Lydia Holzman Named Newest Partner at Hutchinson Black and Cook

We are pleased to announce that Lydia Holzman has been named partner at Hutchinson Black and Cook LLC. Lydia joined HBC in August 2023 and has become an integral part of the firm’s estate planning and corporate practice areas. She provides strategic legal counsel to her clients and is known for her practical legal advice, clear communication, and ability to simplify even the most complex legal issues for her clients.

Prior to joining HBC, Lydia worked as in-house counsel for 11 years and learned the value of providing practical legal advice and working hand-in-hand with her clients to navigate business transactions and decisions. Drawing on that experience, Lydia continues to work closely with her clients, whether a local business looking for outside counsel support or an individual working with her to handle their legal matters. Lydia and her family call Lyons, Colorado home and supporting the Boulder community and its businesses gives her great satisfaction in her practice.

Her leadership, expertise, and collaborative approach have made her a trusted advisor to her clients and colleagues alike. As HBC’s newest partner, Lydia will continue to strengthen our firm’s estate planning and business practice groups while continuing the firm’s commitment to providing high quality legal services.

We congratulate Lydia on this well-deserved promotion and look forward to her continued success at HBC.

Title IX Objection Challenges NCAA Settlement Over Stark Gender Pay Disparities

FOR IMMEDIATE RELEASE                                         Media contact: John Clune
February 5, 2025
                   john.clune@hbcboulder.com
                                                                                        
303-441-7402

Female Athletes Likely To Receive Only $125 Per Year of Eligibility While Male Athletes Cash In

Boulder, Colo. – Hutchinson Black and Cook LLC (HBC) attorneys John Clune and Ashlyn Hare—alongside Rebecca Peterson-Fisher of Katz Banks Kumin LLP—have filed a formal Title IX-based objection to the House v. NCAA settlement, citing extreme gender disparities in financial compensation for college athletes.

The objection, filed on behalf of 10 former and current female student-athletes, exposes how the proposed settlement makes a critical error in calculating damages that vastly undercompensates women, likely awarding them just $125 per year of eligibility, while male athletes—particularly those in football and men’s basketball—stand to receive tens of thousands of dollars.

“This settlement isn’t just inequitable—it’s predicated on a flagrant violation of Title IX,” said John Clune, attorney at HBC. “This is primarily a settlement for football players that continues to keep female athletes in a one down position. One of our biggest concerns is that if this same inequitable model is used for revenue sharing in the future, women’s sports will be worse off than if there had never been a lawsuit in the first place. The schools and conferences should be embarrassed. They know better.“

Key Findings from the Financial Analysis of the Settlement

●      Unequal distribution of damages. The settlement primarily relies on the erroneous belief that schools, over the past 8 years, would have paid 90% of compensation to male athletes had the NCAA and conferences not restricted the right of athletes to earn money. As outlined in our objection, Title IX would have required any money coming from the school or conference to be paid proportionally between men and women based on the number of athletes at each institution. 

The settlement primarily allocates 90% of the $2.8 billion in past damages to male athletes in football and basketball, without ensuring that female athletes receive equitable financial benefits. As a result, most female athletes will likely take home a meager $125 USD per year of eligibility, while male athletes are taking home tens of thousands of dollars regardless of their marketability.

●      Title IX violations. While most objections filed to the House vs. NCAA settlement are in response to roster limits and a host of antitrust issues, there’s an overlooked component to the settlement that most objections have not raised: gender equity in past damages payment from the schools and conferences. Specifically, the proposed damages fail to acknowledge that Title IX applies to payments by the schools and conferences and requires proportionate distribution of financial aid and athletic benefits.

●      Threats to Olympic sports. The financial impact of the settlement may lead institutions to reallocate funds, potentially cutting or deprioritizing women’s and Olympic sports programs. Some schools have also stated they will implement the settlement’s future revenue-sharing model consistent with the inequitable distribution of past damages with 90% of revenue going to football and men’s basketball.

The filing comes amid ongoing legal and public scrutiny over the NCAA’s handling of athlete compensation, including name, image, and likeness (NIL) rights and revenue-sharing agreements. The outcome of this case could have significant implications for the future of college athletics and women in sports.

