The lawyer leading the WWE concussion lawsuits, Konstantine Kyros talks about wrestlers diagnosed with CTE and the WWE’s efforts to discredit him and the cover-up of CTE in professional wrestling through WWE’s funding of Chris Nowinski’s Concussion Legacy Foundation.
The Supreme Court of Ohio ruled October 28, 2018 (one month after WWE Wrestlers claims were dismissed) that a former Notre Dame football player can sue the school and NCAA for CTE. The court noted that the allegations involved a “latent” brain injury stemming from when he played football in the 1970s. The court ruled that his case can go forward, ruling the statute of limitations was triggered when he learned of the brain injury in 2012, not when he suffered blows to the head in college in the 1970s.
The court wrote that Steven Schmitz, who played for the Notre Dame Fighting Irish from 1974 to 1978 had sustained impacts to the head and experienced concussion symptoms such as disorientation during his playing days, he was unaware of the lingering effects those injuries had, including chronic traumatic encephalopathy, or CTE, a degenerative brain disease.
Hmmm. Anyone find it curious that this NCAA player can sue, but that 60+ wrestlers have ZERO rights? Who do you believe has a factual and legal basis to argue that they were injured by CTE? Jimmy Snuka or Steven Schmitz?
In start contrast a Federal judge in Connecticut ruled against 60 wrestlers who brought substantially similar claims, including five diagnosed with CTE, arguing that the claims were patently time barred, frivolous and sanctioned the attorney who brought the case. This post outlines the Statute of Limitations Issues taking Jimmy Snuka as an example, as the Federal Judge in Connecticut singled out his claim as being “Patently Time-Barred.”
Kyros Law announces that Don Leo Heaton’s family has donated his brain for a study of CTE in professional wrestlers. Mr. Heaton known as Don Leo Jonathan was a towering figure in the history of wrestling. Known as the world over as the “Mormon Giant,” Don Leo’s style and performances were foundational to the modern era of wrestling when he was one of the world’s best known performers between the 1950s into the 1970s. Don Leo was involved in Championship matches with Pedro Morales, Bruno Sammartino in WWWF and frequently wrestled Andre the Giant. At 6′ 6″ and more than 300 pounds, he is considered as one of the greatest athletic “big man” wrestlers of all time. The Wrestling Observer on his passing, noted his stardom to millions of fans and that his natural ability was “almost mythological to those in the business.”
Don Leo was by far the oldest wrestler involved in lawsuits against the WWE and died in the midst of fighting for his rights and the legal rights of professional wrestlers. His lawsuit (now being appealed) was sadly dismissed a few weeks before his death.
Like NFL great Frank Gifford, who lived to age 85, Mr. Heaton at age 87 decided to donate his brain to help the next generation of athletes. Sports organizations like the NFL and WWE should be studying CTE so that athletes can understand the risks and develop better treatment. The NFL settled claims made against it, finances CTE studies and helps former players at risk for CTE. The NFL recently awarded one of Mr. Kyros’ clients diagnosed with CTE over $3.8 million. In contrast the WWE denies that CTE exists in wrestlers, fought the injured wrestlers legal claims with scorched earth tactics, does nothing to help wrestlers with CTE or wrestlers at risk for the disease and WWE is attempting to silence legal advocacy on behalf of wrestlers in various ways. Don Leo and his family hope his donation will contribute to ongoing medical research linking professional wrestling to occupational diseases like Chronic Traumatic Encephalopathy.
The WWE has donated millions of dollars to the leading CTE advocacy group (The Concussion legacy Foundation in Boston) and appears to have influenced that entity (headed by former wrestler Chris Nowinski) not design or conduct studies of CTE in deceased wrestlers. See front page Boston Globe expose on this WWE CTE research suppression activity.
In contrast to the WWE financed Nowinki group which does not actively recruit brains to study wrestlers, Kyros Law has advocated for wrestlers with CTE and facilitated the brain donations of many of the most famous professional wrestlers to die in the past few years including Jimmy Snuka, Mr. Fuji, Balls Mahoney, Chyna, Axl Rotten, Rockin’ Rebel, Rex King, Ron Bass, and Brickhouse Brown. At least five of these wrestlers have tested positive for CTE to date with several studies pending.
