Epic Battle Looms in Appeals Court: WWE Wrestler Rights Suppression Activity Continues. Does WWE Believe in Time Travel?

The fight for the rights of professional wrestlers in their lawsuits entered a new phase in the past few weeks as a quiet battle has commenced in the Appeals court between the WWE and the lawyers seeking to appeal their lawsuits. The WWE is seeking to block four of the appeals citing to a 2018 Supreme court decision in Hall Versus Hall which they argue now makes the Appeals brought this year too late (WWE also argues that two Sanctions appeals are too early, “too late too early”, all the same to WWE as long as no wrestler gets a day in court).

The latest wrestlers appeal was conducted in accordance with the rules of the Court, complied the notice requirements of the District Court of Connecticut which entered a final judgment on the docket on 9/27/18 and the Appeal was filed pursuant to an earlier Second Circuit decision instructing the wrestlers when to file their appeal. That decision was based on WWE’s 2016 effort to block Haynes/McCullough Appeal as being filed “too early.”

WWE argues that does not matter in light of the Hall decision and argues that the appeals needed to have been made in the past, even though the cases could not have been appealed in the past.

The 2018 Hall decision now allows for party to appeal immediately if their claims are dismissed during a consolidated action, which is what the WWE lawsuits were deemed to be: consolidated. When Billy Jack Haynes and Russ McCullough, Matt Wiese and Ryan Sakoda’s cases were dismissed in 2016 they timely appealed. The Second Circuit ruled at the time that Haynes and the others would have to appeal at the conclusion of all the consolidated cases which turned out to be 9/27/18 the date the court entered its final judgement. The WWE argues that the Hall decision now should be applied retroactively to foreclose the right to Appeal for Haynes and McCullough (and, Sakoda, Wiese, Frazier and Singleton/Lograsso). For example WWE argues Haynes would have had to appealed back in 2016 even though he could not have made any appeal under the rules then in existence. Make any sense? WWE in this sense seeks to argue that the wrestlers like Billy Jack Haynes would have had to travel back in time to file their Appeals in 2016 based on a 2018 Supreme Court decision.

Does WWE believe in Time Travel?

Although WWE’s lawyer Jerry McDevitt told the media and the Appeals Court that the wrestlers opposition is “frivolous,” a lawyer from his own law firm, K&L Gates presciently wrote shortly after the decision the exact issue now facing the wrestlers:

“While Hall has now clarified much of the Rule 42(a) framework, it also leaves questions unanswered. For example, what will happen in those consolidated cases where parties relied on now-overruled circuit precedent not to take immediate appeals (or in which they took immediate appeals and were denied)? It is unclear if those parties have lost their right to appeal. Similarly, if those parties have not lost their right to appeal, when does the appellate clock begin to run? There are consolidated actions pending around the country where such questions are not only relevant, but pressing. In the wake of Hall, we will likely see additional cases come before the courts that address these issues.” (Law360, June 18,2018 High Court Answer Appeal Question for Consolidated Cases, by Denise Moore/Daisy Sexton)

Where are the wrestlers cases heading next???? Hopefully they are not required to use the TARDIS.

Here are excerpts from a Law360 article on this important issue: WWE Wrestlers Fight To Save Concussion Suits At 2nd Circ.

Federal Appeals Court: Water Polo Players have Rights: Will WWE Wrestlers Have Any?

A Federal Appeals Court ruled on November 28, 2018 that USA Water Polo owes a duty to athletes to set protocols for returning to play after suffering from a potential concussion. The ruling went in favor of a proposed class action brought on behalf of a youth water polo goalie who was sent back into a match after being dazed by a shot to the face.

When reading this brief account of the Water Polo case, think of the activities of professional wrestlers, who swore affidavits and filed claims documenting near routine injuries of the type described in this single youth player on a near daily basis spanning decades of WWE neglect, indifference in the face of actual WWE stated knowledge (on Monday Night Raw in 1995 to cite but one example) of the effects of Post Concussion Syndrome.

The water polo case brought by Alice Mayall, whose 16-year-old daughter allegedly suffered post-concussion syndrome, argued that USA Water Polo, the governing body for the sport, was liable for her injuries because it failed to establish proper concussion-management and return-to-play procedures for youth water polo players. According to the complaint, while playing goalie during a February 2014 tournament overseen by USA Water Polo, she was hit in the face by a hard shot that left her “dazed.”

