A Memo to Roger Goodell
by Homer J.
This mysterious document appeared in my inbox yesterday afternoon. It looked important to me, and I thought you all should see it.
CONFIDENTIAL LEGAL MEMORANDUM TO ROGER GOODELL IN RE: VONTAZE BURFICT
The National Football League has retained the firm of Dewey, Cheatham, and Howe to provide legal advice in the personnel matter of NFL v Vontaze DeLeon Burfict, Jr.
Burfict, an employee of the Cincinnati Football Team of the NFL struck Antonio Brown of the Pittsburgh Football Team of the NFL with a hit deemed illegal at the time by officials, rendering Brown unconscious, concussing him, and possibly causing irreversible brain damage. The issue here is the NFL’s response, and whether fines or suspensions are warranted. Above all, what options are in the best interests of the client?PARTIES TO THE CASE:
National Football League, represented by Dewey, Cheatham, and Howe.
Vontaze DeLeon Burfict Jr., represented by Lionel Hutz of the I Can’t Believe It’s a Law Firm.
National Football League Players Association, represented by Wine, Moen, and Kvetch, likely to intervene in the case.
Occupational Safety and Health Administration, federal agency overseeing workplace safety.
With less than one minute left to play in a playoff game held January 9, 2016, player Brown attempted to catch a pass thrown to him, but the pass was off target. The ball went past him and was clearly incomplete.
While Brown was still outstretched, reaching for the ball and in a defenseless position, player Burfict appeared to take aim, and launched himself into the defenseless player, striking Brown’s head full-force with his shoulder, knocking Brown completely unconscious, concussing him, and possibly causing permanent and irreversible brain damage.
The officials on the field immediately ruled the hit was illegal under the league’s rules, and imposed a penalty on Burfict. He was, however, not disqualified from the game.
While the hit on Brown was illegal under NFL rules, and Brown was rendered unconscious, he did regain consciousness and was eventually helped off the field.
The circumstances of Burfict’s hit might technically be considered battery or assault with a deadly weapon, but it is Brown who would have to file charges and, historically, local law enforcement has stayed out of such matters. It is highly unlikely that any criminal charges will be filed. It should be noted the incident took place in Cincinnati, OH and Burfict plays for the Cincinnati Football Team.
Client, however, must be primarily concerned with pending and future civil actions. These cases pose an existential threat to the League itself.
The League faces a number of current lawsuits and faces exposure to possible future lawsuits from players who have suffered from CTE, ALS, dementia, and other life-altering conditions caused or hastened by repeated concussions and brain damage that occurred on the football field.
A 765-million dollar settlement to 4500 former players, agreed to in 2013, did not mean an end to the League’s legal exposure.
As these cases move forward, plaintiffs will undoubtedly seek to show that the League did not take prudent steps to ensure players’ safety. If they are able to prove to a judge or jury that the League fostered or permitted a lawless environment where certain players were able to deliberately concuss other players and remain in the workplace, it will put the League in an untenable legal position.
The legal issue here is whether the League should allow employees such as Vontaze Burfict to remain in the workplace if their illegal acts pose an clear and present danger to the health and safety of other employees.
Vontaze DeLeon Burfict, Jr, is 25 years old. He stands 6 foot 1 inch tall and his weight is listed at 248 pounds. He is a native of Los Angeles, CA, and attended Arizona State University. As a sophomore, he was suspended from the team by his coach, Dennis Erickson. The reason given was an extremely high number of personal foul penalties.
Plaintiffs in any case will be able to argue that Burfict’s illegal hits amount to a continuous course of conduct over a number of years, and allowing him to remain an employee—without suspension and/or counseling—constituted a willful disregard for the safety of other players.
In his rookie NFL season, 2013, Burfict was fined for hitting a defenseless receiver (James Jones) and for striking an opponent in the groin (Ryan Taylor). The fines imposed, $31,000, amounted to barely 10% of Burfict’s performance bonus.
In his second season, Burfict was fined $25,000 for deliberate attempts to injure two players in the same game. Video showed Burfict deliberately twisting the ankles of Cam Newton and Greg Olson, trying to injure them after plays were over.
