The Blitz 1/19/2020

Cigna Can’t Use Privilege To Shield Info In NFL ERISA Suit –

Law360 reports that “A Texas federal court has reversed course and found that Cigna can’t use attorney-client privilege to get out of handing over documents relating to its handling of an NFL health benefits plan, finding that the insurer was never truly the attorneys’ client as a fiduciary to the plan.”  Advanced Physicians group is engaged in two lawsuits against the NFL benefit plan and Cigna for failing to pay claims for services provided to retired players and their families in violation of ERISA.

“Because Cigna is not ‘the real client’ when it consults attorneys regarding plan administration, application of the attorney-client privilege in this context is not necessary to achieve the purpose that the privilege is designed to promote, namely, ‘to encourage full and frank communication between attorneys and their clients,'” Judge Fish wrote.  Cigna can, however, assert attorney-client privilege on documents relating to the defense of the lawsuit rather than the administration of the plan, the judge noted.”

Steven E. Aldous, an attorney for the clinic, told Law360 that they are pleased with the ruling. “We are waiting for the magistrate judge to issue the order directing Cigna to produce the information in accordance with Judge Fish’s opinion,” he said. “At that time, we should receive discovery that we believe will establish that Cigna took its marching orders from NFL rather than construing the benefits of the plan in the best interest of the beneficiaries.” More..

Court Dismisses Antitrust Claim, Finding League Was Within Its Rights to Limit Number of Teams –

Sports Litigation Alert reports a decision in the Northern District of Illinois in which the court sided with Amateur Hockey Association Illinois (AHAI) that was sued on antitrust grounds by Reapers Hockey Association.  Reapers sought admission to the “Tier 1 level” of competition and was denied by AHAI, the regional affiliate for USA Hockey.

“USA Hockey mandates that no more than 15 percent of the players in a given state should play in the highest-skill tier, called Tier I. AHAI has a rule that there shall be ‘not more than four Tier I clubs fielding not more than eight Tier I youth teams at any age level.’”

All of Illinois’ Tier 1 teams are located in the Chicago area and Reapers argued that “the four-club rule allegedly harms competition in this market by cutting off a large geographic area of Illinois from access to Tier I clubs and by artificially inflating the prices for ‘Tier I youth hockey programming.’”   The judge ruled that there were pro-competitive reasons for the exclusion and exclusivity of the Tier 1 level and dismissed the antitrust claims.  This may an influential case in the Oakland relocation lawsuit which pleaded very similar claims against the NFL. While an Illinois District Court decision is not binding on the Northern District of California, the ruling could be viewed as persuasive. More…

Avenatti Case Alleges Settlement Between Nike and Kaepernick

A newly filed document in the Michael Avenatti extortion case dropped a basically unnoticed bombshell on Friday, indirectly alleging that the wildly successful Nike ad campaign featuring Colin Kaepernick is the result of a settlement between Kaepernick and Nike, brokered by attorney Mark Geragos. The filing seeks to subpoena Geragos’ testimony in the upcoming trial following the government’s decision to drop the conspiracy charges against Avenatti along with references to CC1 (Co-Conspirator 1) in its revised indictment.  More…

NFL, Raiders Argue to Dismiss Oakland’s Relocation Lawsuit

Last week the NFL filed a brief supporting their motion to dismiss the City of Oakland’s antitrust relocation lawsuit.  We did a deep-dive on the legal issues in play and made a few projections. Beginning in Part 1, and continuing through Part 2 and Part 3, Sheilla examines various legal elements and supporting caselaw for the antitrust claims.  In Part 4, she analyzes whether or not the NFL’s relocation policy constitutes a contract which are all elements that Oakland will need to prevail on in order to move their case forward.

