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Class Action uses in Sports Law


Why use class actions in sports law litigation? Class actions are civil legal actions where many people seek some form of relief for common injuries from the same defendants. Essentially, a small number of people seek to represent the interests of a much larger group.

The recent concussion and improper medication litigation against the NFL highlights class actions as the legal tool of choice in sports law. Class actions have a unique power to change behavior much more than other forms of litigation, like mass torts, because of the potential liability owing to great numbers of plaintiffs. Tactically, asking for class certification is a sure way to get attention through shock and awe. Class certification often leads to settlement talks as the defendants seek to control potential damages. Case in point is the NFL concussion class action where 4,500 former players are currently in settlement negotiations before a Federal Judge over a proposed $760+ million deal.

The recent Dent v. NFL class action suit alleging an intentional or reckless ‘culture of drug misuse’ in pro football is an example of the notoriety a class action commands. Eight named plaintiffs and 500 others with similar allegations filed the suit in San Francisco. The media covered the simple filing of the complaint just as the plaintiffs desired with front page headlines and interview requests. Little attention would have been given if a former player acted alone but the class action changes the scale. Others in the same condition are much more likely to hear about the effort and join.

Class actions are not the only option however. The player concussion suits against leagues like the NFL, NCAA, and NHL certainly attempt to be certified as class actions but may proceed as mass torts or single plaintiff actions. Mass torts join named plaintiffs together because of common issues and facts. Class actions go further by including a few representative plaintiffs who are named and perhaps hundreds of unnamed plaintiffs who presumably exist but are inactive and unknowing parties.

The advantages of mass tort and class actions over single plaintiff law suits are efficiency for courts and plaintiffs alike. Ideally, class actions reduce the cost of litigation. They may be consolidated or moved to one logical geographical location so duplicative filings and travel in each jurisdiction is reduced.  A single Judge may decide the case and may be assisted by Special Masters with expertise in the type of injury and/or industry practice challenged. Damages can be evenly distributed to class members when compensation is very unpredictable in individual litigation. Even defendants can benefit from consolidating all claims in one action rather than being prepared for many independent single plaintiff lawsuits that drag on for years. Issues decided in class actions preclude future lawsuits on the same issues in most cases. In fact, this is one of the largest criticisms of class actions: that they bind people not even aware of the suit or their rights in the matter. Another criticism is that often individual class members receive nominal shares of the damage award while the lead plaintiffs and law firms make money.

Class actions need to be certified by the Court and if the Court refuses all or part of the action a mass tort or single plaintiff torts are the only options. The qualifications for class status federally are governed by rule FRCP 23: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. A judge that certifies and thus agrees to the class action is not making a judgment about the merits of the case; rather the Judge is procedurally affirming that the four parts of the test are satisfied. Indeed, plaintiffs can go forward with their cause of action if a judge refuses to certify the class status.

Class actions also have the tactical advantage of allowing plaintiffs to pick a favorable district court following choice of law rules. For example, in the O’Bannon v. NCAA class action about compensation for college athletics the case was brought before a U.S. District Judge with a record of certifying most class action requests. Nevertheless, in O’Bannon the Judge only partially certified the class action, choosing which parts where most likely to meet the four part test under FRCP 23.

The class action is associated with big money compensation but often also includes demands that the defendants stop doing something harmful, a remedy called an injunction. For example, the NCAA is being sued by four named plaintiffs in Jenkins v. NCAA as well as current and future players, asking for an injunction and damages to stop limiting player compensation under anti-trust principles.  Minor League Baseball (MiLB) also recently had a class action suit filed by 19 former players asserting the low pay their class was paid, as low as $3k a year, violated minimum wage laws and that the league ‘preyed on players like a cartel.’ Another example, LaCouture v. NHL, is a class action by nine retired players claiming damages in regards ‘the sophisticated use of extreme violence as a commodity’ by the NHL. The LaCouture suit is one of three class actions against the NHL for concussions.

Expect many more headlines and much more class action litigation in sports.




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