SUPERBOWL DREAMS CRUSHED: BUT A LAWSUIT IS NOT THE ANSWER

SUPERBOWL DREAMS CRUSHED: BUT A LAWSUIT IS NOT THE ANSWER

By: Elizabeth Kelley, Volume 103 Staff Member

During the Saints-Rams NFC championship game in early 2019 the referees missed a pass interference call that many experts agree cost the Saints the game.[i]Even the National Football League (NFL) acknowledges that its referees missed the penalty call.[ii]With that call, the Saints very likely would have won the game and earned a spot in Superbowl LIII because the penalty would have given the team a first down, which would have allowed them to run out the clock before attempting their game winning field goal.[iii]Instead, the Rams got the ball back and scored, sending the game to overtime during which the Rams secured the coveted Super Bowl LIII spot.[iv]Following the game, many Saints fans were justifiably upset.[v]A couple fans even filed suit against NFL for claims for mandamus relief and class claims for damages.[vi]While the fans were justifiably upset, lawsuits against the NFL are not the solution to change the rules. Historically, public backlash has been a more effective tactic rather than the court system to find a solution for disagreements about game rules.[vii]

I. THE LAWSUITS

Immediately following the game, Tommy Badeaux, on behalf of Saints fans, prayed for relief of a writ of mandamus and damages, but both these remedies were denied by the court.[viii]Badeaux was seeking damages to recover for, among other things, loss of faith in the NFL, mental anguish, and emotional trauma.[ix]The Court dismissed the claim for writ of mandamus almost immediately, stating that the complaint is unclear as to what the goal of the writ of mandamus.[x]The NFL rule the plaintiffs were seeking to enforce, however, was Rule 17, which would allow Roger Goodell, the NFL Commissioner, to replay the game in question.[xi]Even if clearly stated, the court dismissed the case because the plaintiffs lacked standing to seek a writ of mandamus.[xii]The plaintiffs at the end of February voluntarily dismissed the claims for damages.[xiii]

This dismissal, however, has not ended the lawsuits against Goodell and the NFL.[xiv]At the end of February, after the Badeaux case was dismissed, the Ryans, on behalf of those who attended the game, filed another case against the Goodell and the NFL alleging detrimental reliance for relying on the NFL’s word that the rules and the officiating are consistent and fair to all competitors[xv]and negligent or intentional misrepresentation that the NFL promised “offensive and defensive pass interference will also be strictly enforced.”[xvi]The Ryans are seeking damages for the costs they and other game attendees occurred to attend the game.[xvii]

II. LAWSUITS ARE NOT THE BEST SOLUTION TO THE BLOWN CALL

While the outcome for the second case is still in limbo,[xviii]the court got the decision right in the Badeaux case, that the NFL should not be forced to replay the game or to pay damages for the missed call. Besides the reasons the court cites, policy demands this result because it is hard for referees to make split second calls during a game and their focus should be on the field, not “diverted by concerns over future lawsuits.”[xix]That is not to say that the NFL cannot do anything to try to ensure the penalty calling is as accurate as possible. The NFL in the past has changed the game rules about reviewing official calls.[xx]Currently there is no rule allowing officials to review a missed call on the field.[xxi]

These lawsuits will not change the rules of football. While the lawsuits signal to the NFL that fans expect play calling to be accurate and the game rules should provide a means to ensure play calling is accurate, this signal does not need to be provided in the court room. Public backlash in the public sphere and sports shows already provided the signal to the NFL that the rules need to be changed.[xxii]The first lawsuit discussed was dismissed almost immediately,[xxiii]and while it may have added to the publicity of the game outcome, there was already strong public backlash.[xxiv]Allowing a lawsuit of this nature opens the floodgates for any fans disgruntled with the outcome of a game to bring a lawsuit, which has the potential to overwhelm the judicial system.[xxv]

Although lawsuits have historically convinced the NFL to make changes to the game rules, those situations where lawsuits have been effective are very different from lawsuits discussing refereeing decisions. The NFL has been sued by NFL players with chronic traumatic encephalopathy (CTE),[xxvi]which is a brain condition that develops after repeated blows to the head.[xxvii]The NFL settled the case[xxviii]and instituted rule changes to protect players from getting concussions and to protect those players who nevertheless sustained a concussion.[xxix]This lawsuit was not about the outcome of the game; it concerned players’ health, which is a different situation from the Badeaux and Ryan cases. Lawsuits are not necessary to convince the NFL to make rule changes. After the large public backlash following the Vikings loss to the Saints in overtime in 2009, where the Vikings never got possession of the ball, the NFL made changes to the overtime rules, without any lawsuits.[xxx]

