Sports Bettors’ Standing: The Lack of Legal Recourse When Teams Fail to Disclose of Injuries

by Beth Ann Powers, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

During his November 16 game against the Baltimore Ravens, Cincinnati Bengals quarterback Joe Burrow went out of the game with a season-ending injury to his right wrist.¹ This injury was devastating to fans, many of whom presumed the injury completely stemmed from a play during the game where Burrow landed on his wrist.² However, after the game, attention was put on the Bengals and Burrow when fans spotted a brace on Burrow’s (now injured) right wrist prior to the game, in a video posted by the Bengals social media team.³ Many observers believed this indicated Burrow’s wrist was injured prior to the game, yet the Bengals did not list Burrow on the pregame injury report.⁴ Failure to disclose a player’s injury in the injury report before a game is a direct violation of the National Football League’s (“NFL”) Personnel (Injury) Report Policy.⁵ The Policy states that “all players who have reportable injuries must be listed on the Practice Report, even if the player takes all the reps in practice, and even if the team is certain that he will play in the upcoming game.”⁶ The Policy goes on to emphasize that disclosure is especially necessary for key players, including quarterbacks.⁷ Nonetheless, the Bengals were cleared from any wrongdoing by the NFL, which conducted a full investigation of the injury and pre-game brace.⁸

The Bengals were adamant in emphasizing that Burrow had no prior injury that would have warranted their reporting of the injury, as required reports only involve injuries that could influence a player’s performance.⁹ Burrow said himself that the brace he was wearing was compression sleeve, which he had worn on previous team flights as well.¹⁰ Regardless, there was some public discourse regarding the lack of report, specifically arising from sports bettors who had money at stake in the game.¹¹ One fan in particular publicly called the Bengals out and threatened suing them for his suffered financial loss due to Burrow’s early exit from the game.¹² Some bettors presumed that, had Burrow not been injured, potentially due to a pre-existing injury, they would not have lost money in betting on the Bengals or various players on the team.¹³ This begs the legal question: if bettors were financially injured as a result of the Bengals’ failure to disclose Burrows’ injury, in violation of NFL policy, would those bettors have legal recourse against the Bengals?¹⁴ More broadly, do sports bettors have any legal rights at all when teams they are betting on break league rules.

This article explores the required disclosure of injuries in sports in the realm of sports betting. Part II provides background on previous legal claims by sports fans, and the typical disfavor courts tend to give to these plaintiffs. Part III discusses complications in injury disclosures at the professional and collegiate level. This part will additionally set forth a possible argument for sports bettors to make in an attempt to prevent their financial loss.

II. Background

In Murphy v. NCAA, the U.S. Supreme Court allowed states to decide whether they wanted to legalize sports gambling.¹⁵ Since then, thirty eight states and the District of Colombia have allowed sports betting in some form.¹⁶ Sports betting is legally conducted through casinos or online sports betting websites or apps.¹⁷ Some of these sports betting apps grant refunds or void bets if a player is injured during the game.¹⁸ However, these refunds are not granted consistently and do not cover bets on the game as a whole, like which team will win, even if a player’s injury might have a huge impact on that occurrence.¹⁹

Typically, sports fans have had difficulty having legal standing for claims when a professional sports team violates its league’s rules. In 2010, the Third Circuit ruled that a class of New York Jets season ticketholders did not have a “legally cognizable right, interest, or injury,” arising out of the New England Patriots head coach, Bill Belichick, illegally recording and stealing the New York Jets signals and visual coaching instructions.²⁰ Sign-stealing involves using recording devices to capture an opposing teams offensive or defensive signals used to indicate a specific play.²¹ This could lead to a competitive advantage, as the team that stole the signals would know the opposing team’s play ahead of time, rather than in the moment.²²

In the case, Mayer v. Belichick, the plaintiff asserted claims for tortious interference with contractual relations, common law fraud, violations of the Racketeer Influenced and Corrupt Organizations Act, infringement of the rights of ticketholders as third-party beneficiaries, and breach of implied contract, among others.²³ Nonetheless, the Third Circuit dismissed the case for failure to state a claim, stating the ticketholders had nothing more than “a contractual right to a seat” to watch an NFL game, and that it was not the role of judges and juries to second-guess decisions by professional sports leagues enforcing their own rules.²⁴ The Third Circuit reasoned that there are “no real standards or criteria” for legal decision-makers to use “to determine when a particular rule violation gives rise to an actionable claim or should instead be accepted as a usual and expected part of the game.”²⁵

