Football Law: The Concussion Case

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. 

Just last week, on June 18, former guard for the Pittsburgh Steelers and San Diego Chargers Ralph Wenzel died of complications from dementia.  Wenzel was one of the first players to report his condition as a possible side effect of suffering multiple concussions (too many to count, according to his widow) during his seven-year career.  He was also the first player to claim worker's compensation from the league for his concussion-related injuries; that case is still pending.

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. 

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

Still, in 2007, the NFL implemented extensive concussion guidelines concerning how concussions should be prevented, detected and treated, and the steps a player and his team must go through before the player can return to the field.  The complaint alleges that it wasn’t until June 2010 that the league reversed its official course and acknowledged the link between concussions and CTE and a host of other brain injuries.  Just five months earlier, in January 2010, the former co-chairman of the Committee, Dr. Ira Casson, testified before Congress that there was not enough evidence to establish repetitive impacts to the head result in long-term brain damage.

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.”