Mark S. Granger
GRANGER LEGAL CONSULTING
Mark S. Granger

  Mark S. Granger
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Home Why the Adirondacks? SportsLaw Journals Articles Important Dates

Granger SportsLaw Journals > April 2016 Edition


BRADY 4 GAME SUSPENSION REINSTATED BY THE SECOND CIRCUIT
Patriots STAR QB Benched For Start of Season in 2016

This past week the US Court of Appeals for the Second Circuit reversed the District Court trial judge and found for the NFL. They ruled that Brady's 4 game suspension was within the Commissioners powers. It further held that those powers were not used arbitrarily. "Deflategate" has been revived. There does not seem to be an additional route for appeal. NFL Commissioner Roger Goodell heralds this as a re-affirmation of policies and powers that have been in place for years. We will see how this all shakes out. More next month.

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NFL CONCUSSION DEAL AFFIRMED BY 3RD CIRCUIT

The Third Circuit Court of Appeals this week up held thee settlement of the NFL player suit. The Court turned aside objections by non-settling players to the uncapped settlement.

Under the concussion settlement, former players diagnosed with Parkinson's disease or Alzheimer's disease could receive as much as $3.5 million each, while players with amyotrophic lateral sclerosis could receive as much as $5 million each. However, while former players who already have died of CTE will receive $4 million each, the deal excludes those who pass away after a cutoff date, leaving those with no other qualifying conditions nothing.

While admitting the settlement was not perfect, the Third Circuit said:

"[W]e do not doubt that objectors are well-intentioned in making thoughtful arguments against certification of the class and approval of this settlement," the Third Circuit opinion said. "They aim to ensure that the claims of retired players are not given up in exchange for anything less than a generous settlement agreement negotiated by very able representatives. ... It is a testament to the players, researchers, and advocates who have worked to expose the true human costs of a sport so many love. Though not perfect, it is fair."

A successful further appeal to the US Supreme Court seems unlikely.

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PROP. 65 WARNING REQUIREMENT FOR BPA TAKES EFFECT MAY 11

Bisphenol-A (BPA) is once again in the headlines. Now products containing this chemical will be required to have Proposition 65 Warnings on them for sale in California. BPA is an industrial chemical that is used in a wide variety of plastic consumer products, including the epoxy lining in food and beverage cans and bottle lids, some reusable food and drink containers, CDs and DVDs, electronic equipment, sports equipment, and adhesives and paints, including the ink used for many receipts. BPA may be more likely to be present in plastics with the recycling indicator 7. Many canned goods have a BPA liner.

Set forth by OHEA, a California State agency on an emergency basis, the regulation allows for temporary in store warnings; they are substantial:

WARNING: Many cans containing foods and beverages sold here have epoxy linings used to avoid microbial contamination and extend shelf life. Lids on jars and caps on bottles may also have epoxy linings. Some of these linings can leach small amounts of bisphenol A (BPA) into the food or beverage. BPA is known to the State of California to cause harm to the female reproductive system. For more information, go to www.oehha.ca.gov/BPA.

The warnings must be at least 5 inches by 5 inches with the word Warning in caps and bold. There will be an extended time when in store signage will be allowed. Probably one year. More to come.

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NO HORSEPLAY IN NEW YORK:
Rider Assumed the Risk of Being Thrown From a Horse

A New York intermediate appellate court reversed a trial court decision and determined defendants' motion for summary judgment should have been granted. Plaintiff was injured when thrown from a horse during a recreational ride at defendant's stable. Plaintiff was deemed to have assumed the risk of being thrown from the horse: "The risk of horse acting in an unintended manner resulting in the rider being thrown is a risk inherent in the sport of horseback riding .... There is no evidence that defendant stable was reckless, nor were there any concealed or unreasonably increased risks... . To the extent plaintiffs' expert opined otherwise, such opinion was conclusory, since it did not rely on any rules, regulations, laws or industry standards, and therefore, it fails to raise a triable issue of fact ...".

Blumenthal v Bronx Equestrian Ctr., Inc., 2016 NY Slip Op 01545, 1st Dept 3-3-16
USA TODAY

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POP WARNER EXPOSURE LEADS TO SUICIDE AT 25?