Our objection filed on behalf of 10 former and current student female athletes, is one of only a few objections on the basis of Title IX. One such athlete, Lexi Drumm, is a women’s soccer player for the College of Charleston.  

“This settlement provides an opportunity to rectify the past of collegiate sports and move into a new era where female athletes are given the resources to let their sports thrive,” said Drumm. “Just like interest, investment in collegiate sports compound. Male athletes are set to benefit exponentially more in the NCAA settlement because of the resources men’s sports have disproportionately been given. When you look at who this settlement is benefitting, it sends a strong and clear message that female athletes are not the priority—and that will negatively impact the future of women in sports for years to come.”

The Bigger Picture: Gender Equity at a Crossroads

This filing comes at a time when athlete compensation, NIL rights, and revenue-sharing models are reshaping the landscape of college sports. While future revenue sharing and roster limits dominate the conversation, this objection forces a reckoning with this fundamental error in the calculation of the $2.86 billion settlement.

“As a former college athlete, I know how essential Title IX has been to the development of women’s sport, and it’s critical that it doesn’t fall by the wayside as college sports are increasingly commercialized,” said Ashlyn Hare, associate attorney, HBC. “The NCAA, conferences, and schools have an obligation to their female athletes to recognize their value and invest in their future. That starts with recognizing Title IX in this settlement agreement.”

Read the full objection.

Lawsuit Against University of Colorado Over Free Speech and Due Process

On Monday, January 13, Hutchinson Black and Cook LLC filed a First Amendment lawsuit on behalf of two University of Colorado student-members of Students for Justice in Palestine concerning the University’s retaliation against the students for participating in a peaceful pro-Palestine protest on October 3, 2024. 

Find press coverage of this civil rights case here: 

The Courage of Gisèle Pelicot

Authored by Kimberly M. Hult

Earlier today, a French court announced its verdicts following a lengthy rape trial of 51 men in Avignon, France.  Every one of the men was convicted, and many (but not all) face long prison terms.  For those of us who have followed the case closely for months, this outcome could never have been achieved without the courage, dignity and resilience of Gisèle Pelicot, the survivor of dozens, if not hundreds, of assaults.  For those unfamiliar with the case, over the course of a decade, Ms. Pelicot’s husband, one of the men convicted, had arranged for more than 50 (and maybe as many as 80) strangers to come into the couple’s home and rape Ms. Pelicot, a petite mother and grandmother, after he had first drugged her and she had become unconscious. 

Under French law, Ms. Pelicot had the right to remain anonymous through these proceedings.  She instead made the decision not only to proceed under her own name, but also to insist that all phases of the trial be public, including the viewing of horrific videos that her husband had made of the rapes and maintained in a file folder on his computer labeled “Abuse.”

Ms. Pelicot has insisted that she should not bear any shame for what happened to her; her assailants deserved the shame.  To be clear, her decision to proceed publicly, which has resulted in international media attention, could not have been easy.  Today, however, she told reporters that she has never regretted her decision. 

Ms. Pelicot has been rightfully hailed throughout France and beyond for her courage and poise and has ignited an important debate in that country about the definition of rape in the French criminal code and the need for affirmative consent to be part of that definition. 

She deserves every bit of the admiration and love that she has received.

Ever humble, this morning, Ms. Pelicot expressed her “profound gratitude” to her supporters, who have greeted and applauded her every morning and every evening outside of the courthouse.  For more than 20 years, I have worked with sexual assault survivors, and I have learned just how important true support is to them. 

But if I have also learned anything over the last couple of decades, it is that it is not easy to fight such an important battle so publicly.   To do so while recovering from sexual abuse requires an inner strength that is not available to many.  Gisèle Pelicot came forward publicly for all of those who simply could not. 

This holiday season she, and so many like her, have my deepest and most profound gratitude.