After swimming over to her coach, who had no specialized training or qualifications to handle concussions and head injuries, she was sent back into the match and later played in subsequent tournament matches, suffering many more hits to the head that exacerbated her injury, the complaint alleged.

Afterward, the player suffered headaches, sleepiness and fatigue, and was diagnosed with post-concussion syndrome (PCS) a month after the match. (WWE featured a storyline about Shawn Michaels Post Concussion Syndrome on a December 1995 Monday Night Raw!!!!! but WWE claims that they knew nothing about PCS until Chris Benoit Issues, which they actually also denied and fail to acknowledge to this day)

The court in ruling for the water polo players wrote:
“USA Water Polo thereby increased the risk of secondary concussions to players who improperly returned to play, a risk that USA Water Polo could eliminate through the implementation of concussion-management protocols already used by its national team.”

“These allegations, taken as true, demonstrate that USA Water Polo was well-aware of the severe risk of repeat concussions and of the need to implement a policy to remove players from play after suffering a head injury,” the opinion said. “USA Water Polo’s inaction in the face of substantial evidence of risk of harm, constitutes an extreme departure from the ordinary standard of conduct, and amounts to gross negligence under California law.”The case is Mayall v. USA Water Polo Inc., case number 16-56389, in the U.S. Court of Appeals for the Ninth Circuit.

As astute readers of this blog will observe the numerous allegations made by WWE wrestlers about the dangerous working conditions, head injuries and so forth at WWE would tend support their claims. This “Gross Negligence” Water Polo ruling is one more precedent indicating that the Courts should to allow the wrestlers to hold WWE to account for its outrageous misconduct towards them.

WWE Wrestlers’ Lawsuits Appealed to Second Circuit Court of Appeals

On November 9, 2018 former WWE wrestlers arguing that WWE subjected them to brutal, unregulated working conditions that resulted in long-term latent occupational injuries, diseases and damages Appealed their cases to the Second Circuit Court of Appeals that sits in New York that were formally dismissed by the District Court of Connecticut on 9/27/18.

Second Circuit Court of Appeals Website Link

The Initiation of the Appeal Papers Can be found below: (the Pre-Argument Statement near the beginning of each document and the Issues to Be Appealed at near end of each document are probably of most interest (the Form C requires copies of some earlier filed rulings, papers, & docket entries etc) The Forms C’s as filed with the Court are linked below.

William Albert Haynes III v. WWE Appeal

Russ McCullough, Matt Wiese and Ryan Sakoda V. WWE, et el. Appeal

Cassandra Frazier for Estate Nelson Frazier V. WWE Appeal

Evan Singleton & Vito LoGrasso V. WWE Appeal

Joseph Laurinaitis (and 59 Others) V. WWE and Vince McMahon Appeal

Sanctions Appeal in Dismissal of Laurinaitis Case

Sanctions Appeal  for Rule 37 Discovery Issues in Singleton/LoGrasso Case

Jimmy Snuka Can’t Sue for CTE, but College Football Player from 1970s can Sue for CTE

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.”

Read the Ohio Court’s decision here.

CTE. Don Leo Jonathan’s Brain Donated for CTE Study in Pro Wrestlers


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 Six of these wrestlers have tested positive for CTE to date with several studies pending.

Memory of Chris Benoit: CTE, Wrestler Mistreatment Haunt McMahon, WWE Legacy

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 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 were 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.”

See Chris Benoit’s UNCONSCIONABLE CONTRACT Here

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.

See Chris Benoit’s Death Certificate Here>>

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 regarding the Benoit brain tissue 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).

See Chris Benoit’s Neuropathology Diagnosis >>

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.

Dishonesty? Chris Benoit’s Positive Drug Test. Did Vince McMahon & Jerry McDevitt “Bullshit” Congressional Committee?

Revealed: Chris Benoit “POSITIVE” drug test results raise doubts about accuracy of testimony.
Government Questions:
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.”

SEE Chris Benoit’s May 2006 POSITIVE Drug Test Letter Here.

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.

Read Chris Benoit’s Unconscionable Boilerplate Booking Contract, WWE Lawsuit Challenged These Types of Deals

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 the WWE Lawsuit section on this important issue >>>>

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

WWE Hits Kyros With $357,000 Bill & WWE Lawyer Jerry McDevitt Reveals He is Avid Reader of This Blog!!

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.”

Sincerely,
Konstantine Kyros

WWE Wrestlers Lose, NCAA Players Win

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.

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