Concussion lawsuit could cost NFL, whether decided in or out of court
The lawsuit by six ex-players could be more damaging than one filed last month
Whether decided in court or settled out, the lawsuit could cost NFL big
The NFL has a counter to the lawsuit's claims, but that might not be enough
Did the National Football League hide from its players the long-term neurological dangers of playing NFL football? Did it train its players to tackle with their heads, knowing that players would then become more susceptible to neurological injury?
These and related questions form the basis of the first class action lawsuit to be brought against the NFL for concussions and other head injuries. Earlier this week, six retired players, including two-time Super Bowl champion Jim McMahon, filed a complaint in a Philadelphia federal court. Last month, 75 retired players filed a similar complaint in a California trial court. While both lawsuits assert the same core claims, the one filed in Philadelphia is potentially more threatening: If certified as a class, the lawsuit could eventually include as plaintiffs thousands of retired NFL players who maintain they have suffered from neurological injury as a result of playing in the league. The potential damages in such a suit could rise to the hundreds of millions of dollars and primarily reflect health care costs unpaid by the league and the pain and suffering caused by neurological injuries. If the players succeed in court, their spouses and children could file additional lawsuits for the impact of their husbands/fathers' injuries on family relations.
According to these lawsuits, the NFL knew as early as the 1920s of the dangers posed by concussions and yet chose to not adequately warn players until last year. The retired players also assert that the NFL purposefully obscured the underlying dangers. For instance, the league sponsored internal studies that -- in the players' view -- were knowingly based on junk science and fraudulently downplayed or contradicted the seriousness of concussions and their relationship to cognitive degeneration. In a way, the retired players portray the NFL and its teams as tobacco companies were portrayed in 1990s: willfully misleading persons who were exposed to a serious health risk into believing that the risk was either nonexistent or unproven.
The NFL can counter these claims in three basic ways.
1. Assumption of Risk
The most obvious defense is that NFL players assumed the risk of head injuries, among many other types of injuries, by playing in the NFL. It does not take a degree in physics to realize that NFL players are very large, fast men who collide with each other on virtually every play, and that even the best equipment cannot fully absorb the collision's impact. Similarly, NFL players are taught the basics of tackling long before they enter the NFL, so to the extent the game of football is designed to risk injury, NFL players knew of that risk years before they entered the league.
Bolstering the assumption of risk defense, the NFL can point out that medical literature on concussions has been available for as long as the NFL has existed, and players and their union could have availed themselves of it. In essence, the NFL's message would be, "If you choose to play in the NFL, you knowingly accept that you may suffer serious and lasting injuries and you should not later complain when those known risks materialize."
Retired players would likely respond by distinguishing between self-evident dangers of playing in the NFL with arguably concealed dangers. More specifically, while there is no mystery that playing in the NFL poses the risk of serious and lasting injury, the long-term neurological consequences of those injuries may be less conspicuous. Furthermore, the players would maintain, the league knew of those more subtle consequences and yet, through potentially-biased internal studies and preservation of game rules that exacerbated head-to-head impact, misled players into believing that they were unlikely to develop long-term neurological problems.
2. Lack of Causation
The league can also defend itself by raising doubts as to whether playing in the NFL caused a player's neurological injury. The vast majority of NFL players began playing football at a young age, and then participated in thousands of plays -- and thus thousands of collisions -- in high school and college games and practices long before they entered the league. If a retired NFL player in his 40s or 50s suffers from neurological problems, what's to say it was his time in the NFL that caused those problems?
In response, retired players would likely introduce studies which point to retired NFL players suffering neurological problems at higher rates than both the general population and the population of football players who never made it to the NFL. While it may be difficult for retired players to prove causation for any individual player, broader trends found in the health of thousands of retired players may persuade a court to conclude there is sufficient causation.
3. Claims Barred by Collective Bargaining Agreement
The NFL also can defend itself by emphasizing that since 1968, the league has been governed by collective bargaining agreements, which require ratification by both owners and players. Since the NFLPA represents both current and former players, players could have sought greater protections for current players and enhanced benefits for retired players. In that same vein, the NFL can detail how league safety precautions and a system of disability payments have evolved, with various modifications to the games and practices made in response to new information about player safety. Thus, the NFL can maintain that concussion-related claims against the league should be barred because the CBA covers disability and pension systems (and provisions for workers' comp), among other provisions that address benefits for retired and disabled players.
To counter the NFL's likely defense of collective bargaining, retired players could maintain that the NFL misled the NFLPA by not revealing everything it knew about NFL collisions, concussions and cognitive degeneration. Therefore, the players would argue, the NFL should not gain legal protection from the collective bargaining process, or from any legal waivers contained in collective bargaining agreements, if they engaged in fraud.
Where Things Go From Here
The NFL will try to convince trial judges to dismiss the lawsuits as frivolous and without merit. Should the NFL fail to do so, the cases would be scheduled for trial. In that scenario, retired players could use the pretrial discovery process to obtain potentially damaging documents from the league and also to depose top league officials under oath. Therefore, even if the NFL believes it would defeat these claims in a trial, the league may not want to go through the discovery process. To avoid discovery, the league could settle the claims out-of-court with the players. A settlement in a class action, however, would likely command a very large dollar number that NFL owners -- who would be footing the bill -- may not find acceptable.
Michael McCann is a sports law professor and Sports Law Institute director at Vermont Law School and the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He also teaches a sports law and analytics reading group at Yale Law School. Follow him on Twitter.