No matter how long the WWE and McMahon family ignore, downplay, create doubt or wait for the passage of time to realign the cultural memory of their long history of wrestler mistreatment and the science of CTE, the memory of Chris Benoit will continue to haunt them.
It’s a powerful memory uniting the spiritual, legal and scientific that casts a long shadow. When Chris Benoit murdered his family and committed suicide it was an enormous tragedy that presented the McMahon family and WWE an opportunity to correct past mistakes. The Benoit events emanated from misfortunes many wrestlers face and will continue to face. Instead of confronting these issues: long-term injuries, a historically unregulated workplace, grueling road schedule, no off-season and the increased the risks of CTE in former talent, WWE have been seeking to avoid responsibility for wrestlers’ health, particularly retired wrestlers. Unfortunately, the moral, legal and scientific imperatives of the health crisis tragically illustrated by the Chris Benoit events won’t go away so easily.
Chris Benoit by all accounts was an upstanding family man, driven to perform, technically proficient and had 21 years experience entertaining millions with his skills. The WWE fostered a narrative of his striking physical and mental toughness.
This is graphically illustrated in the WWE coffee table art book, “WWE Unscripted” (Leiker, Vancil Pocket Books 2003) published three years before his death. The glossy photos on its pages show a bloody-eyed stoic Benoit juxtaposed with him grimacing while weight lifting, while the text informs presciently: “I am sure I’m going to have some physical problems down the line.” For those readers that don’t know (Chris certainly could not have), Tau protein accumulation in athletes’ brains associated with CTE is considered by experts to be a present physical injury. The text of the WWE book describes his neck fusion of C6 and C7, nagging injuries and chronic pain and even concludes with a passage that could have been lifted from a sentence in one of the wrestler rights lawsuits: “and we have no off season to recover.”
Chris Benoit’s own WWE illustrated “Unscripted” experience very simply demonstrates the failures of the McMahon family to maintain a safe schedule, workplace and shows the injuries sustained by the people who made them billions of dollars. As the title of the WWE publication suggests Chris Benoit’s injuries were very real and his issues are also present in the WWE’s employment law failures including the creation of these conditions with the use of unconscionable contracts WWE talent are required to sign. The contract violates labor laws (per lawsuit theory), and it even required Chris to waive liability for his own death: “Wrestler hereby releases, waives and discharges promoter from all liability to wrestler and covenants not to sue promoter for any and all loss or damage on account of injury to their person or property or resulting in serious or permanent injury to wrestler or in wrestler’s death, whether caused by negligence of promoter or other wrestler under contract to promoter.”
In the immediate aftermath of the incident, the critical emphasis was on his drug use, which is understandable, as illicit drugs are easily identified as the hallmarks of an unsafe workplace. Steroids, pain medications (without prescription) are also easily understood to be a problem, especially when used as a necessary component of athletic activity that a for profit business like WWE monetizes.
After his autopsy and toxicology report, it soon became known that Chris had evidence of drugs in his system. The WWE publicly distanced itself, noted he passed a recent drug test and challenged the notion that drugs played any role in the incident. Later the members of the McMahon family would, under pains and penalties of perjury, be asked to testify on the illegal drug issues in their workplace, including whether Chris had ever any positive drug tests. You can See a May 2006 Chris Benoit “positive” test result here and see the McMahon testimony here.
The issue that would soon augment and overtake the drug abuse was the science of Chris Benoit’s brain tissue. Unlike drug use, which is rampant, commonplace and more easily (falsely) solely attributed by WWE to wrestler choice and conduct, the science of brain disease conjured up more powerful enemies to confront the McMahons.
With the revelation that Benoit had a brain disease now called CTE, WWE deployed its media relations department to create doubt and even the inimitable Mr. McDevitt was enlisted to fight the truth. The chain of custody tissue of Benoit slides was to be doubted and hence the veracity of the test, the notion he had brain damage was silly because how did he get to the airport etc. etc. When a second wrestler (Andrew Martin) was diagnosed, the WWE denial playbook was the same.
