No, football fans can’t sue the NFL over Joe Burrow’s injury
Why the class action lawsuits suggested by Pro Football Talk and Barstool will definitely fail.
Cincinnati Bengals quarterback Joe Burrow left a Week 11 game against the Baltimore Ravens after suffering a wrist injury. The wrist injury kept Burrow from returning to the game, which ended in a 34-20 loss with a rookie backup quarterback at the helm. After a video circulated showing Burrow with a wrist wrap or brace the day before the game, social media lost its collective mind.
The Bengals never reported that Burrow was injured before they faced the Ravens. If Burrow was injured, NFL rules require the Bengals to disclose that on the official injury report. The NFL investigated this alleged violation of league policy and decided not to punish the Bengals.
Some fans are upset because they bet money on Joe Sheisty to play well. Those bettors claim that, if Burrow had been listed as injured but playing, they would not have bet on Burrow - a claim that is dubious at best.
Meanwhile, prominent sports personalities have suggested that fans could sue the NFL and/or Bengals for fraud over the lack of reporting on this injury.
QUESTION: Would fans win a lawsuit against the NFL for fraud?
That is nothing more than clickbait.
Fans would not beat the NFL in court over an injury report.
Dave Portnoy of Barstool:
Mike Florio of Pro Football Talk believes this could lead to a class action lawsuit. In his words:
“…it would be very easy for anyone who relied on Burrow's absence from the report in placing a wager on the Bengals to use the outcome of the league's investigation as the fuel for a fraud lawsuit. Yes, fraud. You might have heard a thing or two about it in the news recently. It's basically lying. Lying with a purpose. For the Bengals, the purpose would have been to conceal Burrow's injury from the Ravens, or from anyone else. The impact on gamblers would be to keep them from realizing that Burrow might not have played at a high level, or might not have finished the game.”
Fraud is not just “lying with a purpose” as Florio said. Fraud is a misrepresentation of fact, done with the intent to cause injury to another person.
To win a fraud case, a plaintiff must prove six things:
The defendant made a representation (or omission).
The representation was material to the transaction at hand.
The defendant made the representation (a) knowing that it was false or (b) with disregard and recklessness for the truth that a fact finder may infer that the representation or omission was knowingly false.
The defendant intended to mislead the plaintiff into relying on the representation or omission.
The plaintiff justifiably relied on the defendant’s representation or omission.
The plaintiff’s reliance on the defendant’s representation or omission proximately caused the plaintiff’s injury.
Florio thinks, “It’s possible that a class action could be pursued, with everyone in a given state (or nationally) who placed a bet on the Bengals looking to get a refund from the Bengals for hiding the injury.”
So, can everyone who placed a bet on the Bengals win prove all six elements of fraud?
1. Representation/omission: Just for the sake of this conversation, let’s assume that Burrow was hurt on Wednesday and the Bengals knew this but left him off the injury report. If we make that assumption, then the plaintiffs can win on the first element.
2. Material: Two facts hurt the plaintiffs’ argument. First, everybody is “hurt” halfway through the football season, and Burrow is no exception. Burrow started the season with a calf injury and has nursed it ever since. Second, even if Burrow had a wrist injury, he did play and, before the injury, he played well. Joe Burrow threw 17 passes for 101 yards plus a touchdown to put the Bengals up 10-7 with 5:49 left in the 2nd quarter. Here’s a sample of QBs who “only” threw one touchdown in Week 11 despite playing the full game: Russell Wilson, Sam Howell, Joshua Dobbs, Kyler Murray, and Matthew Stafford.
This season, Burrow does not automatically equal touchdowns, and Burrow’s presence has not guaranteed a win for the Bengals. Burrow has failed to score a single touchdown three times this season: Week 1 vs Cleveland, Week 3 vs Los Angeles, and Week 4 vs Tennessee.
Plaintiffs lose this element. Burrow’s prior wrist injury is not material because he played, and played well. Plus, even if Burrow played the full game, there’s no guarantee the Bengals would have won or scored more touchdowns.
3. Knowledge of the truth. If we assume the Bengals knew Burrow was hurt, then the plaintiffs easily win this element. But, we’d need to actually “know” this. For example, it’s plausible that Burrow hid the injury so the Bengals would let him play. We need more info here. Since the NFL has determined the Bengals did not violate league policy, there’s no chance the plaintiffs win this element.
4. Intention to mislead. To win this element, fans must prove that the Bengals intended to mislead fans into thinking that Burrow was healthy so that fans would place bets on the Bengals.
I cannot overstate how implausible this is. Players and coaches aren’t allowed to wager on their games, so they don’t care how the fans bet. Even in an era when the sports gambling business teeters on being conflated with actual sports, it is unlikely that a team withheld injury info with the intent to screw with the spread.
Also note that Florio suggests that the Bengals would have hid the injury “to conceal Burrow’s injury from the Ravens.” Even if we accept Florio’s rationale, that does not give the fans any grounds to sue.
Plaintiffs lose this element.
