Examining the Zeke Upshaw Wrongful Death Lawsuit Against the NBA
With 40 seconds remaining in the March 24th G League game between the Grand Rapids Drive and the Long Island Nets, Drive guard Zeke Upshaw suddenly collapsed to the floor. Upshaw, 26, had not been pushed or even touched. He was playing man-to-man defense near the three-point line and then suddenly fell. Strangely, Upshaw didn’t reach out his arms or extend his hands to protect his face as one would instinctually do during a fall. This was because Upshaw was already unconscious. Within a matter of seconds of Upshaw landing, one of his teammates, Landry Nnoko, grabbed a defensive rebound on a missed shot and then a referee noticed Upshaw lying on the floor. The referee whistled to stop play and ran over to attend to Upshaw.
Upshaw didn’t move after he landed. His heart had stopped and oxygen was no longer being pumped to his brain. By the time an ambulance had taken Upshaw to the emergency room of Butterworth Hospital, a nearby hospital in Grand Rapids, Upshaw was effectively brain dead. He only had approximately 20-percent brain functionality left. Two days later Upshaw was pronounced dead.
Upshaw’s death was clearly a tragedy. A young man—cherished by his family and friends, and respected by his teammates and coaches—died suddenly while playing the sport he loved. No one expects that a world class and seemingly healthy athlete would, all of a sudden, suffer a cardiac event in the middle of a game and then die. When something horrible like that happens, it’s natural to question why it occurred, whether it was avoidable and the extent to which responsibility for the death should be assigned to others.
Upshaw’s family has assessed those questions over the last two months. They have come to the conclusion that his death was caused neither by natural occurrences nor by an “act of God” but rather by the unlawful misconduct of the businesses responsible for the game.
On Wednesday, Upshaw’s mother, Jewel Upshaw, filed a federal lawsuit against the NBA, the DeltaPlex Arena, the Detroit Pistons and the SSJ Group (the Pistons and SSJ Group share ownership of the Drive). The complaint was filed in the U.S. District Court for the Southern District of New York, which governs the geographic area (Manhattan) where the NBA’s league office resides. Represented by attorneys Robert Hilliard and Ben Crump, Jewel Upshaw contends that these defendants are liable for negligence and the wrongful death of her son.
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Upshaw’s rise in basketball
At the time of his death, Zeke Upshaw was enjoying his finest season as a pro. The 6’6 native of Chicago and graduate of the University of Chicago Laboratory (High) Schools was averaging 9 points in 20 minutes per game. Although Upshaw started a handful of games, he usually came off the bench for head coach Rob Werdann. Upshaw was particularly effective at shooting three pointers, connecting on 40% of his shots from behind the arc. Upshaw was also highly regarded for his defense and hustle. This was Upshaw’s second season for the Drive. He had joined the team in 2016 after previously playing professionally in Slovenia and Luxembourg.
Upshaw played most of his collegiate career at Illinois State. Upshaw struggled to earn much playing time for the Redbirds. He redshirted his freshman year and played only five to seven minutes per game during his sophomore, junior and senior seasons. But in the classroom Upshaw achieved much more success. He earned his college degree in apparel, merchandising and design. And in 2013, with one year of NCAA collegiate eligibility remaining, Upshaw enrolled at Hofstra as a graduate student. Upshaw blossomed into a star while playing for the Pride and head coach Joe Mihalich during the 2013-14 Season. He started in every game in which he played and averaged 20 points per game. Although that success didn’t get Upshaw drafted by an NBA team, it was good enough to land him a pro contract in Europe.
By most objective metrics, Upshaw was not an NBA prospect. He was a reserve player in the G League who would have turned 27 years old in May. Upshaw’s statistics were relatively modest and while he was praised for his defense and hustle, it is difficult for a 6’6 shooting guard/small forward to stand out when there are so many talented players at that position.
