Category Archives: Clarkgriffithblog.com

Articles on sports, politics and law issues.

Questions About the NFL Concussion Settlement

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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.

Waiver Basics (Updated)

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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.

420,000

New York Yankees and the Wild Card

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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.

Review & Outlook: The Die Harder States – WSJ.com

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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.
http://online.wsj.com/article/SB10001424127887323639704579013040148683248.html?mod=WSJ_Opinion_LEADTop

August 17, A Review

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I was thinking about the date today and that it means there are two weeks of August left, but that only two weeks of August and then a serious month, September, arrives, when the NFL starts and MLB finishes the regular season.  As the Vikings have lost two pre-season games, I will join my fellow fans by ignoring that fact. Denial is big around here.

The Twins have been playing well since the All-Star Game, but are still well out of the race. However, the Division is competitive, if having Kansas City 6.5 games out in third, makes it competitive. The Royals won a double header in Detroit yesterday with pitching, and that is how to beat the Tigers. Kansas City Royals Emerge was posted on June 18 and discusses how this team is rapidly learning how to win. I think it is good enough now to beat the Tigers and that will be the best baseball story of the season. That is, unless you look at the Dodgers, who were in last place in June and have won 41 of 49 games since.  This is the triumph of baseball culture as this team played horribly, but the long season allows for a rebound and what a rebound it has been!

I mentioned the difference between baseball and the games that watch a clock in MLB, Where You Have to Give the Other Guy a Chance that quotes Earl Weaver.

This is the year that I became fixated with the Miami Marlins. Yes, the team that is 28 games behind the Braves. I have watched it play close games and lose and it is now playing close games and winning its share. When young, poorly performing teams show a habit of tenacity and relentless pursuit of wins, it often becomes a habit of winning. Not this year or maybe next, but keep your eyes on these players in Miami. This style of play indicates good management at all levels and that augurs well for the future.

Remember that there are two weeks left of August, but then it is September and it becomes serious. Stay tuned.

Human Growth Hormone, Testosterone, Biogenesis and the MLB Supplement Game

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MLB is trying very hard to rid itself of performance enhancing drugs. It has banned a long list of steroids and other products. Recently, Commissioner Selig has suspended 13 players for between 50 games to 211 games for Alex Rodriguez, the Yankees third baseman. These suspensions were based on evidence of drug use obtained from the records of Biogenesis, a Miami Youth Clinic.

Last night at dinner with my friend, Jeff Husband, I decided to get the story from him. Jeff is a noted orthopedic surgeon at Tria and one of the leading hand surgeons in the country. (I learned that from another friend who told me she had been operated on by the “leading hand surgeon, Jeff Husband”.) I asked Jeff just what it was that Biogenesis was giving these players. He then explained the Human Growth Hormone (hGH) and testosterone therapies that Biogenesis offered. He said this sort of therapy was common.  For example, hGH had legitimate uses but he was not sure of the beneficial effect in athletics. For a description, look here.

For testoterone, again the benefits are increased strength, lean body mass, and endurance, but the potential side effects, he mentioned many, were very dangerous. For a description look here. However, it seems that players are very eager to take these supplements to enhance performance, and they think it works. What is it that the players seek that causes them to risk life, health and their careers by using these products?

The simple answer is “Youth.” We all think of that and recall some point in our lives that we would like to return to, but most of us recognize that there are benefits to maturity, as well, and we bask in those benefits. For a baseball player, that point in time is when they were 27 and they were at the peak of their perfomance. If they can maintain that level for just a few years, they will have signed a multi-year, mega-million dollar contract, and can then stop using. It is a very enticing prospect and one that is hard, if not impossible, to resist.

Jeff and I are not immune to that prospect, and, some years ago, we started using a product called Protandim. My introduction to Protandim occured while lawyering a stock trade for one of the inventors of the product.  I found it to be beneficial. Then the stock deal tanked and I ended up defending a client in a suit brought by the inventor. Now Protandim was supposed to be a magical combination of herbs and spices, that working synergistically, cured all ills, The formula was secret as to the ratio of the various ingredients, but they were listed on the package.

