Today’s post continues look at the myriad of legal fights
involving the NFL right now with a discussion of the lawsuit against the NFL
and Riddell, Inc. filed by over 2,000 former players. Until recently, there were dozens of lawsuits
filed in local courts across the country.
Earlier this month, however, they were consolidated into one case in the
U.S. District Court in Philadelphia.
THE ISSUE
The basis for the lawsuit comes from the connections that
have been made over the last decade, and that have been brought to light in the
last few years, between repeated blows to the head suffered by NFL players and
a variety of brain traumas. These
conditions range from short-term memory loss and depression to Alzheimer’s and a
disease known as Chronic Traumatic Encephalopathy (CTE). I won’t go into the details on the evidence
establishing this link, but I do want to give you a little bit of background to
give you some perspective on the lawsuit against the league.
One of the medical professionals at the forefront of this field
is Dr. Bennet Omalu, a forensic pathologist, neuropathologist and founding
member of the Brain Injury Research Institute (BIRI). The complaint filed by the players’ attorneys
describes some of Dr. Omalu’s research, which has included studying the brain
tissue of several deceased former players, beginning with Hall of Famer Mike
Webster (right), who died in 2002.*
Concern over the effects of repeated head trauma, especially
over CTE, has reached epidemic levels—not only among current and former NFL players,
but the general public, particularly parents of children involved in
high-contact sports like football and hockey.
Public awareness of this issue has reached new heights in the past two
to three years through the much-publicized deaths of several current and former
players.
Cincinnati Bengals wide
receiver Chris Henry (left) died in 2009 at the age of 26, falling out of the back of
a pickup truck while engaged in a domestic dispute with his fiancée. Examination of his brain tissue conducted at BIRI
revealed that he had suffered from CTE—the first known case in a player who was
still active in the NFL. Henry’s death
was devastating enough for teammates and fans; the revelation that he had
developed CTE at such a young age was a startling wake-up call for the entire
football communities.
Other notable deaths have been, regrettably, suicides by former
players Dave Duerson (safety, Chicago Bears) (right), Ray Easterling (safety, Atlanta
Falcons) and most recently (and shockingly) former San Diego Chargers
linebacker Junior Seau (below). Several former players
who have committed suicide in recent years stipulated in their wills or last
communications to loved ones (and implied through their means of suicide) that they
wanted their brains studied for signs of CTE.
THE LAWSUIT
The plaintiffs in the lawsuit are retired players who played
all positions and in different decades.
However, according to their complaint, they are united by a common
characteristic: lingering health issues,
notably brain injury, caused by repeated head trauma suffered during their
years of playing professional football. Many
of the former players in the suit are household names—legends like Art Monk, Tony
Dorsett and Alex Karras (above). The causes of
action are numerous, but can be boiled down to a few broad categories: negligence, fraud and product liability.
Negligence
For a claim of negligence to succeed, the plaintiff needs to
prove three things: (1) the defendant
owed a duty of care to the plaintiff; (2) the defendant failed to fulfill that duty
by not using the care of a “reasonable” person; and (3) that failure was the
proximate cause of injury to the plaintiff.**
The third element, injury, is clearly spelled out in the
complaint with the description of the evidence compiled by Dr. Omalu, references
to articles published in various medical journals since the 1920s, and
anecdotal accounts from football players and coaches.
Without getting into each of the many allegations concerning
the NFL’s duties, the players claim that the NFL has many obligations regarding
their health and safety, including a duty to, among other things:
· protect them from concussions, through establishing
rules of play and return-to-play guidelines;
· research the effect of concussions on brain tissue;
· educate players, trainers and coaches about CTE
and concussions; and
· promote a “whistleblower” system whereby players
and/or team personnel can report that he or another player has suffered a
concussion without fear of reprisal.
The complaint alleges that the NFL failed in its duty by:
not warning the players about the long-term risk of brain injury that could result
from playing football (of which the players assert the NFL was well aware); and
failing to enact “reasonable and prudent” rules and guidelines concerning game
play and treatment of concussions.
In addition, the plaintiffs say that the NFL was also
negligent in glorifying the violence in football, through its property, NFL
Films. NFL Films is a production company
that is responsible for pretty much all of the NFL’s videotaped content—commercials,
documentaries and televisions series like HBO’s Hard Knocks. Known for its
tight shots, slow motion effects and “Voice of God” narrators, NFL Films is a
juggernaut in sports media.
I, for one, am a sucker for its “tuba-farting” (my phrase) anthem...
...and the bell-tolling symphony (at about 3:20 in the clip below) that have become ubiquitous element in just about any NFL Films highlight montage.
...and the bell-tolling symphony (at about 3:20 in the clip below) that have become ubiquitous element in just about any NFL Films highlight montage.
It is the plaintiffs’ contention that the propensity of NFL
Films productions to focus on cringe-inducing hits has “mythologized” the game’s
violence in the eyes of the public.
This, in turn, has created a culture where the players giving—and taking—the
hardest hits are venerated. This
celebration of violence, therefore, encourages players to take actions in games
that endanger their health and safety.
Fraud
Beyond negligence, which is bad enough, the players claim
that the NFL also engaged in a scheme of fraud and deceit by denying that there
was a link between concussions and long-term brain injury. In 1994, the NFL established the Mild
Traumatic Brain Injury Committee to fund and study concussion research. In 2006, they published an article concluding that
“mild [traumatic brain injuries] in professional football are not serious
injuries.”
Dr. Casson testifying before Congress in 2010 |
The plaintiff’s complaint alleges that through its
statements the Brain Injury Committee fraudulently misrepresented to players,
Congress and the public that there was no link between concussions and brain
injury. In that period, the plaintiffs
claim that they relied on those misrepresentations and suffered injury, and damages,
as a result.
Claims Against Riddell: Product Liability
Those of you who have been reading Naptime Huddle from the beginning might remember my post “You’re Wearing That?!?” where I
discussed the many rules covering player uniforms. In that post, I explained that only helmets
made by Riddell, Inc. may be worn by players.
The complaints against Riddell, Inc., raised by the plaintiffs are
fairly straightforward. They allege that
the helmets suffered from design and manufacturing defects which kept them from
protecting players from the effects of suffering concussive impacts to the
head. Furthermore, the plaintiffs
contend that Riddell did not adequate test the helmets and failed to warn players
that the helmets were insufficient to protect them from injury. These acts, according to the plaintiffs, also
resulted in negligence and a lapse in the duty Riddell owed the players.
I hope this has cleared up any confusion, and spared you
from reading any longer articles or—gasp—the 86-page complaint itself. How this come out only time will tell, and it
will likely be a great deal of time before there is any resolution. If the case proceeds through the system
without a settlement, you can expect several months, if not a year or two, of
procedural wrangling before any witnesses testify. As time marches on, though, I’ll keep you
informed of developments as they happen.
* Webster’s estate won
a $1.18 million judgment against the NFL, in which it claimed that Webster was
disabled by brain trauma at the time of his retirement and was entitled to
benefits under the NFL’s retirement plan.
**I should point out
that there are three different negligence claims against the NFL in the plaintiffs’
complaint. One of the more unique is that
the NFL has a monopoly power over professional football, and that this monopoly
power imposes a special duty on the league to protect the health and safety of
its players and the public at large. The
players claim that, in connection with its monopoly, the NFL has restrained the
development of science on the “epidemic of concussion injuries.”