As the CTE crisis threatened to engulf the NFL and create a billion dollar liability, the WWE strategically funded the leading CTE advocacy group, founded by one of their own former wrestlers, Chris Nowinski. Mr. Nowinski, with supreme irony as he had helped launch his career with the Benoit CTE Study (see this Boston Globe story on Nowinski and Benoit). Unfortunately none of that WWE money was used to fund a dedicated CTE study of former wrestlers brains, none of that money was used to conduct outreach to acquire the brain tissue of the multitude of deceased wrestlers or even apparently dedicated to helping retired wrestlers with CTE. (More in a future post, but this Boston globe story gives you the basics).
Although the WWE attempted to bury all memory of Benoit and CTE science, the memory of Benoit continues to haunt the halls of Titan Towers. The science of CTE in wrestling may have remained buried by the WWE until dozens of professional wrestlers and their families began legal action. The science of CTE in wrestlers was marched forward in court battles involving Balls Mahoney, Jimmy Snuka, Axl Rotten, Rex King and Mr. Fuji, with their families speaking out about their CTE diagnoses after their deaths.
Chris Benoit will be ever present in WWE folklore and the fight for wrestlers’ rights: Short video clip of Chris Speaking before his untimely death featuring Jim Ross venerating him: “I wish we had one hundred Chris Benoits.”
Unfortunately, there are hundreds of Chris Benoits, though not in the sense intended by Mr. Ross. There are hundreds of wrestlers that were overworked, with no off season, whose bodies are seriously injured who treat with addicting drugs, who have inadequate medical care and who face the prospect of being checkmated by a latent neurological disease that may slowly steal their identity and rob them of their conscious being. You may have heard all of this before, you may have read all of this before, but the Ghost of Chris Benoit makes it Real.
Revealed: Chris Benoit “POSITIVE” drug test results raise doubts about accuracy of testimony.
Q: “Were you aware of any positive test results that Mr. Benoit had under the wellness program prior to his death?
Vince: “I never got a positive test result on Chris Benoit in any manner, if that answers your question.”
Vince McMahon and Jerry McDevitt met with federal investigators from the House Committee on Oversight and Government Reform on December 14, 2007, when Mr. McMahon was invited to testify about allegations of steroid and illegal drug use in pro wrestling in the aftermath of the Chris Benoit Incident.
During this dignified testimony both men resorted to the use of the term “Bullshit” in respect to Government lawyers inquiring about serious public health issues in WWE relating to drug use:
Vince McMahon: …”it’s important that someone who tests positive, when they test positive we announce— which we haven’t run into that quite frankly. We haven’t run in the situation. And again the program is evolving guys, okay. You’re trying to do some sort of gotcha bullshit, okay. But the program is evolving.” Vince McMahon’s Testimony to Rep. Waxman’s Congressional Committee.
Jerry McDevitt: “I’m not going to allow you to harass this man. How is that pertinent to anything about whether this wellness program works? And you came here professing you have an open mind and you’re telling me that you didn’t have this in mind when you wrote this list? Bullshit.” Jerry McDevitt defending Vince McMahon during Testimony to Rep. Waxman’s Congressional Committee.
Vince McMahon’s Chris Benoit Testimony:
Government: I have a question about one specific wrestler, Chris Benoit….. Prior to Mr. Benoit’s death, were you aware of any positive test results from Mr. Benoit under the wellness program?
Mr. McDevitt: Hang on one minute……
You can read the remainder of the waffling around answers here in the transcript>>> I will let the reader decide and form her or his own opinion as to the relative likelihood of this being accurate testimony. You can see the layers of protection built by Mr. McDevitt along with the obfuscation, dismissive tone of Mr. McMahon. The letter is included so the perceptive reader can contrast the testimony with its contents.
The WWE lawsuit directly confronted the WWE’s use of illegal contracts.
In part the lawsuit alleged: “The Booking Contracts, the “Contractor Nostalgia Agreement”, the “handshake deals” are outrageous, were procured by fraud, coercion and unequal bargaining power, and violate public policy and the statutes which are set forth in this Complaint, as well as references to applicable law. For those reasons and applicable law, here repeated and realleged in every detail, the Booking Contracts should be set aside and declared null and void, as having been procured and necessary through fraud, coercion, intimidation, while a progressive disease process intentionally hidden from the Plaintiffs was allowed to proceed and the WWE to rob the Plaintiffs of any ability to comprehend their circumstances.”