During the pre-trial discovery process, I deposed the inventor and came away with the impression that there was no way this fellow was ever going to invent anything of scientific merit. I then looked at the product and investigated the ingredients, mainly Turmeric, see here . I found that the beneficial effect of the product was due almost entirely to the large amount of Turmeric, an Indian spice in the Ayurvedic tradition, that it contained. I now know others who have discovered Turmeric.

The point of this story is to point out that the search for youth is not just for athletes, but for all of us. Protandim is sold in a multi-level distribution program that is very popular.

A quick search of the web disclosed a multitude of such products, each offering the benefits that the baseball players were seeking from hGH and testosterone at clinics like Biogenesis. The search will continue as it always has, I only hope for good outcomes and the avoidance of the dangers of overuse, which are ever present. Sports must maintain its vigil, abusers suspended and others educated. I hope for sucess in this area soon.

Top 40 baseball rule myths

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Top 40 baseball rule myths.

MLB, Alex Rodriguez, and the Reason Rules Are Important

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Sports leagues, like MLB and the NFL, are run according to rules that create the values they sell. This is the essential element in their operation and one that must be protected with vigor. Why is this? Some ask why the use of drugs is a problem anyway. The analysis of this issue starts with an examination of what is the product sold by these leagues.

The basic element of the product is a game played according to a set of rules. The value of a game is based, first, on the league it is being played in. This is the trademark value of the league. All fans recognize that the price, hence value, of their ticket, starts with the league. A NFL ticket is worth more than a high school ticket. Second, the value is based on the quality of the play, the skills of the players and the rules that control the operation of the league and the play of the game. These rules, roster limits, player eligibilty, selection (drafts etc.), transfer and playing rules are all aimed at creating a system where there is competitive balance among the teams. Success is based on the skills of the executives who implement the rules and select the right players, but the rules also limit their ability to dominate by being too successful. Third, the reason these rules, and rules banning performance enhancing drugs are part of this, are important in that it is through these rules, competitive balance is assured so there is value to the game, and this value is based on the fact that the outcome of the game, even one between the Houston Astros and Boston Red Sox, is in doubt.

The outcome’s being in doubt is what separates sports from other forms of entertainment, like theater. There is no doubt that King Lear will die at the end, and fans do not attend Lear in the tens of thousands as they do in sports. (If Lear, from time to time, rallied to recover his throne, attendance may be improved!)

This gets us to MLB’s suspension of Alex Rodriguez and a dozen other players for the illegal use of performance enhancing drugs. The outcome of the game must be based on a player’s natural skills and not the skils of some chemist. By imposing these rules by suspendiing players, MLB is protecting the sine qua non of its existence, competitive balance that is undertood to be fairly achieved.

The imposition of these penalties is important and the only question is whether they are severe enough to actually deter the illegal action.
If this were the Olympics, the players would be automatically suspended for two years for the first offense. In baseball, the first suspension is for 1/3 of the season, the second for 5/8th of a season. Only a third positive test results in life time suspension. In the era of multi-year contracts, anything less than a lifetime ban is meaningless.

Baseball has a rule calling for a lifetime ban for gambling, Pete Rose, for example, and no one gambles in baseball. The game’s integrity is protected by that rule. Maybe it is time to do the same for drug cheaters.  We are dealing with the value of a game and that is all they have, so it is time to impose the rule that wipes out the multi-year contract. That will be effective in ending this curse.

MLB, New York Yankees, and the Alex Rodriguez Drama

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The baseball world is waiting for the long anticipated release of the names and penalties to be assessed against MLB players who obtained performance enhancing drugs from the Miami clinic, Biogenesis. None of the players failed drug tests, as all charges are based on non-analytical positive evidence such as oral testimony, emails and records obtained from Biogenesis.

Alex Rodriguez is the most well known of the players, but Jhonny Peralta, the Tigers shortstop, is thought to be one of them and the Tigers have already traded for a replacement, but back to ARod.  This is the most interesting case as he admitted steroid use while with Texas and has been accused of such behavior before the Genesis deal. He is said to have recruited players for Biogenesis, which is another crime, as they say.

