CTE diagnosed in Balls Mahoney, and Early Stages of Disease Discovered in Axl Rotten

The world learned on October 21, 2016 that two more pro wrestlers had been examined and shown to have signs of CTE. The reaction in both the mainstream and wrestling media was muted. When the news was released at the same time of that of a MMA fighter Jordan Parsons, one would have imagined all sorts of comparisons and analysis as to how wrestling was not so fake after all. But nope other than the Boston Globe article which released the story, very little was written about the news. The wrestling media which typically engages and reports every detail of some event in the wrestling world barely registered the fact that of the four publicly identified wrestlers whose brains have been studied by Dr. Omalu all four have shown signs of CTE. The WWE’s reaction? Release a statement to the press critical of the the attorney representing the deceased.

First case of CTE diagnosed in MMA fighter: Brain Disease is also found in two more pro wrestlers.
Bob Hohler Boston Globe Oct. 21, 2016

Excerpt:
“Omalu also announced the discovery of CTE in professional wrestler Jon Rechner, whose ring name was Balls Mahoney, as well as signs of early stages of the disease in Rechner’s tag team partner, Brian Knighton, who went by Axl Rotten. Both died this year at age 44.  Rechner and Knighton were known on the professional wrestling circuit as “The Hardcore Chair Swingin’ Freaks,” and Rechner is the third professional wrestler who has been publicly identified as having been diagnosed with CTE — and the first since 2009. Their diagnoses come as World Wrestling Entertainment, the industry’s largest promoter, defends itself against lawsuits alleging the company placed its business interests above the health and safety of its performers. WWE spokesman Brian Flinn said by e-mail that the company would decline to comment until it has reviewed the research on the diagnoses. He suggested that Konstantine Kyros, a Hingham lawyer who represents more than 60 professional wrestlers, was “pushing’’ the CTE story to counter negative publicity about the WWE’s court motions to sanction him for improper conduct — an allegation Kyros denied.”

WWE Wrestlers Misclassified as Independent Contractors

The Laurinaitis case alleges (among other things) that many wrestlers were misclassified. The argument and allegations are found in the first count of the lawsuit: “the Defendant WWE and VKM as its Chairman and controlling shareholder (individually and/or through the blizzard of trusts he has created) intentionally misclassified the Plaintiffs as “independent contractors”, without basis in law for doing so, and with the specific intention of depriving the Plaintiffs of money due to them which was retained by the Defendants and utilized to advance their business and augment their wealth… The misclassification by WWE was generally achieved by the presentation to the Plaintiffs of boilerplate Booking Contracts permeated with unconscionability.”

Here is a scholarly article on the subject that was published in University of Louisville in 2014:

Employees vs. Independent Contractors and Professional Wrestling: How the WWE Is Taking a Folding-Chair to the Basic Tenents of Employment Law By David Cowley

Read the detailed allegations in the filed WWE Lawsuit here.

WWE’s Liability extends to all ECW and WCW Matches


Did WWE continue using ECW or WCW assets? Read Argument

Upon investigation into the history of WWE and its acquisition of the business and assets of other promotions, it seems clear that the WWE may incur liability for the occupational injuries sustained by wrestlers in all ECW and WCW matches. How is this? Under a well established legal doctrine called Successor Liability or “de facto merger” businesses can assume unanticipated liabilities if the merger of the entities or business meets certain objective tests.

The general rule is that the mere transfer of assets from one corporation to another corporation does not make the latter liable for the debts or liabilities of the first corporation. However, as the plaintiff’s contend in the newest WWE lawsuit, a corporation acquiring the assets of another corporation assumes the liabilities of the selling corporation if: (1) the successor expressly or impliedly agrees to assume them, (2) the transaction may be viewed as a de facto merger or consolidation, (3) the successor is the mere continuation of the predecessor, or (4) the transaction is fraudulent.  The second and third factors are in play in this lawsuit with respect the the business of the ECW and WCW. Read the Plaintiff’s argument in detail here.

