A Lesson In Arbitration From A Weird College Basketball Story

basketballCollege basketball coach Billy Gillispie is no stranger to the news.  He’s been the coach at Texas A&M, Kentucky, and Texas Tech, among others.  But this story is a little odd.

Having been fired from his last two jobs, Gillispie finds himself the coach of Ranger College, a Texas junior college.  In his first year, Gillispie created quite the turn-around, taking the program from a 2-23 record to a 31-7 record in his first year.

Or so he thought.

The National Junior College Athletic Association had different ideas.

Joshua Simmons was one of the players on Gillispie’s team.  Prior to joining Ranger College, Simmons played (very sparingly) for Spartansburg Methodist College.  While there, a team trainer filled out an NBA draft declaration form on Simmons’ behalf, signed Simmons’ name, and submitted the form to the NBA.

After the season, the NJCAA began investigating whether Simmons was an ineligible player, potentially having violated the NJCAA’s rules that students who have entered the NBA draft are not eligible to play.

After an investigation, the NJCAA ruled Simmons was ineligible and ordered Ranger College to forfeit all of its wins for the season.

Ranger College appealed the decision to an arbitrator, and that’s where the lessons come in.

This case seems like a no-brainer.  Simmons didn’t enter the draft himself, the evidence established that Simmons never filled out  the NBA’s packet of information to try and become draft-eligible, and prior to the draft, Simmons’ family sent a letter to the NBA trying to clarify that he did not want to be considered draft-eligible.

Surely an arbitrator would do what’s right.

Of course not.  Ranger College learned hard lessons about arbitration that we often warn our clients about.

Arbitrators often don’t do what is right or fair.  Too often, arbitrators are biased in favor of the parties whom they routinely see before them — whether that’s the NJCAA, an insurance company, or a credit card company.

Lesson number two: you can’t appeal the arbitrator’s opinion.  In the court system, if the judge or jury makes an error, then the party can appeal the wrong decision.  That’s not true with arbitration.  Arbitrators have an almost unbridled authority to do what they want.  They make a mistake?  No appeal.  They don’t understand evidence? No appeal.  They refuse to listen to you? No appeal.  A party to arbitration is stuck with a decision no matter how big a mistake an arbitrator makes.

Those are hard lessons to accept for clients who have to endure arbitrations, whatever the nature.

 

 

Mediation/Settlement Lessons From An NBA Trade

basketballI’m not a huge NBA fan, but over the last few days, I have been listening to a variety of talk show hosts discuss the trade of former NBA MVP Derrick Rose from the Chicago Bulls to the New York Knicks in exchange for a few of the Knicks’ players.

Normally, that wouldn’t be all that news-worthy, especially in the lawsuit context.  But one of the commentators made a point that was familiar to me.

When this commentator was asked who got the better part of the trade, the Bulls or the Knicks, the commentator laughed and said, “You know, both of the fan bases are pretty unhappy with the trade, which tells me that it was probably a pretty fair trade.”

I laughed to myself when I heard that because that’s advice I find myself giving a lot of clients.  In most settlements, the plaintiff settled for less than they really wanted, and the defendant paid more than they really wanted.  And I usually tell clients that when that happens, it’s a pretty good indication that the settlement is a fair settlement.

Now, that’s not to say that we never have a negotiation or settlement where we feel like we’ve been overly-compensated, but it’s rare — insurance companies aren’t in the business of just handing out money.  And in NBA or NFL or MLB trades, there are some trades where you can look at the deal and know that one side was really coming out much better than the other.

But more often than not, in most trades and in most settlement negotiations, both sides usually end up walking away a little disappointed, and that’s usually a signal that it was probably a pretty fair result.

 

Posted on: June 24, 2016 | Tagged

Derek Boogaard’s wrongful death lawsuit may open a big can of litigational worms

More than 4,500 sports figures suffering from traumatic brain injuries each get a small portion of the $756 million paid out by the National Football League (NFL). The settlement keeps relevant documentation out of court.

The NFL was mostly known for the caliber of its players. Now, it is known for hiding the risks of athletes sustaining multiple head injuries while scrimmaging on the field, head injuries that resulted in traumatic brain injury (TBI), also referred to as chronic traumatic encephalopathy (CTE).

It was a large settlement, and one that was hailed as progress for those who sued the NFL for negligently withholding information about the risks of multiple head traumas. However, this is not the end of the issue. While the out-of-court settlement did pay out a large sum, it also managed to keep exculpatory documentation out of court. It also meant no one heard what witnesses had to say.

Down the line, every sport that involves full-body contact of some kind, will, without a doubt, face the same or similar concussion litigation. It is not beyond reason to anticipate that the NHL, NBA, MLB, and the NCAA may face such lawsuits. In fact, the NCAA is already facing down a massive TBI lawsuit.

TBI litigation began with the NFL. It is now making its presence felt with lawsuits filed by survivors of hockey players who took their own lives as a result of CTE. A case in point is that of 28-year-old Derek Boogaard’s family launching a wrongful death lawsuit alleging the NHL is responsible for his brain trauma and addiction to pain drugs. The defendants in that suit are the NHL, its Board of Governors and well-known league commissioner, Gary Bettman.
If the attorney handling that case is able to prove that the NHL was negligent in the way they treated Boogaard in relation to handing out painkillers and encouraging him to fight, sustaining multiple head injuries, the case stands a chance of opening the floodgates of litigation for other similar lawsuits. There is also the possibility of an extremely large award for damages.

What may tell the tale of success is the evidence in the complaint that includes, but is not limited to, the fact that NHL staff and doctors allegedly wrote him prescriptions for 432 pills of hydrocodone in one month, injected him 13 times with a pain masking drug, wrote him further prescriptions for 1,021 pain pills and encouraged him, in his role of enforcer, to instigate 66 fights over 277 games, sustaining multiple head injuries. His autopsy showed he had Stage II CTE.

The CTE revelation and Boogaard’s treatment are strikingly similar to how many of the NFL players were treated. Should Boogaard’s wrongful death lawsuit be successful, watch for more lawsuits of a similar nature filed against other leagues.

Posted on: November 27, 2013 | Tagged

Perlmutter & Schuelke, PLLC maintains offices in Austin, Texas. However, our attorneys and lawyers represent clients throughout the state of Texas, including Dallas, Houston, San Antonio, Forth Worth, El Paso, New Braunfels, San Marcos, Kyle, Buda, Round Rock, Georgetown, Lockhart, Bastrop, Elgin, Manor, Brenham, Cedar Park, Burnet, Marble Falls, Temple and Killeen. By Brooks Schuelke


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