A settlement was recently reached between Pop Warner Little Scholars and the family of a former Pop Warner player who committed suicide at age 25. There was evidence that the young man had CTE at age 25! The young man played Pop Warner for 4 years. He also wrestled, pole vaulted and played high school football.

After his death evidence of chronic traumatic encephalopathy (CTE) was found.

Pop Warner spokesman Brian Heffron says a confidentiality agreement as part of the settlement prevents him from discussing the case beyond a prepared statement that he sent by email. He stressed Pop Warner has instituted a series of safety and educational initiatives in recent years.

"At Pop Warner there is nothing more important than the safety of our players, and since 2010 we have led the way in making the game of youth football a safer and better experience than ever before," the statement says. "We have established protocols and rule changes aimed at improving coaching education, limiting contact and requiring any player who suffers a potential head injury to be examined by a medical professional trained in concussions before returning to play."

More to come next month.

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CPSC EMPLOYEES NOW CAN LEAD AND VOTE ON VOLUNTARY STANDARDS COMMITTEES

The CPSC has now empowered its employees to have a much more active role in Standards Committees. This will allow them to vote and even lead committees in organizations like ASTM, NFPA, ANSI, and UL. As the CPSC looks to voluntary consensus standards for guidance, they now will allow their members to be very active in establishing those standards.

The CPSC has adopted some voluntary standards (such as the ASTM Toy Standard) and given them the force of law. Companies would be wise to stay involved with the standards process to anticipate change in legal requirements for consumer products. It can also create relationships with individuals as the CPSC which may come in handy later.

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NFL AND BRAIN INJURY AND CONCUSSION - WHERE ARE WE?

Inadvertent or not, Jeff Miller, senior vice president of the NFL, admitted the link between long term brain damage and football to a congressional roundtable. NFL Commissioner Goodell and Dallas Cowboy owner Jerry Jones down played the significance of the remark. "The most important thing for us is to support the medical and scientists to determine what those connections are," Goodell said. "We think the statements that have been made through Jeff Miller and others have been consistent with our position over the years."

"Not so!" says Chris Nowinski, who attacked Goodell's remarks as evasive. Nowinski, an advocate for injured players and a strong critic of the NFL accused the NFL of deliberately sending "mixed signals" to confuse the public.

Nowinski said:" Goodell's speech was depressing," Nowinski said. "He's standing there, saying that, 'We're going to let scientists do the right research' only three months after it was exposed that they weren't letting the best scientists do the best research when they refused to fund a Boston University-led study, with their supposedly no-strings-attached donation to NIH that was a lie.

In the meantime, Nowinski who himself played football, does not believe children should play tackle football until high school. He said:

"There's no reason a child should put on a helmet and play tackle football before high school, even if you love football and believe it develops boys into men. That doesn't happen at 9 years old," Nowinski said. "... I have no problem with people in high school football and I would argue that that is where you would learn the most lessons.

"So we need to have a rational conversation about the fact that every year they're playing before high school is just adding risk of CTE and probably giving very few skills that the football community cherishes."

Goodell says that the link between CTE and Football is part of the NFL's strategy for player protection. The league has supported research for decades. Changes in the kick off rules had reduced the regularity of injuries, which were significant in this part of the game. Also NFL owners have recently approved a one-year trial allowing officials to eject a player who draws two unsportsmanlike conduct penalties from specific categories. Those categories include throwing a punch at or kicking an opponent; taunting; and using abusive, threatening or insulting language or gestures.

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ARE FANTASY SPORTS DEAD? DON'T BET ON IT!

As some states move to reduce the scope of Fantasy football, Indiana has decided to embrace it and regulate it. Gov. Mike Pence signed a bill regulating the industry.

Daily fantasy sports sites that charge users money to play, and give out cash prizes to the winners, will now have to register with the Indiana Secretary of State and follow some tighter regulations than they have been operating under in the past few years.

For example, players will have to confirm they are at least 18-years-old before playing and sites will have to make clear, before games start, how many people are playing and how the money will be doled out at the end of the competition.

Fantasy games involving college athletics will not be allowed.