In the 2015 season, Burfict was fined $70,000 for illegal hits against the Pittsburgh Steelers in a regular season game, and video appears to show him celebrating an injury to Pittsburgh player Le’Veon Bell. Burfict caused the season-ending injury to Bell by tackling him and the injury may have occurred out of bounds.
When the Pittsburgh and Cincinnati teams met in the playoffs, the League issued warnings to both teams and took the unusual step of placing officials at midfield during warm-ups to prevent violence between the two teams. The game itself had numerous personal fouls and unsportsmanlike conduct penalties called.
On the final play of the third quarter, Burfict made a game-changing play, tackling Pittsburgh Quarterback Ben Roethlisberger behind the line of scrimmage. During the tackle, he appeared to drive Roethlisberger’s shoulder into the turf, injuring the quarterback. No penalty was called, and the play appeared to be clean*, although driving a quarterback into the turf may be a violation of the rules of the game, subject to the interpretation of the officials. The relevance here is that Burfict had already injured one player in the game.
With less than a minute to play in the game, Burfict made his illegal hit on Antonio Brown, knocking him unconscious. There can be no doubt from the video that the hit was intentional, and there are multiple camera angles and slow motion shots. It would be devastating as evidence in any civil case involving brain damage.
RECOMMENDED COURSE OF ACTION:
Player Burfict has been warned numerous times and fined repeatedly, and yet this continuous course of illegal, dangerous, and possibly lethal actions continues. He poses an unacceptable risk to the safety of other players, who are his fellow employees. He also poses an unacceptable risk to the League itself.
Illegal hits, such as the deliberate hit on Antonio Brown, can result in paralysis or quadriplegia, as in the case of Darryl Stingley. They are also Exhibit A in any plaintiff’s case involving CTE, ALS, and dementia. None of this is speculative. The danger to employees is clear and present, and it is imperative that League protect itself. Because of the unique nature of the NFL, jurors can see these hits and injuries in living color, from various angles, and in slow motion.
The concussion issue – with all the news reports and a major motion picture – has become a threat to the long-term viability of the League itself. Judges and juries that might have once been more sympathetic to the League have, no doubt, been influenced by the drumbeat of negative publicity.
Simply fining Burfict will not limit other players’ exposure to his illegal and dangerous actions, nor will it limit the League’s legal exposure. That’s because we are dealing with a continuous pattern of bad acts, and fining has not worked so far.
A lifetime suspension may be warranted, but such a suspension would face legal challenges that could result in a protracted court battle and restraining orders. In the Williams case, a TRO allowed players who had been suspended to continue playing for the Minnesota team until the case was adjudicated.
Also, if the player can be rehabilitated, allowing him to resume his career at some later date might boost TV ratings and advertising revenue. Burfict is a story line unto himself, much like a “heel” in staged wrestling competition. That, however, is something to be considered in the future. The question now is what is the prudent action to protect the league’s interests at this time.
The recommendation is for an indefinite suspension, for a period of not less than one year, with mandatory anger management and/or psychological counseling. It must be clearly stated this is for the safety of other players. After one year, and after the player has completed counseling, the League will accept petition for reinstatement.
By the NFL using the player safety argument, the NFLPA will be put in a difficult legal position. One one hand, the NFLPA’s job is to defend Burfict, who is a member of their union. But to do so would weaken their far larger and more important mission of protecting player safety and seeking compensation for injured players. The player safety argument and the counseling requirement would—to some extent—neutralize the NFLPA’s role in this matter.
The player clearly presents a clear and present danger to the safety of other players—far beyond the acceptable risks of a violent sport—and the long-term health and safety of players poses an existential risk to the League.
It is our opinion that the League must fine and suspend Burfict for an indefinite period to protect the players from actions that border on criminal, and, above all, to “protect the shield” from further legal liability.
Dewey, Cheatham, and Howe, LLC.
*About that “clean” hit—further video review shows Burfict slamming his knee into Roethlisberger’s shoulder after he was down. Maybe not so clean after all…