IOC Bans Political Statements By Athletes

Last week the International Olympic Committee instituted a new rule banning political expression.  A think-piece by NBC, “The Olympics are political. The IOC ban denies reality — and athletes their voice,” explains how the politicized Olympics supported Hitler’s Nazi rise, apartheid in South Africa and Franco’s regime in Spain. “The new policy also clangs clumsily against one of the most iconic moments in Olympic history, when American sprinters John Carlos and Tommie Smith thrust their black-gloved fists into the Mexico City sky at the 1968 Summer Games, while Australian Peter Norman stood in solidarity wearing an Olympic Project for Human Rights button. Olympic officials ejected Carlos and Smith from the Olympic Village, and all three men paid a steep price for their activism on the medal stand. Yet today, they are celebrated as heroes who stood up for what was right. The Olympic Channel feted Carlos and Smith as ‘legends’ for their epic dissent, calling it ‘one of the most iconic moments in the history of modern Olympic Games.’”  The article expresses how “neutrality can be a form of bias in favor of power,” and how it suppresses the current generation of courageous leaders.  More…

Concussion Research for Sale?

This is one of ours.  In June, economists Ted Tatos and Don Comrie released a report based on months of investigation and study of the University of North Carolina’s trove of records released through FOIA as a result of the academics scandal.  The economists discovered alarmingly high rates of ADHD among incoming freshmen football players.  This can occur for a variety of reasons, including brain anatomy and function, heredity, prenatal exposures, environmental toxins, or brain injury such as concussions or post-concussion syndrome.  Subjects with ADHD have traditionally been excluded from concussion studies because their condition and/or the medicines used to treat it can skew results, rendering them invalid, however, Tatos and Comrie learned that these players with ADHD were included in the school’s concussion research. After The Athletic reported on their findings, there was an enormous backlash from UNC and 100 “research leaders.” A report filed by Tatos this week uncovers huge unreported conflicts of interest and even researchers contradicting their own work in an attempt to invalidate Tatos and Comrie’s findings.  More…

Major League Baseball Petitions SCOTUS to Stay Minor League Wage Lawsuit

Minor League Baseball players recently had a big win at the Ninth Circuit when they were granted class certification in their wage lawsuit against Major League Baseball, but the MLB is trying to throw a curve ball, as Derek Helling explains in “MLB Takes a Swing at Supreme Court Review of Minor-League Players’ Class Certification.”

Major League Baseball Braces for Fallout from its Spygate Episode

The Houston Astros were caught illegally filming signs from opponents resulting in suspensions and subsequent firings of the former Astros GM and manager, which has produced its own set of legal questions.  Once again,  Michael McCann has the breakdown in “Could Jeff Luhnow, AJ Hinch Sue MLB or Astros?”

WNBA Adopts New Collective Bargaining Agreement

WNBA has reached a new 8-year collective bargaining agreement that is basically seen as a win for the players, who now, finally have paid maternity leave and official domestic violence policy.  Salaries have also been increased as an incentive for the players to prioritize staying in America rather than playing overseas during the offseason, which caused some scheduling and roster problems for the WNBA.  Now players with 3 or more years in the WNBA will be deemed ineligible if they fail to report at the beginning of the season due to play in another league, although certain exemptions may be granted.   and travel and lodging more comparable to the NBA have also been worked out. Sports Illustrated’s Michael McCann has the details in, “Analyzing the WNBA’s New CBA Deal and What It Means for the Future of the League.”

The Colin Kaepernick Waiver Problem Is Now an NFL Bargaining Issue –

The NFL has been caught in another misrepresentation.  This week Wall Street Journal reported that the waiver presented to Colin Kaepernick at the aborted league organized workout wasn’t standard at all—but the NFL wants to make it that way. WSJ says “Although players typically sign waivers before workouts, there is no provision in the current collective bargaining agreement that mandates one league-wide for all players. This type of waiver could have the potential to protect the league from broader claims of negligence and other future lawsuits.”  According to a memo reviewed by WSJ the NFLPA considers this one of the major unresolved issues in the ongoing collective bargaining and calls it, “significant enough that we cannot recommend to our membership that we should accept a deal in this state at this time.”  The Washington Post  and Pro Football Talk also have some details on the CBA negotiations.