See Chris Benoit’s Unconscionable Contract that forced wrestlers to release WWE from all liability even to their own Deaths.
“Wrestler hereby releases, waives and discharges promoter from all liability to wrestler and covenants not to sue promoter for any and all loss or damage on account of injury to their person or property or resulting in serious or permanent injury to wrestler or in wrestler’s death, whether caused by negligence of promoter or other wrestler under contract to promoter.”
See Non-frivolous Nature of this Claim as demonstrated by Law Review and Academic Articles:
1) 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 September 2014 University of Louisville Law Review;Fall2014, Vol. 53 Issue 1, p143
Corteen, K. & Corteen, A. (2012) International Perspectives in Victimology October, 2012.
7) WWE, Wrestling, Wellness & Entertainment- An Analysis of Work and Health in Professional Wrestling by Jospeh Fargiorgio A Thesis Presented to University of Guelph (Ontario) 2014
Today WWE Defense counsel Mr. Jerry McDevitt sent Mr. Kyros a bill ( an application to the court to award this amount) for a portion WWE’s legal fees totaling a cool $357,000+ and change, along with a document that attempts to describe the contents of this very important blog, and criticizes Kyros’ comments to the press, see the WWE economic attack on Kyros here: K&L Gates Bill 1, Day Pitney Bill-2 and Accusations about this blog and fee request here.
Kyros Law Offices Official Statement on this latest WWE activity:
“In seeking over $357,000 for my advocacy on behalf of professional wrestlers, the WWE deploys economic warfare as a tactic to silence anyone who dares to speak for them, fight for their rights and be a voice for CTE awareness in professional wrestlers. I will continue to stand for the rights of professional wrestlers injured and exploited by WWE’s outrageous misconduct. The case is about them, their rights, their plight and not about me as their voice and advocate.
With respect to the Court’s ruling, I have strongly voiced my disagreement on behalf of my clients. I express my opinion that the court in its ruling dismissing the claims of these women and men ignored the wrestlers’ legal rights to a safe workplace. The court ignored the wrestlers’ rights to be treated under the law as employees. The court ignored the claims of families of some of the most famous athletes ever diagnosed with CTE including Mr. Fuji and Jimmy Snuka. The court ignored the fact that WWE actions and inactions have led to a tragic epidemic of suicides, drug and alcohol addiction, overdoses and total health crisis that has engulfed the wrestling community.
I encourage anyone interested in the plight of the wrestlers to actually read the wrestlers dismissed lawsuit to judge for themselves if it is frivolous or fails to make proper legal and factual arguments about fraudulent nondisclosure, medical monitoring and tolling the SOL. Regarding the Court’s order that the public needs protection from my advocacy, it is my opinion that it is in fact, the professional wrestlers I represent who need protection from WWE’s exploitation and legacy of neglecting their legal duties.
Substantially similar claims have been invoked and pled in the NFL, NHL and NCAA cases, in my opinion a major difference being that the wrestlers’ claims are factually and legally far stronger. The wrestlers under the current ruling have no rights to even the basic protections of labor law. The wrestlers assert facts in their 64 affidavits and pleadings that should bring investigation, legal reform, and Congressional Oversight to the WWE’s illicit practices. The wrestlers want a day in court and Trial by Jury.
I have great respect for the process, and I learned a great deal from the Judge and have endeavored to follow all of the courts rules and orders. I have even learned from the fanaticism, belligerence and sharp practice of defense counsel Mr. McDevitt, who seems to believe calling me dishonest enough times will make it true. My candid criticism of the ruling against my clients is a voice for the Justice of their cause. As I have stated the wrestlers will Appeal this tragic ruling that ignores their legal rights, voices and hopes. The WWE will be defeated with Truth and Justice.”
Days After 60 WWE Wrestlers Claims Tossed: Two NCAA Players Win in Federal Court With Nearly Identical Claims
On October 1, 2018, a Federal Judge in Illinois ruled in favor of two former college football players with nearly identical allegations to those dismissed by the wrestlers just days before. The Illinois federal court ruled in favor of two players who have pled at this stage, seemingly weaker claims than the WWE wrestlers. In stark and striking contrast, a Connecticut Judge tossed the wrestlers claims and harshly blamed the advocate for the brain damaged wrestlers for filing frivolous lawsuits brought on nearly identical factual and legal grounds/theories to the successful NCAA players claims.