In the meantime Daily fantasy sports giants DraftKings and FanDuel earlier bin the month that they will indefinitely suspend their contests based on college sports following this week's college basketball games - including the Final Four - after discussions with the NCAA and its member institutions.

While NY's AG Schneiderman has been a strong critic, other states would rather legalize and control it.

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LEGAL ISSUES DRAWN TO MAGNETS

In a "son of Buckey Balls" matter The CPSC has aggressively pursued Zen Magnets in federal court. Rare-earth magnets are small, strong, permanent magnets made from alloys of rare earth elements. The CPSC has enacted strict regulations governing the sale of these magnets in the United States, due to their risk of ingestion, particularly by children, which may result in severe injuries, including pinching of intestinal walls. A company named Star had been banned from producing and selling magnets.

Zen bought these previously banned magnets from Star and simply renamed and repackaged them. After a year -long battle in Federal Court in Colorado, the Court permanently banned the sale of these magnets. The court agreed that "simply renaming or repackaging these magnets" did not create a defense to the ban.

In addition to permanently enjoining Zen from selling any products containing any of the recalled magnets the court also mandated that Zen perform the following:

  1. post a notice of the court's order on its website for a period of two years;
  2. announce the notice through all of its social media accounts, including Facebook and Twitter;
  3. email the notice to all customers who purchased any products containing the recalled magnets from Zen;
  4. provide a full refund to customers who return a full set of the magnet at issue, and a partial refund to customers who return partial sets;
  5. provide the notice to each of its business associates involved in the sale of products containing the recalled magnets; and
  6. destroy or dispose of the recalled magnets or products containing the recalled magnets in its inventory and distribution chain.
The court also agreed with the CPSC that Zen "knowingly" violated the CPSA in continuing to sell products containing the recalled magnets purchased from Star. As a result, the CPSC can recommend to the court by April 6, 2016 that a civil penalty be imposed on Zen.

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CPSC FINES CHINESE CO. $15M OVER FLAMMABLE DEHUMIDIFIERS

In the ever increasing news on record CPSC fines, we have now hit $15.45 million. The case involved dehumidifiers sold under the Kenmore and Frigidaire names which the CPSC claimed could catch fire. Gree, as well as Hong Kong Gree Electric Appliances Sales Co. Ltd. and California-based Gree USA Sales Ltd., didn't admit to any of the CPSC's allegations but agreed to pay the penalty to settle the agency's claims that they deliberately avoided reporting the defect. The defect at issue was behind the recall of the dehumidifiers that began in September 2013 and expanded over the next several months, according to the agency.

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IS A PRODUCT'S LOSS OF CERTIFICATION ACTIONABLE? MAYBE!

Both Performance Sports Group and Warrior had a "hiccup" in their NOCSAE certifications on lacrosse helmets. They were briefly "decertified" due to problems allegedly with quality control and test records. Class actions were brought claiming that the manufacturers should have notified owners of the decertification. NOCSAE certification is required on helmets for players doing high school lacrosse.

Performance Sports moved to dismiss the case as it had offered a retrofit for the Cascade Helmets for all owners. However, the court kept the suit alive in a ruling last May finding that it was not clear whether the retrofitted helmets would meet NOCSAE standards and whether potential plaintiffs who choose not to take part in the retrofit program are entitled to relief.

More to come!

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WOMEN SOCCER PLAYERS VS SOCCER ESTABLISHMENT

The exciting sport of women's soccer is now going on in the courtroom. The first battle is over pay for equal work. A group of women players has sued claiming that they get 40% of the pay men get. US Soccer claims this is inaccurate. They have made the claim to the US Equal Employment Opportunity Commission.

Certainly Women's Soccer has been more in the headlines lately and the difference in pay is hard to fathom.

"The numbers speak for themselves," said goalkeeper Hope Solo, one of the players to sign the complaint. "We are the best in the world, have three World Cup championships, four Olympic championships." Solo said the men's players "get paid more to just show up than we get paid to win major championships."

Solo was joined in the complaint by the co-captains Carli Lloyd and Becky Sauerbrunn, forward Alex Morgan and midfielder Megan Rapinoe.

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