David Givens vs. the Titans

Former wide receiver David Givens, who signed a four-year, $24-million contract with the Tennessee Titans before the 2006 season, is suing the team because it allegedly failed to disclose a major defect in Givens left knee – a condition that was discovered, according to the lawsuit, during a physical examination prior to the signing of Givens in March 2006. Givens suffered a major knee injury in Week 10 of that season against Baltimore and has been unable to play since, despite multiple surgeries.

In an interview with Nashville’s WTVF-TV, Givens’ attorney, Daniel Warlick, read from a memo that was allegedly provided to then-Titans GM Floyd Reese and head coach Jeff Fisher. The memo allegedly states: “Dr. [Tomas] Byrd is concerned about his [Givens] ability to play for very long. His left knee has a large defect on the medial femoral condyle and may need surgery at some point. Dr. Byrd is concerned that he will miss some time and not be able to go through all of training camp and may not be able to make a full 16-game season.”

APGivens (right) signed with the Titans before the 2006 season.

In the $25-million lawsuit, Warlick contends that Givens was never told about this problem and that Tennessee officials encouraged him to keep playing. The subsequent injury he suffered effectively ended his playing career. Warlick further contends that if Givens had been informed of the problem, described as a lesion and defect, he might have been able to have it surgically repaired and avoided the injury. He was coming off a 59-catch season with New England in 2005 when he signed with Tennessee as a free agent.

As a lawyer and former agent, I have to admit I don’t quite know what to think about this suit. On one hand, it’s difficult to believe that a franchise that was aware of a potentially serious pre-existing condition like Givens supposedly had would sign him to a multiyear contract without asking him to sign some kind of waiver related to that condition.

The NFP’s Jack Bechta has written about injury waivers, and the NFL Players Association spends a great deal of time counseling agents about not signing or agreeing to overly broad injury waivers. It’s hard to believe that Tennessee would not have told Givens or his agent about the injury and not asked him to sign a waiver removing the Titans from liability for further damage.

If you wonder why Tennessee would sign Givens at all knowing about his knee problems, the Titans were 4-12 in 2005, and with Bobby Wade and Drew Bennett as their top receiving threats, they may have been desperate to have a player like Givens, who had posted consecutive 50-catch seasons in New England.

Organizations worried about their future sometimes take risks. Indeed, Floyd Reese paid with his job for the Titans’ struggles during this period. So this question is a plus for Givens’ argument that Tennessee needed him immediately and risked his future for their present.

On the other hand, it’s completely believable that a team might try to push a player to play despite risks to his future well-being, and this is by far the most plausible of Givens’ contentions. He’s saying Tennessee kept him in the dark about the risk of further injury to keep him playing and deprived him of the opportunity to get have his problems repaired before they became career-threatening. 

But the way the 2006 season played out for the Titans doesn’t fully support the “keep him playing no matter what” argument. The Titans opened the season 0-5 and were only 2-6 going into the Week 10 game with Baltimore. While Tennessee rallied under the leadership of rookie Vince Young to win six in a row, that run only happened after Givens was gone for the season. Additionally, Givens had signed a four-year deal and was just 26 years old, so the pressure to play now could not have been as intense as the risk of losing a player the franchise had invested in.

Ordinarily, a player assumes the risk of injury by playing and usually cannot prevail against his former team -- and even winning a malpractice suit against team doctors is usually difficult. But the Givens suit is interesting because it contends he was shielded from the most obvious risks he faced in playing, and it uses the doctor’s opinion to advance that case. This is a case to follow because it poses so many seemingly contradictory questions.

Acquittal for high school coach

You may have read that on Sept. 17, a Kentucky jury acquitted David Stinson, a high school coach in Louisville, of reckless homicide in the death of a 15-year-old player. It was one of the most closely watched cases by football coaches and administrators around the country.

Max Gilpin collapsed during a 94-degree practice in August 2008 while running sprints. He died three days later of heat stroke. Stinson was criminally charged in Gilpin’s death despite the fact the heat index, while high, was within the allowable state standards. Holding a coach criminally liable for the death of a player when the facts indicate the death was accidental is an extremely rare, if not unheard of, circumstance.

That Stinson was acquitted after only 90 minutes of jury deliberation indicates that this was a tragic accident that should never have been tried in a criminal court. While our hearts go out to the Gilpin family for their loss, hopefully Stinson’s quick acquittal will convince all future prosecutors to exercise their prosecutorial discretion more carefully.

Mangini Grievances

APBrowns head coach Eric Mangini

Adam Schefter of ESPN reported Sunday that two Cleveland Browns players had filed grievances against fines levied by head coach Eric Mangini and as many as three more were pending. Michael Lombardi wrote about bigger problems for Cleveland than just meeting Mangini’s disciplinary standards, and at 0-3 off a 34-3 loss to Baltimore, there’s more wrong in Cleveland than a mere lack of discipline.

I’ve filed grievances on behalf of players and found the adjudication process to be quite fair and even-handed. The filing of a grievance, or even several, doesn’t mean that a team is doing anything wrong, but the fact that as many as five might be pending by the third week of the season could indicate that Mangini’s overall fine structure is disproportionate and arbitrary, and that calls all his fines into question.

Lions win

APSeattle's jerseys fooled the Bears for the first half. The Bears came back to win after putting on sunglasses.

Many years ago, I played for a Columbia Lions team that became associated with losing, so I understand the sense of relief that comes with ending a streak. Congratulations to Jim Schwartz and his Detroit Lions.

There ought to be a law…

Against the Seahawks’ slime-green alternate jerseys. There was a time the NFL took its image with “John Facenda-entoned seriousness.” Not anymore.

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