The NFL is now considering changing the game rules after the most current lawsuits and public backlash surrounding the missed call.[xxxi]The injustice from the Saints-Rams game has spurred other NFL teams to propose game rules changes that would allow for instant replay of penalty calls, regardless of whether they were initially called or not.[xxxii]The rules that the NFL teams and fans are seeking are not unattainable nor harmful to the sport.[xxxiii]The Canadian Football League (CFL) already has a rule that could have prevented the result of the Saints game.[xxxiv]Even though the lawsuits may have added to the public backlash following the Saints game, the lawsuits are are unnecessary to convince the NFL to change the instant replay rules. Public backlash alone will be the most effective tool to hopefully prevent a blown call of this magnitude from happening again.

[i]John Breech, Rams-Saints Ends with Ugly Pass Interference No-Call, Here’s the Simple Fix for the NFL Going Forward, CBS Sports(Jan. 21, 2019), https://www.cbssports.com/nfl/news/rams-saints-ends-with-ugly-pass-interference-no-call-heres-the-simple-fix-for-the-nfl-going-forward/.

[ii]Id.(discussing how Al Riveron, the NFL’s vice president of officiating told Sean Payton, the Saints head coach, that there was a missed call on that play).

[iii]Scott Cacciola, Missed Call Dooms Saints, Thrills Rams and Pains New Orleans,N.Y. Times(Jan. 21, 2019), https://www.nytimes.com/2019/01/20/sports/saints-rams-call-officials.html.

[iv]Id.

[v]John Simerman, Lawsuits on Behalf of “Who Dat Nation” Filed over Saints Loss; Demand Damages, Pre-Super Bowl Hearing, New Orleans Advocate(Jan. 22, 2019), https://www.theadvocate.com/new_orleans/news/courts/article_43b987fc-1e61-11e9-9308-1bddf2cd9096.html.

[vi]Petition for Writ of Mandamus at 6, Badeaux v. Goodell, No. 2:19-cv-00566 (E.D. La. Jan. 25, 2019).

[vii]For example, following the Saints and Vikings game in 2009, where the overtime rules arguably contributed to the Vikings loss, there was a large public backlash. See Tim McNiff, McNiff’s Riffs: Hey MN, We Missed the Boat on Super Bowl Boycott, Kare 11 (Jan. 29, 2019), https://www.kare11.com/article/opinion/columnists/mcniffs-riffs/mcniffs-riffs-hey-mn-we-missed-the-boat-on-super-bowl-boycott/(reminiscing about the backlash Vikings fans had after the 2009 game against the Saints). Just the next year, the overtime rules were changed. NFL Rule Changes for the 2010 Season, Bleacher report, (Sept. 6, 2010), https://bleacherreport.com/articles/453003-nfl-rule-changes-for-the-2010-season#slide1.

[viii]Order and Reasons at 17, Badeaux, No. 2:19-cv-00566.

[ix]Id.at 5.

[x]Id.at 11.

[xi]Simerman, supranote 5.

[xii]Order and Reasons, supranote 8, at 15.

[xiii]Notice of Voluntary Dismissal at 3, Badeaux, No. 2:19-cv-00566.

[xiv]See generallyPlaintiffs Complaint at 44, Ryan v. National Football League, No. 2:19-cv-01811 (E.D. La. Feb. 27. 2019) (setting forth claims for damages for the blown call).

[xv]Id.at 14–15.

[xvi]Id.at 29.

[xvii]Id.at 38.

[xviii]As of March 14, 2019, the case has not been dismissed or proceeded to a hearing. Ryan, No. 2:19-cv-01811 (E.D. La. Feb 27, 2019).

[xix]Marc T. Wolin & Robert D. Lang, Liability for Sports Referees in Today’s Litigious World – If You Can’t Kill the Ump then Sue Him, 15 U. Den. Sports & Ent. L.J.83, 109 (2013).

[xx]Changing the Rules, Pro Football Hall of Fame (Oct. 7, 2011), https://www.profootballhof.com/news/changing-the-rules-archived/.

