Concussion Lawsuits Rattle the NFL
It should be a no-brainer that repeated blows to the head might lead to detrimental long-term effects, right? Not according to several former NFL players.
Two class actions (Easterling & Hardman) and three separate multi-plaintiff lawsuits (Maxwell, Pear & Barnes) were filed against the NFL this fall.
The leading class action, Charles Ray Easterling v. NFL, No. 11-5209, U.S. Dist. Ct. E.D. Pa., alleges that the NFL actively concealed the link between concussions and neurodegenerative diseases. The putative class seeks medical monitoring, and the complaint asserts four state-law claims: negligence, concealment, civil conspiracy and loss of consortium.
The four other lawsuits filed in California include a substantial amount of explosive factual allegations. In addition, they name the NFL Properties, Riddell Sports, and Easton-Bell Sports as defendants. Furthermore, the California actions assert negligence-monopolists against the NFL and strict liability for design and manufacturing defects against Riddell.
Since it is likely that all the lawsuits will be transferred to the judicial panel on multidistrict litigation, this article will combine the five lawsuits and discuss the allegations facing the NFL individually and its likely defense in blocking the lawsuits.
The Offensive Scheme
According to the complaints, for more than 35 years the NFL concealed the link between concussions and long-term-brain injuries. In 1994 the NFL undertook the duty of creating the Mild Traumatic Brain Injury Committee (MTBIC), its purpose was to study “the effects of concussions on the long-term health of retired NFL players.” Drs. Elliot Pellman, Ira Casson and David Viano headed the committee.
As early as 2000, peer-reviewed studies were published within the scientific and neurological community that unequivocally stated there is a link between concussions and long-term-brain injuries. One study led by the University of North Carolina and published in the September-October issue of the American Journal of Sports and Medicine stated, “concussions can lead to permanent brain damage, vision impairment or even death if not managed properly.”
The NFL’s MTBIC disputed these findings and concluded that it was junk science and lacked “scientific rigor.” In rebuttal, the MTBIC published its own studies in 2003 and 2004 in Neurosurgery; the studies concluded “that NFL players did not show a decline in brain function after suffering concussions.” Coincidentally, the editor of the scholarly journal was Mike Apuzzo, the New York Giants’ neurosurgical consultant. Perhaps a conflict of interest!
The most compelling research linking concussions with later cognitive decline came between 2005 and 2008 through the independent studies of Drs. Bennet Omalu, Robert Cantu and Ann McKee. Their combined research led to the finding of Chronic Traumatic Encephalopathy (CTE) in several former players (e.g. 14 of 15 player’s brains studied showed signs of CTE).
Despite these findings and numerous public reports discussing the severity of concussions, the MTBIC published another article in the Nerologoical Focus concluding, “that mild TBIs [traumatic brain injuries] in professional football are not serious.” The most damning of all evidence to date, was a press release the NFL circulated to all teams and players in April 2007 explicitly stating, “Current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems…[t]here is no magic number for how many concussions is too many.”
In 2007 the national media started reporting on the tragic stories of former players struck with neurodegenerative diseases; the findings of Drs. McKee, Cantu and Omalu; and the NFL’s stiff-arm and blatant denial that concussions lead to long-term cognitive decline. On October 28, 2009, Congress took note of the seriousness of concussions in the NFL after a University of Michigan study was released that found “NFL alumni are diagnosed with Alzheimer’s disease or similar memory-related diseases vastly more often than the national population-including a rate of 19 times the normal rate for men ages 30 through 49.”[3] Appropriately, the judiciary committee summoned the NFL and others to report on the “Legal Issues Relating to Football Head Injuries.”
The Congressional hearings exposed the NFL’s insincere position and active concealment of the link between concussions and cognitive decline. Roger Goodell was peppered with questions as to why the NFL’s MTBIC continued to deny and discredit the medical community’s findings that multiple former players were suffering from dementia, depression, and severe neurodegenerative diseases. In reply, Goodell deferred the questions to his cohorts (Drs. Casson, Pellman and Viano) by asserting the “empty-chair defense.” Dr. Casson and his crew failed to appear at the Congressional hearing, so the Committee played Dr. Casson’s comments on HBO Real Sports. Dr. Casson emphatically denied that multiple head injuries in the NFL could lead to dementia, depression, CTE, and early-onset Alzheimer’s. This denial led Congresswoman Linda Sanchez to analogize the NFL’s concealment to the tobacco industry’s denial of the link between cigarette consumption and health hazards, effectively foreshadowing the pending lawsuits against the NFL.
Following the Congressional hearings and the embarrassment the NFL received due to its failure to act, the NFL was obligated to do a complete about-face. The NFL forced Drs. Casson and Viano to resign and suspended the work of its misinformed MTBIC. The NFL partnered with the Center for the Study of Traumatic Encephalopathy and started pouring money into its so-called “brain-bank” operation. To be fair, the NFL has increased certain retirement benefits, but the process is notorious for its quick denials and monotonous administrative procedures, leaving numerous qualified recipients without coverage.
The NFL’s Counter Attack
On November 9, 2011, the NFL responded to the Easterling lawsuit by filing a motion to dismiss. The crux of the NFL’s argument is federal preemption. In essence, the response argues that the plaintiffs’ cause of action is barred by the Collective Bargaining Agreement (CBA) the players and the NFL entered into, and thus any dispute must be resolved through the grievance procedures set forth in the CBA. The CBA requires all disputes arising from the CBA to be interpreted by an arbitrator. The NFL’s response is well grounded in precedents and may very well rule the day.
The tragic irony of the case being dismissed on the pleadings is that the same agreement the players entered into to protect their rights, may be the biggest hurdle to providing the players with their day in court.
Post-Game Analysis
In order to overcome the NFL’s preemption argument and to prevent dismissal, the plaintiffs must persuade the court that the state-law claims are not “inextricably intertwined with consideration of the terms” of the CBA. This indeed will be a tough argument to make; however with the ingenuity of a good plaintiff’s lawyer there are arguments to be made.
In short, the argument will likely be that the plaintiffs (i.e. retired players) are not a party to the CBA, and thus the CBA does not apply nor will it need to be interpreted to adjudicate the state-law claims. Next, the NFL owed a duty to the players by undertaking the creation of the MTBIC. And then, applying the pertinent facts above, the NFL breached this duty by failing to inform the players of the risks of concussion, it misrepresented and concealed the link between concussions and cognitive decline, and thus materially harmed and caused damage to the former players. I admit, full analysis is lacking but for the sake of simplicity this is likely the argument that will be raised.
In any event, the litigation battle has begun, and the ball is now back in the plaintiffs’ hands to respond to the NFL’s motion to dismiss. The saga will continue throughout the following year.