Last Monday, Warriors forward Kevin Durant ruptured the Achilles tendon in his right leg. The devastating injury occurred with 9:50 remaining in the second quarter of Game 5 of the NBA finals. Durant tried to dribble past Raptors forward Serge Ibaka but, after doing so, grabbed his leg in pain and fell to the floor. Two days later, Durant underwent surgery to repair the tendon. The 30-year-old former league MVP is expected to miss the entire 2019-20 season. The next time he plays will likely be in the fall of 2020, when he’ll be 32 years old. Whether he’ll be the same elite player in the aftermath of an injury that has altered the careers of other NBA players remains to be seen.
Durant’s injury has generated significant discussion. The fact that one of the top-five players in the league and a future Hall of Famer will miss next season is, on its own, a major news story. His pending free agency status in what could be another summer of roster drama only adds to the controversy.
Yet much of the discussion has centered less on what is to come and more on the ambiguous circumstances preceding the injury. Specifically, why did Warriors medical staff and coaches clear Durant to play when he was already suffering from an injury to a related part of his body, and was Durant sufficiently apprised of the risk of playing?
Two closely connected injuries and a joint decision to play
Before playing in Game 5 of the Finals, Durant had been sidelined for a month. He strained his right calf on May 8. The injury occurred with 2:10 to go in the third quarter of Game 5 of the Warriors’ second-round playoff series with the Rockets. Durant pulled up and hit a jumper and then, as he ran back to defend, grabbed his right leg and limped off the court in pain. The injury was initially diagnosed as a mild strain that might knock him out of action for a week. Then it was determined to be a more serious strain.
A “calf” injury and an Achilles injury might sound like different injures, but they are linked. The Achilles tendon—the largest tendon in the body—connects calf muscles to the heel bone. An injury to the Achilles, including inflammation caused by overuse, can manifest in pain in the calf area.
Dr. David Chao, an orthopedic surgeon who served as Chargers team physician, wrote in the San Diego Tribune that Durant’s reaction to the May 8th injury suggested he might have suffered an Achilles tendon rupture. He noted that the team’s labeling of Durant as having suffered a “calf” injury was not inconsistent with an Achilles injury. “The Achilles can be considered part of the calf/lower leg area” and the team notably did not say “calf muscle” but instead the less-precise term “calf.”
Furthermore, Durant and his representatives might have asked that the team be generic in its depiction of the May 8th injury. This is particularly possible in light of the fact that Durant can elect to become a free agent on June 30: he may have been mindful of how his health was perceived by other teams (though a team would discover any issue in a pre-contract physical). Article XXII of the collective bargaining agreement pertains to player health and wellness. It instructs, consistent with the federal Health Insurance Portability and Accountability Act, that a player has the right “to approve the terms and timing of any public release of medical information relating to any injuries.”
Durant rested after the May 8th injury and also received unspecified treatments, though not surgery. He made enough progress to participate in team practices and shootarounds on June 9th and 10th without apparent incident. The Warriors trailed the Raptors 3-1 heading into Game 5.
Durant was cleared to play in Game 5. The process of a player being cleared to play is detailed by Chao:
Return to play is a joint decision between the medical staff, player and team. The “vote” has to be a unanimous “yes” to return to play. The medical staff decision is made jointly by the doctor/surgeon/consultants, athletic trainers and physical therapists. The player makes his call with input from his agent, advisors, personal doctors and family. The team position is formulated by the coaches, general manager, front office and ownership.
Everyone in the decision-making process—including the medical staff, president of basketball operations Bob Myers, head coach Steve Kerr, Durant’s agent and manager Rich Kleiman, and Durant himself—voted “yes.” According to Kerr, Durant also relied on the advice of a physician whom Durant retained from outside of the Warriors organization and who provided Durant with a second opinion.
Durant then suited up to play in Game 5 and started alongside Steph Curry, Klay Thompson, Draymond Green and Andre Iguodala.
Rethinking “assumption of risk” as it applies to Durant
On the surface, Durant seemed to have assumed the risk of injury by agreeing to play in Game 5. He had a chance to vote “no”, which would have kept him on the sideline and presumably would have made it less likely he suffered a ruptured Achilles (or a further rupture if he had already suffered a tear on May 8th).
But that type of analysis is flawed in at least a couple of ways.
First, NBA players want to play and want their team to win. That intensely competitive spirt is essential to why they are so successful at their sport. They may be willing to risk their own health to further their team’s goals and prove, once again, that they are tough. Even if Durant heard caution from his own doctor, his agent (Kleiman), or from family members, he probably still insisted on playing. In other words, asking Durant if he was able to play was a necessary question in the process, but it was unlikely to yield a “no” even if a “no” was in his best interests.
