Questions About the NFL Concussion Settlement

The NFL anounced a settlement with the 4,500 players who had sued over damages from head trauma. The settlement amount is $765,000,000, or $170,000 per player. That is the simple arithmetic of the settlement, but there is other language that raises more questions. For example, there is a individual cap of $5,000,000 per Alzheimers case, $4,000,000 for each chronic traumatic encephalopathy case, and $3,000,000 for each case of dementia.  This means that for one case of Alzheimers, soaks up the pool amount for 29 players. If there are 5% Alzheimers cases out of the 4,500 players, or 225 such cases, and each case soaks up only 20% of the cap, or $1,000,000 dollars, a reasonable number, I am told by those who know about this stuff, $225,000,000 of the settlement pool is gone with only 225 players paid. The same can be said for chronic traumatic encephalopathy, say 1% of the players are diagnosed and treated for that malady, or 43 players, $176,000,000 is gone. For dementia, and I have seen players with dementia, so that can’t be uncommon. let’s be conservative and say another 1% or 42 have that diagnosis, another $126,000,000 is gone. By simply estimating the number of players who contract the three named afflictions where damages are capped, $527,000,000 of the $765,000,000 pool is used up by 310 players.

This means that the pool is to be managed by a bank and interest earned. At 3.5% interest, the pool will double in 20 years, but there will be deductions to compensate injured players, so the pool will diminish. The NFL is very smart and has employed actuaries to estimate the incidence of the named maladies as well as the other injury and mental syndromes that may occur. They are betting on a lower incidence than the conservative estimate I made above. There is also the question of the claims processing system. Are claims simply paid on diagnosis, a pure liability system or can the NFL examine the player to determine the NFL’s percentage of fault compared to high school, college or non-sports related activites, or even past substance abuse? A hearing would determine the percentages that would then limit NFL liability. I don’t know what sort of methodology will be used, but given the numbers, some sort of limiting technique is implied by the settlement

This is the end of the case for 4,500 player/plaintiffs, but future plaintiffs may arise with the same symptoms. To avoid or, at least, limit these claims, the NFL will give each player a document indicating that playing football carries with it the risk of Alzheimers, chronic traumatic encephalopathy, and dementia, as well as other long term, debilitating conditions. This means that the players, having been warned, assume the risk of playing football and assumption of risk is a perfect defense in tort claims.

The concussion case settlement will pay injured players, but the NFL admits no fault. It does end a problematic class action lawsuit and subsequent remedial actions may prevent them in the future. Whatever you think, you have to admit the NFL is very good at handling its problems.

Google Play

On this Friday before Labor Day, I am finding that I am the only guy in the office. (There was one other fellow on the elevator, but he got off to a un-lighted hall way and is probably gone by now.) So the solution, after sending a text or two to see If I could find anyone, was to play with my smartphone.  I saw a notice to update Google Play Services, whatever that is. I tapped on update, and found the following  request for what Google Calls “App Permissions.”

Google Play Services need access to additional permissions (marked as NEW):

These “Additional Permissions are listed below.

System Tools

NEW; Write subscribed feeds

Draw over other apps, modify system settings, prevent phone from sleeping, toggle sync on and off.  Google has got to be kidding, right? 

Your Location

NEW: Approximate (network based) location, precise (GPS) location Why?

Hardware Controls

NEW, Take pictures and videos Of what, who, where? This is the old, “your phone is watching you gig.” Why would Google want to take videos with my phone? I don’t take videos with my phone!

Your Personal information

NEW: Read your social stream, write to your social stream.

Read your contacts You have already guessed that permission was not granted and this is the one that sealed that deawl- Write to My Social Stream! Who at Google would want to do that and what would they say?

There is the possibility that this is all innocuous stuff that is poorly written, but, nevertheless I just said “No” to Google and my phone still works fine.  

