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The Latest: Elliott hits long FG; Falcons lead Eagles 10-9

Philadelphia Eagles' Jay Ajayi (36) is tackled by Atlanta Falcons' Brooks Reed (50) during the first half of an NFL divisional playoff football game, Saturday, Jan. 13, 2018, in Philadelphia. (AP Photo/Chris Szagola)

The Latest: Elliott hits long FG; Falcons lead Eagles 10-9

Atlanta Falcons' LaRoy Reynolds, right, and Damontae Kazee (27) react after recovering a fumbled punt during the first half of an NFL divisional playoff football game against the Philadelphia Eagles, Saturday, Jan. 13, 2018, in Philadelphia. (AP Photo/Chris Szagola)

The Latest: Elliott hits long FG; Falcons lead Eagles 10-9

Atlanta Falcons' Matt Ryan (2) throws a touchdown pass during the first half of an NFL divisional playoff football game against the Philadelphia Eagles, Saturday, Jan. 13, 2018, in Philadelphia. (AP Photo/Chris Szagola)

The Latest: Elliott hits long FG; Falcons lead Eagles 10-9

Atlanta Falcons' Matt Ryan passes during the first half of an NFL divisional playoff football game against the Philadelphia Eagles, Saturday, Jan. 13, 2018, in Philadelphia. (AP Photo/Matt Rourke)

The Latest: Elliott hits long FG; Falcons lead Eagles 10-9

Philadelphia Eagles' LeGarrette Blount celebrates after a touchdown during the first half of an NFL divisional playoff football game against the Atlanta Falcons, Saturday, Jan. 13, 2018, in Philadelphia. (AP Photo/Michael Perez)

The Latest: Elliott hits long FG; Falcons lead Eagles 10-9

Atlanta Falcons' Matt Ryan (2) throws a touchdown pass to Devonta Freeman (24) during the first half of an NFL divisional playoff football game against the Philadelphia Eagles, Saturday, Jan. 13, 2018, in Philadelphia. (AP Photo/Michael Perez)

The Latest: Elliott hits long FG; Falcons lead Eagles 10-9

Philadelphia Eagles' LeGarrette Blount scores a touchdown during the first half of an NFL divisional playoff football game against the Atlanta Falcons, Saturday, Jan. 13, 2018, in Philadelphia. (AP Photo/Michael Perez)

The Latest: Elliott hits long FG; Falcons lead Eagles 10-9

Atlanta Falcons' Tevin Coleman (26) slips past Philadelphia Eagles' Mychal Kendricks (95) during the first half of an NFL divisional playoff football game, Saturday, Jan. 13, 2018, in Philadelphia. (AP Photo/Michael Perez)

The Latest: Elliott hits long FG; Falcons lead Eagles 10-9

Philadelphia Eagles' Jay Ajayi (36) is tackled by Atlanta Falcons' Brooks Reed (50) during the first half of an NFL divisional playoff football game, Saturday, Jan. 13, 2018, in Philadelphia. (AP Photo/Chris Szagola)

49ers linebacker Reuben Foster arrested on marijuana charge

In this Oct. 22, 2017 file photo, San Francisco 49ers linebacker Reuben Foster (56) stands on the sideline during the second half of an NFL football game against the Dallas Cowboys in Santa Clara, Calif. Foster has been arrested in Mississippi and charged with second-degree possession of marijuana. AL.com says the Tuscaloosa County Sheriff's Office arrest database indicates Foster, who just finished his rookie season, was arrested Friday, Jan. 12, 2018. (AP Photo/Marcio Jose Sanchez, File)

Brees-Keenum: Will playoff savvy prevail in Saints-Vikings?

Minnesota Vikings quarterback Case Keenum throws a pass during warmups in Eden Prairie, Minn., Thursday, Jan. 11, 2018, in preparation for Sunday's NFL playoff football game against the New Orleans Saints in Minneapolis. (AP Photo/Jim Mone)

Brees-Keenum: Will playoff savvy prevail in Saints-Vikings?

FILE - In this Sept. 21, 2014, file photo, Minnesota Vikings head coach Mike Zimmer, left, and New Orleans Saints head coach Sean Payton talk before an NFL football game, in New Orleans. The Saints and Vikings play in a divisional playoff game on Sunday, Jan. 14, 2018, in Minneapolis. (AP Photo/Bill Haber, File)

Brees-Keenum: Will playoff savvy prevail in Saints-Vikings?

FILE - At left, in a Dec. 23, 2017, file photo, Minnesota Vikings' Case Keenum throws during the first half of an NFL football game against the Green Bay Packers, in Green Bay, Wis. At right, in a Dec. 24, 2017, file photo, New Orleans Saints quarterback Drew Brees (9) drops back to pass in the first half of an NFL football game against the Atlanta Falcons, in New Orleans. The Saints and Vikiungs plays in a divisional playoff game on Sunday, Jan. 14 in Minneapolis. (AP Photo/Butch Dill, File)

En esta fotografía de archivo del 22 de octubre de 2017, el linebacker de los 49ers de San Francisco, Reuben Foster (56), permanece a un lado de la cancha en la segunda mitad del partido de la NFL contra los Cowboys de Dallas en Santa Clara, California. Foster fue arrestado el viernes 12 de enero de 2018 en Alabama acusado de posesión de marihuana en segundo grado y lo pusieron en libertad tras el pago de una fianza. (AP Foto/Marcio José Sanchez, Archivo)

En esta fotografía de archivo del 22 de octubre de 2017, el linebacker de los 49ers de San Francisco, Reuben Foster (56), permanece a un lado de la cancha en la segunda mitad del partido de la NFL contra los Cowboys de Dallas en Santa Clara, California. Foster fue arrestado el viernes 12 de enero de 2018 en Alabama acusado de posesión de marihuana en segundo grado y fue dejado en libertad bajo fianza. (AP Foto/Marcio José Sanchez, Archivo)