Then again, you never know. After all, in April, the Los Angeles Lakers signed 32-year-old Andre Ingram. The 6’3 guard made his NBA debut after playing 10 seasons in the minors. Ingram became the 14th oldest rookie in NBA history. Over the course of NBA history, several other rookies began their careers in their late 20s to mid 30s. The oldest of them was Pablo Prigioni who played for the New York Knicks as a 35-year-old rookie in 2012. Had Upshaw continued to excel at three-point-shooting and defense, he might have worked his way up to an NBA bench as a “3 and D” specialist. Even if Upshaw had remained in the minors, he could have gone on to play a number of additional years as a pro, whether in the G League or abroad.
Regardless of Upshaw’s career trajectory, he was, as detailed in an in-depth profile on Upshaw by The Athletic’s James L. Ewards III, a beloved son, cousin, friend and fiancé.
The controversial circumstances of Upshaw’s death
Projecting what kind of person and player Upshaw might have become in the coming years underscores the tragically early end to his life. Once Upshaw collapsed, attorneys Hilliard and Crump contend that Upshaw received substandard and inexplicably slow medical care delivered by those who were legally required to do more and act faster.
For starters, the attorneys claim that the Drive’s team physician had left his post before the game ended. The physician was not thus available to help Upshaw. The attorneys also contend that team and arena medical staff wasted critical time standing next to Zeke without an apparent strategy as to how to help him. To that point, the attorneys say that no cardio-pulmonary resuscitation (CPR) or other resuscitation measures (for example, chest compressions or application of an oxygen mask) were performed for at least four minutes, during which Upshaw’s brain suffered the deleterious effects of oxygen deprivation. They also charge that had the staff used a defibrillator, it’s possible that Upshaw’s heart could have been re-started. All told, the attorneys insist that Upshaw “abhorrently” went without oxygen for 40 minutes.
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The legal arguments
As mentioned above, Upshaw’s family blames four parties—the NBA, the DeltaPlex Arena, the Pistons and the SSJ Group (which co-owns the Rapid with the Pistons). The NBA is named as a defendant because it runs and organizes the G League. It is thus responsible for legal matters impacting the G League.
Attorneys for Mrs. Upshaw depict the defendants as negligent, meaning they allegedly failed to exercise the kinds of ordinary care, skill and ability that would be expected in the circumstances that befell her son. Along those lines, the attorneys insist that the NBA was negligent because, in comparison to other professional sports leagues, it failed to act reasonably.
To build out this argument, the attorneys maintain that the NBA behaved unreasonably in the following regards:
• Failed to take a complete and thorough medical history.
• Failed to perform a complete and thorough physical examination.
• Failed to use a defibrillator to resuscitate Upshaw.
• Failed to perform CPR.
• Failed to adequately respond to and treat Upshaw.
• Failed to select, screen, train and employ only qualified personnel.
• Failed to enact and enforce all necessary policies and procedures to ensure player safety.
• Failed to have proper policies and procedures in place to detect players who could potentially suffer a sudden cardiac event.
• Failed to provide qualified and trained medical staff.
The complaint also asserts that the NBA has long been on notice of the risk of “sudden cardiac deaths”—which the Mayo Clinic defines as a “sudden, unexpected death caused by loss of heart function” and which causes about 325,000 adult deaths in the United States each year. Sudden cardiac arrest is not synonymous with a heart attack. In fact, the two maladies refer to different physiological occurrences: whereas a heart attack occurs when a coronary artery is blocked, sudden cardiac arrest describes the heart abruptly developing a dangerously fast beat on account of a heart-related electrical problem. The Mayo Clinic notes that sudden cardiac events usually lead to death “unless emergency treatment is begun immediately.”
As attorneys for Jewel Upshaw detail, there have been several NBA players who have experienced serious heart problems. To that end, the attorneys highlight Reggie Lewis, a star for the Boston Celtics in the late 80s and early 90s. In 1993, Lewis died of sudden cardiac death. He was only 27 years old.
