Attorney Tom Mars on playing football during a pandemic

Mars is the lawyer in Rogers who has become famous for handling sports related cases. Here’s what he told Pat Forde of SI.com in an email:

Whatever conference(s) decides to play football this fall will be taking a ridiculously high risk they may soon regret. I know and have talked with some of the best plaintiff’s lawyers in the country this week, and they’re praying the SEC, Big 12 and/or the ACC are greedy enough to stay the course. If things go sideways, the plaintiff’s Bar will immediately get their hands on the internal financial analyses of the schools (a FOIA layup), get the conference financials through the discovery process, and then just stand in front of the jurors and point to the conferences that decided not to risk the health of their student-athletes. Good Lord, I’d hate to be the lawyers defending those cases.”

Gulp.

You start to see why the Big Ten and Pac-12 shut down.

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I think Mars is a bit over wrought here. That said, one thing that does anger juries is an employer or organization sacrificing safety of its subordinates just to make money. If it comes to that, and sufficient causation can be shown (that is, the athlete contracted the virus playing a sponsored sport rather than at a grocery store or frat house party), then the SEC and member institutions could have a problem. I’m just not sure I see a bunch of trials over this, though. A few maybe. One scenario where causation would be much easier to prove is if a bunch of players get the virus after a certain event, like a practice or game. That would likely be enough to prove causation. And I could easily see that happening.

You think a class action case against the SEC and all 14 schools, on behalf of all SEC athletes who get the virus during the season, would fly?

These players are choosing to play. The coaches are choosing to coach. Each of these people is making his own decision. No one has to play or participate. We live on this earth…how is anyone going to avoid the chance of getting this virus? This is our reality.

Since when do these pencil-neck lawyers run the world? There should be some blanket immunity eliminating the possibility of being sued for contracting the virus. You can’t see it, feel it or touch it, yet you can sue somebody else if you get it. Life is a risk. Accept the responsibility.

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Damn you’re cavalier about other people’s health. You want your football and you want your convenience and if people, including Razorback athletes, die as a consequence it’s no skin off your back.

Not saying it is right to play or not, but seems a sad statement on our society that plantiff’s attorneys are the filter that so much needs to go through. As much money as football makes, there are a lot of kids who have the opportunity to attend college with scholarships, participating in non revenue sports, that might suffer because of curtailment of revenue producing sports.

Maybe (big maybe) for injunctive relief — to stop the season. But there are other ways to accomplish that which do not involve a class action. No class action for any sort of damages or Covid-19 injuries. You have to have high numbers of harmed people to get a class action off the ground. Further, class actions don’t work if there are too many individualized issues. That’s the causation issue I’ve mentioned. And the harm — each infected player will be harmed differently or not at all. I really doubt a class would fly.

Let me just say something. That “filter” you reference just may have saved your life once or twice. Regulators (like OSHA) and plaintiffs’ lawyers hold people and organizations accountable for safety. They are checks. You take away those checks, you probably won’t like it. And it could cost you your life.

Ask Johnson and Johnson about class action lawsuits.

Well I don’t think anybody wants to see someone die for sure,I know I don’t, but the chances of that happening are incredibly low,less than 1%. I can see there being a riskt but heck there’s a risk in everything that you do. I have a feeling the SEC and ACC will join the Big 12 and play.

Jhawg nailed it !!!

I agree with hawgjaw on this. Tom is a very good lawyer, but I think he’s a bit overwrought on this, too. Assumption of risk operates as a defense in almost all cases where the plaintiff goes into a risky situation with eyes open. However, it’s one thing to assume the risk of getting sick if a program is using reasonable care. A player who knows he might get exposed during the regular course of practice or a game & can prove that caused his illness is going to have a hard time winning his case. However, a player who gets sick because the coach knew, unbeknownst to everyone else that 3 star players tested positive, and was allowed to expose everyone else probably didn’t assume that risk.

Take an extreme hypothetical. Let’s suppose colleges have solid scientific information that people playing & practicing football are 10x more likely to get the disease & die by than the general population. Suppose they hide that info from players. Half the conferences decide to cancel the season. Half move ahead. The season gets played at those schools & their players end up with 10x the disease & death rate as the schools who cancel. Is there a lawsuit? You bet. I can see scenarios where the behavior is less extreme leading to a successful lawsuit, but I have no idea what the experts are telling the schools. Defense lawyers are going to err on the side of caution. Sometimes they overstate the dangers to their clients because they’re afraid of worst-case events. I understand that. I also understand some lawyers, especially if the damages are high enough, are going to push the envelope.

