In December, prominent sports attorney Jim Acho sat down with Madison Martin (’21) to discuss his career in the industry, the NFL Players’ Association, and the future of collective bargaining and concussion lawsuits in the NFL. Acho is a partner at Cummings, McClorey, Davis, & Acho, P.L.C. In 2015, Jim made national news when was nominated for and ran for Executive Director of the NFL Players Association. He continues to represent retired NFL players in concussion claims, and most recently was cited by the New York Times in their November 2019 article, ‘Emboldened’ N.F.L. Players Value Health Over Paychecks.
The interview was conducted by Madison Martin ’21 (Online Content Chair, Sports) and Daniel Alford ’20 (Executive Editor, Online Sports Content), from the Harvard Journal of Sports and Entertainment Law. It has been edited for clarity.
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MM: Thank you so much for taking the time to speak with me today, Jim.
JA: Not a problem at all, happy to discuss my experience in the industry and any other questions you may have.
MM: Early on in your career, did you know you wanted to focus your practice on the sports industry or did you have an interest in labor first?
JA: I joined a firm my dad started five decades ago with a few other attorneys that had its roots as a labor and employment firm. I do a lot of non-sports related labor and employment, mostly representing people that have been wrongfully terminated. I also represent a lot of police officers in excessive force cases, we get involved in a wide range of employment matters. It morphed into a sports interest, and although I never practice sports law full time, it has always been a part of my practice.
MM: And how did that sports interest morph into a legal one?
JA: When I got out of college, I started coaching small college basketball in Michigan. In order to make ends meet, I sold cars and worked at a dealership that was very flexible. My boss at the dealership was Lem Barney who is an NFL Hall of Famer, and was one of the all-time great Detroit Lions. We grew close over the years. He knew of my background, and he advised me to go to law school and work with my dad and offered to help me get involved in sports. I decided to attend law school, and the summer after graduation Lem took me around to many outings and introduced me as his attorney, which gave me some credibility. Over time I started representing a number of retirees which led to me handling the largest class action in history – the MLB pension case – only two years out of school.
We lost that case in trial court in Los Angeles. However, the judge had said on the record that we were on the moral right and that the MLB should continue to negotiate with us. Ten years later they ended up paying what they called a charitable contribution to the class of players I represented. Ultimately it was a victory, but it took over a decade to arrive at the conclusion. Then, in the early-mid 2000’s I began pushing the NFL to do more for retired players. At the time, their pensions were the worst in professional sports, and included no medical benefits. These players for the most part did not make a lot of money playing. I saw cognitive decline, and pushed for the creation of the 88 plan, named after John Mackey. In the last few years, I have handled some NFL concussion cases, roughly three dozen.
MM: Would you consider Barney to be one of your early mentors?
JA: Absolutely. He used who he was to give me credibility which is something I will always remember. There have been other individuals, such as a retired player Tom Skladany. He is considered to be one of the greatest punters in history. He was the former head of the NFL Alumni Association in Ohio, and he got me in the door with retired OSU players, which has led to them seeking my representation and has grown my practice.
MM: Speaking of your involvement with the NFL, you recently ran for the head of the NFL Player’s Association. What was that experience like?
JA: Well, three years ago I got a letter out of the blue signed by 200 pro football legends telling me I was their selected nominee to run for the head of the NFLPA. I ended up running against Demaurice Smith, which was not something I anticipated doing. While I ultimately was not successful in the race, it has created space for us to do some good things for the organization, and I have helped make a lot of inroads for players. I absolutely would not run again, but it is worth noting that since the race they have changed it into an appointed rather than an elected position. I was told by multiple players that it was because I put a scare into Smith.
MM: You also spend some time teaching. Has that always been a goal of yours?
JA: No, it was more of a chance opportunity. The school (Madonna University) reached out to me because their resident sports law professor had suffered a stroke. I only agreed to do it as a fill in until the other professor recovered from the stroke, which over time turned into an adjunct position. I do it more because I have a love for passing information onto young people in a practical way. I teach the class sort of how I would have liked the class to go while I was in college and in a way that allows the students to apply the information practically in real-world scenarios.
MM: Do you believe the trend that some sports magazines, such as Sports Illustrated, have pointed out about the NFLPA and agents contributing to a mistrust of medical personnel?
JA: Yes. Based on the players I have known over the years, what has been imparted to me is there is a total lack of trust between players and team doctors because team doctors are seen to be in the pocket of NFL owners. This was especially true years ago – now, with certain Collective Bargaining Act provisions these guys can get a second opinion. The problem is that in the CBA, the NFL doctor still has the final say. An orthopedic surgeon can not cut into you until the team doctor approves it, which feels like a loss of autonomy for many players. That language needs to be cleaned up in the CBA and more players are pushing for a change.
MM: Similar to the Trent Williams scenario that is currently unfolding, do you see teams more often trying to leverage things like non-football illness designations to keep players from airing grievances?
JA: If the language is not changed in the relevant clause regarding second opinions in the CBA, then spiteful people like Dan Snyder may use designations as leverage, yes, I can see that.
MM: The 2011 CBA extends through the 2020 season, which leaves big question mark as to what the negotiations will look like as well.
JA: There has been some leaked information from the 2020 negotiations, a key piece being extending the game a season. In terms of an opportunity, I think this would be great to use as a bargaining chip to secure certain player protections. Part of my platform during my campaign was proposing 18 regular season games and two preseason games. You can use that as a bargaining chip to get better healthcare. Extra games increases the likelihood of injury or some type of harm down the line, but if you have medical coverage and top notch healthcare then you as a player may feel more covered. Now, at least once you retire, you are covered for five years. However, after those five years there is no coverage. Guys are self-medicating, drinking, opioids, committing suicide – I believe largely because they could not seek treatment after the cutoff. I would use the extended season as a bargaining chip to secure healthcare coverage until Medicare kicks in.
MM: Do you remain involved in the current state of concussion cases against the NFL?
JA: I do keep up with this, and it is difficult. There are attorneys that will say it is not difficult and I find that to be disingenuous. Rules have changed specifically in regards to what doctors you can use. I have some question as to how impartial some of these doctors truly are. Previously, there were two different mechanisms about which you could file. If you were diagnosed prior to January of 2017 you could use your own board-certified doctor. Other than that requirement, they did not have to be NFL approved. Most of the claims my clients and I successfully brought were through this mechanism. After that cutoff date, you had to utilize doctors approved by the NFL, which you know, you could sort of read between the lines on that how may bias outcomes.
MM: Can you speak on the role of Chris Seeger and the structure and style of motions and rulings around the league’s concussion settlement?
JA: Judge Brody likes and respects him so Judge Brody defers to him to the point that there has been a 5% holdback. He is fine with it because that 5% is for him . He wants 5% of every single claim to go to his firm because they did the initial work, but he was already awarded attorneys fee’s off the top. This holdback detracts from the attorneys who are doing the dirty work out here. I filed a motion that is still pending to release the 5% holdback.