In a more recent suit in 2020, sports bettors unsuccessfully attempted to sue the Houston Astros and Boston Red Sox after both teams engaged in unlawful sign-stealing.²⁶ In Oliver v. Astros, plaintiff Oliver alleged that in 2017 he placed a losing bet of $7,500 in a casino that the Los Angeles Dodgers would win the Major League Baseball World Series against the Houston Astros.²⁷ He further claimed that in 2018, he placed a second losing bet of $6,000 through a sports betting app that the Dodgers would win the World Series against the Boston Red Sox.²⁸ However, both the Astros and Red Sox were later found to have cheated in their seasons by engaging in sign-stealing.²⁹ Oliver claimed that the Astros and Red Sox harmed him by defrauding the Dodgers through the sign-stealing and that he personally would not have bet on the Dodgers, and consequently lost money, had he known of the sign-stealing.³⁰

The court dismissed Oliver’s suit because of the lack of direct injury and proximate cause between the sign-stealing and his losing bet.³¹ The court reasoned that the Astros and Red Sox could have won the World Series, and beat the Dodgers, for, “any number of reasons unconnected to the asserted pattern of fraud.”³² Just because a team stole signals did not guarantee that that team would win.³³ According to the court, Oliver “could have lost his bets for many reasons” and did not have standing to bring a claim.³⁴ Additionally, Oliver could not recover from the Astros or Red Sox for unjust enrichment, as he did not lose any money from the teams directly, but instead lost his money to the third parties he bet through: the casino and sports betting app.³⁵

Applying this precedent to the Bengals and Joe Burrow’s injury, it seems highly unlikely that sports bettors would be found to have a legally cognizable injury. Regardless of whether Burrow’s wrist was injured prior to the game, the Bengals could have lost the game to the Ravens for a number of unrelated reasons: Joe Burrow could have played poorly, Burrow could have been injured in a completely unrelated way, the Ravens could have had an extraordinary game. When sports bettors choose to put their money at risk, they are aware of potential losses that they might face.³⁶ Even if the Bengals were found to have violated the NFL injury report policy, it is likely sports bettors still would not have a viable claim as the Mayer and Oliver precedent both do not recognize an injury for sport rule violations.³⁷

III. Discussion

Due to federal medical regulations, the general course of disclosure surrounding the injuries of athletes is inconsistent between professional leagues and at the collegiate level.³⁸ Sports betting is allowed at both the collegiate and professional level, yet the requirement of disclosing injuries differs from league to league. The National Council of Legislators from Gaming States (“NCLGS”) have met to discuss whether the public should have knowledge of athletes’ medical conditions for sports betting purposes.³⁹

Many professional sports leagues require public injury reports of some kind.⁴⁰ The NFL, NBA, NHL, and MLS all require clubs to disclose players’ injury status prior to games.⁴¹ As previously discussed, the NFL’s injury report policy requires teams to disclose all players’ injuries which affect their ability to take reps in practice and/or cause them to miss a game.⁴² The NBA similarly has a required injury report for teams, requiring all teams to report information concerning player injuries, illnesses, and rest before 5 p.m. the day before all NBA games.⁴³ These professional leagues make injury disclosure easily accessible for sports bettors, as the reporting policy is highly regulated.⁴⁴

In contrast, college athletic leagues are currently not required to publicly disclose athletes’ injuries.⁴⁵ There is no uniform system to keep track of all these injuries, making it difficult for sports bettors to keep track of which athletes will not compete in a game if such injuries are reported in a de facto basis.⁴⁶ The NCAA has an injury surveillance program (“ISP”) that records the “frequency of injuries, the treatment, and the activity that caused the injury,” but it is completely voluntary, and used more so for research collection purposes.⁴⁷ Several news organizations collect and release college injury information, yet there is no consistent approach to the release of the information.⁴⁸ This raises concerns about how insider information on an athlete’s condition is shared—who would have access to the information and what they could do with it.⁴⁹ However, it is seemingly difficult to create a change and enforce regulation on such a huge volume of athletes at the collegiate level, compared to the much smaller professional league.⁵⁰ Presumably, transitioning the ISP from voluntary to mandatory would be the easiest way to create a uniform injury reporting system for the NCAA, with a few additional aspects.⁵¹ For example, the National Athletic Trainers Association recommended that the public release of collegiate injury reports be disseminated once or twice a week, as agreed upon by NCAA officials.⁵²