Waiver Basics (Updated)

UPDATE: Josh Willingham was claimed on waivers by the Baltimore Orioles. The Twins have 48 hours to make a deal, let Willingham go for the waiver price or withdraw the waiver request.UPDATE: The teams could not make a deal. Willingham remains a Twin, waiver request withdrawn.

This is the time of the season when teams try to make deals for players who have cleared waivers. This is a basic waiver primer for the sports fan.
Waivers are a mechanism used in MLB to control the movement of players, especialy late in the season. The process has teams request waivers, and there are three sorts, to see if other teams will pass on a waiver claim and they may be able to trade the player. There are trade waiver, for deals at this time, outright assignment waivers to move a player with three years experience to the minors, and unconditional release waivers to remove a player from the roster.

The purpose behind this process is an effort to improve competitive balance by giving teams with low winning percentages a first crack at acquiring a player for the $20,000 waiver price. It is beneficial to the league to have the poorer teams improve, so this is one of the ways that is done. The problem is that if a team gets a player on waivers, it also gets the contract, and many low ranked teams don’t want that burden.

A team that asks for trade waivers is often trying to move a player to a team it already has a deal with. However, life in the big leagues is always complicated. Say you have a deal with the second ranked team in a division for an outfielder. If you get waivers on that player, a deal can be made. However, the third ranking team, maybe one game behind, suspects this is the case, so it claims the player. Now, either that player goes to the third ranked team or the asking team withdraws its waiver request.  In this sort of deal, it is understood that the second place team will claim the player so a trade of a the player can occur within 48 hours.

Here in Minnesota, the rumor is that the Twins have waivers on Justin Morneau and Josh Willingham. I am sure deals are being discussed, but Morneau is a free agent, so an acquiring team must resign him to keep him. Willingham has a $7,000,000 contract for next year, and this may be the reason he cleared waivers. He is hitting. 217 today.  Similar scenarios are being played out everywhere in the Majors today. Remember, waiver claims are often made to block a player from going to a competitor, and teams claim on waivers so that can get the player by trade within the 48 hour window, or not claim so that a deal can be made based an the assignors having waivers, and teams withdraw waiver requests if the wrong team gets the player.  Is this clear, I thought so.

This information is intended to explain something about waivers, but also to show the complexity of deals at this time of the year.


Matt Harvey and the Ulnar Collateral Ligament

Major league pitchers are remarkable athletes who have the ability to throw a baseball at high velocity, often spinning it so it bends in its flight, with such accuracy that they could “drive a nail” with the pitch from a distance of 60’6″. In doing this, they are able to earn huge salaries for mutlitple years. Teams depend on the stars to provide stability by providing consistent performance. However, each pitcher has a constant fear that he will injure his arm. Where this can be an injury to almost any part of the arm, it is the ulnar collateral ligament here that causes the most trouble.

Yesterday, the New York Mets announced that its All-Star, Matt Harvey, has torn this ligament. Harvey, 9 wins and 5 losses, is leading the National League in strikeouts with 191 in 1781/3 innings pitched and is second with an earned run average of 2.27. He is a remarkable pitcher, who, at 24, could perform at this level for ten years or more. That is, if he over comes this injury.

The ulnar collateral ligament (UCL) is located on the medial or inside of the elbow. I has three parts that serve to keep the elbow, involing the Ulna and Radius of the upper arm and the Humerus of the lower arm, together. The UCL connects the Ulna to the Humerus and tries to keep the connection firm and tight. Where there is injury to the UCL, a valgus force occurs and that means the connection is not tight and the elbow bows slightly.

What this means for a pitcher is that the last two actions of the pitching motion, elbow flex and then wrist flex in a curve ball, is disrupted and control and velocity is impaired. That is why Mets’ Manage, Terry Collins, mentioned that Harvey’s pitches were “not as crisp” as they had been. Some pitchers can pitch with this problem, but normally a power pitcher like Harvey (see: strikeouts, above) can not do so. I have seen power pitchers try to become breaking ball, change-up pitches, but rarely with success.