Here is an article written by a well known law firm (that defends companies like the WWE) about the doctrine being used by the wrestlers. Like asbestos litigation, the wrestlers allege that they sustained latent occupational diseases or risks from assets/business that continued to make money for the new corporation. Thus a ECW or WCW wrestler (sustaining head trauma in ECW or WCW) who is now featured in the now owned WWE videos (for example) may be able to argue that WWE merged the companies under this doctrine. The doctrine does not care if the assets were acquired with “no strings attached” because the successor company (the WWE in this case) assumes liability, according to the theory, whether it wants to or not by operation of law.

We are closely examining this issue and welcome evidence of any use of WCW or ECW assets by WWE.

Ohio Court of Appeals Cites to Ruling in Favor of WWE Wrestlers

In an overlooked decision Judge Bryant’s ruling in the Singleton/LoGrasso case that DENIED the WWE’s motion to dismiss the case was cited as an Important precedent in the Ohio Court of Appeals in an important case involving football players at Notre Dame University. The ruling quotes the WWE lawsuit at length in ruling on behalf of the football players. The ruling in favor of Vito LoGrasso and Evan Singleton is one of the first of its kind and has now set precedent in the pleading of occupational disease claims in CTE sports cases.

The Ohio Court of Appeals favorably quotes Judge Bryant in the WWE lawsuit at length: Read Opinion: Schmitz v. NCAA 2016-Ohio-8041

“These courts rejected defendants’ claims that the statute of limitations accrued at the time of the concussive and subconcussive impacts, recognizing that plaintiffs’ alleged injuries in the form of an increased risk of developing neurodegenerative diseases, such as CTE, are distinctly different than the head injuries they sustained while playing the sport. As explained by the Connecticut district court in the wrestling case:

The mere fact that the Pre-2012 Plaintiffs allege that they sustained concussions and head trauma during their tenure with the WWE; and that they allege awareness of those concussions and possible concussion-like symptoms at the time, is not necessarily dispositive here at the motion to dismiss stage. A single [mild traumatic brain injury (“MTBI”)] such as a concussion, and the symptoms that a discrete MTBI can manifest, are not the same “condition” as a disease such as CTE or another degenerative neurological disorder that may — or may not — be caused by repeated MTBIs.

For this reason, the Connecticut federal district court found that the allegations of the complaint did not support the conclusion that the plaintiffs had been on notice of their alleged injuries, i.e., increased risk for latent, permanent neurological conditions, simply because they had suffered a concussion. Specifically, the court explained as follows:

Here, however, it cannot be determined from the face of the Complaints and as a matter of law that the Pre-2012 Plaintiffs were on notice of an increased risk for a latent, permanent neurological condition merely because they knew they had suffered a concussion and/or sustained other minor brain trauma during the time they wrestled for WWE. The Pre-2012 Plaintiffs’ knowledge, or lack thereof, of a connection [between] repeated concussions or sub-concussive blows to the head and latent, permanent neurological conditions presents a material issue of fact that must be decided at a later date. Without knowledge of such a connection, Plaintiffs may have discovered “some injury,” but not “actionable harm” because of their inability to tie head trauma that they knew they were sustaining to another party’s breach of a duty to disclose increased risks for latent, permanent neurological conditions.”

This very important ruling opens the door for other athletes and wrestlers to potentially pursue claims for CTE injuries.

CTE Compared to Asbestos Claims – NY Court

A New York Court issued a very favorable ruling on behalf of the family of a deceased NFL player, that has important implications for plaintiffs pursuing CTE claims. Read the Opinion Here

“This type of latent disease is comparable to asbestos cases where the injury occurred outside of the statute of limitations period, however, the manifestation of the disease or illness is not developed or detected until years layer. If plaintiff was suffering from a latent condition, and the ability to diagnose the condition is not available until the death of the injured party, then under the discovery rule the cause of action arises upon the discovery of the latent disease, i.e., at the time an autopsy is performed.”

 

This is substantially similar to the arguments advanced by the WWE wrestlers.

Wrestlers File Motion to Unseal Triple H, Stephanie McMahon and Vince McMahon’s Depositions

The plaintiffs filed this motion to unseal and make available to the public the testimony given by WWE officers in the Singleton/LoGrasso lawsuit. The argue: “There is no question that the deposition of a Defendant in this matter, Vincent K. McMahon, and the depositions of Paul Levesque, as WWE’s corporate representative, and Stephanie McMahon, WWE executive, are judicial records favoring a presumption of public access.