Lewis did not die during an NBA game, however. In April that year he had collapsed during a playoff game against the Charlotte Hornets. Lewis’s breathing resumed after the collapse. He then underwent a battery of tests. A “dream team” of 12 Boston physicians diagnosed Lewis with hypertrophic cardiomyopathy. Such a condition describes a heart that has been abnormally stretched or thickened. Though relatively rare, cardiomyopathy is commonly associated with athletes. Of great concern to health care professionals in sports, a heart afflicted by cardiomyopathy can experience sudden cardiac arrest during strenuous exercise. The 12 doctors advised Lewis to stop playing basketball. Lewis, however, received a more favorable diagnosis from a 13th doctor. Encouraged by that outlier diagnosis, Lewis decided to resume light basketball workouts. It was a tragic decision as he collapsed and died while shooting baskets in a practice facility.
The attorneys mention several other NBA and former NBA players who experienced sudden cardiac death (though none died during an NBA game). Those players were Jason Collier, Conrad McRae, Sean Rooks and Robert Traylor. Similarly, the attorneys mention Hank Gathers, who collapsed and died while playing a basketball game at Loyola Marymount University in 1990. References to these players are designed to suggest that Upshaw’s death was not an unforeseeable fluke but rather a foreseeable harm that could have been prevented.
To bolster that line of thinking, the attorneys cite a study published by the Journal of the American Medical Association Cardiology (JAMA) in December 2017. The study, titled Electrocardiographic Findings in National Basketball Association Athletes, was the result of a partnership between the NBA and Columbia University Medical Center. The partnership was designed to examine player health issues and devise ways to improve their health.
Led by David Engel, MD, of New York-Presbyterian/Columbia University Irving Medical Center, the study examined electrocardiographic findings of 519 NBA players. Such findings are made through electrocardiograms (ECGs), which refer to a medical test that measures the electrical activity in a heart as it contracts. The study found that 15.6% of NBA players had “abnormal” results, which the study’s researchers observe is a higher prevalence of abnormal results than has been found in other studied athlete groups. The researchers surmise that age and the impact of years of “intense training” on the heart could help to explain the findings:
"The NBA players in this study were generally older (mean age, 24.8 years; range, 18-39 years) than most athletes included in other published studies of athlete groups, and this fact, combined with the finding of more ECG abnormalities in the oldest group of NBA athletes in the present study, might demonstrate that athlete age and cumulative years of intense training are important factors that influence athletic ECG changes.”
Engel has also noted previous research indicating that basketball players have a 30 times higher incidence of sudden cardiac death compared to other athlete groups. While such findings go beyond NBA players and other pro basketball players, they suggest that the sport may be hazardous to one’s heart health.
For attorneys representing Upshaw, Engel and his new study serves as evidence that the NBA has been on notice that professional basketball players are more likely to develop electrical activity-related heart problems as they advance in their careers and age. Such a point helps the attorneys argue that the NBA should have ensured that better trained and equipped medical staff personnel were on hand during games played by all players, including those in which Upshaw appeared.
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Damages would depend on Upshaw’s career trajectory
To prevail in the wrongful death claim, the attorneys must prove, by a preponderance of evidence, that the defendants were not only negligent but that the negligence caused Upshaw’s death. If successful in proving those points, then Jewel Upshaw, on behalf of herself and her son’s estate, would then be entitled to monetary damages. Those damages would be determined by jurors and would reflect a range of harms. They would include the loss of Zeke’s love and support, funeral and burial expenses, and Upshaw’s potential future earnings.
The earlier discussion about Upshaw’s projected basketball career would thus be very relevant in determining damages. While Upshaw’s family and their hired expert witnesses (who might include agents, former coaches or former scouts) would argue that Upshaw was on his way to a lucrative NBA career as a 3 and D specialist, the defendants and their hired expert witnesses would contend that Upshaw had only proven to be a career minor leaguer. He was also nearing his late 20s and, had he remained in the G League, would only have been paid G League salaries in the years to come (starting this fall, the G League will pay players $35,000 for the five-month season).