Jaguars surging, Steelers wary in high-stakes rematch

Pittsburgh Steelers wide receiver Antonio Brown (84) makes a catch during drills in an NFL football practice, Thursday, Jan. 11, 2018, in Pittsburgh. The Steelers host the Jacksonville Jaguars in a divisional playoff on Sunday. (AP Photo/Keith Srakocic)

Jaguars surging, Steelers wary in high-stakes rematch

FILE - In this Sunday, Jan. 7, 2018 file photo, Jacksonville Jaguars quarterback Blake Bortles (5) warms up before the start of an NFL wild-card playoff football game against the Buffalo Bills in Jacksonville, Fla. Blake Bortles first postseason victory came with a hefty dose of criticism, maybe even more than ever before. The Jacksonville Jaguars quarterback handled it as well as he did Buffalos pass rush. (AP Photo/Stephen B. Morton, File)

Jaguars surging, Steelers wary in high-stakes rematch

FILE - In this Oct. 8, 2017, file photo, Pittsburgh Steelers head coach Mike Tomlin, left, and Jacksonville Jaguars head coach Doug Marrone walk away after a brief encounter after an NFL football game, in Pittsburgh.The Jaguars and Steelers play in a division playoff game on Sunday, Jan. 14, 2018, in Pittsburgh. (AP Photo/Don Wright, File)

Jaguars surging, Steelers wary in high-stakes rematch

Pittsburgh Steelers quarterback Ben Roethlisberger (7) passes in drills during an NFL football practice, Friday, Jan. 12, 2018, in Pittsburgh. The Steelers host the Jacksonville Jaguars in a divisional playoff on Sunday. (AP Photo/Keith Srakocic)

Texans hire Brian Gaine as GM, extend Bill O'Brien's deal

File- This Dec. 25, 2017, file photo shows Houston Texans coach Bill O'Brien calling a play against the Pittsburgh Steelers during the second half of an NFL football game in Houston. The Texans have lost five in a row, eight of nine and dont even have a first-round draft pick in April. Houston sent its selection to Cleveland to take Deshaun Watson at No. 12 overall last spring. Watson is now recovering from a torn ACL in his right knee, and his injury coincided with Houstons subsequent collapse. Some are calling for the ouster of coach OBrien even though players, including Watson, believe OBrien should get another chance. (AP Photo/Eric Christian Smith, File)

Texans hire Brian Gaine as GM, extend Bill O'Brien's deal

FILE- In this Dec. 31, 2017, file photo, Houston Texans head coach Bill O'Brien speaks during a news conference following an NFL football game against the Indianapolis Colts in Indianapolis. The Texans have hired Brian Gaine as general manager and extended the contract of coach Bill O'Brien through 2022, the team announced Saturday, Jan. 13, 2018. (AP Photo/Michael Conroy, File)

Vikings take Bradford off IR for playoffs; 4th QB on roster

FILE - In this Oct. 29, 2017, file photo, Minnesota Vikings quarterback Sam Bradford stands on the field before an NFL football game against Cleveland Browns at Twickenham Stadium in London. The Vikings have activated Bradford from injured reserve, putting their original starter this season on the roster before their first playoff game against New Orleans. (AP Photo/Matt Dunham, File)

Vikings take Bradford off IR for playoffs; 4th QB on roster

FILE - In this Oct. 9, 2017, file photo, Minnesota Vikings quarterback Sam Bradford (8) throws a pass during the first half of an NFL football game against the Chicago Bears, in Chicago. Vikings quarterback Sam Bradford has returned to practice, two months after a cleanup surgery on his left knee. Bradford, who led the Vikings to a season-opening win over New Orleans before experiencing pain in the twice-repaired joint, had his latest operation on Nov. 7. He was placed on injured reserve the following day. This was the first week he was eligible to resume practicing with the team. (AP Photo/Darron Cummings, File)

Georgia defensive tackle Trenton Thompson to enter NFL draft

Alabama's Tua Tagovailoa scrambles from Georgia's Trenton Thompson during the second half of the NCAA college football playoff championship game Monday, Jan. 8, 2018, in Atlanta. (AP Photo/David J. Phillip)

Analyzing Dustin Fowler's Lawsuit Against the Chicago White Sox

When a professional athlete is injured in a game, hardly anyone asks whether the injury could lead to a lawsuit. And why should they. Injuries are part of every sport. Athletes, especially at the professional level, assume the risk of danger on every play.

But is that true of all injuries? Could some occur not because “that’s just the way the game is played” but rather because other people were negligent in designing how the game would be played?

Go back to June 29, 2017. It was an ordinary day for most but certainly not for Dustin Fowler. The Georgia native, who was 22 years old at the time, would make his Major League debut. It would take place on a rainy evening in Guaranteed Rate Field in Chicago. And it would be for the New York Yankees. Fowler’s manager, Joe Giardi, started him in right field. He was slated to bat sixth—right behind Jacoby Ellsbury—in a lineup that would face White Sox starter James Shield.

Fowler was on-deck in the first inning when Ellsbury’s fly ball to left fielder Melky Cabrera produced the third out.

Yet Fowler didn’t lead off the second inning. In fact, he didn’t make it out of the first.

And he hasn’t played since.

With two outs in the bottom of the first, White Sox first baseman Jose Abreu belted a line drive down the right-field line. Running at full speed, Fowler couldn’t quite catch up with the ball, which landed foul. Instead, he caught up with another object: an unpadded metal electrical box positioned between a railing and a half wall.