Second, it’s not clear how well Warriors medical staff diagnosed and treated Durant’s injury. Even if they perfectly diagnosed the injury, it’s unknown how effectively the staff informed Durant and his representatives about the injury and its implications. Communication is crucial in a situation where Durant’s long-term health as an NBA player was on the line.
This is a difficult part of the analysis to assess since Durant’s conversations with medical staff were all conducted behind closed doors. Much of it probably occurred in verbal conversations between health care providers, team officials and Durant, all of whom may have reacted to the information differently. They might now recall those conversations differently, as well. Emails and texts may have also been important, though with health care issues, in-person conversations are often the best vehicle of transmitting information since they provide for opportunities for follow-up (a topic I wrote about in a law review article published by the Yale Journal of Law and Technology in 2003).
As explained below, the specific conversations between Durant and the team over his health could take on legal significance if Durant is, or becomes, discontented with the medical care provided by the Warriors.
The challenges of team-paid health care providers
The roles of team physicians and training staff with respect to player health have long been an area of concern in health law and ethics. While physicians and trainers possess professional duties, including the Hippocratic Oath, to pursue the most ethical and effective care of the patient/client, physicians and trainers who are employed by teams also have employment obligations to those teams.
At least in theory, this dynamic presents a potential conflict of interest: the team’s interest in the player’s health could be different from those of the player. It has also sparked litigation over the years, including former Red Sox second baseman Marty Barrett’s well-known case against Arthur Pappas, the team physician and minority owner who Barrett claimed had failed to tell him that he suffered a tear to his right anterior cruciate ligament.
Hypothetically, the Warriors could have been less concerned with Durant’s long-term health than Kleiman or Durant’s family. The Warriors were trailing the Raptors 3-1 in the series. Had Durant returned and not been injured, there’s a realistic chance the Warriors would have won the series with him.
In the 12 minutes he played in Game 5, Durant scored 11 points, including hitting all of the three-pointers he attempted. Even if he wasn’t 100%, he was still good enough to excel. The Warriors also won Game 5 by just one point, 106-105. Durant going down with an injury with 9:50 remaining in the second quarter was a turning point in the series, which the Raptors won in Game 6.
Also, until his injury, Durant was expected to decline his player option for 2019-20 and become a free agent. There was—and continues to be—speculation that Durant eyes the Knicks as the next home for his NBA career. There is also gossip that Durant would like to play with Celtics guard Kyrie Irving, who is widely expected to decline his player option for 2019-20 and sign with the Nets, the Knicks or the Lakers as a free agent. Last Friday, Bleacher Report’s Ric Bucher told Fox Sports Colin Cowherd that Durant is rehabilitating in New York and met with Irving after last week’s surgery.
The Warriors, then, could have viewed Durant as playing in his last series for their franchise. This might have made the Warriors more willing to risk Durant’s health since there was, and continues to be, a significant chance that Durant will sign with another team this summer.
To be clear, there is no known evidence of the Warriors “risking” Durant’s health. And even if the team did take such a risk, Durant’s own doctor—had he or she been inadequately informed by the Warriors and with access to relevant tests—would have cautioned Durant against the risk. The point is that the incentives for the persons involved in the decision were not necessarily congruous.
Kevin Durant could explore a legal case
At least publicly, Durant has not voiced even a hint of displeasure with the Warriors or their medical and training staff. He has not suggested that he was misled into playing in Game 5. Likewise, he hasn’t insinuated that the Warriors knowingly downplayed the severity of his May 8th injury in order to deceive him—and his representatives—into getting him to agree to play. There also hasn’t been reporting that Durant or anyone on his behalf questioned the Warriors depiction of the injury as a “calf” ailment.
Still, the absence of facts that would otherwise signal skepticism by Durant in the health care provided by the Warriors doesn’t itself mean that Durant is pleased with that health care or that, if he is content, he will remain so in the future.
Durant is in for a long and, at times, frustrating recovery. As weeks and months pass, he might become more inclined to question the circumstances that led to his injury. This is particularly possible if Durant signs with another team and becomes part of a different organizational culture—his ties to the Warriors and their medical and training staff would fade and he might become more critical of them as a result.
It’s been suggested that Durant should explore whether he might have a medical malpractice claim against the Warriors and the physicians who cleared him to play.
Would Durant have a case?
The gist of a medical malpractice lawsuit would be Durant arguing that physicians and other health care providers retained by the Warriors provided him unreasonable care and that such substandard care was responsible for him suffering the Achilles injury. He would need to show that the treatment and advice provided to him deviated in meaningful ways from applicable standards of care for his type of injury and situation. In other words, Durant would assert that the physicians rejected or ignored customary applications of modern sports medicine. If he could prove that he was insufficiently informed about the risk of injury, he could more persuasively argue that he did not make an informed choice to play in Game 5.