The cure for UCL injury is what is called Tommy John surgery, named for the Dodger lefthander who first underwent the procedure. A video of the precedure is here. As you can see, this is involved surgery with holes drilled into bones and tendons harvested from other parts of the body. However, there is a high degree of success for those pitchers who have undergone this procedure. Tommy John, Chris Carpenter and John Smoltz come to mind, and some have suggested that this may become mandatory surgery for young pitchers because the reconstructed elbow may be more stable than a normal elbow. However there is a better way and that is by compelling pitchers to pursue a rigorous training program that strengthens the ligaments.
Briefly, they should follow the UCL surgery, post-op proceedures, as religiously as someone who is recovering from the surgery does. Benefits are well worth the effort.

Matt Harvey is the latest of the power pitchers to damage his UCL. This may cost him a year of rehabilitation, but he will be back. Tommy John procedures are refined now and are more effective. The only question I have is why this sudden rash of such injuries. I was told once that a pitchers arm should be “loosey goosey,” that is, it should look like a “woman’s” arm (sorry, that is an old reference, ladies). Now, players are ripped and maybe the muscles are stronger than the ligaments and that power causes the tears. Once, I heard a pitcher’s (Ralph Lumenti) arm break while throwing a fastball. Clearly, the forces are there to do the damage, so strength in the elbow should me emphasized. But this is not a death sentence for Matt Harvey, he will be back, and, I might add, will be well paid during his rehab.

Ignominy and the MLB Cellar Dweller

As August dwindles and the last month of the MLB season promises an exciting race to the pennant or wild card birth for the playoffs, another race is underway. This is the effort by several teams to avoid the ignominy of finishing last, or in the cellar, as it is called. For some, this motivation is as strong as the passion to win the pennant.

In the AL Central, the suddenly resurgent White Sox, eight wins in the last ten recently, are now pressing the Twins and are three games behind them. The White Sox have been miserable this year, but they have been playing better. However, the schedule maker has them playing against contenders the rest of the way.  Where they play Houston this week, and Houston is trying to avoid setting a record for futility, they then play Boston, New York, Baltimore, Detroit, Cleveland, Minnesota and finish against Kansas City. The three with Minnesota will be critical. The edge Chicago may have is that these teams will be tense and the Sox may be able to pick them off. That, after all, is the role of the spoiler, that team with no chance of winning a pennant, that can have an impact by beating those who do.   

The Twins have a slight schedule advantage by playing Toronto three times, but play contenders most of the time. The last eleven are with Oakland, Detroit and Cleveland, all of these teams need to win at the end. 

In the NL Central, Milwaukee and the Cubs are two games apart, with the Cubs in the cellar. Both teams play contenders, but the Cubs get the Marlins for three and the Brewers finish with the Mets. The critical games are the seven they play against each other. To not finish behind the Cubs should be sufficient incentive motivation to keep the Brewers motivated.

The most interesting race to avoid ignominy is in the NL West, Colorado, 61-71, San Diego, 59-71, and San Francisco, 58-72 are within in two games of each other with San Francisco last.   

San Francisco will play the other members of this trio twelve times in the remaining thirty-two, San Diego plays Colorado and SF nine times, but gets the floundering Phillies three times, and Colorado plays SF and SD nine times, but finish against Boston and the Dodgers. This is a race to watch on a daily basis.

Now that you see the match ups, remember that this is late season baseball and top teams are often “playing with their hands around their throats,”  Hands on Throat Reference and those trying to avoid the ignominy of the cellar can determine the actual pennant and live vicariously during the Winter knowing they were not the worst and helped determine who was the best.  

MLB Pennant Race on August 25

I wrote on August 12 about the Wild Card race here and added the Yankees to the mix recently here. The Yankees have the benefit of the right schedule but they need to win half the time versus Tampa Bay, Boston and Baltimore. So far, they have lost two to Tampa Bay to move 4.5 games behind in the Wild Card race. They must win against the top teams to allow the schedule to work for them.

