The Perils of Assuming an Unknown Risk: The Anatomy of a $1 Billion Dollar Durant-Warriors Lawsuit
Willis Reed starred in the original and Kevin Durant was poised to headline the remake. Each were legends as a result, but the first was a feel-good story, while the second was a tragedy and one that may lead us to the highest value personal injury lawsuit we’ve ever seen.
Let’s jump back in the time machine. It’s game seven of the 1970 NBA Finals between the New York Knicks and the Los Angeles Lakers. The Knicks are coming off a loss in game six – a game they were forced to play without the 6’9” Willis Reed, a perennial All-Star, who had torn his right thigh muscle in the game prior. Reed was not just a star – he was perhaps the best player in the league at this point – capped by his being named MVP of the All-Star Game that season. Delivering the Knicks their first NBA Title would be the exclamation point needed to cement his legacy as one of the best to ever play the game.
The injury could not have come at a worse time for Reed and the Knicks as it threatened to derail this picture-perfect narrative. A torn thigh muscle is an injury that typically keeps players out for weeks, if not months. Yet, with his team’s back up against the wall and fans clamoring for him to come back, Willis feels the pressure.
Just days after the devastating injury, he emerges from the tunnel to start game seven of the finals.
A hobbled Reed tracks up and down the floor in the early going and hits the Knicks’ first two shots. The stadium erupts. Reed looks like a shell of himself but his mere presence delivers a jolt to the Madison Square Garden faithful in a valiant demonstration that he is ready to lay it all on the line to deliver his team a championship. Though Reed is very clearly limited, his teammates pick up the slack and carry the Knicks to their first ever NBA Championship. It was only fitting that Reed be named Finals MVP for his valiant efforts.
This was the apex of his career as it quickly spiraled downward. Once the embodiment of near perfect health (95+ percent games to that point), Reed made it through the following season with a heavy reliance on cortisone injections, but was not the same MVP-caliber player. The following year, the wheels came off entirely as debilitating injuries to both knees forced him to miss nearly two full seasons and relegated him to a role player. “When I get out there, things don’t seem to go as well as they used to.” Reed’s career was over shortly thereafter at the young age of 31.
Kevin Durant knew the story well.
Eerily similar to Reed, he stood at 6’9”, a perennial All-Star and, yes, also the reigning All-Star Game MVP. Durant was at the top of his game, leading his team, the Golden State Warriors, through the 2019 NBA playoffs until he was sidelined by his own right lower extremity injury, a strained calf. As with Reed’s injury, the typical road to recovery should cause Durant to miss the rest of the playoffs. Nevertheless, like Reed, Durant felt the immense collective pressure of his teammates, fans, and the media to beat the timetable and save his team from the brink of elimination in the NBA Finals.
Déjà vu swept the arena as Durant made his triumphant, Reed-esque return to the court in the Finals. The Warriors were back at full strength, opened up an early lead in the game, and seemed destined to make a run to the title.
This is when the two stories diverge.
Fourteen minutes into the game, Durant fell to the floor clutching his right leg in pain. He was carried off the court by teammates and did not return to the game. He had torn his right Achilles tendon – a much more severe injury than a strained calf – and one that could require over a year for recovery. Without Durant, the Warriors were defeated — but this was the least of Golden State’s problems.
Durant sent his own jolt of energy through the basketball world. Outside medical professionals were quick to point out that the weakened state of Durant’s calf may actually have caused his Achilles injury since both injuries occurred to the same region of the lower leg area. Durant may have overcompensated with his Achilles to account for his condition.
The NBA requires that, in order to return from an injury, there is a joint decision between the medical staff, the player, and the team. The decision must be unanimous in order for the player to take the court. According to reports, Durant also had his own doctor weigh in on the decision. While it’s impossible to know exactly what was said behind closed doors, we know that a proper joint decision, per NBA protocol, was reached.
Still, this does not mean that there was no wrongdoing committed by the Warriors. Following the game, Bob Myers, the team’s general manager, spoke to the media. He emotionally pronounced “if you have to, you can blame me. I run our basketball operations department.” He didn’t point towards a joint decision, but rather said he should be blamed.