A devastating collision then ensued. Fowler would nearly tumble head first into the stands while his right knee slammed into the wall. That knee slam triggered a rupture in the patella tendon. Grimacing in pain and unable to put weight on his right leg, Fowler hobbled for a few seconds before falling to the ground. Meanwhile, an umpire waived to the Yankees dugout that Fowler needed immediate medical assistance.

Fowler would be carried off the field on a stretcher and ambulanced to the emergency room of Chicago’s Rush University Medical Center. Doctors there would perform season-ending surgery. A month later the Yankees traded Fowler to the Oakland A’s in a package deal for pitcher Sonny Gray.

Reminiscent of Archibald Wright “Moonlight” Graham, a fellow right fielder whose big league career consisted of one inning without a plate appearance, Fowler is still waiting for his first big league at-bat.

Fowler’s path likely won’t follow that of Graham, who returned to school and became a doctor. In fact, it is because of doctors that Fowler should get the chance that Graham never got. Fowler knee surgery’s was successful and he appears to have recovered, at least in terms of resuming his baseball career. Two months ago, the A’s reinstated Fowler from the disabled list. He is expected to be in full strength by the time A’s spring training in Mesa, Arizona starts next month.

The fact that Fowler has seemingly recovered does not mean that his injury—and accompanying suffering—occurred without legal implications. In fact, the aftermath of the injury could alter the degree to which stadium operators and teams owe ballplayers a safe environment in which to play.

To that end, Fowler recently sued both the White Sox and the Illinois Sports Facilities Authority (ISFA, the government entity that owns Guaranteed Rate Field) in a Cook County Circuit Court. SI.com has obtained a copy of the complaint.

Fowler, who is represented by John Bailly of Bailly & McMillan and Michael Sorich of the Cavanagh Law Group, contends that, “as a result of the negligent, grossly negligent, reckless, willful and wanton conduct of the Defendants,” he “missed the remainder of the 2017 baseball season.” Fowler says he suffered “severe and permanent” injuries, along with “great pain and anguish.” He also stresses the extensive harm caused to his nascent big league career. Indeed, Fowler describes how he has “undergone and continues to undergo rehabilitation for the injuries sustained” and endured “pain and suffering and medical expenses.” He also seeks compensation for “past lost earnings and potential future lost earnings.”

The rarity of professional athletes suing over injuries

Regardless of how it fares in court, Fowler’s lawsuit is unusual. The fact is, professional athletes who suffer serious injuries in the course of playing games seldom file lawsuits over those injuries.

There are a number of reasons for this dynamic. One is that these players tend to be financially protected in the event of serious injury.

Take MLB player contracts. They are, essentially, guaranteed and even the league’s minimum salary—$550,000 in 2018—places a player in the top half of the top one percent of earners in the United States. Fowler was paid while on the disabled list. He also earned service time towards arbitration and free agency eligibility. Indeed, despite not being able to play, players on the 15- and 60-day MLB disabled lists accrue service time.

Generous health care benefits also push against the need to sue. Players’ associations collectively bargain for high-quality health care and long-term disability policies. These policies insure that injured players—and to varying degrees retired players—do not pay for health care out-of-pocket. This is true even when injured players may be entitled to benefits through workers’ compensation insurance (Nathaniel Grow has an excellent overview of workers’ compensation in MLB on FanGraphs). With these points in mind, the Yankees and later the A’s presumably paid for health care costs related to Fowler’s knee injury.

Another reason for the dearth of this type of litigation is that professional athletes clearly assume substantial health risks as inherent in the game. Even though baseball is not as dangerous as football or hockey, ballplayers are still exposed to a variety of risks on every play. Usually when a player is injured while trying to make a play, there is an unstated understanding that the injury is “part of the game.” Fowler crashing into a wall in pursuit of a fly ball was not unforeseeable (whether the electrical box should have been there is a separate matter).

Still another reason for the lack of player injury lawsuits may concern reputation. Injured professional athletes might worry that filing a lawsuit over an on-field injury would stigmatize them. Would teammates and fans mock them as too litigious or annoyingly disruptive?

Finally, there is the element of finite time and diminishing tolerance. As anyone who has been in a lawsuit knows too well, litigation is time consuming and often stressful. It requires something of a “long game”: regular meetings and conversations with lawyers. It also demands answering questions, sometimes under oath. A pro athlete’s time is limited and expending it on a lawsuit can be a questionable choice.

Rare isn’t never

While they are few and far between, some pro athletes have sued after being injured in games. And they have succeeded when they are able to show that their injury occurred in a manner clearly outside the scope of the game.

Take Former Denver Broncos safety Dale Hackbart’s lawsuit against the Cincinnati Bengals for an incident that occurred in a 1973 game. While attempting to get up from the field, Hackbart was struck with an intentional blow to his neck by Bengals fullback Charles Clark. Clark’s strike—which was not a football move—caused Hackbart to suffer a neck fracture. Hackbart sued and received a favorable decision by the U.S. Court of Appeals for the Tenth Circuit. The court reasoned that while football players assume risks of injuries inherent the game, they do not necessarily assume other types of risks while playing football.

Former Houston Rockets forward Rudy Tomjanovich proved a similar point when he successfully sued the Los Angeles Lakers for negligent supervision of one of its players. Tomjanovich suffered significant facial injuries when, as part of a skirmish during a game in 1977, he was punched by Lakers forward Kermit Washington. Prior to an appellate court reviewing Tomjanovich’s trial victory, Tomjanovich and the Lakers agreed on a $2 million settlement. Years later, California Judge Thomas Crosby would write,

“A verdict for Tomjanovich was clearly proper. He did assume the risk of being hit in the face by a flying elbow in the course of defending against an opponent's jump shot, suffering a painful insult to his instep by a size-16 foot descending with a rebound, or even being knocked to the court by the sheer momentum of a seven-footer driving home a slam dunk. But the scope of his consent did not extend to an intentional blow considerably beyond the expected risks inherent in basketball. Intentional fouls are part of that game. But where the intent is to injure and the force used is far greater than necessary to accomplish a legitimate objective within the scope of play, a defendant may not prevail on an assumption of risk defense.

