Ben Utecht’s Arbitration Hearing And Its Impact On NFL Concussion Litigation

By:  Jared Berman, Ruling Sports Intern (Twitter:  @RealSportsNLaw)

Last month, I interviewed attorney Paul Anderson about the lawsuit against the NFL by players who suffered concussions on the field. However, one issue which did not come up, was the liability of individual NFL franchises to players for concussions. As time has told, however, it looks as if they are under fire as well.

Ben Utecht, a former tight end of the Cincinnati Bengals, recently won an arbitration hearing against the Bengals for his 2009 salary after suffering a concussion during training camp and later being released. The team released a statement on ESPN claiming, “This is simply a CBA and contract case.” Is it though? The NFL is pushing the thought that these concussion lawsuits come down to the boilerplate contracts, likely because it takes the emotion out of the picture. However, Utecht’s attorney, Tim English, states that the arbitrator’s recent decision in his case, “upholds our players’ rights to continued salary payments while injured.” Thus, while teams and the NFL are focusing in a sense upon taking emotion out of the issue, lawyers like English are focusing on a different issue:  workman’s compensation.

Workman’s compensation is a type of insurance policy providing wage replacement and medical benefits to employees injured in the course of employment. In determining whether an employee can receive workman’s compensation benefits, issues, such as, whether the employee was making a frolic or detour when the injury occurred, are considered.  Essentially, questions like these, beg the question of whether the employee was actually working while injured, as opposed to taking a lunch break, or just playing hooky.  Utilizing these questions when looking at the NFL concussion litigation, it is clear that the players’ concussions all occurred during the course of their NFL employment–whether it was during practice, the off-season, or an actual game. Thus, one would think these types of cases are a shoe-in for the injured party.

While on their face, these cases appear to be easy to win by players, the NFL is brutal. In its approach to concussion litigation, one could argue that the NFL is not concerned with the players’ right to a trial.  Instead, one could assert that the NFL’s litigation approach is focused on its own pockets.  This is demonstrated by the league and its teams’ push for arbitration and Utecht’s four-year wait to receive his salary.

After the arbitrator found for Utecht, the NFL neither apologized nor admitting its wrongdoing, but rather, praised the process of arbitration.  Remember, that arbitration is what the NFL is pushing for in the 4,000 person-plaintiff case against the NFL, while the players’ want their day in court.  In fact, NFL spokesman Greg Aiello told ProFootballTalk.com that the Utecht decision is proof that arbitration works.

Luckily, there is a silver lining in this story. First, the NFL is being called out for not financially supporting its injured players. Second, the rulings are favoring the players. And finally, Utecht is now a “professional” singer and is releasing a book and album at the end of the year.

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