Durant, himself, has remained silent since the injury. We do have some hints as to his mindset. Perhaps it’s best to look at comments from one of his close personal friends, former NBA player Jay Williams, who hosts Durant’s ESPN Show, “The Boardroom.”
Williams appeared on ESPN and proclaimed that the Warriors are to blame. “He got misdiagnosed. 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,” he said. The crucial context underpinning Williams’ scathing commentary is that many believed that Durant was not planning to return to the Warriors the following season. Based on his contract, Durant had an option to become an unrestricted free agent and sign with the team of his choice.
In this regard, Williams pointedly states that the Warriors were not in a proper position to opine and make recommendations on Durant’s health and risk factors. “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.”
One can imagine that the conversations behind closed doors might have been similar to those that occurred around Reed’s injury and premature return.
For Reed, we’ll never know if the premature return to the Finals was the cause of his career being derailed due to further lower extremity injuries or if this was just a coincidence. Reed did not sue the Knicks, so it is fair to say that he (or those around him) didn’t blame the team. Still, we don’t know what transpired behind closed doors. In theory, you’d have the same factors at play: a team desperate to win, direct or indirect pressure for the players to return early, or, as Williams suggests, a misdiagnoses and/or a failure to fully advise of the risk of further injury.
For Durant, as noted above, there are whispers that this is precisely what happened. It certainly does not help that Myers was quick to blame the team for the decision. If this is established, Durant could elect to proceed with a lawsuit directly against the franchise on these grounds. This lawsuit stands to be one of the highest valued personal injury cases of all time.
For the purposes of this exercise, let’s assume that a lawsuit is commenced on behalf of Kevin Durant in a California courthouse. This would be logical as this is where the Warriors are based and, accordingly, where the parties and witnesses would largely reside. Under California law, in any medical malpractice action, the plaintiff must establish: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” Borrayo v. Avery, 2 Cal. App. 5th 304 (Ct. App. 2016).
Since California follows the general medical malpractice practice standard across the country, we can look to the long history of player versus team medical malpractice in other states for guidance.
It is believed that Hall of Fame linebacker Dick Butkus was the first professional athlete to successfully sue his team relating to his medical treatment. Butkus sued the Chicago Bears in 1974, the year after he retired from football. He claimed that his knees would never be right after having been repeatedly injected with cortisone and other drugs by team doctors during the last two years of his career. Butkus claimed that the Bears’ doctor put the short-term needs of the team over his long-term health. He asked the Bears for $1.6 million and settled for $600,000.
In 1995, Marty Barrett defeated the Boston Red Sox at trial on the same type of case. Barrett asked for $4 million; a jury awarded him $1.7 million. He was a journeyman second basemen in the organization when he injured his knee. Barrett, however, wasn’t informed of the severity of the injury. He claimed that the team doctor failed to diagnose him properly with a torn ACL and, therefore, was not fully apprised of the risk of further injury from returning to play. Barrett claimed his career ended prematurely since he was not informed of the necessary rehabilitation process. He further alleged that he was not viewed internally as part of the team’s long-term plan, so the team did not have his health and best interests in mind.
As part of Barrett’s case, he introduced evidence that Carlton Fisk, another Red Sox player and eventual Hall of Famer, was purportedly misdiagnosed by the team. Fisk indicated he felt pressured to play by the same doctor when he had broken ribs while the team was in the midst of a playoff race. He claimed that the team doctor urged him to return by saying “you can’t hurt yourself any more than what’s already been done.” The following year, Fisk was shutdown with an elbow problem. He was explicit that this injury was caused by the doctor’s failure to advise him of the risk of further injury. “The reason I hurt my elbow is, I was favoring my ribs when I threw… I think he should have indicated the problems that could arise.”
In sports cases, the strategy is to attempt to mount a defense on the basis of the “assumption of the risk” doctrine. This is the premise that physical injuries are bound to occur in certain recreational activities, like basketball, which involve an inherent risk of harm. Jimenez v. Roseville City Sch. Dist., 247 Cal. App. 4th 594, 600 (2016). However, the players in the above-referenced cases prevailed because they cannot be said to have assumed a risk that they did not know about. In this regard, these players argued that their injuries were caused by the failure to diagnose or warn about the risks of an injury, such that the players were incapable of making an informed decision as to whether to return. One can never assume a risk that one does not know about.
