Football season is winding down, but the National Football League should soon be winding up for two class action lawsuits that are purportedly being formulated against it. Continued and increasingly in depth research on football related brain injuries has spawned potential legal claims that have the ability to wreak havoc on the now over ninety year old organization.
Seventeen years ago, in 1994, the NFL medical committee on concussions was formed. In the last several years, report after report has surfaced detailing clinical research findings of severe and permanent cognitive harm associated with playing football. But these reports were not from the NFL. Rather, the NFL has put out conflicting statements on the subject and only recently reported similar findings to what reputable researchers have been warning about for years. In 2007 the NFL circulated a pamphlet to players stating, in essence, that a few concussions would not result in permanent brain injury, so long as proper medical treatment was received. Last summer, however, the NFL finally circulated a poster, meant to be hung in locker rooms, revealing that concussions may not be so benign after all (click the image to the right to make larger). Indeed, various studies have found that early dementia, Alzheimer’s disease, Lou Gehrig’s disease, depression, chronic traumatic encephalopathy, and memory problems, among other things, are all associated with head injury.
Some recent players of the league are expected to allege that the NFL was aware of the long term risks of playing football and chose to suppress them, or that the NFL reasonably should have known of the long term risks. The root of these claims is that the NFL’s failure to disclose what they knew made an already dangerous sport even more dangerous and that the NFL made no attempt to lessen the danger. Such claims could result in awards to injured players for economic loss, pain and suffering, and in the case of a fraudulent concealment claim, punitive damages. Wives, and in some states, children of the injured players, could also recover monetary damages if the injured player’s lawsuit is successful.
Yet, there will be a few hurdles for injured parties to jump over before they will be successful in court. Depending on which theory of liability they proffer, class action plaintiffs will have to show that a reasonable person would have believed and relied on the misrepresentations of the NFL, that they did not assume the risks, and that the misconduct of the NFL is the cause of the injuries. Furthermore, they may have to establish that workers’ compensation law and the league’s collective bargaining agreement do not preempt their civil claims. Given that negative publicity is sure to follow, and that discovery could unearth documents that would tarnish the NFL’s reputation, the NFL might want to focus on honing its disability compensation plan, its 88 plan, and possibly early settlement. Or it might want to defend on the merits.
This is the first part of a series of entries. The second part can be accessed here.
Does Football Have a Future?, The N.F.L. and the concussion crisis, Ben McGrath, The New Yorker, 01.31.2011
N.F.L. Asserts Greater Risks of Head Injury, Alan Schwarz, The New York Times, 07.26.2010
The NFL’s Next Big Headache, John Culhane, Slate, 02.02.2011
Boston University, Football And Progressive Brain Damage: Tom McHale Of NFL Suffered From Chronic Traumatic Encephalopathy When He Died In 2008, ScienceDaily, 01.27.2009