Former Colorado Avalanche forward Steve Moore brought a lawsuit with these same ideas in mind. He sued the Vancouver Canucks and forward Todd Bertuzzi in 2005 for $68 million over career-ending injuries caused by Bertuzzi pile-driving Moore face first into the ice. After nearly a decade of litigation, the parties settled in 2014.

Not long thereafter, former NFL running back Reggie Bush sued over a safety risk he insists that he did not assume. While playing in the Edward Jones Dome in 2015, Bush was pushed out of bounds in the course of returning a punt. Unable to stop on the turf, he slipped onto an uncovered concrete surface and suffered a season-ending knee injury. Given a close proximity between the turf and the concrete, Bush believes that the stadium had been negligently maintained. His case against the St. Louis Regional Convention and Sports Complex Authority remains in litigation.

Injured players also sometime sue as part of a class action, where a handful of current or retired players represent thousands of others. Most plaintiffs in a class action are thus passive and play no active role, but still stand to benefit if the action leads to a courtroom victory or a settlement. The class action model was used when thousands of retired NFL players were part of a class action against the NFL over long-term neurological problems associated with playing football. Over 99% of those players settled claims with the NFL, though new findings on chronic traumatic encephalopathy (CTE) could undermine the settlement. Former NHL players are engaged in a similar class action against the NHL.

Placing Fowler’s initial comments to media in the appropriate context

In the immediate aftermath of the collision, Fowler didn’t seem to blame the White Sox or stadium operators for his injury. Instead, he appeared to attribute the injury to an unfortunate circumstance.

For instance, he told Kevin Kernan of the New York Post that “I hit the wrong part of the fence, it was just kind of a freak accident that you can’t really do anything about.’’ Fowler also relayed that point of view to the New York Daily News’ Daniel Popper. “I can’t say that I wouldn’t have been hurt if I didn’t hit it,” Fowler reflected. “I could have easily torn an ACL if I didn’t hit it. It’s easy to blame something like that, but right now, I think it’s just unfortunate . . . I’m not really blaming anyone or anything for it, how it happened or why it was there.”

The fact that Fowler did not immediately blame the White Sox or ISFA for his injury should not be regarded as a meaningful omission. For one, athletes are generally coached to take responsibility for their performance and to not direct blame elsewhere. Furthermore, Fowler may not have had a chance yet to speak with attorneys, who are educated about the law, as to whether he had been unlawfully wronged. Along those lines, Fowler not only lacks a legal education but he never attended college—he signed with the Yankees as an 18-year-old straight out of West Laurens High School (Dexter, Georgia) in 2013. To have expected him to describe the White Sox or ISFA as “negligent” in the hours and days following a devastating knee injury seems unrealistic and unfair.

Understanding Fowler’s legal theory and what he needs to prove

Fowler’s case centers on a key assertion: that the White Sox and ISFA negligently installed a metal electrical box to a portion of the half wall in right field and that their decision to do so caused Fowler’s injuries.

As Fowler asserts, the presence of the box allowed for his knee to come into contact with it. This box, Fowler contends, was a “hidden and undetectable hazard.” He was clearly not expecting the box to be there, especially given that the surrounding railing and wall featured protective padding. Fowler also argues that such a collision with a sprinting right fielder was, or should have been, foreseeable to the White Sox and ISFA. This dynamic, Fowler maintains, reveals the White Sox and ISFA as having “an utter indifference to or conscious disregard for the safety of the Plaintiff.”

To advance this claim, Fowler would benefit by convincing a jury that the box’s placement and other safety characteristics—such as its size, color contrast and hardness—was atypically dangerous for a big league ballpark. The more unusual the box seemed, the less Fowler would have been on notice of its presence. This is particular true given that it was Fowler’s first time playing in Guaranteed Rate Field. To that end, witnesses with expertise in ballpark design, such as stadium engineers and groundskeepers, could offer analysis on where other big league ballparks place electrical boxes and whether such placements poses similar or different health risks to the ones encountered by Fowler.

Other potential witnesses could include baseball managers and executives who are familiar with safety issues. It seems likely that one such witness will be Giardi, who in the aftermath of Fowler’s injury criticized MLB for allowing outfielders to experience unsafe conditions. The New York Daily News quoted Giardi as observing that Fowler’s injury was clearly influenced by the ballpark design. “I know it’s how the stadium was designed,” Giardi remarked, “but I think it’s something baseball needs to address. Maybe you put up Plexiglass so they can’t flip over and people can look through it . . . You say you want players to play hard. But sometimes this is what happens if the field doesn’t protect the players.”

Evidence of past injuries would also be important. This would be true of players injured by this particular box as well as other areas of Guaranteed Rate Field. The more evidence that the White Sox and ISFA were on notice of an unsafe feature, the less reasonable they would seem in failing to fix it.

Fowler’s potential damages are harder to assess. Assuming his health care costs were paid by his employer and assuming he is able to resume his career without a diminishment in skill, his damages would likely center on the considerable pain and suffering he endured as a result of the injury. Also, if Fowler’s comeback with the A’s is stalled due to ongoing knee problems, his potential damages would be higher. Similarly, since Fowler is a player who relies on speed as a key part of his game, a degeneration of his running ability could be compensable since it would hurt his chances for a big league career and lower his potential career earnings. Expert witnesses, including retired baseball executives and baseball agents, would likely testify on these topics.