Marianne Luu-Chen Graduated from Inaugural Class of the Rocky Mountain Fellows Institute of The American College of Trust and Estate Counsel

We’re excited to announce that Marianne Luu-Chen, a partner at the law firm of Hutchinson Black and Cook LLC in Boulder, Colorado, has graduated from the inaugural class of the Rocky Mountain Fellows Institute of The American College of Trust and Estate Counsel (ACTEC).

The Rocky Mountain Fellows Institute was created by ACTEC Fellows to develop the profession’s future leaders in trust and estate law by invitation-only through a series of in-depth educational presentations led by outstanding subject matter experts in each field from across the U.S. For more information, visit www.rockymountainfellowsinstitute.org.

Marianne Luu-Chen provides counsel on estate planning, probate and trust administration, premarital and marital agreements, and estate, gift, and income tax planning for individuals and families.

Congratulations, Marianne! We’re honored to see your expertise recognized by the Rocky Mountain Fellows Institute of The American College of Trust and Estate Counsel.

Insights and Observations from the Groundbreaking House v. NCAA Settlement Preliminary Approval Hearing

Photo by Jacob Rice on Unsplash

After nearly three hours of probing questions and answers from Judge Claudia Wilkins at yesterday’s preliminary approval hearing, several intriguing takeaways emerged:

  1. Judge Wilkins and the Settlement: A Clear Preference for Resolution
    Judge Wilkins seems intent on steering clear of obstructing the settlement process. Despite at least two significant sticking points discussed below, she appears optimistic that these issues will be resolved by the parties themselves. Her encouragement for the parties to start drafting the settlement notice by the end of the hearing underscores her expectation for a resolution.

  2. NIL Money and the Judge’s Sticking Point
    The right for athletes to continue receiving certain NIL (Name, Image, Likeness) money from collectives is the major sticking point for Judge Wilkins. While she’s not likely a cheerleader for collectives, she doesn’t see a strong reason to eliminate this potential income source for athletes. The parties argued that this provision doesn’t significantly alter the status quo, as the only prohibition in the settlement is against pure pay-for-play deals with no legitimate business interest (e.g., "come play football and we’ll give you five million dollars"), which are already banned by the NCAA. However, Judge Wilkins remained unconvinced. It seems this provision is a key point of negotiation for the NCAA, possibly to prevent any future court from allowing collectives unrestricted payment power. The NCAA appears ready to defend this point vehemently.

  3. Binding Future Class Members: A Potential Hurdle
    Another potential snag is whether the court can bind future class members—such as current fifth graders who might become college athletes down the line—who aren’t represented in this case. Judge Wilkins seemed to suggest she’d feel more at ease if these prospective members were represented by separate counsel, though it’s unclear if this alone would address her concerns.

  4. Title IX Concerns: A Quiet Issue
    Title IX doesn’t seem to be a major concern at this stage. Despite the likelihood of future litigation, neither the judge nor the predominantly male legal teams appear particularly worried about it right now, although Judge Wilken requested the parties clarify that the settlement does not release Title IX claims. An objection raised by Attorney Steve Molo, representing a group of female athletes and arguing that the settlement unfairly values women’s sports, seemed to have little impact on the court’s focus.

  5. The NCAA’s Stance: A Firm Negotiator
    The NCAA doesn’t appear thrilled about this settlement or is simply willing to play hardball, threatening to walk away if their terms aren’t met. At any mention of possible changes to the negotiated provisions, NCAA counsel was clear that the removal of any provision could jeopardize the settlement. This stance could reflect the NCAA's general attitude or just the personality of their legal team. Either way, they’ve signaled a strong disinterest in altering settlement terms and would prefer to go to trial if necessary. Whether this is a strategic bluff remains to be seen.

The parties have three weeks to address these sticking points and submit a revised proposal for Judge Wilkins’s consideration. It’s likely they’ll find a resolution to the judge’s concerns, but the ultimate decision will rest with Judge Wilkins on whether the proposal meets her standards.

Building Awareness and Support of Survivors in the Face of Institutional Betrayal

Last week, after Harvey Weinstein’s conviction was overturned by the New York Court of Appeals, Ashley Judd, one of the first to come forward to reveal Mr. Weinstein’s abuse, called it an “institutional betrayal.”  While more will be written about the reasoning behind the New York court’s decision, the concept of institutional betrayal is very familiar to those of us who represent sexual assault survivors as they seek some measure of justice and accountability.

