Burden of proof rests with former players to show NFL knew of significant neurological risks
In the concussion lawsuits against the NFL, the smoking gun against the league has been elusive. Where is the evidence that the NFL knew something that it didn’t share with players? Where is the proof that the league lied to players or concealed the truth about how injured some of them were?
This is not to cast doubt on the claims of over 4,000 plaintiffs in the more than 100 lawsuits that have been filed against the NFL. The first important day of those lawsuits took place Tuesday at the U.S. District Court in Philadelphia, where sadly, the opening arguments wasn’t about hard evidence. Instead, Tuesday was all about whether the court even has jurisdiction over the lawsuit instead of it being a matter related to the collective bargaining agreement between the owners and the players.
If the league wins, we may never know whether the NFL was simply unaware of the risk present or whether it’s akin to the tobacco industry.
The harms of playing football are real. Kevin Turner, a former NFL fullback who is one of a disproportionate number of players impacted by amyotrophic lateral sclerosis (ALS), was at the courthouse Tuesday. He addressed the media with the sad tale of his degenerative and cureless condition.
But there is a link plaintiffs must establish to really sell their claims. Hopefully, U.S. District Judge Anita Brody allows this lawsuit to get to the discovery stage so we can perhaps find the truth about what the league knew in regards to head injuries, and when it knew it.
That information might be out there. Plaintiff attorney David Frederick made that claim in his arguments Tuesday.
"The NFL knowingly did not disclose information it had about neurological risks," Frederick said. Likewise, a number of former players are claiming that the league created medical boards and committees that gave misinformation over the years.
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To the average fan, the risks of playing football are obvious. There isn’t a lot of sympathy for football players in the general public when it comes to complaining about injuries. This case may change that. It has certainly changed the NFL.
Whether the league likes to admit it or not, its focus on health and safety these days is completely in response to the lawsuits. NFL commissioner Roger Goodell has vowed to “take the head out of the game.” The league has gone over the top in its public relations campaign, a combination of public service announcements (all of them featuring some cute kid or a reference to children) about how the NFL is making the game safer and weekly reports to the media pounding the message home.
Those PSAs and emails didn’t exist before the concussion lawsuits. Neither did the array of fines, constant rule changes and endless emphasis on excessive hitting and violence. The NFL is putting up an awfully big PR campaign for a business that likes to tell people it did nothing wrong.
So far, the NFL’s argument in court has nothing to do with pure innocence. The NFL isn’t standing before Brody and saying the players had no idea nor possible proof on the degenerative effects of concussions. Instead, the NFL had Paul Clement argue the CBA supersedes court jurisdiction.
It's obvious why the league wants that. In court, when you parade one football-ravaged man after another to the stand, a jury verdict could get dicey.
The league has fair points about the CBA – namely, when Frederick argued that brain injuries should have been negotiated separately in CBA talks. But that has never been a focus of the NFL Players Association, even though it has also known for almost 20 years that repeated head trauma has long-term, degenerative effects (union and league representatives agreed on that point in Estate of Michael L. Webster v. The Bert Bell/Pete Rozelle NFL Player Retirement Plan and the NFL Player Supplemental Disability Plan).
Should football players be able to sue when they have played a game that, at its core, is about inflicting and absorbing pain?
Maybe, particularly if they weren’t told all the risks by people who might have known them.
And therein lies the most critical question: Is there a smoking gun out there?
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