Potential legal defenses for the White Sox and ISFA

The ideal argument for a defendant is one that convinces a judge that the judge has no grounds to hear the plaintiff’s case. The White Sox and ISFA could offer a couple of arguments along those lines.

First, Fowler’s lawsuit might be preempted by the collective bargaining agreement signed by MLB and MLBPA. The CBA contains detailed procedures for players to file “grievances.” Under Article XI of the CBA, a grievance is defined as a complaint involving agreements or provisions between a player and a club (among others). A grievance avoids court. It leads to arbitration and either a settlement or an arbitrator’s binding decision.

A number of MLB players, with help from the MLBPA, have filed grievances for injury-related matters. For example, a few years ago, pitcher Nick Hagadone grieved a dispute with the Cleveland Indians centering on the contractual impact of a self-inflicted forearm injury. The injury occurred after Hagadone was pulled from a game in which he struggled. In frustration, Hagadone, slammed a door while walking to the clubhouse. The Indians sent Hagadone to the minors and placed him on the disqualified list, transactions which had the effect of denying him service time. Through the grievance process, Hagadone and the Indians ultimately reached a settlement.

Had Hagadone sued the Indians, the Indians would have probably cited the federal Labor Management Relations Act as a core defense. The Act generally requires that unionized employees must exhaust their potential remedies under collectively bargained grievance procedures before turning to court.

While the White Sox might argue that Fowler, like Hagadone and other players, should use the grievance process instead of courts, Fowler’s attorneys would likely stress that the grievance process is not appropriate for Fowler’s injury or the claims that stem from it. For one, Fowler was never in contract with the White Sox; his employer at the time of the injury was the Yankees. For another, Fowler’s claims are not contractual in nature. They stem from a workplace injury that gave rise to claims in torts, an area of law that deals with personal and non-contractual harms. Further, Article XI of the CBA makes clear that the grievance process does not necessarily bar a lawsuit. “[N]othing,” according to Article VI, “herein shall alter or abridge the rights of the Parties, or any of them, to resort to a court of law for the resolution of such complaint or dispute.”

The ISFA might enjoy a separate defense that attempts to immunize it from Fowler’s claims. As a public entity, the ISFA may be able to take advantage of “sovereign immunity.” In its broadest form, sovereign immunity is a legal principle dictating that the government and its agencies (including public universities and public stadium authorities) can only be sued if they agree to be sued. Sovereign immunity has numerous exceptions, however, and some of those limits are expressed through the Illinois Tort Immunity Act.

Assuming the White Sox and ISFA are required to defend the lawfulness of the playing conditions, they might argue the box was an “open and obvious” condition to right fielders. Such an argument would be bolstered if other players would be willing to testify that they saw the box and adjusted for it in how they played. It would also benefit if the box has been there a while and Fowler is the first and only player hurt by it.

A related argument may be that outfielders have a professional duty to inspect the conditions in which they play. Is it common or customary for MLB outfielders who have never before played in a particular ballpark to survey the fence and other conditions before the game? If it is, the White Sox and ISFA might contend that Fowler should have done more to acquaint himself with his conditions.

The defendants will also argue that Fowler’s damages are relatively modest. The Yankees and A’s (presumably) covered his healthcare costs and he has been off the disabled list for a couple of months. The defendants will also insist that any depiction of the injury as having a long-term impact on Fowler’s baseball career is speculative and not provable with certainty. While Fowler will retain expert witnesses who take his view, the White Sox and ISFA will retain their own.

If Fowler’s lawsuit advances past a motion to dismiss and pretrial discovery begins, Fowler, the White Sox and ISFA would probably reach a settlement where the defendants pay him to drop his lawsuit. None of the parties likely want to expend the considerable time and energy required of pretrial discovery or a trial. Insurance companies for the White Sox and ISFA would likely encourage a settlement in order to reduce the risk of a large jury award in Fowler’s favor.

Yet settlement talks can break down and agreements aren’t always reached. And if Fowler’s case advances to trial, you can be sure that the many stakeholders in ballpark safety would closely watch it.

Michael McCann is SI’s legal analyst. He is also an attorney and the Associate Dean for Academic Affairs at the University of New Hampshire School of Law, and co-author with Ed O'Bannon of the forthcoming book Court Justice: The Inside Story of My Battle Against the NCAA.

Analyzing Dustin Fowler's Lawsuit Against the Chicago White Sox

When a professional athlete is injured in a game, hardly anyone asks whether the injury could lead to a lawsuit. And why should they. Injuries are part of every sport. Athletes, especially at the professional level, assume the risk of danger on every play.

But is that true of all injuries? Could some occur not because “that’s just the way the game is played” but rather because other people were negligent in designing how the game would be played?

Go back to June 29, 2017. It was an ordinary day for most but certainly not for Dustin Fowler. The Georgia native, who was 22 years old at the time, would make his Major League debut. It would take place on a rainy evening in Guaranteed Rate Field in Chicago. And it would be for the New York Yankees. Fowler’s manager, Joe Giardi, started him in right field. He was slated to bat sixth—right behind Jacoby Ellsbury—in a lineup that would face White Sox starter James Shield.

Fowler was on-deck in the first inning when Ellsbury’s fly ball to left fielder Melky Cabrera produced the third out.

Yet Fowler didn’t lead off the second inning. In fact, he didn’t make it out of the first.

And he hasn’t played since.

With two outs in the bottom of the first, White Sox first baseman Jose Abreu belted a line drive down the right-field line. Running at full speed, Fowler couldn’t quite catch up with the ball, which landed foul. Instead, he caught up with another object: an unpadded metal electrical box positioned between a railing and a half wall.