The most disapointing feature of the race is the Kansas City Royals seven game losing streak. I am a Royals rooter because I like seeing teams improve to the point they can contend. There are three steps to this process, first you learn to play, then you learn to win, finally you learn to win when you have to. The Royals have clearly not learned the last step. Maybe next year.

As an example of this process, the Miami Marlins, who have been playing better, lost a game 3-2 to Colorado because of the failure to cut off a throw from the outfield that allowed Michael Cuddyer to advance to second after a game tying single. He scored the winning run moments later on a double. The Marlins learned the second lesson there as this is the sort of play a winning team makes.

These are the days where winning Fifth Games ( Fifth Game Theory) is all important. Last night, Texas lost 3-2 to the White Sox, who scored in the bottom of the ninth. Oakland won in Baltimore with a run in the top of the ninth. These are examples of Fifth Games that must be won by pennant contenders.

As I look at box scores every day, I look first at the line score to see who won in the last three innings. This is because a baseball game is really two games in one. The first game is a six inning game that is played to gain an advantage in the three inning game. This short game is played by specialists, relief pitchers, closers, pinch hitters, defensive replacements and the like. To win pennants, teams have to have competence in the “specialist” category. Take a look at the line score to gain an appreciation of the nature of the game. As Yogi Berra said,”It ain’t over until it is over,” and that means after the last out.

New York Yankees and the Wild Card

I just noted  that the NY Yankees are 3.5 games behind in the Wild Card race in the American League.  This team has been playing better since the Alpha player, Alex Rodriguez,  has returned to the pack. 

The schedule works for the Yankees in the final 35 games. They play twenty games against the teams ahead of them, Boston, Tampa Bay and Baltimore and fifteen games against teams that are in last place in their respective divisions. These teams are San Francisco, Chicago White Sox, Toronto and Houston. Boston has six such games, Tampa Bay three, and Baltimore six  games. If the Yankees win half the games against the better teams and dominate the bottom teams, a very likely outcome, they will be the second wild card, at least. NY is 12-1 against Toronto this year, for example.

This will be a shocking outcome to the Alex Rodriguez drama, as it will be the his return that made the difference. If Jeter can also play, watch out.

The Truth About MLB Free Agency

My friend, Murray Chass, ( has posted an article in the New York Times that properly describes the history of MLB free agency. I was involved in this matter as well. The historical error often cited in this matter is that the Flood v. Kuhn Supreme Court case was important, and, as Flood lost the case, it was important only in that it gave MLB a false sense of security in the court process. The Jim “Catfish Hunter” case is also erroneously cited, but that was a breach of contract case and had nothing to do with labor law.

The error in the Messersmith/McNally case was that MLB did not understand the role of the arbitrator, Peter Seitz, and the deference shown arbitrator decisions by federal courts. Baseball always thought it could have a decision overturned if it was adverse to them. MLB was wrong.

Arbitration is a contractual relationship between the parties where they agree that a conflict will be decided by an arbitrator according to rules that are, in the case of labor matters, collectively bargained. This agreement controls the outcome and it can be reversed only if the arbitrator can be shown to have acted badly by not disclosing conflicts of interest, bias, or a flagrant disregard of the law. The test is whether “the decision draws its essence from the contract.” Not a hard test, as history has proven.

None of these factors were present in the Messersmith/McNally case and Peter Seitz’s decision that created free agency was upheld by the federal court of appeals sitting in Kansas CIty. The rest is history, but MLB’s failure to understand labor law would again bite it when it failed to properly declare impasse in 1994, the year of no World Series, that lead to then Judge Sonya Sotomayor’s decision against it in a labor case in March 1995.

We are now looking at the arbitration of the Alex Rodriguez 211 game suspension and will find out if anything has been learned.

Review & Outlook: The Die Harder States –

This is an important story about tax policy in Minnesota and other states that is directly damaging to the states. It deals with estate and gift taxation that causes people with resources to leave the states mentioned.