The grumblings are growing louder that Kevin Durant will leave the Golden State Warriors with a parting gift: a bombshell lawsuit that would send shockwaves throughout the legal and sports communities.
Last week, I wrote a long-form article as to how, and under what theory, Durant could sue the Warriors based on his torn Achilles, diving into his finances and those of comparable athletes to suggest that the lawsuit could be over $1 billion. It was purely an academic exercise at that point.
Yet, since then, Durant has sent multiple signals that he’s not coming back to Golden State and that he’s livid with the Warriors, making a lawsuit more likely with each passing day.
On Monday, reports surfaced that Durant was still “really pissed off at the Warriors” based on their role in causing his Achilles injury. On Tuesday, his teammate, Andre Iguodala, explained that the Warriors were intentionally deceptive about his own fractured leg and that he eventually gave in to the immense pressure, returning early so he could play in last year’s NBA Finals. On Wednesday, Durant formally opted out of his Warriors contract, silencing any talk of returning on a one-year deal. Thereafter, reports came out that Durant is bound to leave in free agency – it’s just a matter of where he goes.
These actions are in line with someone who is so angry with their team that they are planning to sue them.
Many players injure their Achilles, but we have never seen an injury like this happen to a player of Durant’s caliber on the highest stage – the NBA Finals. Beyond this, though, there has never been an allegation that a team has purposefully misled a player about his risk of re-injury in order for him to return to the floor. Nevertheless, this is exactly what is being alleged here.
Just minutes after taking the court, Durant went down with a non-contact injury. On the biggest stage, all blame was collectively pointed at the Warriors. That night, Warriors Head Coach Steve Kerr said that team doctors told Durant he “couldn’t get more hurt” from his initial calf strain. The next day, ESPN’s Jay Williams specified what they told Durant about his Achilles.
Williams, Durant’s close friend and the host of Durant’s own ESPN+ show, stared into television cameras the morning after and boldly used the word “misdiagnosed.” He explicitly blamed the Warriors for Durant’s injury and insinuated that the team’s assurances were a key reason he ended up taking the floor for Game Five. “And I know for a fact that he was told that with a torn calf, a partial torn calf, that it unloaded the pressure on the Achilles, that there was no chance that the Achilles could be injured at all.”
This is not a member of the media or a fan saying this – it’s Durant’s close friend and a former professional basketball player. Williams knows the protocol well. The decision to return to the court following an injury must be made jointly between the team and the injured player. In this regard, if a player – himself – does not feel ready to return, there’s nothing the team can do to force him back.
We saw this play out last year with the San Antonio Spurs clearing Kawhi Leonard to return to the court. Kawhi, however, did not feel ready and refused to return to action. He reportedly did not trust San Antonio’s opinion since his personal doctor would not clear him. He rested up, sat out the rest of the season, and took the league by storm in 2019 – capped off by being named NBA Finals MVP.
Unlike Kawhi, Durant’s own doctors apparently cleared him. Yet, this does not and cannot excuse the Warriors from their own due diligence and the duty they owed to properly advise Durant of the risk to his Achilles.
It was one thing for Williams to say it – but now Durant’s actions are giving us every indication that he was most likely the source of Williams’ message. Simply put, if what Williams said was true – that the Warriors explicitly told Durant there was no chance the Achilles could be injured – then the Warriors could find themselves facing a significant uphill battle in a malpractice suit. It didn’t just happen… it happened 14 minutes into the game. On this point, medical experts have come forward after the fact to say that the calf muscle may have directly caused the Achilles tear.
Beyond a breach of their duty to properly advise Durant, the timing of the injury makes it very hard to contest causation. He was cleared to return to the court that day and injured himself minutes into the game from a non-contact injury. It’s not rocket science to convince a jury that Durant’s premature return from a right leg injury was the cause of his much worse right leg injury.
Of significance is that Williams does not just say his friend was misdiagnosed and given bad advice. He goes further to suggest that the Warriors were not concerned with his best interests. “Now, if you really have his best interests at hand, if you really want this guy to be around the next four to five years, you say, ‘You’re not playing this game. We’re thinking long-term instead of short-term,’” Williams elaborated. “But when it seeps into your mind that you think he could leave, all of a sudden, we have to get it right now. And I don’t care what anybody says. That plays into your psyche a little bit, when you think this guy is going to leave.”