One area of concern in requiring disclosure of collegiate athletes is student athlete privacy and protection.⁵³ This is understandable, considering their young ages. Yet, there are actually very few boundaries when it comes to medical disclosures of student athletes, as collegiate athletes waive significant privacy rights when they agree to participate in college athletics.⁵⁴ A common misconception about NCAA injury disclosure is that HIPAA prevents the disclosure of athletes’ medical information without the athlete’s consent.⁵⁵ However, HIPAA only applies to certain covered entities, namely health care providers.⁵⁶ In relation to college athletes, HIPAA would only possibly apply to universities connected to a medical center (i.e., University of Cincinnati Health). Even still, non-health care components of these entities typically do not have to comply with these requirements, or if they do, collegiate athletes would be expected to waive limited rights for the release of certain medical information.⁵⁷

There has been some pressure to add a national injury reporting mandate promptly. The Big Ten Conference asked the NCAA to develop a national college football injury reporting system right after the 2018 decision in Murphy v. NCAA.⁵⁸ No momentum ever picked up from the suggestion to further develop an official system across the NCAA.⁵⁹ However, individual conferences are able to determine whether they should have a mandatory reporting policy and the Pac-12 Conference looked into the idea before its 2023 football season.⁶⁰ Thus, while an injury report is being considered, it is uncertain if such a system will develop in the near future.

Current precedent seems unfavorable to plaintiff sports bettors in failure-to-disclose of injury cases, primarily because courts have been explicit about not wanting to be involved in competitive sports’ rules and regulations.⁶¹ As the Third Circuit stated in Mayer v. Belichick, “it is not the role of judges and juries to be second-guessing the decision taken by a professional sports league purportedly enforcing its own rules.”⁶² The court went on to say, “[i]n fact, we generally lack the knowledge, experience, and tools in which to engage in such an inquiry.”⁶³

Nonetheless, a potential route plaintiff-sports-bettors could argue to amount to standing is but-for causation. If plaintiffs were to argue that “but-for” a team’s failure to disclose of a player’s pre-existing injury, a sports bettor never would have placed a bet on the team, one which ended in financial loss to the plaintiff. While the argument is true that a sports bettor could have lost their bet for a number of reasons, it is also true that a potential injury could be a key factor in whether or not a sports bettor places a bet. The issue with this claim, still, is that courts have been very clear that they do not want to be the enforcers of league violations. Also, many courts require proximate cause in addition to but-for causation to hold a party liable. For example, in Oliver v. Astros, the court required proximate cause to be shown between the sign-stealing and the plaintiff’s harm.⁶⁴ Proximate cause can be difficult for plaintiffs to prove because of its “directiveness” requirement, mandating a harm result directly from a specified act, distinct from other, independent, factors.⁶⁵

IV. Conclusion

Sports betting will likely only continue in popularity in the years to come. While sports betting is “play at your own risk,” people still may wager significant amounts of money on events and specific players. It seems unjust and deeply unsatisfying to leave these people without any recourse when bets end up losing due to a team’s failure to follow league rules. However, it seems unlikely a court of law would be willing to undertake the volume and variations of individual sports bettors’ claims.