[xxi]NFL Rules Digest, NFL Football Operations,https://operations.nfl.com/the-rules/nfl-rules-digest/(last visited Mar. 18, 2019).

[xxii]See e.g., A Saints No-Call Movie? Disabled Vets, Big Names Could Star in “Get The Ref,” Eyeing Netflix, Advocate(Mar. 12, 2019), https://www.theadvocate.com/new_orleans/entertainment_life/article_9b485c00-44d6-11e9-b492-774bc4d415ca.html(discussing a movie that dramatizes the public backlash after the Saints game).

[xxiii]Notice of Voluntary Dismissal, supranote 13, at 1–2; Order and Reasons,supranote 8, at 15.

[xxiv]E.g., Michelle Krupa, All the Ways New Orleans Is Rejecting the Blown Call that May Have Cost the Saints a Spot in the Super Bowl, CNN (Jan. 23, 2019, 7:06 PM), https://www.cnn.com/2019/01/22/us/new-orleans-saints-super-bowl-play-reaction-trnd/index.html(reporting the different tactics Saints fans have used to express their anger at the officiating during the 2019 game. These tactics included signing petitions, writing newspaper articles, and even offering free eye examinations for the referees).

[xxv]Brian Flood, NFL Moves to Kill Suit Over Blown Saints-Rams Call, Bloomberg Law (Feb. 13, 2019), https://www.bloomberglaw.com/document/X8OGRI9K000000?bna_news_filter=us-law-week&jcsearch=BNA%252000000168e782d8baad6eef8b177f0000#jcite.

[xxvi]Tribune News Services, Supreme Court Leaves $1B NFL Concussion Settlement in Place, Chi. Trib.(Dec. 12, 2016), https://www.chicagotribune.com/sports/football/ct-nfl-concussion-settlement-supreme-court-20161212-story.html.

[xxvii]Chronic Traumatic Encephalopathy (CTE), Alzheimer’s Ass’n, https://www.alz.org/alzheimers-dementia/what-is-dementia/related_conditions/chronic-traumatic-encephalopathy-(cte)(last visited Mar. 18, 2019).

[xxviii]Tribune News Services, supranote 26.

[xxix]Ken Belson, N.F.L. Introduces New Rules to Back Its Concussion Protocol,N.Y. Times(Jan. 20, 2018), https://www.nytimes.com/2016/07/26/sports/football/nfl-concussion-protocol-new-rules.html.

[xxx]NFL Rule Changes for the 2010 Season, supranote 7 (detailing how the overtime rules were changed following the Vikings and Saints game). See e.g., McNiff, supra note 7 (reminiscing of the backlash Vikings fans had after the 2009 game against the Saints).

[xxxi]James Parks, Sean Payton Updates NFL Rule Change Talks, 247 Sports(Mar. 5, 2019), https://247sports.com/nfl/new-orleans-saints/Article/Sean-Payton-NFL-rule-change-talks-129737656/. Part of the public backlash includes a movie detailing the missed call and the outrage of fans. A Saints No-Call Movie? Disabled Vets, Big Names Could Star in “Get the Ref,” Eyeing Netflix, supranote 22.

[xxxii]2019 Club Playing Rules Proposals, NFL Football Operations(Mar. 9, 2019), https://operations.nfl.com/updates/football-ops/2019-club-playing-rules-proposals/.

[xxxiii]It would not be attainable to have the Saints play in the 2019 Superbowl because the Superbowl occurred on the scheduled date with the Patriots and the Rams, but court cases continuing after this date are concerned with the NFL games being officiated in a fair manner, which is a goal that would be attainable with the proposed rule changes. SeeDan Wolken, Patriots Top Rams 13-3 to Win Sixth NFL Title in Lowest-Scoring Super Bowl Ever, USA Today (Feb. 3, 2019), https://www.usatoday.com/story/sports/nfl/super-bowl/2019/02/03/super-bowl-2019-patriots-rams-score-tom-brady-lowest-scoring/2759330002/(discussing the Super bowl the Saints did not play in); Plaintiffs Complaint at 44, Ryan v. National Football League, No. 2:19-cv-01811 (E.D. La. Feb. 27. 2019) (arguing that the NFL should officiate football in a fair matter and did not during the Saints game).

[xxxiv]Breech, supranote 1.