Read Marty’s Plea to the Court of his situation made in an Affidavit a year before his case was Broomed
What duty does WWE have to help former wrestlers? The recently dismissed, soon to be appealed lawsuit, argued that WWE actually has legal duties to the injured wrestlers who brought the case. Just as if say, an NFL football player was injured and had long term occupational injuries to their body, the player would, at a minimum would be covered by Workers Comp Laws for their life long injuries. Not so WWE wrestlers. They get: NOTHING, Zero, Zilch. Hence the need to go to the courts to correct this problematic situation.
The WWE according to the lawsuit misclassified it’s wrestlers with unconscionable, unenforceable, boilerplate contracts (you know the kind of one-sided contracts “that aren’t worth the paper they’re printed on”- that’s the kind of contract the wrestlers say WWE uses). The wrestlers argued that these kinds of one-sided contracts violated things called labor laws which are designed to protect people like Marty Jannetty who sustain injuries when they work for a company (particularly injuries with long-term consequences, you know like when you snap your ankle in Madison Square Garden or who you know, just might develop CTE or health issues of that nature and whatnot from numerous untreated concussions).
The Court Ruling doesn’t due much Justice to these claims and even singles out Marty’s ankle injuries as follows: “In addition to these irrelevant allegations are numerous others, including a list of physical injuries that have nothing to do with concussions or head trauma, incurred by several Plaintiffs in the ring. [See SAC Paragraph 37 alleging that “Plaintiff Jon Heidenreich sustained serious shoulder injuries requiring multiple surgeries” and that ; Plaintiff Marty Jannetty sustained a severe broken ankle”]
The astute reader will also note the addiction issues raised in Marty’s affidavit and how those relate to untreated occupational injuries (including head injuries). An earlier post discussed how addiction issues have been studied by researchers in Public Health who shockingly related that the origin of addiction issues can be from untreated workplace injuries!! (Anyone reading believe that their could be Any long term injury issues to be studied, identified or treated by WWE as amongst the ranks of professional wrestlers????)
The lawsuits were brought because of WWE’s Continuing Refusal into 2018 to Admit Wrestlers are at Risk for CTE. The WWE Denies and Now the Court Dismissed the claims. The WWE’s lawyer even called for Mr. Kyros to be Disbarred. Decide for yourself, read on.
Jimmy Superfly Snuka, the world learned in November 2017 was diagnosed with Chronic Traumatic Encephalopathy (CTE) as part of his Estates legal claims against the WWE for failing to protect, treat and help him and other wrestlers suffering from the disease. The donation and CTE study were coordinated by Konstantine Kyros after Jimmy died during the pendency of his lawsuit seeking to get help from the WWE.
The effect of the CTE diagnosis (and that of several others such as Rex King and Mr. Fuji) was not what one would have expected. Instead of the WWE realizing that there was just maybe something to all these wrestlers suing them for help, they simply ignored it. It was as if the diagnosis didn’t happen at all. There were no calls for increased research into wrestlers brain tissue, no donation drives, no calls for outreach to wrestlers with CTE symptoms, no alteration in tone and frequency of the legal attacks on the lawyers bringing the claims for the CTE-riddled wrestlers. It was as if the world’s most famous athlete diagnosed with CTE, Jimmy Superfly Snuka didn’t exist.
Ironically in the months before his death, the state of his brain was of intense interest for more media driven rather than public health reasons.
The debate over Mr. Snuka’s brain in his murder hearings, mirrors that of two competing views of reality in the WWE lawsuits:
A) The position of the Plaintiffs and their lawyers:
CTE is a known occupational disease that is a risk of wrestling which has resulted in a health crisis that requires immediate urgent WWE action in terms of study, medical treatment and compensation.
B) Or what is essentially WWE’s position:
Wrestling a relatively safe activity with an unquantified CTE risk. Wrestling has among its goals not to injure anyone and at present it is not worth a WWE funded, dedicated study of wrestlers brains for CTE. No WWE outreach, warnings, medical treatment are required for former wrestlers.