5. Justifiable reliance. Fans are justified in relying on the Bengals’ injury report. There’s no other way fans would learn of reputable news regarding player injuries. Plaintiffs easily win this element.
6. Proximate cause. To prove proximate cause, fans must show that Burrow’s omission from the Bengals injury report caused the fans to lose money. This would be hard to prove because the injury report likely would’ve said nothing more than “Burrow (wrist) will play.”
Fans likely would not have changed their bets. Remember: Burrow played and scored a touchdown.
Plaintiffs lose this element.
Although Florio thinks it would be “very easy” for fans to win a fraud lawsuit against the Bengals, he’s wrong. Fans couldn’t prove that the Bengals intended to mislead fans.
QUESTION: Okay, so fans can’t win a fraud lawsuit. Could fans win on other theories like negligence or breach of contract?
Negligence
Fans could not prove negligence because neither the Bengals nor the NFL has a legal duty toward fans regarding sports betting.
Negligence is the failure to behave with the level of care that a reasonable person would have exercised under the same circumstances. To prove negligence, the plaintiff must show that the defendant owed the plaintiff a legal duty of care. For example, there is a legal duty of care when the defendant:
created the risk that resulted in the plaintiff’s injury (ex: if I spill a hazardous chemical, I have a duty to clean it up or warn the people who could be injured)
volunteered to protect the plaintiff (ex: if a doctor volunteers to help an injured person in public, that doctor has a duty to behave with a level of care suitable for a reasonable doctor under those circumstances)
Knew or should have known that their conduct would hurt the plaintiff (ex: if a food manufacturer learns that their product has been contaminated, they have a duty to warn the public of potential harm)
Has a business relationship with the plaintiff (ex: your landlord owes you a duty regarding the habitability and safety of the building they lease to you)
None of these examples match the relationship between sports bettors and the Bengals/NFL.
Breach of contract
Fans would not win a breach of contract suit because fans are not in privity with the Bengals or NFL. If two people are “in privity,” that means they are bound by a contract or some similar legally binding relationship. That relationship gives both people rights and obligations.
As noted above, sports bettors do not have a legal relationship with the NFL. A breach of contract claim would likely fail.
One might argue that because the NFL makes so much money off of sports betting, the NFL has created a duty to the fans to produce completely accurate injury reports. The NFL itself has several official sports betting partners. Many NFL teams even have sportsbooks inside their stadiums.
This argument fails for one main reason:
The NFL is not actually in the sports gambling business. The sportsbooks do have contracts to use the NFL’s data for betting purposes and use the NFL’s trademarks for advertising purposes, but the NFL is not operating sports gambling. The sports betting companies highlight this in their terms of use. Check this out:
So, when it comes to gambling, the fans are in privity with the sportsbooks, not the NFL.
QUESTION: Has the NFL ever been sued for false injury reports? Has the NFL been sued over game outcomes?
I couldn’t find any fan lawsuits for false injury reports. But let’s think bigger: have fans ever sued the NFL over the outcome of a game?
Yep, but the NFL ended up on top.
The 2019 NFC championship game between the New Orleans Saints and the Los Angeles Rams ended in controversy that led to fan lawsuits. The game was tied 20-20 late in the fourth quarter and the Saints had possession in Rams territory. Saints quarterback Drew Brees threw a pass to receiver Tommylee Lewis. Before the ball arrived, cornerback Nickell Robey-Coleman smashed Lewis, flipping him upside down. Because Coleman significantly hindered Lewis’ opportunity to catch the ball, the referees should have called a pass interference penalty on the Rams. Instead, the pass was deemed incomplete.
A pass interference penalty would have given the Saints an automatic first down and the ball would’ve been placed at the spot of the foul. The Saints would’ve likely maintained possession until the end of the game, kicking a game-winning field goal as time expired.
What actually happened?
Both teams kicked field goals and the game went to overtime, where the Rams won 26-23.
Saints fans were irate. After all, the blown call helped send the Rams to the Super Bowl instead of the Saints. The fans converted their anger into three separate lawsuits against the NFL.
Fans asked the court to force NFL Commissioner Roger Goodell to overturn the blown call using Rule 17 (link to the NFL Rulebook). The Commissioner has the sole authority to investigate and take corrective measures if a:
“calamity occurs in an NFL game which the Commissioner deems so extraordinarily unfair or outside the accepted tactics encountered in professional football that such action has a major effect on the result of the game.”
The fans argued that Rule 17 permits Goodell to reverse a game’s result or restart the game from the point of controversy.
These lawsuits failed for one big reason:
Courts can compel the performance of a duty imposed by law. Courts generally will not compel a company to perform a discretionary act.
At a hearing, the NFL’s lawyer agreed that the referees did blow the pass interference call, but noted that Rule 17 has never been invoked. Further, Rule 17 does not apply to “judgmental errors or routine errors of omission by game officials.”
In the Saints-Rams game, the NFL Commissioner never had a legal duty to the fans to overturn the referee’s error.
Likewise, neither the NFL nor the Bengals owe the fans a legal duty regarding the pre-game injury report.