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.

THE INCIDENT:

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. 

THE LAW:

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.

THE PLAYER

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…

16 comments

  • Sound legal advice, in my opinion.

    Like

  • cold_old_steelers_fan

    I pictured this being read by a man with heavy glasses, an enormous painted on mustache a big cigar. There may have been a duck in the scene as well.

    Liked by 1 person

    • I couldn’t decide whether Homer was being funny or serious, and ultimately I think it’s both. “Dewey Cheatum and Howe” was a tip-off for the humor, but I actually think his points should be pondered by ol’ Rog.

      Like

      • Right you are, as usual, Rebecca. The law firms names and the wrestling “heel” references are not serious. But noting that the League is up to its eyeballs in liability and lawsuits is as serious as a heart attack. They simply cannot appear to recklessly and willfully ignoring issues of player safety by allowing Burfict to continue injuring players. If Burfict ended up putting someone in a wheelchair like Darryl Stingley, the damage to the league and the sport of football would be catastrophic. Risk management is a deciding factor in cases like this, and the risk of allowing Burfict to continue unabated is an unacceptable risk.

        Like

  • I know that guy!

    Like

  • Antonio Brown is ‘expected’ to play this weekend? I am not a doctor and sometimes what we see happen is not indicative of any actual damage but… I have a hard time believing that AB is already improving enough for anyone to say that he will be ready to go on Sunday.

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    • btw, that’s from YahooSports. In the article, the writer did state that none of that info came from a doctor. So… why write it? nevermind.

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    • Elpalito….I officiate HS sports, and as such am required to take the national Concussion Course. Symptoms can very mild, and transient, sometimes last just a few seconds. But that does not mean there was not a concussion, and according to the medical experts, there’s no such animal as a ‘mild concussion’. We’re talking about the brain here; how it heals, how it can react to further injuries, etc. can be very uncertain. I have personally interacted with players who were obviously symptomatic and then just minutes later….apparently 100% fine. They still were ‘concussed’.

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      • Interesting insight – thanks for bringing it out. I think something people don’t take into account is also how unpredictably individuals react to them, combined with possibly how many sub-concussive events they’ve had in their lives in the recent past.

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      • I also reffed…but they weren’t interested in concussion classes back when i did it. lol

        My concern stems from the idea that, not even 24 hrs later, some were saying he was fine. Concussions don’t always affect abilities, I know that. But it has been shown that a person is more likely to receive a second concussion soon after a first. The bruise on his brain may not be affecting his motor skills or have other symptoms, but it is still a weak spot. I was just surprised how quickly he was declared ‘fine’.

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  • Further evidence has been uncovered. During the week 17 matchup between The Cincinnati Bengals and the Baltimore Ravens, the Ravens offense was positioned near Cincinnati’s goal line. I would like to now submit a new piece of evidence, exhibit D https://vine.co/v/iMWPBbFYELr . This video shows one Maxx Williams, a tight end for the Baltimore Ravens, run a short out pattern at along the goal line. Mr. Burfict ran up to the goal line and struck Mr. Williams in the chin with the crown of his helmet. Now, the hit in question alone would cause a personal foul penalty if applied to a defenseless receiver trying to make a catch. What stands out on this particular play, is that when said hit occurs, the quarterback still had possession of the football. Mr. Burfict therefore went out of his way to deliberately and maliciously strike Mr. Williams with intent to injure.

    Like

    • Wow – I had heard he had put a big hit on Williams but not that the ball hadn’t even left the QB’s hand. That’s outrageous, but not unexpected. My suspicion is that he is a sociopath, and he just likes hurting people. He was “lucky” to find a profession where you can do so with a relatively high probability of getting away with it.

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      • That was actually an assumption i made based on the movements of the rest of the players in view. It doesn’t look like they have finished their routes nor have they started looking for the ball. If it was a running play the play was definitely not going to that side of the field either. It was a vicious, unnecessary blindside hit away from the play.

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  • Well, at least they took Dewey, Cheatham, and Howe’s advice about couching the suspension in language that repeatedly emphasizes violations of player safety rules. It’s all about the league caring about player safety. Yeah, that’s the ticket.

    The three game suspension is too little IMLTHO. But it is a start, and the guess is the length of suspensions will increase geometrically from this point forward. God help the NFL if Burfict returns and does catastrophic bodily harm to a fellow player with an illegal hit.

    Like

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