Shortly before Jimmy’s, death, an expert, a certain John O’Brien testifying to support the prosecutions case to put Superfly on trial for a 1986 murder made the following observations before the presiding Judge: Mr. O’Brien, who examined Snuka in February (2016) and reviewed doctors’ reports on the wrestler, said there is no documented evidence that Snuka sustained even one concussion during his 40-year career in the ring.
But wait there’s more unusual insight from Dr. O’Brien:
The psychiatrist said the assertion that Snuka had suffered numerous concussions during his career came from the wrestler and his wife, not any doctor. O’Brien said he didn’t believe Snuka was ever at risk for serious head injury, despite his high-flying acrobatics in the ring. “It’s theater wrestling. It’s like stage fighting,” O’Brien said. “It’s not the same kind of injury you’d expect to see with heavyweight boxing or professional football.”
(Evocative of Triple H’s 2013 Statements at WWE ‘Donate’ $1.2 Million Dollars to the Nowinski NOT TO STUDY WRESTLERS BRAINS Press Conference? Levesque said pro wrestling is fundamentally different from football when it comes to hard impacts. “If you’re in the NFL, your goal is to try to hit the other guy as hard as possible. … The goal in what we do is the exact opposite,” said Levesque.)
LEGAL THEORY of WWE’s LIABILITY:
Yesterday the court ruled against the Snuka family despite his confirmed CTE, Alzheimer’s diagnosis and his long-term ongoing relationship with WWE as one of their greatest stars.
Read Carole Snuka’s Personal Affidavit filed in the Laurinaitis case Tragically IGNORED by the Judge HERE.
The tragic Court ruling reads in part: “The affidavit does not support that Mr. Snuka suffered any head injuries or risked incurring such injuries later than 1996. … And Mr. Snuka has not alleged that any of his alleged injuries were incurred during WWE appearances post-dating 1996…. wrongful death actions are barred… survival actions are barred because the statutes of limitation or repose for each deceased Plaintiff’s other claims have elapsed.”
The court seems to have ruled essentially that in order to bring a claim for CTE- the underlying head injuries that cause CTE would have needed to occur within five years of the date he died. As will be easily demonstrated below this makes no sense. The problem with this analysis in our view is that it ignores what CTE is:
1) A latent progressive degenerative disease found in athletes with a history of head injuries.
2) CTE is not linked to a single identified blow to the head, but rather from the accumulation of repeated sub-concussive blows.
3) Symptoms of CTE may not occur for many years after the blows to the head occurred.
So in essence the Snuka CTE claim could be said to arise from his exposure to head injuries in WWE, and so a Jury would need to decide what event or events would determine what started the clock ticking on whether his estate could bring a claim under the deadlines imposed by Connecticut Law. The Judge seems to have adopted, on what factual or medical basis is unknown as she does not say directly, an injury-in-fact type event which began this hypothetical clock ticking.
Under the science of CTE progression, the Judge’s ruling would seem to foreclose most legal claims for neurological occupational disease type injuries. For example Asbestos or chemical exposure claims for example could be barred if a worker was exposed 20 years before he or she developed mesothelioma cancer or a rare leukemia. The majority of courts looking at these problems have decided to allow experts and Juries to make this determination absent some clear case law. Connecticut appears to impose a fact type analysis on what constitutes the appropriate date to start the clock. When Snuka retired from wrestling and began to experience symptoms, say 10 years after retirement, perhaps the WWE could argue that that was the appropriate date for the clock to start. Plaintiffs contended that Tau protein being released are continuous present physical injuries that could be used to decide a trigger date. In any event these facts, we argue are medical-legal questions prematurely decided.
Seemingly some ‘experts’ were fighting out in the year before Mr. Snuka died whether he had anything wrong with his brain (as above), but below is the proof —as had been alleged in the tossed lawsuit that he had neurological diseases including CTE. As such this would seem to be a possible trigger date for the statute to start running- and not as the Judge ruled the year 1996. In any event the the claim is not frivolous and by way of example: NFL players who were diagnosed with CTE in the NFL lawsuit that sustained accumulated head injuries many years before (decades in some cases) they were diagnosed with CTE were eligible for awards of upto $4,000,000 dollars.