The court denied WWE’s motion to toss Singleton/LoGrasso case, but the Court requires further briefing on the issue in an effort to uncover the facts.
Court ruled: “The case resolves around a single question:
‘Did WWE become aware of and fail to disclose to Singleton and LoGrasso information concerning a link between repeated head trauma and permanent neurological conditions or specialized knowledge concerning the possibility that its wrestlers could be exposed to a greater risk for such conditions.'”
Interestingly the 2005 date is no longer mentioned in the ruling- evidence introduced on the record in the case- shows WWE had such prior knowledge- including a “smoking gun” video of a December 1995 Monday Night Raw interview with Dr. Unger discussing Shawn Michaels alleged “post concussion syndrome.” Post Concussion Syndrome was a term used before the widespread use of CTE for long term effects of head trauma as opposed to “concussion” which is viewed as a transient or short term event. As such that fact and other evidence demonstrate that the WWE cannot plausibly deny that it did/does not know about such risks during the relevant time period.
Read Court Ruling here: MSJ-LoGrasso
[WWE and Vincent K. McMahon] make the astounding claim that Plaintiffs have not plead “anything unconscionable about the contract”. Defendants apparently feel that deliberate misclassification of employees as “independent contractors” and the resulting sweeping away of an entire array of guaranteed state and federal statutory rights represents no injustice. Requiring a worker to pay for all of his own medical care even when injured on the job, in violation of Worker’s Compensation laws need not bother us. Refusing to allow a wrestler’s broken body the 12 weeks’ recovery mandated by FMLA can be just passed by as an irrelevancy. Who cares if mandated notices under OSHA to provide a “safe workplace” were hidden – the wrestlers should have been tough enough to withstand any injury. So what if Plaintiffs were defrauded out of ERISA benefits – just a bump along the way. The actual (or feigned) blindness of the Defendants to the scope of their illegal activities is breathtaking.
Indeed, the very brief of the Defendants reflects magnificently the attitude of the WWE under the direction and control of the VKM Defendants. If one is above the law, no violation of law carries any meaning, and no victim of your arrogance is entitled to any consideration let alone compensation.
The Defendants [WWE and Vincent K. McMahon] say that such unconscionability exists only when the contract terms “shock the conscience” [Document 267 @ 71/113], and cite yet another unpublished case in support of this proposition. Plaintiffs state that these contracts in fact “shock the conscience”. They blatantly purport to set aside every worker protection from a safe working environment, to Worker’s Compensation benefits, to the right to organize a union guaranteed by U.S. Law and international treaty, to the right of an employee to enjoy an employer’s contribution to FICA, FUTA and Medicare taxes, or to even sue for an unforeseen injury caused by the negligence of the employer (i.e. exculpatory releases), the right to share in an equitable portion of one’s own intellectual property, the right to 12 weeks to recover and NOT to be fired in 8 weeks because one is injured (FMLA). The workers here were left with one right – to do what Vincent K. McMahon and his agents at the WWE told them and receive their check, or get lost and find their own way to pay for rehabilitation of their broken bodies
Additionally, the paltry royalties were identified as an integral element of WWE’s “swindle” of the Plaintiffs. In Paragraph 486 of the FAC one of the notable swindles identified was the payment of twenty-three cents to Bruce Reed upon a revenue gross of $4,844.44 to the WWE. In paragraph 487 of the FAC, the examples given were identified as evidence of the fraud upon and exploitation of the Plaintiffs. Any reasonable person would understand these allegations to depict unconscionable contract provisions. The allegations “swindle” and “exploitation” are the foundation of unconscionability, especially when coupled with the allegations of FAC 501-503 which specifically use the word unconscionable as applied to the exploitation of Plaintiffs intellectual property.
Read the FULL Document: Plaintiff’s Opposition to WWE and Vincent K. McMahon’s Motion to Dismiss
The court held two marathon hearing as to whether the Plaintiff’s attorneys should be sanctioned in the WWE lawsuits. The arguments were wide-ranging and presentations were made calmly by both sides (for the most part). At the March 9, 2017 hearing Attorney Kyros prepared these introductory remarks- the text is not exactly what was said in court as he varied his delivery with further detail and other commentary. Attorney Kyros also presented a slide show on various aspects of the case. Attorneys Norris, Boumil and Leydon also appeared for the Plaintiff’s.
Draft of Kyros comments to the Court: Thank you your Honor for having this hearing and giving us the opportunity to address the court. In spite of Mr. McDevitt’s strategy of personally attacking the plaintiff’s attorneys in an attempt to discredit us and thereby discredit the plaintiff’s case before it can even be heard, we are here to answer Mr. McDevitt’s plethora of false allegations of attorney misconduct, without losing sight of the real issue- the claims of a group of WWE wrestlers brought against the WWE for their misconduct.
A group of 60 men and women that is dwindling as we argue over distraction issues that are preventing this group from getting adequate healthcare.