A devastating collision then ensued. Fowler would nearly tumble head first into the stands while his right knee slammed into the wall. That knee slam triggered a rupture in the patella tendon. Grimacing in pain and unable to put weight on his right leg, Fowler hobbled for a few seconds before falling to the ground. Meanwhile, an umpire waived to the Yankees dugout that Fowler needed immediate medical assistance.

Fowler would be carried off the field on a stretcher and ambulanced to the emergency room of Chicago’s Rush University Medical Center. Doctors there would perform season-ending surgery. A month later the Yankees traded Fowler to the Oakland A’s in a package deal for pitcher Sonny Gray.

Reminiscent of Archibald Wright “Moonlight” Graham, a fellow right fielder whose big league career consisted of one inning without a plate appearance, Fowler is still waiting for his first big league at-bat.

Fowler’s path likely won’t follow that of Graham, who returned to school and became a doctor. In fact, it is because of doctors that Fowler should get the chance that Graham never got. Fowler knee surgery’s was successful and he appears to have recovered, at least in terms of resuming his baseball career. Two months ago, the A’s reinstated Fowler from the disabled list. He is expected to be in full strength by the time A’s spring training in Mesa, Arizona starts next month.

The fact that Fowler has seemingly recovered does not mean that his injury—and accompanying suffering—occurred without legal implications. In fact, the aftermath of the injury could alter the degree to which stadium operators and teams owe ballplayers a safe environment in which to play.

To that end, Fowler recently sued both the White Sox and the Illinois Sports Facilities Authority (ISFA, the government entity that owns Guaranteed Rate Field) in a Cook County Circuit Court. SI.com has obtained a copy of the complaint.

Fowler, who is represented by John Bailly of Bailly & McMillan and Michael Sorich of the Cavanagh Law Group, contends that, “as a result of the negligent, grossly negligent, reckless, willful and wanton conduct of the Defendants,” he “missed the remainder of the 2017 baseball season.” Fowler says he suffered “severe and permanent” injuries, along with “great pain and anguish.” He also stresses the extensive harm caused to his nascent big league career. Indeed, Fowler describes how he has “undergone and continues to undergo rehabilitation for the injuries sustained” and endured “pain and suffering and medical expenses.” He also seeks compensation for “past lost earnings and potential future lost earnings.”

The rarity of professional athletes suing over injuries

Regardless of how it fares in court, Fowler’s lawsuit is unusual. The fact is, professional athletes who suffer serious injuries in the course of playing games seldom file lawsuits over those injuries.

There are a number of reasons for this dynamic. One is that these players tend to be financially protected in the event of serious injury.

Take MLB player contracts. They are, essentially, guaranteed and even the league’s minimum salary—$550,000 in 2018—places a player in the top half of the top one percent of earners in the United States. Fowler was paid while on the disabled list. He also earned service time towards arbitration and free agency eligibility. Indeed, despite not being able to play, players on the 15- and 60-day MLB disabled lists accrue service time.

Generous health care benefits also push against the need to sue. Players’ associations collectively bargain for high-quality health care and long-term disability policies. These policies insure that injured players—and to varying degrees retired players—do not pay for health care out-of-pocket. This is true even when injured players may be entitled to benefits through workers’ compensation insurance (Nathaniel Grow has an excellent overview of workers’ compensation in MLB on FanGraphs). With these points in mind, the Yankees and later the A’s presumably paid for health care costs related to Fowler’s knee injury.

Another reason for the dearth of this type of litigation is that professional athletes clearly assume substantial health risks as inherent in the game. Even though baseball is not as dangerous as football or hockey, ballplayers are still exposed to a variety of risks on every play. Usually when a player is injured while trying to make a play, there is an unstated understanding that the injury is “part of the game.” Fowler crashing into a wall in pursuit of a fly ball was not unforeseeable (whether the electrical box should have been there is a separate matter).

Still another reason for the lack of player injury lawsuits may concern reputation. Injured professional athletes might worry that filing a lawsuit over an on-field injury would stigmatize them. Would teammates and fans mock them as too litigious or annoyingly disruptive?

Finally, there is the element of finite time and diminishing tolerance. As anyone who has been in a lawsuit knows too well, litigation is time consuming and often stressful. It requires something of a “long game”: regular meetings and conversations with lawyers. It also demands answering questions, sometimes under oath. A pro athlete’s time is limited and expending it on a lawsuit can be a questionable choice.

Rare isn’t never

While they are few and far between, some pro athletes have sued after being injured in games. And they have succeeded when they are able to show that their injury occurred in a manner clearly outside the scope of the game.

Take Former Denver Broncos safety Dale Hackbart’s lawsuit against the Cincinnati Bengals for an incident that occurred in a 1973 game. While attempting to get up from the field, Hackbart was struck with an intentional blow to his neck by Bengals fullback Charles Clark. Clark’s strike—which was not a football move—caused Hackbart to suffer a neck fracture. Hackbart sued and received a favorable decision by the U.S. Court of Appeals for the Tenth Circuit. The court reasoned that while football players assume risks of injuries inherent the game, they do not necessarily assume other types of risks while playing football.

Former Houston Rockets forward Rudy Tomjanovich proved a similar point when he successfully sued the Los Angeles Lakers for negligent supervision of one of its players. Tomjanovich suffered significant facial injuries when, as part of a skirmish during a game in 1977, he was punched by Lakers forward Kermit Washington. Prior to an appellate court reviewing Tomjanovich’s trial victory, Tomjanovich and the Lakers agreed on a $2 million settlement. Years later, California Judge Thomas Crosby would write,

“A verdict for Tomjanovich was clearly proper. He did assume the risk of being hit in the face by a flying elbow in the course of defending against an opponent's jump shot, suffering a painful insult to his instep by a size-16 foot descending with a rebound, or even being knocked to the court by the sheer momentum of a seven-footer driving home a slam dunk. But the scope of his consent did not extend to an intentional blow considerably beyond the expected risks inherent in basketball. Intentional fouls are part of that game. But where the intent is to injure and the force used is far greater than necessary to accomplish a legitimate objective within the scope of play, a defendant may not prevail on an assumption of risk defense.

