The Aaron Hernandez trial, which began Thursday and will determine whether he will spend the rest of his life in prison, is not the only dramatic and important legal case involving sports that will be decided in the coming weeks.
On the 15th floor of the U.S. courthouse in Minneapolis, a 68-year-old judge is pondering a ruling that could lead to the greatest victory ever for NFL players in their long history of battles with league owners. The ruling from Chief U.S. District Judge Michael Davis could come in a few days or a few weeks, and it will determine whether the players and their union will be permitted to pursue a collusion claim that could net the players $3 billion.
In a second NFL case, a federal judge in Philadelphia will decide whether the class-action concussion settlement is fair to players even though it provides no benefits for those suffering from chronic traumatic encephalopathy, the most common concussion injury.
And the National Labor Relations Board is due to decide whether college football players are employees who are entitled to form a union.
It's not inconceivable that all of these rulings could come before the Hernandez trial ends.
The collusion case
The collusion dispute in the NFL goes back to the 2010 season. The year marked the last of collective bargaining agreement between the players and the owners, and it was supposed to be a year with no salary cap, a potential bonanza for players. The players say they were surprised to learn two years later, after they had agreed to a new CBA, that all but four teams had observed a cap that had been "fraudulently concealed."
The players had powerful evidence of a collusion conspiracy in a series of statements from John Mara of the New York Giants, who complained that the rival Dallas Cowboys spent $53 million "in violation of the spirit of the salary cap" that was not supposed to exist. "They attempted to take advantage of a one-year loophole, and, quite frankly, I think they're lucky they didn't lose draft picks," said Mara, team president.
George McCaskey of the Chicago Bears, another third-generation owner, added fuel to the fire when he observed to the Chicago Tribune: "It's very important that everybody plays by the same set of rules. If they tell people what the rules are, they all have to play by them."
The problem for the players, though, is that in the 2011 CBA, they signed a binding legal agreement to dismiss "all claims, known and unknown, whether pending or not ... including asserted collusion" during the 2010 uncapped season.
The stipulation was enough for U.S. District Judge David Doty to reject the players' claim of fraud and to dismiss the players' collusion claim in December 2012. The players, in their appeal to the U.S. Court of Appeals for the 8th Circuit, managed to convince three judges that they were entitled to "an opportunity to meet" the "heavy burden" of proving that, because of the secret salary cap, the stipulation was "fraudulently" obtained.
Davis, who replaced Doty after the high court reversal, will either grant the players' their demand for sworn interrogations of commissioner Roger Goodell, Mara, Patriots owner Robert Kraft, Redskins owner Dan Snyder, and other NFL executives, or he will terminate the players' quest.
If Davis rules for the players, it will be a major victory and could lead an award of as much as $3 billion -- the estimated $1 billion in salary lost under the secret cap would be tripled under the terms of the CBA.
The concussion settlement
While NFL players under contract in 2010 await the decision in the collusion case, thousands of older players await a decision on the proposed settlement of their concussion litigation. U.S. District Court Judge Anita Brody will decide whether to approve the settlement proposed by the league and the lawyers (class counsel) who negotiated the settlement for the players.
It's been more than two months since Brody held the final settlement hearing, and the class counsel and the players who have objected to the deal have continued to file briefs and written evidence for her to review. Both groups claim that court decisions made since the hearing support their conflicting positions.
The class counselors argue that the settlement is a fair compromise that recognizes the uncertainties the players would face if they pushed their lawsuits to trial.
A decision issued in San Francisco in December may be a factor that Brody considers as she makes her decision: A federal judge dismissed Hall of Famer Richard Dent's claim that the NFL had failed properly to protect players from the overuse of pain medication, ruling that any medical dispute was pre-empted by the CBA. It's exactly what the class counselors were considering when they began the settlement negotiations.
Even more disturbing for players who wish to pursue their lawsuits outside of the settlement was a statement in the Dent ruling from U.S. District Judge William Alsup that "there is simply no [rule of law] that has imposed upon a sports league a ... duty to police the health-and-safety concerns of players by the clubs."
The biggest concern among players who have objected to the settlement is the certainty that many will develop mood and behavior disorders as the first steps toward CTE, a condition that even the settlement lawyers agreed in a website posting was "the most serious and harmful disease that results from NFL an concussions." After the settlement was reached and didn't include compensation for early CTE, the "most serious and harmful" description was removed from the settlement attorneys' website.
