decision as to whether or not enter into a lengthy and lucrative deal.

 

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