Here, if we were to assume Williams’ comments to be fully accurate, it would appear that a lawsuit from Kevin Durant would satisfy the medical malpractice standard in California. Pointing towards previous sports-based cases, Durant’s lawyers would paint the same narrative that the Warriors botched his diagnosis and treatment either intentionally or recklessly in an effort to get him back on the court as quickly as possible. They’d point towards Myers comments as being an admission of guilt. As part and parcel of the damages analysis, his lawyers would look at his prior earnings and attempt to forecast what he would have made in his career if not for the injury. This is largely a speculative exercise but it provides some indication of the scope of his economic harm.
What makes Durant’s potential case fascinating is that he is one of the highest paid athletes in the history of professional sports. In the fifty years since Butkus became the first player to prevail against his team in this context, the economics of professional sports have been turned on their head.
Butkus played in the NFL from 1965 until 1973. He retired as one of best football players of all time. During his nine-year career, it is believed that his highest annual salary was $100,000. If we are to assume that Butkus made $100,000 each of his nine years in the league, this would have earned him $900,000. When he asked the Bears for $1.6 million, this was more than he made during his career. The $600,000 settlement was more than half of his career earnings. This was tremendous for him given the financial context. Part of Butkus’s analysis relied on the non-economic “pain and suffering” component of having to live the rest of his expected life in a weakened state. It remains to be seen if Durant would have these residual effects as well.
Of course, we all hope that Durant makes a full and complete recovery. Modern medicine and advanced training techniques have increased his chances of such. Yet, the unfortunate reality is that history has shown that an Achilles tear, in particular, takes something away from the player such that they never return to their peak powers.
At this stage, the worst case scenario still exists – however remote – that this becomes a true career-ending injury. This would be the case if, for example, Durant was unable to pass a physical examination and, therefore, prevented from signing another basketball contract. His lawyers would argue that he would be entitled to every cent that he otherwise would have made.
Presently, at the age of just 30, Durant has already made $190 million purely off of basketball contracts – this does not include any off-court endorsement deals. This past season alone, his NBA salary was $30 million.
Coming off of one of his personal best seasons, he was poised to sign a “maximum” basketball contract, which is the highest allowable terms by the NBA for overall amount and length. If he re-signed with the Warriors, this would be for approximately $220 million over five years ($44 million annually), whereas if he signed with a new team, this would be for $164 million over four years ($41 million annually).
In the modern NBA, players have shown the ability to play at a higher level much later into their careers. This, in turn, has led to teams rewarding superstars of comparable ability with maximum contracts as they approach their forties. For example, last year, 34-year-old LeBron James signed a $153 million contract for four years ($38 million annually) with the Los Angeles Lakers. This contract pays him through his age 38-season. At the time, LeBron – like Durant – was viewed as one of the best players in the league.
On the court, looking at a player of Durant’s abilities and skillset, it would be reasonable to project him to at least play until he is 38. This would represent another eight years of basketball earnings. If we are to apply the current landscape of “maximum” salaries and adjust for inflation for the remainder of his hypothetical eight-year career, this would fall at an average annual maximum salary of $45 million, which adds up to $360 million over eight years.
If Durant could not play basketball any longer, his lawyers would argue that his endorsement contracts would be bound to suffer as well. Moreover, if he joined a team located in a bigger market, such as New York, he may have expected to earn additional endorsement money. Forbes reported that he made an additional $35 million off the court via endorsement deals with Nike and Google, among others. This number is atypical of basketball players in general – even those receiving “maximum” contracts – and instead, reserved for the most recognizable athletes in the world across all sports.
Durant is in this elite conversation.
His $35 million in endorsements in 2018 was matched or exceeded only by the very best of the best: Roger Federer – $86 million (tennis); Tiger Woods – $54 million (golf); LeBron James – $53 million (basketball); Cristiano Ronaldo – $44 million (soccer); Steph Curry – $42 million (basketball); and Lionel Messi – $35 million (soccer). Unlike his on-the-court earnings, there is no cap on endorsements, so if Durant were to ascend to the status of the NBA’s single most recognizable player, he could conceivably net $50 million. For the purposes of this equation, let us assume that this number falls at an average annual value of $40 million. This would add up to an additional $320 million over eight years.