In a powerful brief filed after Brody's fairness hearing, the objecting players, led by attorney Steven Molo, included sworn statements from nine world-class neurologists and neuropsychologists who confirm that CTE is a disease that is produced by repetitive concussions, an assertion that the settlement lawyers refused to accept after they made their agreement with the NFL.
The objecting players and their lawyers even checked up on the opinions of the experts hired by the settlement lawyers. One of them, Kristine Yaffe of University of California-San Francisco, in a sworn statement for the settlement lawyers said that "it is not yet possible to state with any certainty whether CTE causes any mood or behavior symptoms."
In a recently filed brief, though, Molo and the objecting players explained that in one of her previous peer-reviewed articles, Yaffe said the opposite: "CTE is thought to result from repeated multiple head injuries or sub-clinical impacts to the head [and] manifests initially with emotional and behavioral problems." The Yaffe statement in the article is exactly what the objecting players say and exactly what the settlement lawyers do not want to hear.
Just as the class counsel has in pointing to the Dent case decision as proof their arguments are correct, the objecting players offer a recent case as a guide for Brody's decision -- a ruling by a federal judge in Chicago that a $70 million settlement for college athletes who suffered concussions is neither fair nor adequate.
U.S. District Judge John Lee in December wrote, in his ruling, much of what the objecting NFL players would like to see in Brody's decision. Most importantly, Lee recognized CTE as a concussion-related disease that caused early mood and behavior problems and faulted the settlement for failing to account for these injuries. He also found that the agreement failed to consider certain athletes in the same way the NFL fails to consider NFL Europe veterans and other groups of NFL players.
The college player-union case
The third major sports legal decision that is likely during the Hernandez trial will be a determination by the National Labor Relations Board in Washington about whether college athletes are employees of the school who can form a union and bargain for benefits.
The five board members are reviewing a ruling made by their regional director in Chicago that Northwestern football players are employees who work long hours throughout the year under close supervision of coaches and producing enormous revenues for the university. The process began a year ago, when star quarterback Kain Colter called head coach Pat Fitzgerald to tell him that 80 of 85 scholarship players had signed cards asking the NLRB for the authority to form a union.
The NLRB's consideration of unions for college athletes has provoked an enormous response from all 17 private universities that would be affected by the ruling (including a brief from Baylor president Kenneth Starr), from political leaders, from the Big Ten conference, and from the NCAA. Nearly two dozen briefs have been filed by these interested groups in addition extensive arguments from the players and Northwestern.
In its decision, the board must answer some questions whose answers could change the topography of college sports:
• Does football enhance education or interfere with education?
• Are football players employees or students?
• Is a scholarship a grant for payment of specific educational expenses or payment for practices and performances as a football player?
• Can the rules that govern the adversarial relationship between management and labor be applied to an academic world that is supposed to nurture excellence?
• Do football players have a right to bargain over their practices and study conditions even though it is philosophically disagreeable to the university and is adverse to the economic interests of the university?
• Should the board decline to rule in the case as it did in similar requests for union representation in the world of horse racing and dog racing?
The attorneys for the players and the NCAA summarized their positions eloquently:
Players: "Collective bargaining by college players does not threaten the groves of academe. Classes and research will remain unchanged. What will change is what must change: the system under which football businesses operated by universities like Northwestern make multimillion-dollar profits from the work of players who are not allowed to bargain over protections against head trauma, or improvements in insurance and other benefits, or anything else."
NCAA: "When parents take the long, quiet ride home after saying goodbye the first semester, they want to feel confident that the college or university is working diligently to create the most rewarding educational experience possible. The feeling is as true for the parents of a student-athlete as parents of any other student. University leaders have determined that converting student-athletes into paid professionals -- injecting a different structure and a different set of motivations for attending college -- would destroy their ability to provide a rewarding educational experience for these students and their classmates."
It's going to be an exciting couple of months in the sports industry. As the Hernandez trial continues and a jury reviews the evidence and decides the fate of a young man who could have been one of the greats, a couple of federal judges and a labor board will review the evidence before them and make their own dramatic decisions. Are NFL players entitled to $3 billion in collusion damages? Is the concussion settlement fair to thousands of the league's retired players? Is there role for unions in college sports?