Former Colorado Avalanche forward Steve Moore brought a lawsuit with these same ideas in mind. He sued the Vancouver Canucks and forward Todd Bertuzzi in 2005 for $68 million over career-ending injuries caused by Bertuzzi pile-driving Moore face first into the ice. After nearly a decade of litigation, the parties settled in 2014.

Not long thereafter, former NFL running back Reggie Bush sued over a safety risk he insists that he did not assume. While playing in the Edward Jones Dome in 2015, Bush was pushed out of bounds in the course of returning a punt. Unable to stop on the turf, he slipped onto an uncovered concrete surface and suffered a season-ending knee injury. Given a close proximity between the turf and the concrete, Bush believes that the stadium had been negligently maintained. His case against the St. Louis Regional Convention and Sports Complex Authority remains in litigation.

Injured players also sometime sue as part of a class action, where a handful of current or retired players represent thousands of others. Most plaintiffs in a class action are thus passive and play no active role, but still stand to benefit if the action leads to a courtroom victory or a settlement. The class action model was used when thousands of retired NFL players were part of a class action against the NFL over long-term neurological problems associated with playing football. Over 99% of those players settled claims with the NFL, though new findings on chronic traumatic encephalopathy (CTE) could undermine the settlement. Former NHL players are engaged in a similar class action against the NHL.

Placing Fowler’s initial comments to media in the appropriate context

In the immediate aftermath of the collision, Fowler didn’t seem to blame the White Sox or stadium operators for his injury. Instead, he appeared to attribute the injury to an unfortunate circumstance.

For instance, he told Kevin Kernan of the New York Post that “I hit the wrong part of the fence, it was just kind of a freak accident that you can’t really do anything about.’’ Fowler also relayed that point of view to the New York Daily News’ Daniel Popper. “I can’t say that I wouldn’t have been hurt if I didn’t hit it,” Fowler reflected. “I could have easily torn an ACL if I didn’t hit it. It’s easy to blame something like that, but right now, I think it’s just unfortunate . . . I’m not really blaming anyone or anything for it, how it happened or why it was there.”

The fact that Fowler did not immediately blame the White Sox or ISFA for his injury should not be regarded as a meaningful omission. For one, athletes are generally coached to take responsibility for their performance and to not direct blame elsewhere. Furthermore, Fowler may not have had a chance yet to speak with attorneys, who are educated about the law, as to whether he had been unlawfully wronged. Along those lines, Fowler not only lacks a legal education but he never attended college—he signed with the Yankees as an 18-year-old straight out of West Laurens High School (Dexter, Georgia) in 2013. To have expected him to describe the White Sox or ISFA as “negligent” in the hours and days following a devastating knee injury seems unrealistic and unfair.

Understanding Fowler’s legal theory and what he needs to prove

Fowler’s case centers on a key assertion: that the White Sox and ISFA negligently installed a metal electrical box to a portion of the half wall in right field and that their decision to do so caused Fowler’s injuries.

As Fowler asserts, the presence of the box allowed for his knee to come into contact with it. This box, Fowler contends, was a “hidden and undetectable hazard.” He was clearly not expecting the box to be there, especially given that the surrounding railing and wall featured protective padding. Fowler also argues that such a collision with a sprinting right fielder was, or should have been, foreseeable to the White Sox and ISFA. This dynamic, Fowler maintains, reveals the White Sox and ISFA as having “an utter indifference to or conscious disregard for the safety of the Plaintiff.”

To advance this claim, Fowler would benefit by convincing a jury that the box’s placement and other safety characteristics—such as its size, color contrast and hardness—was atypically dangerous for a big league ballpark. The more unusual the box seemed, the less Fowler would have been on notice of its presence. This is particular true given that it was Fowler’s first time playing in Guaranteed Rate Field. To that end, witnesses with expertise in ballpark design, such as stadium engineers and groundskeepers, could offer analysis on where other big league ballparks place electrical boxes and whether such placements poses similar or different health risks to the ones encountered by Fowler.

Other potential witnesses could include baseball managers and executives who are familiar with safety issues. It seems likely that one such witness will be Giardi, who in the aftermath of Fowler’s injury criticized MLB for allowing outfielders to experience unsafe conditions. The New York Daily News quoted Giardi as observing that Fowler’s injury was clearly influenced by the ballpark design. “I know it’s how the stadium was designed,” Giardi remarked, “but I think it’s something baseball needs to address. Maybe you put up Plexiglass so they can’t flip over and people can look through it . . . You say you want players to play hard. But sometimes this is what happens if the field doesn’t protect the players.”

Evidence of past injuries would also be important. This would be true of players injured by this particular box as well as other areas of Guaranteed Rate Field. The more evidence that the White Sox and ISFA were on notice of an unsafe feature, the less reasonable they would seem in failing to fix it.

Fowler’s potential damages are harder to assess. Assuming his health care costs were paid by his employer and assuming he is able to resume his career without a diminishment in skill, his damages would likely center on the considerable pain and suffering he endured as a result of the injury. Also, if Fowler’s comeback with the A’s is stalled due to ongoing knee problems, his potential damages would be higher. Similarly, since Fowler is a player who relies on speed as a key part of his game, a degeneration of his running ability could be compensable since it would hurt his chances for a big league career and lower his potential career earnings. Expert witnesses, including retired baseball executives and baseball agents, would likely testify on these topics.