It’s unlikely Durant would contend that the quality of health services was insufficient. In fact, as a star NBA player employed by a team worth in excess of a billion dollars, Durant probably received better care than would an ordinary American with the same injury. He likely heard from more physicians, and underwent more tests and evaluations, because of the nature of his employment. The degree to which his May 8th injury was determinable was probably enhanced, not degraded, by the circumstances of his care.
More likely, Durant would insist that he was improperly advised by those entrusted with his care. Durant could argue that the interests of physicians paid by the team compromised their objectivity. Alternatively, he might assert that regardless of their intentions, the health care providers hired by the Warriors were simply ineffective in explaining his ailment and the risk of further injury by playing.
Also, even though Durant retained his own doctor for a second opinion, the role of this outside doctor hasn’t been clarified. Did he or she have complete access to Durant’s medical records in the Warriors’ possession? When exactly was this outside doctor retained in the timeline of events? At what point in the sequence of decision-making was he or she brought in to the discussion on whether or not Durant should play in Game 5? These questions might, and odds are would, yield innocent answers. Unless and until they are answered, though, we won’t know.
But Durant would face a number of obstacles
There isn’t a history of NBA players suing over health care provided by teams, and it’s unlikely that Durant will break it.
If he did, he would encounter several hurdles.
First, physicians and other health care providers normally do not “guarantee” outcomes. Every patient is biologically different and reacts in their own way to medicines, treatments and procedures. While nether you, the reader, nor I, the writer, knows what Warriors medical staff told Durant, they probably didn’t tell him that he had nothing to worry about. Whether they shared with him and his doctor accurate and understandable information about the risk of playing is less clear. Still, odds are they told him, in so many words, you can play but there’s some risk to it.
Second, Durant participated in the decision-making process as a very experienced and knowledgeable NBA player. At age 30, and after 988 regular and post-season games and nearly 37,000 minutes over his 12 seasons in the league, Durant knows the degree of health necessary to perform in the NBA. He also has suffered other injuries over the last few seasons, including injuries to both ankles as well as calf, rib and thigh problems, that have caused him to miss 38 regular season games. Durant is thus no stranger to injuries and is familiar with when injuries are too severe to play. He thus chose to play on June 10th with a greater awareness of the kinds of risks he would face than would, say, a 19-year-old rookie in the same situation. Durant’s experience suggests he made an informed choice.
Third, Durant retained a second opinion at some point after the May 8th injury. Article XXII contains a provision that explicitly allows players to seek and receive a second opinion. Players can also require that the team pay for the second opinion, though if the players prefers to pay on his own, that is fine, too. If Durant had concerns about his care, the outside physician, who according to Kerr had no ties to the Warriors, should have been able to address those concerns and objectively evaluate recommendations by the Warriors’ medical staff. If there was a disagreement about whether Durant could have played, Article XII outlines how a “fitness-to-play” panel consisting of multiple physicians could have resolved the question. It doesn’t appear that any such panel was contemplated, let alone used, by Durant. To the extent Durant believes he received unreasonable health care, it’s possible the physician he retained is as much, if not more, to blame.
Fourth, while Durant may be able to pursue a case against the doctors that treated him, he would experience much more difficultly in suing the Warriors. This is for several reasons. One is that the doctors retained by the team might not be employees of the Warriors. Instead, they could be independent contractors. If they are independent contractors, the team is less likely to be responsible for their actions. As a general matter, employers are responsible for the negligence of employees committed within the scope of their job, but employers are usually not responsible for the wrongful actions of independent contractors.
As I explained in a recent SI story on Turner “Tfue” Tenney’s esports lawsuit against FaZe Clan, California changed its law last year on whether a person paid by a company is an employee or an independent contractor:
In 2018, the California Supreme Court held in Dynamex Operations West, Inc. v. Superior Court that a worker is only an independent contractor if he or she (A) is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) performs work that is outside the usual course of the hiring entity's business; and (C) is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.
There is a logical argument under the new California law, a team physician is an employee even if he or she and the team contractually represent that their relationship is that of an independent contractor and a hiring entity. Much would depend on the extent to which the team controls and directs the physician.
Setting aside the employee/independent contractor issue, Durant is bound by the grievance (arbitration) process negotiated by his union, the National Basketball Players’ Association in the CBA, for disputes between players and teams. Further, the federal Labor Management Relations Act usually preempts legal claims over topics covered in a CBA. The CBA contains numerous procedures, policies and duties related to the health care relationship between a team and a player. It would be difficult for Durant to sue the Warriors for health care-related negligence when the health care relationship between Durant and the Warriors is inextricably tied to the CBA.
Fifth, even if Durant sues and it’s not preempted, it’s not entirely clear how he would establish damages. When a typical worker is injured and can no longer perform a particular job, the worker often suffers financially. Health care coverage, workers’ comp, Medicaid and unemployment benefits may, in certain instances, mitigate the financial implications of not working. However, often the amount of money going to the worker suffers—and that is especially true if the worker is unable to perform his or her job for an extended period of time.
