How a Jury Would Decide If Thabo Sefolosha's Injury Is Worth $50 Million
On Oct. 9, Atlanta Hawks wing Thabo Sefolosha emerged from the Manhattan Criminal Courts Building and told reporters it was an "incredible moment" to be declared not guilty of all charges arising from an altercation with police that left him with a broken leg just as the playoffs were about to begin last April.
Despite a victory in his criminal trial, Sefolosha's fight against the New York Police Department is far from over. On Oct. 21, he filed a notice of claim with the New York City Comptroller's Office—a procedural filing that preserves his right to file a civil lawsuit against the NYPD and individual officers. The filing indicates that Sefolosha will seek up to $50 million in the lawsuit. (Update: Sefolosha said Monday he will file a civil suit, according to ESPN.)
This claim raises the following question: What is the future value of a professional athlete’s earnings if he or she has been injured by someone off the court?
In other words, if Sefolosha is permanently impaired because of how the police physically restrained him, how much money is he owed?
The facts of Sefolosha's case stem from an April 8 incident outside of 1 OAK nightclub in Manhattan. A video recording of the incident, obtained by TMZ Sports, shows police throwing Sefolosha to the ground and swinging a baton. As a result of this altercation, Sefolosha's leg was broken, and he missed the playoffs, in which his Hawks lost to the Cavaliers in the Eastern Conference Finals.
While the notice of claim sets out $50 million as a starting point, Sefolosha would have to introduce evidence at trial to support an award of damages. His lawyers would not need to set an exact dollar figure until a later stage of litigation, and that number could end up being greater or less than $50 million.
The jury, assuming it found the authorities liable for Sefolosha's injury, would determine what Sefolosha is owed through a two-part inquiry. First, it would calculate the amount he could have reasonably expected to earn for the remainder of his career before the injury. Second, it would subtract from that amount what he reasonably could expect to earn with the injury.
So how would a jury know how much Sefolosha could have reasonably expected to earn? At trial, the parties would introduce expert testimony and other forms of evidence (such as player contracts). Sefolosha's legal team could establish what his value would have been through comparable player contracts, adjusting for inflation and salary-cap issues. This is a similar process to what is used in Major League Baseball salary arbitrations.
In attempting to gauge what Sefolosha's present-day value is, it remains to be seen what impact, if any, this injury will actually have on the rest of his career.
Although his attorney maintains that his injuries are permanent and ongoing in nature, he is back playing with the Hawks. If Sefolosha returns and is as, or nearly as productive a player as he was prior to the injury, proving these types of damages will be difficult. However, if Sefolosha's injuries are deemed permanent, he could be in line for a large loss-of-earning recovery.
Under his current contract, Sefolosha is guaranteed to make $4 million this season and $3.85 million next, and he will become a free agent in the summer of 2017, per Spotrac. While by no means is Sefolosha a star player, he is a borderline starter and has been a role player on several contending teams.
Sefolosha's attorneys would certainly argue and likely introduce expert testimony that if not for Sefolosha's injury, a player of his stature would command a contract in line with a role player and borderline starter on a contending team.
As a point of reference for such a player, Tristan Thompson of the Cavaliers just signed a five-year, $82 million contract ($16.4 million per year). That is not to say that Sefolosha is as good a player as Thompson is, and Thompson is also seven years younger, but there is no doubt that Sefolosha's lawyer could attempt to use contracts similar to Thompson's to prove lost earning potential.
Players who have a similar role on contending teams have a wide array of average annual salaries, including:
- Mike Dunleavy, Chicago Bulls: $4.8 million
- Tony Allen, Memphis Grizzlies: $5.2 million
- Iman Shumpert, Cleveland Cavaliers: $9 million
- Manu Ginobili, San Antonio Spurs: $2.8 million
In addition, the NBA's salary cap is expected to spike approximately 33 percent in the summer of 2016, per Sports Illustrated, causing the salaries of players signing new contracts to drastically rise. This trial would not take place until after the salary-cap bump next summer, so it would be possible to know what similar contracts will look like by then. In any event, NBA players (including—at least according to his attorney—a healthy Sefolosha) will be earning much higher salaries beginning in 2016.
In addition to lost wages, Sefolosha's attorney also may argue that his injury forced him to miss out on other streams of income such as potential marketing and endorsement contracts. He may also seek damages for lost income and brand value related to not being able to participate in the NBA playoffs and possibly helping his team knock off the Cavs and advance to the NBA Finals.
Conversely, the defense would likely point out that Sefolosha—who will be 33 by the time he hits free agency—is an older player whose best skill, perimeter defense, does not age as well as other skills, such as shooting. Therefore, it is possible that Sefolosha would not have been unable to secure a significant NBA contract when he became a free agent, regarless of injury.
In summary, and based on the evidence submitted by both sides, in order to determine what Sefolosha's lost earnings include, the jury would have to follow this formula in order to calculate lost earnings:
- Decide the reasonable amount Sefolosha would have earned but for the injury by comparing his value to similarly situated players. Multiply that amount by...
- Any adjustment due to the increased salary cap and inflation. Subtract from that total...
- The reasonable amount Sefolosha would earn with the injury as a diminished player.
Let's say that the amount for Part 1 is set at $8 million a year for three years. If Part 2 is set at 20 percent, then the total of Parts 1 and 2 would be 28.8 million. If Part 3 is $3 million a year for three years, including inflation, for a total of $9 million, then the damages would be $19.8 million. These are just theoretical numbers to show how a jury might determine Sefolosha's loss-income value.
Other Considerations
What would be the basis of Sefolosha’s lawsuit? If Sefolosha does decide to file a civil lawsuit, he will likely do so under both New York state law and the federal Section 1983 statute, which allows an individual to purse monetary damages if his or her civil rights have been violated by a person acting under state authority (such as a police officer).
Is this all Sefolosha can recover? In addition to what is outlined above, Sefolosha may be able to recover monetary damages for other forms of damages including pain and suffering or punitive ones.
What about a settlement? A settlement—which could include an admission and apology from the NYPD—is unlikely, as Sefolosha's rhetoric and actions to this point indicate that he will likely take the civil case to trial on principle. Prior to the criminal trial, Sefolosha rejected a plea offer to have all charges dropped in exchange for one day of community service. Given that each charge could have resulted in a year in jail, nearly all defendants in Sefolosha's shoes likely would have accepted the plea.
Similar situation: Another recent case worth watching in this arena is that of Canadian tennis star Eugenie Bouchard. Some consider her to be one of the sport's most marketable players, but she was sidelined after slipping in the locker room at the U.S. Open this summer. Bouchard recently sued the United States Tennis Association for damages related to her having to withdraw from the U.S. Open and other tournaments. (ESPN.com's Peter Bodo takes a look at the case in this article.)
Contract information from Spotrac.
Dan Werly (@WerlySportsLaw) is a sports attorney. Prior to practicing law, Dan worked for an NBA agent and the U.S. Drug Enforcement Administration.
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