Hutchinson Black and Cook has been honored to represent sexual assault survivors for well over two decades.  During that time, while we, as a society, have made great progress in recognizing the seriousness of sexual violence, we have also come to realize that there is a lot of work that still needs to be done:  RAINN (the Rape, Abuse & Incest National Network) reports that every 68 seconds, another individual is sexually assaulted and nearly 435,000 individuals are sexually assaulted each year in the United States alone.  One out of every six American women has been the victim of an attempted or completed rape in her lifetime. 

As we close out April, which is recognized as Sexual Assault Awareness Month, we celebrate the progress that has been made and the work that still needs to be done to educate our communities and to support all survivors.  In doing so, we want to acknowledge how institutional betrayal continues to be something we focus on in our work to ensure that the institutions we look to for services, protection, and support do not instead add to the losses and trauma associated with sexual assault by overlooking or even betraying the interests of the survivors impacted by violence in their institutional community.

First, though, a bit of background:  Over the last 20 years, research into what we call “institutional betrayal” has expanded significantly.  The term was first introduced in 2007 by University of Oregon professor Dr. Jennifer J. Freyd, who defined institutional betrayal as “wrongdoings perpetrated by an institution upon individuals dependent on that institution, including failure to prevent or respond supportively to wrongdoings by individuals committed within the context of the institution.” Institutional betrayal is an additional source of trauma that is related to but distinct from the underlying trauma of the sexual assault itself.  When our clients talk to us about an institutional betrayal that they have suffered, it is usually because there are inadequate (or nonexistent) school or employer policies to address sexual assault, there are alarming individual behaviors (often due to poor hiring decisions, training or supervision), or there is some combination of the two.  In our cases, we have seen instances where employers or schools have ignored warning signs (or even actual reports) of sexual violence and then further fail to support the survivors, prioritizing the needs of the institution or even, in some cases, the perpetrator.  Frequently, this leads to more sexual violence as perpetrators end up further emboldened to engage in additional sexual violence.  

There is no doubt that when an institution betrays a survivor, it is adding to the existing trauma from which the survivor has to recover.  Dr. Freyd and others have identified and begun to measure the specific impacts of that betrayal on the physical and psychological well-being of survivors of sexual violence in their studies.   Several studies show that after controlling for the general trauma associated with sexual violence, there is a clearly definable and measurable increase in stress and trauma associated with institutional betrayal.  This additional trauma is created when a seemingly trusted institution denies the sexual assault survivor’s experience, creates an unwelcoming environment where the survivor does not feel safe to stay at the institution, or even retaliates against a survivor for reporting the sexual violence.   It can lead survivors to feel as if they are not safe to seek out the assistance that they need, which in turn may cause an institution to claim that it is the survivor’s fault for not seeking that assistance.

In our work for survivors, we seek to distinguish the effects of institutional betrayal from the trauma of the assault.  We work with our clients to collect evidence that supports their claims that the institution betrayed them.  We collect the institution’s policies and look to whether they are adequate and enforced given the known risks in that community.  We examine the training (if any) that a particular employer or school provided.  Finally, we work with experienced experts who know how to identify the nature and impact of institutional betrayal, along with things like future short- and long-term treatment options that might help a survivor recover.  

The goal of our work is not simply to develop our clients’ cases.  It is to acknowledge and redress the systemic role of institutions in sexual violence that has long been too common and to try to ensure that next time, our trusted institutions will do better.  And knowing that they too are working to address these issues, to change our community’s institutions, and – hopefully – to protect others, is something that can bring hope and peace to our clients. 

FIFA’s Suspension of Luis Rubiales Is A Step In the Right Direction, But More Reform is Needed

Fifa's Suspension of Luis Rubiales is a step in the right direction, but more reform is needed.

On Monday, October 30, FIFA announced a three-year suspension of Luis Rubiales, the former president of the Royal Spanish Football Federation (in Spanish, the Real Federación Española de Fútbol, or “RFEF”), for kissing a player during the medal ceremony at the Women’s World Cup this summer. The suspension is surprising given FIFA’s questionable record on gender equality, but fails to adequately condemn systemic issues within the Spanish federation.