ARod could face a lifetime suspension, so he is trying to negotiate with MLB for a lesser sentence. It was said today, that MLB is not negotiating so much with ARod as they are negotiating with the Yankees. This raises interesting issues that I find troubling. The evidence is in and MLB has it. It must apply the rules to all players and do so without inquiring of the player’s team as to what it wants to achieve. For example, say the Yankees say “we want him for the rest of this year, but want his remaining $100,000,000 contract blocked for life.”  That would mean that MLB would suspend     Arod for life, but, because he can appeal his suspension, he could play next week.  Similarly, other teams may want the player, Peralta, for example, could appeal a suspension and finish the season, or accept a fifty game suspension and be eligible for post season. The timing of this is not by chance!

If Arbitrator Horowitz upholds a life time suspension, both the Yankees and MLB win. If he limits the suspension to a year, for example, ARod wins, and MLB’s drug testing program is impeded as to future suspensions. In this decision, the Arbitrator will look at other lifetime bans, Pete Rose and Shoeless Joe Jackson, for gambling, for example. I believe that gambling is an attack on the underlying integrity of the game and is the most serious offense against the game as that directly effects the outcome of the game, and has a negative impact on fans who want to trust the outcome is legitimate. This is not to diminish the PED effect, but the Arbitrator will also look to other drug cases, Steve Howe for example, where a lifetime ban was overturned by Arbitrator Nicolau, because MLB did not offer drug treatment. (Howe’s drugs of choice were primarily cocaine and marijuana.)

There is another factor in the ARod case. The Commissioner has power to by-pass the appeals process and suspend for life “to protect the integrity of the game.” Here the risk is that a court (or an arbitrator, I will have to check the proceedural rules) will find the penalty excessive and over turn it.
Furthermore, and this may be the most important factor, is that taking away a player’s appeal rights that exist in the basic union contract is to invite war with the Player’s Association which had been compliant with the suspensions as long as suspension appeal rights were not limited. This could be very damaging.

All in all, this will be a very interesting week. ARod will appeal if suspended and play for the Yankees this week or he may negotiate a deal and accept a lesser penalty. That case will then control drug penalty cases in the future. The Commissioner will be very careful as well, as his power is at risk. Maybe it is better to save that for gambling cases in the future.

MLB is now taking a strong stance against drug use, and, as Henry Aaron is thinking, it is about time.

Alex Rodriguez, Biogenesis and MLB

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Alex Rodriguez is a third baseman, from time to time, for the New York Yankees.  He was named in Biogenesis documents and other testimony as a user of performance enhancing drugs, one of these players, Ryan Braun, of the Milwaukee Brewers, was suspended for the rest of the 2013 season on a plea bargain last week.

The case against Rodriiguez is based on “non-analytical positive” evidence. This is evidence other than a positive drug test and includes oral testimony, documents, emails and the like. This sort of evidence was used by the United States Antidoping Agency in its succesful case against Lance Armstrong and is commonly used in Olympic and other doping cases.

What is significant here is MLB’s strong stance against doping. Over the long period that steroids have been present in the game, MLB has taken a soft position and the union has presented obstacles to a real doping policy. In fact, the union took the position that “steroids are no more damaging to a player than smoking.”  This lead to the soft position on Barry Bonds following the BALCO scandal.

Now, however, MLB is taking the hard position and is considering a lifetime ban on Rodriguez based on his admitted PED use in the past that constitutes the three uses that allows such a ban. Rodriguez will appeal such a ban to Arbitrator Horowitz. Commissioner Bud Selig has said he may invoke special powers to by-pass this step under his “integrity of the game” authority.  This marks a signiificant escalation in MLB’s scrutiny of doping and is allowed by public comments by players that they want the game cleaned up. The player sentiment is what gives MLB management the sense that this sort of action will be effective, and causes the union to be realistic.

This is all very good, but we can all lament the fact that it has taken so long. Baseball’s most cherished records for single season and career homeruns have been lost to a serial doper. At least it is taking the proper action now.