NFL’s Knockout–League, Players and Community Brace Selves for Legal Game Day
As of January 17, 2013, the San Francisco Chronicle reported that lawsuits in the NFL’s concussion litigation now include over 4,000 former players and their families, who allege that the league concealed information about the dangers of repeated head injuries, effectively neurologically crippling decades of former players. In the Complaint, the plaintiffs are seeking a declaration of liability, injunctive relief, medical monitoring and financial compensation for the long-term chronic injuries, financial losses, expenses and intangible losses suffered by the plaintiffs as a result of the defendant’s alleged tortious misconduct, including fraud, intentional misrepresentation and negligence pertaining to mild traumatic brain injuries sustained in the league.
The litigation is bound to experience many hurdles. At the outset, the NFL makes a preemption argument that the concussion lawsuit belongs in arbitration and not in a federal court as per the Labor Management Relations Act. The league emphasized that the dispute requires an inquiry as to the scope of duty, if any, the NFL owed to its players, which can only be resolved by analyzing the Collective Bargaining Agreements. It argues that such an analysis belongs in the more competent hands of an arbitrator. The Plaintiffs’ reply brief on the preemption issue is due on January 28th. The NFL would obviously prefer not to go before a jury, and their damages would be limited by a narrower focus on the actions of individual teams, players and trainers (instead of the league). The San Francisco Chronicle speculated that the case could see a jury trial, distinguishing the matter from the suit brought by the widow of Minnesota Vikings player Korey Stringer, which was sent to arbitration; as the central issue in this litigation is alleged fraud, not contract interpretation, a courtroom is the more appropriate and likely venue.
Once this issue is resolved, the Chronicle further points to the issue of causation, which is difficult to establish given the complexity in pinning the span of a player’s multiple injuries to the league. Some critics point out that the name “Concussion Crisis” is a misnomer, as it is really a “head-injury crisis,” and calling it otherwise can blur the causation element as the injuries could be sustained absent a concussion. Jonathan Mahler points to the release of a small study in the scientific journal Brain asserting that CTE (chronic traumatic encephalopathy, a condition central to the litigation) is just as likely to be caused by a routine blow to the head as it is a traumatic blow, and further asserting that the disease is one of overall repetitive brain trauma. Concussions are not the sole cause of damage; any repeated “routine” blow could be. While some blows can come from childhood, it is clear that a majority of such blows would be suffered during participation in the league. However, absent some indication of a tipping point or a way to reasonably draw a line, the study further muddies the issue of causation, making the computation of any potential damages an absolute nightmare.
Another central inquiry will focus on duty. Plaintiffs point to the existence of an acquired duty to inform players of potential risks on the field based on the league’s history of regulations and research, citing reliance on the NFL to intervene in matters of player safety, to recognize issues of player safety and to be truthful on the issue of player safety. On the flip side, Forbes points to the problematic nature of a default duty to warn about the effects of an inherent risk, as encountered by players engaged in contact sports. Suneal Bedi explains that effects of an inherent risk in such an environment can be so remote that finding a duty to protect and earn against them would be unrealistic. Bedi asserts that the court will need to carefully analyze how far it wants to extend the duty to warn of such inherent risks, especially as the long-term risks were widely covered and seemingly clear to players. Litigation will center on the scope of this duty, and as to whether such duty was reasonably discharged, or if the league engaged in what the Plaintiffs have called “willful blindness” to the issue.
The query ultimately comes down to the question of “what did the league know and when did they know it?” A recent study coauthored by William S. David of Harvard Medical School and David Orentlicher of Indiana University Robert H. McKinney School of Law in Indianapolis entitled “Concussion and Football: Failures to Respond by the NFL and the Medical Profession” suggests that the NFL’s response through the years may have been reasonable given the medical profession’s treatment of continual concussions as “benign problems” over the past several decades. However, the coauthors do assert that one can question the NFL’s failure to adopt concussion guidelines in the late 1990’s when medical experts issued guidelines. In an article in Fox News, concussion expert Matt Chaney points out that many NFL doctors publicly discussed potential long-term brain damage in football players in the 1990’s, and finally established a committee on the matter in 1994, namely the Mild Traumatic Brain Injury Committee, pointing to some kind of awareness at that point.
However, a recent report from researchers and reporters at “Frontline” and ESPN point out that this committee continued to deny the link between football and brain damage until it was disbanded in 2009 amidst Congressional hearings and ensuing pressure to overhaul the league’s concussion program, which could have clear implications on league liability. The NFL’s case may be further weakened by what AOL SportingNews-NFL calls an utterly damning contradiction in the league’s handling of the matter. Though publicly denying any responsibility over the years, the league privately doled out disability benefits to players on the basis of their brain injuries up through the 90’s and 2000’s, which could strengthen plaintiff’s claims. However, the league asserts that the decision-making authority in the disability payments is completely separate and unrelated to the litigation at hand.
The outcome of this case has major implications. The NFL may face additional future liability with respect to head injuries. The NFL and team lawyers are considering inserting contract language that releases the league from future liability, potentially limiting not only such liability but also the participation of players with a history of concussions to play in the NFL. Additionally, as Bedi asserted, the Court’s extending the scope of the duty to protect and warn too broadly may increase litigation for other dangerous activities. Regardless of the outcome of this case, insurance costs are likely to increase (though a victory for the Plaintiffs would likely lead to a greater increase). The NY Times points to the NFL’s litigation with its insurers regarding how much they are obligated to pay for the league’s legal bills and the hundreds of millions of dollars in potential damages that may stem from the current litigation. The Times further asserts that the dispute could hurt all kinds of teams, leagues and schools if insurers raise premiums to compensate for the increased risk of lawsuits from families of players who engage in contact sports. These issues remain unsettled pending the outcome of this suit, though sports teams across the country are likely to feel the impact.