Rubiales’ conduct at the medal ceremony followed repeated protests by Spain’s national team players about the team’s coaching staff. In 2022, fifteen members of the national team sent letters to the RFEF stating they would not play for the national team until changes were made in the federation. In response, the RFEF announced its support for the team’s head coach, Jorge Vilda, and required the players who sent letters to apologize in order to be considered for the World Cup roster. In total, eight players apologized, and three were selected for the World Cup. Vilda refused to resign and managed the team throughout the tournament in Australia and New Zealand.

Despite the turbulence preceding the tournament, the Spanish team pulled off a World Cup victory over England­ in the championship in one of the most competitive years in women’s soccer history. Unfortunately, the team’s impressive performance was overshadowed when Rubiales forcibly kissed Jennifer Hermoso, Spain’s all-time leading goal scorer, on live television. Though the RFEF insisted the kiss was consensual, Hermoso issued a statement vehemently disagreeing, calling the incident “an impulse-driven, sexist, out-of-place act without any consent on my part,” and accusing the RFEF of pressuring her to say otherwise. She subsequently pressed criminal charges for sexual assault.

The brazen assault sparked unprecedented protest about sexism and gender inequity in women’s sports, with officials at all levels of international soccer condemning Rubiales’ behavior, from Spain’s professional league “La Liga” to UEFA, the preeminent European soccer league. Internally, more than eighty Spanish players signed a letter to the RFEF announcing a boycott of national team duties until changes were made in the federation, and the entire coaching staff, with the exception of head coach Jorge Vilda, resigned in protest. FIFA opened disciplinary proceedings against Rubiales just days after the incident, and quickly issued a 90-day provisional suspension.

In spite of the backlash, the RFEF continued to defend Rubiales, though Vilda was fired. Presumably in retaliation, the federation called up the striking players for the team’s post-World Cup matches, with the threat of severe sanctions looming for players that failed to report. Notably, Hermoso was left off of that roster, a decision the RFEF said was made to “protect her.” The RFEF also threatened to take legal action against the players who signed a letter of support for Hermoso.

On September 10, Rubiales resigned from his position. The players have ended their boycott following lengthy negotiations with the RFEF resulting in an agreement that promises a commitment to gender equity.

This Monday, the FIFA Disciplinary Committee banned Rubiales from “all football-related activities” for three years for violating article 13 of the FIFA Disciplinary Code (the Code). That provision generally prohibits indecent conduct, but notably does not include specific prohibitions on sexual assault or harassment. Article 15 of the Code prohibits gender discrimination, but FIFA curiously did not pursue a charge under that provision. The suspension came as a surprise to many, as FIFA has not been particularly progressive on issues of gender equity.

Though the suspension is a moderate victory for Hermoso and the Spanish women, FIFA appears content to let Rubiales take the fall for the RFEF’s dismal treatment of its women’s team. Rubiales’ brazen conduct was the consequence of an unchecked misogynistic culture in the RFEF that has persisted despite player protest. FIFA has notably failed to comment on the RFEF’s retaliation against its national team players, nor does the FIFA Disciplinary Code prevent retaliation or offer any protection for players who speak out against mistreatment. International governing bodies should set the minimum standards of player safety, yet, until now, FIFA has idly stood by while the Spanish players sacrificed their careers to effect change. Hopefully, the Rubiales suspension is just the first domino to fall in FIFA’s path towards stronger protections for female athletes.  

Stay tuned tohttps://twitter.com/HBCSportsLaw orhttps://www.linkedin.com/company/hutchinson-black-and-cook-llc/ for the latest in Sports Law news and opinions.

The Future of Equity Compensation for Professional Athletes

The future of Equity compensation for professional athletes. A man holds a football for the NFL.

In the business world, it is common for executives and key employees to receive equity as part of their compensation packages. Equity compensation, often in the form of options that vest over time, is designed to increase retention rates, incentivize hard work and innovation, and to reward key personnel for their contributions to a business’s long-term success.