Fortunately, the law isn’t stupid. It has evolved over decades, even centuries. It requires people to behave reasonably. When someone is cavalier with another’s safety & it causes damage, the victim should get compensation. The law both discourages irresponsible behavior and tries to right individual wrongs. When someone is totally reckless with someone else’s safety (think Ford Pintos) because it’s cheaper, juries usually get mad. The world is safer today because lawyers brought lawsuits against corporations who made reckless decisions to protect their bottom line.

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I hate this aspect of our country so much.

He frames the argument as if the 2 choices are:

  1. Cancel football and ZERO of these student athletes will have any health problems at all, ZERO will have covid.

vs 2. recklessly play football and endanger the student athletes.

When in reality, that is not the decision at all. That kind of thought process only exists in our current crazy legal/political situation.

The reality is that student athletes are going to get covid. No matter what anyone does.

So the decision that the players/coaches/parents/conferences are having to decide, is whether these student athletes are safer from covid while playing football vs covid risk while not playing football.

We have some decent evidence already that student athletes are safer with their teams than on their own, as I’ve already argued on here. That is, when football players reported to campuses weeks ago, there were quite a few positives. 25 or so at LSU and Bama and Clemson. Now there are almost zero. Notre Dame tested 400 players/staff, with ZERO positive. Arkansas tested 200 players/staff, with ZERO positive.

So I’d love to see football played, and to compare the covid rates of football players vs the covid rates of the general student populations of the colleges. And I’d love to see football players covid rates, compared to the covid rates of the students at colleges that have cancelled football. I’d be shocked if the safest students were not the college football players.

just my .02, and no one cares. SOOOOOOO many people feel like that jackwagon attorney you’ve quoted, that I’ll be shocked if we see any college football. Good grief, Charlie Brown.

GHG

I think most of us agree that is the question. I also think the leagues have studied it & are continuing to study it & reach the best decision they can. None of us know for certain what will happen. We know certain behaviors pose greater risks than others.

I only disagree with you to the extent we can learn much from the test results for football players now vs. how they’ll test after going through practices & games, etc. They’ve been fairly isolated within their own bubble up until now. If we can keep them in that bubble they won’t transmit it to each other in a game or practice. I’m sure the schools are trying to decide how well they can protect them.

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I don’t doubt that if a player gets seriously ill or dies, there will be some lawyers willing to take the case. But winning the case or even getting it into position for a big settlement is probably going to be really tough barring some truly dastardly conduct by coaches or administrators.

If it was easy for players and their families to win a negligence case regarding health or injury issues, against schools and coaches, there would be a lot more of those types of cases. It’s not in most states, for a number of reasons. Which is why the cases that end up settling (the Maryland player’s death a couple of years ago) or being tried, while getting a lot of media attention, are few and far between.

Proving something more serious, such as gross negligence, recklessness, etc, would not be easy in this case because of the number of legit medical experts who are saying that play can go on with appropriate precautions. If you reasonably relied on medical experts then you are unlikely to get hit for those kinds of enhanced torts.

There is also a causation issue. Proving the player contacted the virus while in a team-related activity may be daunting if there were other people in the community where the player is living who were getting infected at the same time. If the health people don’t run down the contact tracing soon after the fact, it may be very difficult to narrow down infection sources months or years later.

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Those J&J talc cancer cases are not class actions. Individual, multi-Plaintiff or consolidated cases but they are not class actions.

Bingo. Well said.

More concerned about players contracting COVID on campus in the classrooms & dorms after the start of school vs on the practice field.

Safeguards, testing, & isolation for players are obviously successfully being enforced based on the low volume of Covid cases so far on the team. That will change in a few weeks once classes start - unless the team remains isolated & studies are remote.

SEC games could happen & players be safe if all players on all teams were to remain isolated on campuses & study remotely, whether classes remain open or they revert to on-line. That would require a decision from the NCAA that all players could be required to be housed & isolated in dorms. I would think that players would be receptive to living in dorms if that enables them to play this Fall while taking classes remotely.

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I’ll take your word for it. I assumed it was class action. That and the asbestos thing.

I don’t know that it is clear cut and certainly recent history does not appear as compelling justification in my opinion. Just one who does not feel that more laws and more lawsuits necessarily mean progress. As far as saving the world, I am not as convinced. For example the tobacco settlement provided damages to individuals and made some lawyers very wealthy, but seems the benefits to society that you tout, are not as evident to the average person and many of these changes could have been enacted without the large punitive damages. (by the way, I am not sympathetic with the tobacco industry, just seems they were a pretty easy target, just like the big trucking firms and insurance companies in personal injury cases). I am sure this disagrees with the lawyer perspective.