The likely defense arguments by the NBA and Pistons
In the coming weeks, the four defendants will answer Jewel Upshaw’s complaint. They will, of course, deny the allegations. The defendants will also begin to raise specific defenses. Expect the following to surface:
First, the defendants will object to the depiction of facts laid out in the complaint. The defendants will provide other details not shared by attorneys representing Mrs. Upshaw. It’s possible that that critical health care services were rendered in the minutes after Upshaw collapsed and were not mentioned in the complaint.
Also expect to read different depictions of the same occurrences. For instance, consider how the complaint portrays the medical staff personnel who attended to Upshaw while his body lay on the court. “There appeared,” the complaint contends, “to be uncertainty, indecisiveness, and a complete and utter lack of appreciation of the severity of the moment as the basketball player’s life silently slipped away on the hard wood floor in front of them.” The defendants will surely reject that portrayal and contend that the personnel were attentive and acted responsibly in light of the circumstances. Similarly, the defendants will assert that industry standards were followed.
Second, the defendants will request medical records about Zeke Upshaw, including the autopsy. Likewise, they will likely attempt to interview the coroner. To that end, the defendants will gather as much information about why and when Upshaw died. If, after he collapsed, Upshaw was going to die of sudden cardiac arrest regardless of any medical care he received, then the defendants would assert they could not possibly be considered the cause of his death. The defendants would also want to explore if Upshaw in any way contributed to his health problems, particularly in ways that his employer would not have known about.
Third, the defendants will question the idea that Upshaw’s collapse during a game was a reasonably foreseeable event. For one, there is no indication that medical tests previously warned Upshaw’s employers that he might be suffering from any kind of heart problem. Also, while a handful of NBA players have died of sudden cardiac arrest—including during basketball practices or workouts—not one died during a game. Stated differently, the NBA has been around 72 years, during which time several thousand players have suited up in thousands of games, and not once has a player collapsed and died. This point is not to say such an awful event couldn’t happen—obviously and tragically, it just happened in a G League game. However, for purposes of proving negligence in law, plaintiffs must show the incident was reasonably foreseeable and not a fluke.
Fourth, the defendants will depict the scientific data in a different light than is shown in the complaint. The aforementioned JAMA study raises legitimate concerns about NBA players’ heart health. However, the NBA could argue a few points in response. For one, the study does not opine on the circumstances in which NBA players play games or the medical care that ought to be available to them in the event of a sudden cardiac event. In other words, the study is not about the kinds of claims Upshaw raises against the league. Further, the fact that the league funded a study by Columbia University Medical Center—a study in which the NBA played no role in the collection, management, analysis or interpretation of data—ostensibly shows the league is genuinely interested in players’ health and making improvements to how players are treated. This would suggest the NBA has behaved reasonably, not unreasonably, in regards to player health. Lastly, to the extent the NBA commissioning a study is being used to prove the league was negligent, it’s worth flagging that so-called “subsequent remedial measures” are normally inadmissible in a trial.
Fifth, the defendants might explore why Upshaw did not include Butterworth Hospital as a defendant. The complaint suggests it was too late for Upshaw by the point he arrived at the hospital, but the defendants might probe whether, to the extent there was a party that acted wrongly, whether it was hospital and not those connected to the game.
Possibility of settlement, especially given role of insurance companies
The Upshaw case will likely take months, if not years, to play out. In the meantime, the defendants will consult with their insurance companies, who would likely be contractually obligated to pay some portion of any judgment or settlement. There will be settlement talks in the weeks and months ahead,. The vast majority of cases—some data suggests as high as 95%—settle before a trial. Most likely that is what will happen here.
We will keep you updated on the litigation.
Michael McCann is SI’s legal analyst. He is also the Associate Dean for Academic Affairs at the University of New Hampshire School of Law and co-author with Ed O'Bannon of the new book Court Justice: The Inside Story of My Battle Against the NCAA.