Indeed another named plaintiff, Ron Bass died just two days ago. Named Plaintiff Chavo Guerrero, Sr died Feb 11, Rex King on Jan 9 and Jimmy Snuka on Jan 15. That is four in the Laurinaitis case this year already. Another client of the firm died Feb 18- who was sued by the WWE when I send a letter of representation. The WWE will have a talking point about the causes of death- which misses the point that they suffered from occupational harm and disease- that either caused or contributed to their deaths.
This health crisis stems from a totally archaic workplace structure that has emerged unchanged from unregulated wrestling working conditions which had one goal to enrich the promoters. No longer a side show to a carnival or small regional promoter that stages matches on Saturday nights- the WWE and the McMahon dynasty have created an entity that harnessed the popularity of the worlds oldest sport in way that dwarfs the efforts of all the carnival/boxing/wrestling promoters of the past.
The tragedy is that for the billions made by the McMahons which could have easily provided for all the wrestlers, the McMahon family kept to the old model of exploitation- in a situation of unfair bargaining power that has no precedent in any athletic promotion- even boxing promoters like Don King- well know for their sharp practices (that prompted the passage of laws like the Muhammed Ali Act and others) these promoters at least had the innate ability of the boxers to contend with- the WWE is guided by no one, and no rules whatsoever since they control all wrestling at the highest levels-winners- losers- careers- lives and futures are at their discretion.
The familiar tools that pretend to have the color of legality are really unconscionable contracts of adhesion, phoney preemptive releases as well as post employment – sometimes decades later releases procured for pennies all designed to lock down the wrestlers and prevent any lawyer or anyone bold enough to challenge these practices with immediate threats Rule 11. The contracts/releases and associated conduct is prohibited under CT law, federal law and principles of equity that this court and our system of justice rests upon.
The argument on misclassification and the workplace structure is not academic – as it often is- here under its oppression, the wrestlers gradually succumb to their occupational injuries- broken necks, broken backs, fused discs, hip replacements, knees, shoulders for which they most often have inadequate medical care to treat especially as they age.
Hiding in all of this are the latent occupational diseases that rob them of their minds, and memories. In the CTE debate the wrestlers may finally have justice- the weigh of evidence is overwhelming that the wrestlers are at risk and will likely suffer from neurological injuries from their careers.
The case characterized as legally frivolous involves the third and fourth deceased wrestlers ever studied that have CTE- with diagnosis confirmed by Dr. Bennett Omalu the pioneer in modern CTE studies.
Mr. McDevitt frequently alleges this suit against the WWE is all about money. He is right, it is all about money, the millions of dollars of income generated by the wrestlers including the named plaintiffs for the WWE each year. The money saved by the WWE for failure to provide for the health and wellbeing of the wrestlers in their employ, the money saved by the failure to provide medical monitoring and neurological testing and treatment. The money they are refusing to compensate their former wrestlers for their suffering caused by the failures of the WWE to inform and protect.
Mr. McDevitt is in a frantic attempt to protect the WWE’s huge financial assets and to prevent reducing them by even the slightest percentage to compensate and protect wrestlers in health crisis today. And he is in a Frantic attempt to suppress the fact that the WWE knew about the dangers of head trauma for years and now faces a looming CTE epidemic that WWE does not wants to resolve.
McDevitt’s sole aim of this request for sanctions and dismissal is to prevent any exposure of the WWE’s practices and conduct towards the people who enabled them to dominate the wrestling world.
Hon. Judge Robert A. Richardson 1/24/17: “All right. Lastly, I guess the only other item that I think I would address while we’re all here is whether you guys have any interest in talking settlement with a magistrate judge…. But I throw it out there in the event that both parties have any interest in discussing settlement with a magistrate judge. We have magistrate judges who are here and very able and very capable. It sounds like this litigation has been going on for a while, since 2015. It sounds like it’s going to continue to go on at least for a while longer, depending on how motions get resolved; but I would encourage you that it’s never a bad idea to talk settlement with a third party. It doesn’t mean that anyone is surrendering on any position, but it gives you at least a third party’s view of things, and maybe helps you get the case resolved alot faster and more efficiently.” See Full Minutes here, basically the discussion was about trying to get a schedule for the lawsuit (called a 26f report).
10/16/16 the WWE wrote in its Motion for Sanctions DK 229 page 3 “WWE has previously advised Plaintiff’s Counsel that it is not interested in settlement… Plaintiffs Counsel submitted a proposed Rule 26(f) report in this case requesting an early settlement conference.” This appears as a footnote to the WWE’s claims the plaintiffs lawyers “are attempting to extort a settlement.”
Needless to say I think that the WWE legal team is committed to continuing its defensive line of scorched earth tactics, and not discussing trying to help the wrestlers with medical care despite the fact that four plaintiffs have already died this year- the latest with the passing of Ron Bass on March 7, 2017.
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
“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.”
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
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.
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.
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.