Potential legal defenses for the White Sox and ISFA

The ideal argument for a defendant is one that convinces a judge that the judge has no grounds to hear the plaintiff’s case. The White Sox and ISFA could offer a couple of arguments along those lines.

First, Fowler’s lawsuit might be preempted by the collective bargaining agreement signed by MLB and MLBPA. The CBA contains detailed procedures for players to file “grievances.” Under Article XI of the CBA, a grievance is defined as a complaint involving agreements or provisions between a player and a club (among others). A grievance avoids court. It leads to arbitration and either a settlement or an arbitrator’s binding decision.

A number of MLB players, with help from the MLBPA, have filed grievances for injury-related matters. For example, a few years ago, pitcher Nick Hagadone grieved a dispute with the Cleveland Indians centering on the contractual impact of a self-inflicted forearm injury. The injury occurred after Hagadone was pulled from a game in which he struggled. In frustration, Hagadone, slammed a door while walking to the clubhouse. The Indians sent Hagadone to the minors and placed him on the disqualified list, transactions which had the effect of denying him service time. Through the grievance process, Hagadone and the Indians ultimately reached a settlement.

Had Hagadone sued the Indians, the Indians would have probably cited the federal Labor Management Relations Act as a core defense. The Act generally requires that unionized employees must exhaust their potential remedies under collectively bargained grievance procedures before turning to court.

While the White Sox might argue that Fowler, like Hagadone and other players, should use the grievance process instead of courts, Fowler’s attorneys would likely stress that the grievance process is not appropriate for Fowler’s injury or the claims that stem from it. For one, Fowler was never in contract with the White Sox; his employer at the time of the injury was the Yankees. For another, Fowler’s claims are not contractual in nature. They stem from a workplace injury that gave rise to claims in torts, an area of law that deals with personal and non-contractual harms. Further, Article XI of the CBA makes clear that the grievance process does not necessarily bar a lawsuit. “[N]othing,” according to Article VI, “herein shall alter or abridge the rights of the Parties, or any of them, to resort to a court of law for the resolution of such complaint or dispute.”

The ISFA might enjoy a separate defense that attempts to immunize it from Fowler’s claims. As a public entity, the ISFA may be able to take advantage of “sovereign immunity.” In its broadest form, sovereign immunity is a legal principle dictating that the government and its agencies (including public universities and public stadium authorities) can only be sued if they agree to be sued. Sovereign immunity has numerous exceptions, however, and some of those limits are expressed through the Illinois Tort Immunity Act.

Assuming the White Sox and ISFA are required to defend the lawfulness of the playing conditions, they might argue the box was an “open and obvious” condition to right fielders. Such an argument would be bolstered if other players would be willing to testify that they saw the box and adjusted for it in how they played. It would also benefit if the box has been there a while and Fowler is the first and only player hurt by it.

A related argument may be that outfielders have a professional duty to inspect the conditions in which they play. Is it common or customary for MLB outfielders who have never before played in a particular ballpark to survey the fence and other conditions before the game? If it is, the White Sox and ISFA might contend that Fowler should have done more to acquaint himself with his conditions.

The defendants will also argue that Fowler’s damages are relatively modest. The Yankees and A’s (presumably) covered his healthcare costs and he has been off the disabled list for a couple of months. The defendants will also insist that any depiction of the injury as having a long-term impact on Fowler’s baseball career is speculative and not provable with certainty. While Fowler will retain expert witnesses who take his view, the White Sox and ISFA will retain their own.

If Fowler’s lawsuit advances past a motion to dismiss and pretrial discovery begins, Fowler, the White Sox and ISFA would probably reach a settlement where the defendants pay him to drop his lawsuit. None of the parties likely want to expend the considerable time and energy required of pretrial discovery or a trial. Insurance companies for the White Sox and ISFA would likely encourage a settlement in order to reduce the risk of a large jury award in Fowler’s favor.

Yet settlement talks can break down and agreements aren’t always reached. And if Fowler’s case advances to trial, you can be sure that the many stakeholders in ballpark safety would closely watch it.

Michael McCann is SI’s legal analyst. He is also an attorney and the Associate Dean for Academic Affairs at the University of New Hampshire School of Law, and co-author with Ed O'Bannon of the forthcoming book Court Justice: The Inside Story of My Battle Against the NCAA.

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FILE - At top, in an Oct. 28, 2012, file photo, Atlanta Falcons quarterback Matt Ryan leaves the field after leading his team to a 30-17 victory over the Philadelphia Eagles in an NFL football game in Philadelphia. At bottom, in a Nov. 13, 2016, file photo, Atlanta Falcons' Matt Ryan leaves the field after a 24-15 loss to the Philadelphia Eagles in Philadelphia. A berth in the NFC championship game is at stake when Ryan leads the Atlanta Falcons (11-6) against the Philadelphia Eagles (13-3) in a divisional playoff Saturday, Jan. 13, 2018. (AP Photo/File)

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FILE - At left, in an Oct. 28, 2012, file photo, Atlanta Falcons quarterback Matt Ryan leaves the field after leading his team to a 30-17 victory over the Philadelphia Eagles in an NFL football game in Philadelphia. At right, in a Nov. 13, 2016, file photo, Atlanta Falcons' Matt Ryan leaves the field after a 24-15 loss to the Philadelphia Eagles in Philadelphia. A berth in the NFC championship game is at stake when Ryan leads the Atlanta Falcons (11-6) against the Philadelphia Eagles (13-3) in a divisional playoff Saturday, Jan. 13, 2018. (AP Photo/File)

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