Bengals’ Joe Burrow Injury Opens Legal Recourse for NFL Betting

Generally speaking, sports fans don’t have a “legally cognizable right, interest, or injury” on which to sue when a professional sports team violates its league’s rules. Such was the ruling in the 2010 federal court case of Mayer v. Belichick.

This legal precedent has once again come into question because of Cincinnati Bengals superstar quarterback Joe Burrow’s injury this fall, and Barstool Sports owner Dave Portnoy’s recent public declaration he would sue the Bengals after news that Burrow’s injury may have been pre-existing.

If true, the Bengals would have been in clear violation of NFL policy. Portnoy’s potential claim stems from a $120,000 bet he placed on the Bengals. Portnoy invited others to join him in a class action lawsuit against the team.

The Mayer precedent was expanded to include sports bettors in the March 2020 decision of Oliver v. Houston Astros, LLC. The plaintiff attempted to sue both the Houston Astros and Boston Red Sox MLB teams after news that both teams had engaged in unlawful sign-stealing schemes.

Oliver sought recovery of his gambling losses when he bet against the Astros and Red Sox in the 2017 and 2018 World Series, respectively, unaware of the competitive edge unlawfully gained by each team in their respective championship seasons.

In dismissing the plaintiff’s claim, the court stated that “the Astros and Red Sox could have won the World Series for any number of reasons unconnected to [the sign-stealing schemes]” and that, by extension, “Oliver could have lost his bets for many reasons.”

The court ruled the plaintiff couldn’t recover from the teams because “Oliver did not lose his gambling money to the baseball teams.” Rather, “Oliver placed his bets with third parties” so the “Astros and Red Sox have not retained a benefit from Oliver’s gambling losses.”

In a separate suit, Olson v. Major League Baseball, fantasy baseball contestants filed a class action lawsuit after paying to compete in DraftKings Inc.’s daily fantasy sports baseball competitions. Rather than bet on the outcome of baseball games, contestants are essentially betting on individual player performance, which they allege was skewed in favor of the Astros, Red Sox, and New York Yankees players without contestants’ knowledge.

Here again, the court ruled against the plaintiffs, saying “[p]otential losses are a known possibility when deciding to participate” in such contests and that plaintiffs couldn’t claim they were unaware of the rules. And “plaintiffs may have even benefitted due to electronic sign-stealing if they had drafted certain players.”

Burrow injured his throwing wrist when he threw a touchdown pass in a matchup on Nov. 16. Burrow eventually left the game and was ruled out for the remainder of the season with a torn wrist ligament.

Bettors who placed wagers on the Bengals or player proposition bets on Burrow lost money largely because of Burrow’s injury. However, the Bengals social media team had posted a video—which has since been deleted—of Burrow wearing a brace on his right wrist prior to the game, indicating Burrow had already suffered the wrist injury well before the play.

This would have been a direct violation of the NFL’s Personnel (Injury) Report Policy, which requires a team to report all injuries to any of its players in as specific a manner as possible.

According to the policy, if Burrow’s wrist had been injured, the Bengals would’ve been required to report it. By not doing so, the Bengals were in violation of the policy and subject to league discipline.

Some bettors suffered financial losses largely because of Burrow’s premature exit from the Bengals’ Nov. 16 game. If bettors were aware of an injury, they could’ve factored this into their wager. Sportsbooks certainly would have adjusted the betting lines in response to such a disclosure.

This poses the question popularized by Portnoy’s recent declaration: If bettors were financially damaged as a result of the Bengals’ direct violation of league policy, would they have recourse against the Bengals?

Applying the aforementioned legal precedent to a potential suit against the Bengals, such legal action likely would go unrewarded. Although Burrow’s injury certainly decreased the Bengals’ chances at covering the spread, the Bengals may have failed to do so even with a healthy Burrow.

Our hypothetical plaintiffs can’t claim that they were unaware of the possibility of an injury to a critical player. They can’t even claim that they were unaware of the possibility of a team committing a rule violation, according to Olson.

If can be concluded with reasonable certainty that even if the Bengals had been found to be in violation of league policy, bettors wouldn’t have been able to recover their gambling losses as a result thereof.

The Bengals have since been cleared of any wrongdoing following a full investigation by the NFL, despite instances of other teams being found guilty this season for similar conduct.

This decision has come as a surprise to many. How could the NFL have found that the Bengals conducted themselves in accordance with league policy when any injury, even when it doesn’t affect playing time in practice or a game, must be listed on the injury report? How could Burrow have been considered fully healthy if he was wearing a brace?

Whatever the NFL’s reasoning, it’s important to note that clearance wouldn’t preclude a lawsuit by bettors. The question remains whether bettors such as Portnoy think it’s time for the courts to reconsider the legal precedent from Mayer v. Belichick.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Dan Lust is an attorney at Moritt Hock & Hamroff and member of the firm’s sports law practice group.

Brady Foster is an attorney at Moritt Hock & Hamroff and member of the firm’s sports law practice group.

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