Cover Photo by Alexander Mils on Unsplash

Beth Ann Powers

References

1
Dan Lust & Brady Foster, Bengals’ Joe Burrow Injury Opens Legal Recourse for NFL Betting, Bloomberg L. News (Jan. 4, 2024), https://news.bloomberglaw.com/us-law-week/bengals-joe-burrow-injury-opens-legal-recourse-for-nfl-betting.
2
Id.; Rob Maaddi, Joe Burrow Is Out for the Rest of the Season With a Torn Ligament in His Right Wrist, The AP News (Nov. 17, 2023), https://apnews.com/article/bengals-burrow-out-for-season-c8e9439337f9d272fc5a81a9d6a38695.
3
Lust, supra note 1.
4
Id.
5
Id.
6
2017 Personnel (Injury) Report Policy, Nati’l Football League (2017), https://operations.nfl.com/media/2683/2017-nfl-injury-report-policy.pdf.
7
Id.
8
Lust, supra note 1.
9
2017 Personnel (Injury) Report Policy, supra note 6.
10
Maaddi, supra note 2.
11
Lust, supra note 1.
12
Id.
13
Id.
14
Id.
15
Murphy v. NCAA, 584 U.S. 453 (2018).
16
Brian Pempus, States Where Sports Betting Is Legal, Forbes (Feb. 20, 2024), https://www.forbes.com/betting/legal/states-where-sports-betting-is-legal/#:~:text=Sports%20betting%20is%20legal%20in,some%20form%20of%20sports%20betting.
17
Chris Bengel & Shanna McCarriston, U.S. Sports Betting: Here is Where 50 States Currently Stand on Legalizing Online Sports Betting Sites, CBS Sports(Nov. 17, 2023), https://www.cbssports.com/general/news/u-s-sports-betting-here-is-where-all-50-states-currently-stand-on-legalizing-online-sports-betting-sites/.
18
Dave Garofolo, Do Sportsbooks Owe Refunds When Players Exit Early Due to Injuries?, Dimers (Dec. 29, 2023), https://www.dimers.com/news/do-sportsbooks-owe-refunds-when-players-exit-early-due-to-injuries.; §3775-10-01(A)(3) Effect of Scheduling Changes and/or Cancelled Sporting Events, https://sportsbook.draftkings.com/help/general-betting-rules/general-rules.
19
Garofolo, supra note 18.
20
Mayer v. Belichick, 605 F.3d 223, 225, 230 (3rd Cir. 2010).
21
Id. at 226.
22
Id.
23
Mayer, 605 F.3d at 228.
24
Id. at 230, 236.
25
Id. at 236.
26
Lust, supra note 1.
27
Oliver v. Astros, No. 2:20-cv-002830-APG-VCF, 2020 U.S. Dist. LEXIS 51808, at *1 (Nev. Dist. Mar. 23, 2020).
28
Id.
29
Id.
30
Id. at *8-10.
31
Id. at *9.
32
Id. at *10.
33
Id.
34
Id.
35
Id.
36
Olson v. Major League Baseball, 29 F.4th 59 (2d Cir. 2022).
37
See Oliver, No. 2:20-cv-002830-APG-VCF, 2020 U.S. Dist. LEXIS 51808 (D. Ne. Mar. 23, 2020); Mayer, 605 F.3d.
38
Kadeem Simmonds, Disclosure of Athlete Injuries Dubbed “Tricky” as Betting Impact Debate Rages, EGR (Jan. 4, 2024), https://www.egr.global/northamerica/news/disclosure-of-athlete-injuries-dubbed-tricky-as-betting-impact-debate-rages/.
39
Id.
40
Christopher R. Deubert, I. Glenn Cohen & Holly Fernandez Lynch, Comparing Health-Related Policies & Practices in Sports: The NFL and Other Professional Leagues, Harvard L. Sch. (May 2017), https://footballplayershealth.harvard.edu/wp-content/uploads/2017/05/03_Exec_Summary.pdf.
41
Id. at 16.
42
2017 Personnel (Injury) Report Policy, supra note 6.
43
NBA Injury Report: 2023-2024 Season, Nat’l Basketball Ass’n (Mar. 13, 2024), https://official.nba.com/nba-injury-report-2023-24-season/#:~:text=By%205%20p.m.%20local%20time,by%20such%20injury%2C%20illness%20or.
44
Id.
45
Simmons,supra note 38.
46
Id.
47
John Holden, Why Are There No NCAA Injury Reports In The Age Of Legal Sports Betting?, LSR (Jan. 23, 2024), https://www.legalsportsreport.com/31209/ncaa-injury-reports-legal-sports-betting/.
48
Id.
49
Simmons, supra note 38.
50
Id.
51
Holden, supra note 47.
52
Id.
53
Id.
54
Id.
55
Id.
56
Id.
57
Id.
58
Dennis Dodd, A National College Football Injury Report May Be Coming Soon if Big Ten Ads Get Their Way, CBS Sports (July 2, 2018), https://www.cbssports.com/college-football/news/a-national-college-football-injury-report-may-be-coming-soon-if-big-ten-ads-get-their-way/.
59
Id.
60
Bennett Conlin, NCAA, Conferences Don’t Plan To Mandate College Football Injury Report, Sports Handle (Aug. 21, 2023), https://sportshandle.com/ncaa-college-football-injury-report-discussions/.
61
See, e.g., Mayer, 605 F.3d,; Oliver v. Astros, No. 2:20-cv-002830-APG-VCF, 2020 U.S. Dist. LEXIS 51808.
62
Mayer, 605 F.3d at 237.
63
Id.
64
Oliver v. Astros, No. 2:20-cv-002830-APG-VCF, 2020 U.S. Dist. LEXIS 51808, *9 (Nev. Dist. 2020).
65
Id.,citing Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 269 (1992).

I. Introduction

II. Background

III. Discussion

IV. Conclusion

Author

References

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