Konstantine Kyros: Q&A on the WWE RICO Lawsuit (Laurinaitis Versus WWE)

I invite wrestlers and their families, media, wrestling fans and people interested in the plight of the wrestlers and the fight for their rights to submit questions about their legal claims. Here are some questions and anwers I have collected.

1) Q: Why do you think this lawsuit will be more successful than your previous ones against the WWE? (posted by German Journalist Guillaume Horst from Der Spiegel)

A: This latest case is the result of an extensive investigation into the policies and practices of the WWE which has revealed a systematic exploitative business practice which use unconscionable booking contracts to deceive the wrestlers about their legal rights- which deprived them of the legal protections that are given to US workers under federal labor and employment laws. Without these protections which were enacted to protect workers health and safety, the wrestler after retirement are now in a health crisis with many disabled because of they wrestling careers. Also note that the wrestlers are, per the plaintiffs allegations, misclassified as independent contractors, deprived of statutory rights and OSHA regulation further eroding a defense by WWE as compared to other contact sports in which there is an employment relationship, unionization, regulation and public oversight of the activities that may result in injury. A quick review of the plaintiffs factual allegations in the complaint reveals where they are now (broken in body and mind, many now disabled) graphically showing the outcome of the unregulated regime that WWE has maintained over these athletes.

2) Q: Have all the plaintiffs suffered head injuries in the course of their careers? Or are they suing because of other injuries as well? (posted by German Journalist Guillaume Horst from Der Spiegel)
A: The plaintiffs allege head injuries in two forms: 1) Open and obvious concussions that WWE failed to adequately treat and diagnose as well as 2) long term effects and risks of repeated head trauma that can cause an occupational disease  like CTE that a wrestler would not know about unless educated by a doctor or WWE. Thus the wrestling match in ring activity itself (the routine, ordinary bumps and maneuvers) as well as the so called “accidental” incidents that often result in concussion cause latent, unseen and long term harm that results in damages to the plaintiffs. That physical activity itself which during its routine performance is causing unseen harm for which there is a duty to warn, the same is true in other contact sports Such as the NFL, and NHL in which routine head trauma also appears to result in CTE and latent occupational neurological disease.

Wrestling 101

fall-guys

Fall Guys: the Barnums of Bounce (Marcus Griffin, Reilly & Lee 1937)

“‘Working’ was the term used to denote two wrestlers putting on a show for the crowd with the result determined beforehand…..’Heat’ meant getting the fans excited… The organization left nothing to chance” p. 52″

Launch of WWE Concussion Lawsuits

I am starting this as a tool to reach out directly to people interested in the WWE concussion lawsuits that we have filed. As of October 2015, it has been a year since our first case was filed on behalf of Billy Jack Haynes against the WWE. That case along with 5 others is currently pending in Federal Court in Connecticut.

Two of the filed cases are class actions (Haynes case and one headed by three wrestlers Russ McCullough, Ryan Sakoda and Matt Wiese) that seek a declaration of judgment against the WWE and seek medical monitoring for the injured class members. Another case is pending on behalf of two individual wrestlers (Vito LoGrasso and Evan Singleton) who claim brain injuries from their wrestling careers. The two remaining cases are wrongful death cases filed on behalf of the surviving families of Nelson Frazier, Jr and Matt Osborne. Additionally there is a lawsuit that was filed by the WWE against four wrestlers: Robert Windham (Blackjack Mulligan), Ivan Koloff, Koko B Ware and Thomas Billington (Dynamite Kid). The WWE’s case seeks a declaration that these injured men cannot bring cases at all because it is too late.

The developments in these cases in the coming weeks and months will impact the legal rights of all former and current WWE/WWF/WWWF performers and their families. The purpose of this site is to inform thoese interested in the latest events in the lawsuits as well as communicate with people that may have information to share. We are always interested in speaking to people who worked with wrestlers, worked with WWF, have knowledge of the working conditions and medical care at matches- especially before 2006. Call 1-800-934-2921 or email kon @ kyroslaw.com

Our goal is to help get ongoing healthcare and compensation for wrestlers who sustained brain damage and neurological injuries. There are too many disabled wrestlers for the courts and public to ignore their plight. The moment to act has come for these men and women.

-Konstantine Kyros