Law360 (June 19, 2018, 10:24 PM EDT) — Former NFL running back Reggie Bush’s $12.5 million award for a knee injury suffered at the Los Angeles Rams’ former stadium in St. Louis could embolden players to bring more personal injury suits against teams, a tide the league will attempt to stem in the upcoming round of labor negotiations.

While injuries are common in football, and professional sports in general, players are generally precluded from bringing personal injury lawsuits in court as such claims are usually covered by their league’s collective bargaining agreement, meaning they have to resort to the arbitration process or remedy mechanisms provided in that agreement.

Experts say Bush’s recent success in not only overcoming that hurdle but winning a multimillion-dollar jury award could spur other athlete personal injury suits with creative claims that test the bounds of what is and is not covered by the relevant CBA.

A state court jury in Missouri awarded Bush $12.45 million in damages for the injury, including $4.95 million in compensatory damages and a whopping $7.5 million in punitive damages, according to the St. Louis Post-Dispatch. Though the Post-Dispatch reported that half the punitive damages will go to a tort victims fund under Missouri law, the overall award is eyebrow-raising both in its size and in that it is relatively unique for such an injury to a professional athlete sustained during a game.

Bush, while playing for the San Francisco 49ers, had just completed a punt return in the first quarter of a Nov. 1 game and was slowing down out-of-bounds when he slipped and fell on what he described in his complaint as a “concrete ring of death” that surrounded the artificial playing surface of the Edward Jones Dome in St. Louis, which has since been renamed The Dome at America’s Center following the Rams’ relocation to Los Angeles.

“I think anytime a player, someone like Reggie Bush, gets an award like that it is going to make other players, and other lawyers frankly, think about it and bring claims,” said J. Philip Calabrese, a product liability and class action defense litigator with Porter Wright Morris & Arthur LLP.

But if slipping on concrete during what is arguably the course of play, at least the tail end of it, falls outside the CBA, it raises the potential that many other types of injuries suffered by professional athletes could similarly proceed in court as tort suits, opening the possibility of huge damage awards.

“What do you do if you are in the back of the end zone and you catch a ball and fall into a group of guys with cameras who are back there? Or we just watched the NBA Finals. Everybody is right up there and you see players crash into the first three rows of fans all the time. What if you sustain an injury?” Calabrese said.

“Ultimately, at some point, I think it is something for the owners and the players to work out in a collective bargaining agreement,” he said. “Absent an agreement on that you are going to see people have to go through that case-by-case line drawing.”

Though the Rams had asked a federal court to send Bush’s lawsuit to arbitration under the CBA, Bush and his attorneys successfully argued that the injury, despite occurring during the game and at the end of a play, fell outside the scope of federal labor law and the health and safety provisions of the CBA.

In June 2016, a Missouri federal judge found the negligence and premises liability claims are rooted in common law duties of care to invitees, not the CBA, and sent the case back to state court.

“This one was kind of a hybrid because he was off the field but he was in the course of a play when he was injured,” said Derek H. Potts, a litigator who handles sports injury cases and is managing partner of Potts Law Firm. “But it is part of a trend of litigation against teams for injuries that are occurring during the sport.”

It is something to watch, as experts say there is a growing trend of college and professional athletes filing lawsuits of all types against teams, leagues and coaches as courts are seemingly more willing to get involved in the inner workings of sports traditionally governed by collective bargaining and other internal rules.

And other personal injury suits that may have been easily deflected by courts in the past are finding their way through.

“This is one more avenue for players to become plaintiffs and people with similar injuries where they can point to something that is unique about the field, something that is not just simply playing but where the uniqueness of the field, or the court, or the ice, that caused injury. It is not just going to be limited to football,” said Jenner & Block LLP partner Michael J. Nelson, a sports and commercial litigator.

For example, former NFL linebacker DeMeco Ryans is currently pursuing a lawsuit that involves an injury that actually occurred in the middle of the field during a play. Ryans says he tore his Achilles tendon after making an interception because he landed on a seam in the removable natural grass surface that was in place at NRG Stadium in Houston. The surface, which has since been replaced with a permanent turf surface, was comprised of large tiles of natural grass that would be stitched together.

As with Bush’s case, a federal judge sent the case back to state court where it is still pending, finding that the case did not turn on an interpretation of the contract but on the conduct of the Houston Texans in managing the stadium.

Nelson said the results in Bush’s and Ryans’ suits could cause the NFL owners try to expand the scope of the CBA to further prevent these sorts of lawsuits.

“I am not sure they will be successful,” he said. “But given now that you have had two lawsuits, I suspect they will want to nip it in the bud.”

By: Zachary Zagger, Law 360

–Additional reporting by Dave Simpson, Dorothy Atkins, and Cara Salvatore. Editing by Pamela Wilkinson and Catherine Sum.


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