Each of the underlying rationales for equity compensation in business can be extended to star athletes in professional sports. For example, the WNBA’s Las Vegas Aces could offer A’ja Wilson equity in the team with a 10-year vesting period to help keep her on their roster for her entire career. Similarly, the NFL’s Kansas City Chiefs could give Patrick Mahomes equity in the team to incentivize him to bring as many Super Bowl championships, and as much media exposure, as possible, thereby increasing the value of the team. While it is easy to understand why equity compensation for star athletes might make sense, in recent months, Major League Soccer (MLS) and the National Football League (NFL) have taken drastically different approaches on this issue, the results of which could impact the availability of equity compensation for all professional athletes moving forward.

In soccer, Lionel Messi – one of the sport’s biggest global stars – made headlines when he chose to sign with Inter Miami CF of the MLS over traditional powerhouses like F.C. Barcelona and Paris Saint-Germain. One of the key factors that led to this decision was Inter Miami’s offer of an equity stake in the club, which brought the annual value of Messi’s contract to an estimated $70,000,000.00. Messi’s decision to play for Inter Miami, which likely would not have occurred absent the offer of equity compensation, has been a boon for not only the club, but for the entire MLS. Since Messi’s arrival, the MLS has benefitted from record shattering ticket sales and increased revenue from streaming subscriptions and sponsorship deals.

Unfortunately for professional football players, the NFL has chosen a different path. Amid rumors that quarterbacks Aaron Rodgers and Caleb Williams were interested in deals that included team equity, the NFL owners voted to prohibit teams from granting equity to any of their employees. As a basis for this decision, the owners argued that granting team equity to employees, including players, would lead to salary cap issues and conflicts of interest if a player were to be traded or sign with another team. It is hard to view the ban on equity compensation as anything other than the owners protecting their own interests, especially in the era of increased bargaining power and entrepreneurship for star athletes. Further, many of the issues raised by the owners are not unique to sports and could be addressed through existing mechanisms. For example, if a business is concerned about an executive owning its equity but later taking a job with a direct competitor, the business can bargain for redemption rights, voting limitations, and a laundry list of other known protections when granting the equity. In short, the owners’ arguments against equity compensation do not pass the “smell test.”

Conclusion: The potential benefits of equity compensation for star athletes are substantial, as illustrated by the success of Lionel Messi’s contract with Inter Miami FC. Nevertheless, billionaire owners want to retain their team equity, especially as franchise values continue to soar, and are therefore likely to resist equity compensation packages. When future collective bargaining agreements are being negotiated in the NBA, WNBA, MLB, NHL, MLS, NFL, etc., players associations should push for equity rights, as their skills and efforts are directly responsible for ever-increasing franchise values.

Stay tuned to https://twitter.com/HBCSportsLaw or https://www.linkedin.com/company/hutchinson-black-and-cook-llc/ for the latest in Sports Law news and opinions.

What to Know About Colorado’s FAMLI Leave

Colorado Paid Leave. An illustration of a female doctor pushing a man in a wheelchair

HBC recently advised its corporate clients about how to prepare for the full implementation of FAMLI leave in Colorado. Here’s what employers need to know:

Beginning January 1, 2024, employees will be entitled to take up to 12 weeks of paid leave for any of the following reasons: 

  • To care for their own serious health condition. 

  • To care for a family member's serious health condition. 

  • To care for a new child, including adopted and fostered children during the first year after birth, adoption or placement of the child. (If the employee is seeking leave due to a pregnancy or childbirth-related complication, they are entitled to an additional four weeks of FAMLI leave.) 

  • To make arrangements for a family member's military deployment. 

  • To take "safe leave," meaning leave because the employee or employee's family member is the victim of domestic violence, stalking, or sexual assault or abuse. 

Note that the payments will come from the state during FAMLI leave, so employers are not responsible for direct payments. Benefits guaranteed by FAMLI are dependent on the employee’s earnings, with the employee receiving partial wage replacement, capped at $1,100 per week. The state has a premium and benefit estimator available here: https://co.accessgov.com/famli/Forms/Page/famli/famlicalculator/1 .

