Pro Wrestlers' Concussion Case Poses New Legal Twists

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By Steven M. Sellers

July 19 — Concussion litigation recently filed against World Wrestling Entertainment Inc. has the earmarks of pending litigation against the NCAA, NFL and NHL, but also raises questions unique to professional wrestling, sports law experts tell Bloomberg BNA.

Fifty-one former wrestlers and two referees claim WWE negligently shirked its duty of care by failing to protect them from concussions and long-term neurological damage, including a degenerative brain disease known as chronic traumatic encephalopathy ( Laurinaitis v. World Wrestling Entertainment, Inc., D. Conn., No. 16-cv-01209, filed 7/18/16 ).

That theme is central to concussion-related litigation filed by other professional athletes against the National Football League, the National Hockey League and the National Collegiate Athletic Association (44 PSLR 168, 2/22/16).

But the 214-page complaint, filed July 18 in the U.S. District Court for the District of Connecticut, also advances new claims into the sometimes murky space between sports and entertainment.

“This is a sprawling complaint, much less focused than the concussion-CTE suits brought against the NFL, NCAA and NHL,” Paul Haagen, director of Duke University's Center for Sports Law and Policy, told Bloomberg BNA July 19.

A “carnival” culture permeated WWE, and the closely-held company promoted risky moves in the ring, fraudulently concealed concussion risks and gave inadequate medical treatment to wrestlers designated as independent contractors to avoid federal labor laws, according to the complaint.

The wrestlers also allege Stamford, Conn.-based WWE and its chairman, Vincent McMahon, violated federal racketeering laws in operating the company.

“Probably the most interesting difference between those suits and this one is that the WWE characterizes its performances as ‘sports entertainment,' not sports,” Haagen said in an e-mail.

WWE “both choreographs and regulates the moves that allegedly led to the injuries suffered by the participants,” Haagen said. “This greater level of control will imply a greater level of responsibility and potential liability.”

Choreographed Collisions

Stage names and professional wrestling lore fill the complaint, with plaintiffs as young as 34 and as old as 84.

They include Joseph Laurinitis, 55, known as “Road Warrior Animal,” 60-year-old Chris Pallies (“King Kong Bundy”) and 72-year-old Jimmy “Superfly” Snuka.

Carlene Denise Moore-Begnaud, 42, who wrestled for WWE from 2001 to 2004, also is a plaintiff, as are three other female wrestlers.

So are two former referees, who sometimes were a part of choreographed collisions, according to the complaint

Earl Hebner, 66, who had a 17-year career with WWE, was known for his “bumping ability,” referring to his capacity to absorb hits in the ring, according to the complaint.

His identical twin brother, Dave, alleges he suffered “numerous blows to the head throughout his career and has experienced cognitive difficulties, including, but not limited to, headaches, dizziness, loss of memory, and fatigue.”

The plaintiffs allege fraudulent concealment, negligence, wrongful death, contract and other claims against WWE, and also allege the company's actions violated the federal Racketeering and Corrupt Organizations Act, 18 U.S.C. §1962(c).

Higher Duty of Care?

WWE's tight control of wrestlers and their moves in matches created a legal duty “immeasurably stronger than that of professional sports,” attorney Konstantine Kyros, of the Kyros Law Offices in Hingham, Mass., told Bloomberg BNA July 19.

And WWE's description of its events as sports entertainment, rather than a sport, is a mechanism by which it avoids state athletic commission licensing requirements, said Kyros, who is co-counsel for plaintiffs in the case along with Brenden Leydon, of Tooher Wocl & Leydon in Stamford, Conn.

But a WWE spokesman told Bloomberg BNA July 19 that those and other allegations of the complaint fall flat.

“This is another ridiculous attempt by the same attorney who has previously filed class action lawsuits against WWE, both of which have been dismissed,” Matthew Altman said in an e-mailed statement.

“We’re confident this lawsuit will suffer the same fate as his prior attempts and be dismissed,” Altman said.

Altman didn't specify those cases, but a would-be class action against WWE was voluntarily dismissed in April ( Goguen v. World Wrestling Entertainment, Inc., D. Conn., No. 16-cv-00542, voluntary dismissal 4/11/16 ).

That complaint sought payment of royalties to former WWE wrestlers.

Collective Bargaining Issues Absent

All of the concussion cases, including the WWE suit, involve claims that leagues hid some of the risks inherent in the sport, failed to minimize some of the risks, or took steps to increase the dangers, Tulane University Law School professor Gabe Feldman told Bloomberg BNA July 19.

Feldman is director of Tulane's Sports Law Program.

“Although the choreographed nature of professional wrestling does distinguish it from professional football and hockey, the bigger difference in those cases is that professional wrestlers are not members of a union and are not parties to a collective bargaining agreement with the WWE,” Feldman said in an e-mail.

The wrestlers claim WWE designated them as independent contractors to avoid the protections afforded by the Occupational Health and Safety Act, the Family Medical Leave Act and workers' compensation laws.

Matthew Mitten, executive director of the National Sports Law Institute at Marquette University Law School in Milwaukee, told Bloomberg BNA July 20 the lack of a collective bargaining agreement is a “very significant' issue in the case.

“In those agreements, arbitration often is the prescribed remedy, and players are barred from bringing class actions for state tort claims,” Mitten said, adding that the wrestlers' case may be “less complicated” as a result.

Another significant issue will be a likely defense that the wrestlers assumed the risk of the orchestrated moves they rehearsed, Mitten said.

“In football, it's not choreographed,” Mitten said. “You know there's going to be some head-to-head contact, but not people throwing you up in the air and landing on your head.”

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bna.com.

To contact the editors responsible for this story: Steven Patrick at spatrick@bna.com and Jeffrey D. Koelemay at jkoelemay@bna.com

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