Durant is in an entirely different situation. For starters, his financial status is unlike that of 99.99% of the population. According to Basketball Reference, Durant has earned $160 million in annual salaries paid by the Seattle SuperSonics, Oklahoma City Thunder and Golden State Warriors. He also has earned tens of millions of dollars in lucrative endorsement deals with Nike, Google and other major companies. Chances are, if Durant never earned another dollar from an NBA team, he and his family—and probably many future generations of Durants— would be among the wealthiest of Americans.
In addition, Durant has the benefit of a guaranteed employment contract. As mentioned above, he can elect to play for the Warriors next season. Per Spotrac, Durant can exercise an option that guarantees him $31.5 million next season—even if he doesn’t play at all. It’s also been rumored that if Durant declines the option and becomes a free agent, some teams would still be prepared to offer him a “max” contract of four years at approximately $164 million (the Warriors, for their part, could offer Durant a five-year contract worth approximately $220 million).
Further, Durant won’t be paying for his health care expenses while employed by an NBA team. The team is obligated to pay for them. With those payments in mind, California’s workers compensation system also poses a hurdle for Durant should he seek to sue the Warriors. Generally, when an employer pays for workers’ compensation insurance, the insurance is the exclusive method of resolving workplace injuries. As a consequence, workers’ comp tends to preempt lawsuits brought by injured employees against employers. Usually preemption can only be overcome if there is a finding of fraudulent acts on the part of the employer.
Beyond KD: Are NBA players playing too many games?
The reality is that while Durant could develop a legal case against Warriors medical staff, there are a number of reasons why he probably won’t. The injury, however, is the latest reminder of the downside of stars suffering serious injuries and an opportunity to rethink whether the NBA’s current 82-game, best-of-seven playoff series model is ideal.
With that in mind, it’s worth noting that Durant wasn’t injured in a collision. His leg appeared to go out on him. Whether the fact that he has logged so many minutes in his NBA career (almost 37,000 minutes over 12 seasons of regular season and playoff games) and endured wear-and-tear played a role is unknown, but Achilles injuries are often associated with overuse and intense sports participation. Length of season, then, could be a factor. Usage is one of the reasons why commissioner Adam Silver has repeatedly pursued ways to increase rest for players, such as a longer All-Star break and reduction of back-to-back games.
Also, in recent years, NBA players have tended to be larger, stronger and faster than their counterparts from years ago. In the 1990s, a small forward might have been 6’6" or 6’7"; now-a-days he is often 6’9" or taller—and more muscular, too. With larger players playing on the same size court, collisions might, on average, be more physically impactful.
The NBA has used an 82-game regular season schedule since 1967. From the NBA’s inception in 1946 (when it was called the Basketball Association of America) to 1966, the number of regular season games ranged from 48 to 81. If, for instance, the NBA adopted a 72-game schedule, it would use the same arrangement employed by the league from 1953 to 1959. Also, while the league has used best-of-7 playoff series since 2003, it previously used best-of-5 for the first round (conference quarterfinals).
To be sure, reducing the number of games would come with a financial cost. Fewer games would mean less revenue generated through ticket, concession and in-arena merchandise and apparel sales. Also, television, radio and streaming revenue would presumably decline since broadcast contracts are pegged to the selling of commercial air time and other factors that are tied to total number of games.
Any diminishment in revenue would also be experienced by both owners and players. The players and owners share “basketball-related income,” or BRI, which consists of revenue generated by broadcast contracts, arena signage, apparel deals and many other properties. Under the CBA, players and owners essentially split BRI, with several factors impacting whether the split is closer to 50/50 or 51/49. BRI has a direct impact on the salary cap, with a higher BRI—meaning more revenue generated by the league—translating into a higher salary cap and consequently higher salaries for players. The takeaway, then, is that if players play fewer games, they will likely need to prepare for lower BRI and therefore (somewhat) lower salaries.
On the other hand, if fewer games led to fewer injuries, particularly of star players who log many minutes, the overall quality of the league could improve, and consumer interest could increase as well. Teams might also be less inclined to “rest” players as the playoffs approach. Fewer games could also make each game seem more important. One of the benefits of the NFL’s 16-game season is that most games, especially over the first 12 weeks, are consequential.
This all might sound persuasive but there is always a catch: reducing the number of regular season games or playoff games might not have done anything for Durant’s health. His Achilles could have gone out on him at any point.
Along those lines, player injuries can happen in a matter of seconds into a season. Consider Boston Celtics forward Gordon Hayward, who five minutes into the first game of the 2017-18 regular season suffered a dislocated ankle and a fractured tibia. Injuries can happen anytime.
No rule change or lawsuit will change that.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.