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Is the NFL’s All-Clear Policy a Personal Foul on Your Privacy Rights?

By [Tuesday, October 29th, 2013]

BY BRETTA OLUYEDE NYLS ’14

All-Clear bagIf you have ever been to an NFL game, you have experienced the fun of tailgating and the buzz-kill that comes with waiting in line to enter the stadium while security implements their public safety protocols. The NFL Committee on Stadium Security may have accelerated this process by implementing the new “All Clear” Stadium Bag Policy at the beginning of the 2013 NFL Preseason. While large-scale event overseers, like the Committee on Stadium Security, believe heightened security standards are a necessity in the wake of the Boston Marathon Bombing, fans may feel their right to privacy is at stake.

Although the NFL “encourages fans not to bring any type of bags” into stadiums, bags meeting the following criteria are permissible:

  • “Bags that are clear plastic, vinyl or PVC and do not exceed 12” x 6” x 12.” (Official NFL team logo clear plastic tote bags will be available through club merchandise outlets or at nflshop.com/allclear), or
  • One-gallon clear plastic freezer bag (Ziploc bag or similar).
  • Small clutch bags, approximately the size of a hand, with or without a handle or strap can be taken into the stadium with one of the clear plastic bags.
  • An exception will be made for medically necessary items after proper inspection at a gate designated for this purpose.”

See here for a complete list of questions and answers provided by the NFL regarding the policy.

For years, NFL stadiums have conducted suspicionless searches of patrons. The “All Clear” policy goes beyond traditional search, compelling spectators to constantly reveal their property to the public and stadium officials, with no privacy alternative.  In other words, at 14 to 16 stadiums every week of the NFL season, over one million fans are being asked to give up their privacy.  Although the NFL justifies the policy as aligning with the Department of Homeland Security’s “If You See Something, Say Something” campaign, does the policy comply with the Constitution’s individual rights protections?

Generally, searches do not violate an individual’s Fourth Amendment rights if the executing officer has probable cause.  In an exception to the probable cause requirement, the Supreme Court has approved five categories of suspicionless searches: (1) administrative searches justified as inspections or inventory searches; (2) exempted or secured areas such as borders and airports; (3) roadblocks; (4) searches of persons with reduced expectations of privacy; and (5) searches justified by special needs.  In Camara v. Municipal Court, Justice Blackmun articulated that a special need exists if there are “exceptional circumstance[s] in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.” Arguably, thousands of people amassed in a relatively confined area require more stringent standards, thereby satisfying the special needs exception.

While fans may agree ensuring public safety in large venues requires substantially more efforts, they may argue measures implemented by the All-Clear Policy are unreasonable. Per the Supreme Court in Skinner v. Railway Labor Executives’ Association, a suspicionless search’s reasonableness is “judged by balancing its intrusion on the individual’s Fourth Amendment interests” against the search’s promotion of legitimate society interests. When applying this balancing test, courts consider a number of factors including the nature of the privacy interest and one’s legitimate privacy expectation; whether the privacy interests compromised by the process are negligible; and the nature and immediacy of the governmental concern at issue. Because the All-Clear Policy was implemented to deter terrorism, a court would likely analogize its “special needs” reasonableness to suspicionless searches at airports. The warrant and probable cause requirements have been considered impracticable in airports, as a response to specific information and incidents of threats realized there.  The Boston Marathon Bombing may have a similar effect, illustrating the substantial and concrete danger faced by sporting event spectators, and making stringent stadium security standards reasonable.

If fans could not prevail in arguing the unreasonableness of the policy, they may argue that they have not consented to it. In Johnston v. Tampa Sports Authority, a season ticket holder of the Buccaneers sued the Tampa Sports Authority, claiming that the policy requiring spectators to submit to pat-down searches before entering the stadium violated his right to be free of unreasonable search. The court considered whether Johnston had consented to the pat-down searches, assessing voluntary consent according to the totality of circumstances including: “the existence of coercion, whether the person is in custody, the person’s awareness of his right to refuse consent, the person’s education and intelligence, and whether the person believes incriminating evidence will be found.” Whether Johnston impliedly consented depended, in part, on “whether [he] was aware his conduct would subject him to search” and “whether [his] refusal would result in the deprivation of a benefit or right.”

The court found that Johnston voluntarily consented to the search. Johnston willingly presented himself at the search point, and was not coerced to do so. Furthermore, he was aware of his right to refuse to submit to the pat-down search and did so by expressing his objections to the searches over the telephone to the Buccaneers before the pat-down search policy was implemented. When screeners insisted that he would not be permitted to enter the stadium if he refused the search, Johnston elected to be patted down. Johnston also impliedly consented to the search. Based on his complaints to the Buccaneers about the policy before the start of the season, it is clear Johnston was well aware that to enter the stadium, he would have to submit himself to a pat-down. Moreover, Johnston did not have a right to enter the stadium because his season tickets were a revocable license subject to the will of the stadium, a private entity.

Similarly, a court would likely find that purchasers of 2013 NFL tickets have voluntarily and impliedly consented to the All-Clear Policy. Take a look at the back of an old ticket stub, and you will see that the NFL has explicitly stated that “by tendering” a ticket and “entering the stadium” you have consented to search upon entry and waived any related claims you may have against the NFL. While you may not have voluntarily consented to a search, you have impliedly consented. Because tendering a ticket presupposes consent to search, you are made aware that search is a precondition to entering the stadium. Even if you haven’t read the back of the ticket, the NFL has provided you with advance notice of the policy, just as Johnston had when he filed suit.

