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Rethinking Damages for Lost Earning Capacity in a Professional Sports Career: How to Translate Today’s Athletic Potential into Tomorrow’s Dollars

This article delves into the theoretical and practical aspects of proving damages for lost earning capacity in a professional sports career. While the law affords plaintiffs recovery for lost earning capacity damages if they can prove their damages under the amorphous standard of “reasonable certainty,” courts for the most part have failed to delineate any standards for deciphering those particular athlete-plaintiffs who possess the requisite level of athletic skill and potential to be allowed recovery for lost future earnings in a professional sport career. This article addresses how an athlete’s earning potential can be assessed and the various factors that go into the assessment, and in this context the author proposes that it is helpful to think about earning potential on a range that defines low, middle and high categories of athletic potential. The author describes the athlete’s burden of proof as a two-step process. Step one entails proving that the defendant’s conduct did in fact cause the plaintiff a lost or diminished chance of future earnings as an athlete (the factual cause link). Step two entails proving the amount of the lost or diminished chance with reasonable certainty. The author addresses the complexities of the factual causation analysis, including how the loss of chance doctrine and the traditional but for test can be applied to establish the factual cause link, and how evidence and expert witness testimony can be used to meet both burdens of proof and satisfy the admissibility standard of Federal Rule of Evidence 702. Finally, the author explains the methodology, data compilations and calculations he used as an expert witness to estimate Andy Oliver’s lost future earnings in his lawsuit against the NCAA, which highlights the complexities involved in proving lost earning capacity damages of top draft prospect amateur athletes.