Premiums for FAMLI leave began to be collected in 2023, with employers submitting the premiums through an online system at the end of each quarter. As a general rule, FAMLI is funded by payroll taxes split 50/50 between employer and employee, with each paying 0.45 percent of their payroll to fund the program. Employers with fewer than 10 employees are not required to pay the employer share of the premiums. 

Employers may opt for a private plan instead of the state’s FAMLI program, provided that the private plan is at least as generous as the public plan in terms of rights, protections, and benefits. Private plans may take the form of either self-insurance or a policy obtained through an insurance carrier, but they must be approved by the State prior to implementation. Approved plans will release employers from obligations to withhold premiums to fund the FAMLI program. 

The FAMLI Toolkit for Employers is available here: https://famli.colorado.gov/employers/famli-toolkit-for-employers 

For help in implementing FAMLI leave into handbooks and in navigating FAMLI’s interactions with other leave laws, including the FMLA and HFWA, contact HBC’s employment law team. https://www.hbcboulder.com/employment-law

Game on? The NFL’s Turf Trouble in Court

When Travis Kelce, the star tight end for the Kansas City Chiefs, suffered a non-contact lower leg injury during their recent victory against the Minnesota Vikings, the current clamor for the NFL to ban the use of artificial turf reached new heights when Travis’ brother, Philadelphia Eagles star center Jason Kelce, demanded that changes be made. Even though Travis Kelce's injury did not sideline him for the most recent game in Denver, the uproar surrounding this demand has been growing since Aaron Rodgers, QB of the New York Jets, sustained a devastating opening night torn Achilles tendon and is likely out for the season. The economic ripple effect of this one injury is unquestionably massive.

Whether the artificial turf at the Vikings' and Jets' home fields directly caused these injuries (Rodgers' own coach disputes that it did), the NFL Players Association (NFLPA) has leveraged these superstar injuries to intensify its plea to the league for the adoption of natural grass surfaces, which it claims is essential.

Critics have suggested that substantial changes to the league's stance on safety issues only comes when the threat of litigation looms large. A turf lawsuit would not be the first time that players or former players have sued the NFL over safety and related injuries. Perhaps most notably, in 2012, more than 4,500 retired players collectively filed a class-action lawsuit against the NFL, alleging negligence in safeguarding athletes from head injuries caused by impacts on the field.  The NFL settled that case for $765 million dollars with a total of eventually over 18,000 former players.

For NFL players to bring a negligence claim, they would have to allege that 1) the league owed them a duty of some level of safety from known dangers, and 2) that the league breached that duty by not taking action to prevent injuries stemming from those known dangers.  Perhaps critical to the success of the concussion lawsuit however were the allegations that the league knew of the long-term consequences of such head impacts, including conditions like CTE and Parkinson's disease, but had deliberately concealed the information from athletes.

The importance of these concealment allegations is two-fold.  Initially, the legal duty that the league owes to the athletes increases dramatically if they conceal information that results in harm.  Though the law often doesn’t recognize general safety duties, that can change where a defendant conceals a danger.  The second issue with concealment involves the league’s expected defense that players have assumed the risk of such injuries by playing the game.  Though this is a hard argument for the league to make if they have concealed the information needed to actually “assume the risk”, the defense may be successful where the athletes are well aware of the dangers but choose this line of work anyway.  

Where the NFLPA has been sounding the alarm for years about the perils of artificial turf and citing studies on the subject, alleging concealment of these dangers seems as unlikely as Taylor Swift still going to Chiefs’ games at the end of the year.

In conclusion, there is serious doubt in turning those studies into good claims for the players. In the end, where the league and owners are predictably motivated by the dollar signs, perhaps having these two superstars sidelined is the only play the NFLPA needs. The Jets' plummet from primetime to fighting for last place may pack more punch than any lawyer's closing statement in this gridiron drama.

Stay tuned tohttps://twitter.com/HBCSportsLaw orhttps://www.linkedin.com/company/hutchinson-black-and-cook-llc/ for the latest in Sports Law news and opinions.