Despite the inconvenience that comes with carrying a small purse and the awkwardness that may accompany carrying a see-through bag, fans may have no choice but to accept the policy. Still bothered and need to vent? Get a laugh from a spoof video about the policy created by two standup comedians.

More on NFL Concussion Settlement: Calculating Individual Player Damages

By [Monday, September 9th, 2013]

Enjoy this episode of Law and Batting Order as NYLS 3L Tony Iliakostas explains how tort principles apply to calculating individual retired player damages in the NFL Concussion Settlement.

Basics of the NFL Settlement of Retired Players’ Concussion Litigation

By [Saturday, August 31st, 2013]

NFLHeadHitThis week’s momentous news that the NFL and its retired players settled the concussion litigation allows the League, its players, and fans to focus on the excitement of the upcoming season kickoff.  Let’s take a moment, though, to examine and document the deal, so you know where to find the details as the settlement process moves to a possibly bumpy conclusion.

The settlement is valued at $765 million, with payouts to potentially 18,000 former players to:  compensate those with concussion-related brain injuries, cover ongoing medical monitoring, and underwrite research.  See the term sheet here. Of that amount, $675 million will be used to compensate former players and families of deceased players who have suffered concussion-related cognitive injury, including the families of players who committed suicide after suffering from chronic traumatic encephalopathy (CTE).   Up to $75 million will be used for baseline medical exams, and $10 million will fund research and education.

Monetary awards to retired players or their families will be capped at $5 million, and will require presentation of medical evidence of severe cognitive impairment, dementia, Alzheimer’s, ALS, and similar conditions.  The precise amount of compensation will be based upon the specific diagnosis, as well as other factors including age, number of seasons played in the NFL, and other relevant medical conditions.  Players don’t have to prove causation, that is, that the NFL caused their injuries, but they do have to prove injury.  That determination will be made by independent doctors working with court-appointed settlement administrators.  Retired players whose condition worsens over time may apply for a supplemental payment.  If the fund runs out, the NFL may have to make an additional, one-time contribution of up to $37.5 million.  And the players are still free to pursue Riddell and other equipment manufacturers who are not part of the settlement.

The NFL has to pay out at least half the $765 million settlement amount over the next three years, and the balance over the following 17 years. That means that over the next three years, each of the 32 member clubs is on the hook for $12 million, and then by 2033, another $12 million.  By comparison, in 2013 alone, the NFL expects to earn $9 billion in television revenues alone, which amounts to $281 million per club in a single year.  Of course, more than half that amount will go to current player salaries.

A key provision of the settlement is that the agreement “cannot be considered an admission by the NFL of liability, or an admission that plaintiffs’ injuries were caused by football.”  By the same token, the settlement doesn’t mean the plaintiffs would have prevailed or lost on their claims that their injuries were caused by playing football, or by playing football in the NFL.

The settlement still has to be approved by U.S. District Court Judge Anita Brody, but she has already issued an order congratulating the parties on their successful negotiations.  The settlement includes all players (whether they sued or not) who have retired as of the date on which the court gives preliminary approval.  Current players are not part of the deal.  And former players will have the right to opt out of the settlement, for example, if they consider it unfair or inadequate.  As we know from the Dryer lawsuit (involving former players’ claims of violation of their publicity rights), there’s always the risk that even name plaintiffs will rebuff a settlement that their own lawyers endorse.  One former player — Kevin Mawae — has already expressed dismay at the concussion settlement.  As a former president of the NFL Players Association, Mawae’s word will carry some weight with other players.  On the other hand, the NFLPA was very likely to be impleaded if the suit went forward.  A number of plaintiffs’ lawyers had been hinting that they considered the NFLPA complicit in the deception the NFL allegedly perpetrated against the players regarding the risk of concussion.  Pursuing the litigation would make even less sense for the players if their own collective bargaining representative would be potentially on the hook for damages.

As for future claims from current players, their ability to sue under state tort law has been much diminished by the passage of time.  The underlying theory of the lawsuit about the NFL’s alleged efforts to minimize the effect of concussions, and manipulate players who suffered from them, has little traction today with the widespread dissemination of recent medical understanding about traumatic brain injury.

Furthermore,  the current 2011-20 Collective Bargaining Agreement tightens up requirements that make its grievance procedures the players’ sole remedy for concussion-related injury.  At the time of the settlement, the court was sitting on a motion to dismiss the lawsuits based on labor law preemption.  The NFL’s theory — a solid one — was that the players’ claims require the court to interpret the meaning of the CBA, and therefore the players exclusive remedy was the CBA’s arbitration procedures.  Generally, federal courts defer to the parties’ agreed-upon grievance procedures in workplace injury claims, procedures unlikely to generate more than nominal damages awards compared to a potential jury award.  Of course, as to players whose NFL careers dated back to previous CBAs, the NFL faced a significant risk that the court would reject its labor preemption argument.  Or the court might have allowed some claims to survive because they arose during periods when the League operated without a CBA.  This is why the settlement makes so much sense for the NFL.  It makes just as much sense for the players, for whom litigation meant waiting for years for any pay-out and subjecting themselves to intrusive discovery into every injury they ever sustained at every level of football, and into such matters as substance abuse problems, other medical conditions, and personal and psychological history.

Finally, the settlement amount goes entirely to the players, or for their benefit.  Plaintiffs’ lawyers get paid separately by the NFL, an amount dependent on the court’s adjudication of a fee-setting proceeding.