That’s the dagger.
In California, where the lawsuit would likely be brought, a workers’ compensation action is typically the athlete’s exclusive course of action in instances where a team doctor gives incorrect advice to an athlete and an injury results. However, intentional or fraudulent poor advice is never covered. Again, that’s exactly what we’re potentially looking at here. It’s the narrative we assumed happened right when Durant fell to the floor, it’s what we thought when Warriors’ General Manager Bob Myers cried at his post-game interview, what Williams told us the next day, and why Durant has seemingly already packed his bags and left.
He’s “pissed off” because the Warriors seem to have a history of misdiagnosing a player’s injury so they feel immense pressure to return early for a pivotal game. Iguodala revealed that the Warriors did this to him during last year’s finals. He explained that he was sidelined with a fractured leg but the Warriors staff knowingly told the media incorrect information – that it was actually a “bone bruise.” Iguodala fought with his team to correct the narrative, felt the weight of the world on his shoulders, and ended up taking the bait and coming back early. Fortunately, he did not suffer the same fate as Durant.
The tragedy for Durant is that it’s his Achilles. This is an injury that has derailed the careers of many NBA players. It’s the worst possible scenario for Durant who is now a Free Agent. According to a 2013 research paper published in the American Journal of Sports Medicine, players only have a 38.9 percent chance of ever playing in the NBA again after suffering this injury. Of those that returned, 27 percent played only one more season before having their NBA career end early. The lucky few that made it to the second season missed an average of 55.9 games for the rest of their careers.
Numbers don’t lie. Even though we thought Durant was superhuman, the odds are very clearly stacked against him staying on the court, let alone returning to his elite pre-injury form. It is quite possible we are saying goodbye to the Kevin Durant we once knew.
Even if Durant signs a max contract this off-season, that covers just a small fraction of what he was otherwise reasonably expected to make for the rest of his life. If the Achilles does to Durant what it’s done to every NBA player before him, his career has just been cut short by years. And if he’s not playing like a superstar (or playing at all), the millions in endorsements money is less likely to follow. And with that, his billion dollar earnings potential quickly fades away.
Lawyers regularly sue for the lost earnings caused by a doctor’s malpractice. For Durant, this number is unlike anything the courts have ever seen. This has the chance to be the biggest compensatory damages valuation brought by an individual ever. No, not just in the sports context… for all human beings.
Quite simply, there has never been a lawsuit brought by an individual like Kevin Durant. He has an unheard of combination of being one of the wealthiest in our country ($65 million income last year) with his earnings potential so intertwined with his peak physical fitness. At age 30, Durant had plenty of lucrative earning years left both on the court and off the court. With the Hall of Fame trajectory of his career and recognizable face, it is not a reach to say that he was on path to making well in excess of $1 billion over the course of his life.
A lawsuit would likely be brought in California where the statute of limitations for medical malpractice is three years from the date of the incident – in this case, June 10, 2022. If Durant resigns with the Warriors via a max contract, he is wearing their jersey on that date which all but certainly puts to rest any chance of this lawsuit. However – with each passing day, this seems less and less likely.
He undoubtedly circled that June 10, 2022 date on his calendar. If Durant does not return to the court – or is a shell of himself when he does – expect a mammoth lawsuit to be filed by then.
Daniel E. Lust focuses his practice on defending personal injury and property damage litigation throughout New York State. Dan focuses a significant portion of his practice on high-exposure high-profile transportation matters, including bus and commercial truck incidents involving fatalities, catastrophic injuries, and multi-vehicle collisions. He also handles a wide variety of premises-liability matters. And, with substantial experience in e-discovery, he has built countless successful defenses using information captured from plaintiffs’ social media accounts and networks, finding the digital “needle in the haystack” to crack open difficult cases. Dan’s colleagues frequently have asked him to step in to assist with or lead legal or social-media research into very unique and challenging issues.