More so, the equation must continue into what he would have made during his entire life and not, solely, what he would have made during his career. Post-NBA life has become an entirely separate part of a player’s earnings.
In basketball, players have the luxury of playing without a helmet so they are, historically, among the more recognizable athletes in the world. This has allowed retired players like Michael Jordan, Magic Johnson, and Shaquille O’Neal to take home eight figures annually. Shaq provides a good example of a recently retired “elite” basketball player. Eight years after his playing career ended in 2011, he claims to be making over $30 million per year in endorsements.
With Durant already being among the elite endorsement earners in the NBA, his lawyers would expect him to make significant income after basketball. For a point of reference, Shaq admits that he did not make this much during his NBA career. This would indicate that Durant has an even higher ceiling for off-court earnings in retirement if he remains on the same trajectory.
For Durant, let’s use the Shaq endorsement level of $30 million annually, or $240 million total, over the first eight years of retirement. Yet, Shaq is showing no signs of slowing down having lucrative endorsements deals with Icy Hot, The General, and Carnival Cruises, among others. Of course, you’d expect Durant to continue earning millions well into his fifties as Magic Johnson has shown the ability to do. In this regard, it is reasonable to think that Durant could make at least $320 million in endorsements over the course of his post-NBA life.
Factoring in the above, in a worst-case scenario for Durant’s health – and assuming Williams’ theory is established – it is reasonable to surmise that Durant’s legal team would seek to recover $1 billion from the Warriors as a result of possible malpractice. Here, it is noteworthy that there are only a handful of non-class action personal injury lawsuits in our country’s history that have resulted in awards of this magnitude. Nevertheless, as shown above, this is what happens when you have someone of Durant’s extreme earning potential.
$1 billion is headline-grabbing text, to be clear, but this is what we’d expect in this type of mega-lawsuit. Moreover, it’s par for the course in personal injury litigation where aim-high-settle-low is standard operating procedure.
Many believe that Durant will still obtain a maximum contract this off-season with teams willing to take a risk that he will return close to form at some point during the life of his contract. Even so, there is no guarantee that he will obtain a second maximum contract thereafter (years five through eight) if he is in too much pain to stay on the court or is simply ineffective. In this sense, even if Durant returned to action in a diminished capacity, and thereby earned back some of the money, his extremely high pre-injury earnings potential means that any lawsuit would have to come with no less than a $100 million lost earnings calculation. This would still be among the highest of all time – albeit not the highest of all time.
Durant’s situation is truly unique in that individuals of his incredibly high-net-worth are never so dependent on their peak physical condition to make a living. It is this factor that may very well make Durant one of, if not, the most dangerous personal injury plaintiffs in the history of our courts.
He’s a sympathetic story, too – the kind that trial attorneys dream of finding. A fallen superstar who, like Willis Reed, was willing to lay it all on the line to get his team a win but was taken advantage of by the Golden State Warriors, who wanted to get every last drop of sweat from him before embarking on the next stage of his career.
As Willis Reed showed us those many years ago, the fall from grace due to a serious lower extremity injury can be dramatic. In 1970, Reed was at the top of the basketball mountain. Two years later, he had lost his superstar ability and, two years after that, at just 31, was out of basketball entirely. In this sport, an injury to your leg can signal the quick end of a player’s career since jumping and running is, naturally, fundamental to the game.
As noted above, Reed came back the following year but relied on injections to stay on the court. He played close to his old form that season before it came crashing down. That is to say, we won’t immediately know the extent of the injury’s impact on Durant’s career prospects.
In this regard, California’s statute of limitations for a medical malpractice action is three years from the date of the injury. That would take us to June 10, 2022 – the three-year anniversary of game five of the 2019 finals. While we do not know what jersey Durant will be wearing at this point, you can rest assured that he (or his lawyers) will have that date circled on the calendar