On August 17, 2011, the first "NFL concussion lawsuit" was filed by seven former football players and their wives. Roughly ten months later, there are a total of eighty-nine lawsuits with over 2,400 former NFL players named as plaintiffs, and a consolidated "Master Complaint" that summarizes all of the players' claims against the NFL, NFL Properties (the merchandising and licensing arm of the NFL), and Riddell (the NFL helmet manufacturer). The suit can be read at the bottom of this post.
The listed defendants have until August 9, 2012 to file a responsive pleading, which will undoubtedly be in the form of a Motion to Dismiss. With the potential of billions of dollars in damages awarded to the thousands of plaintiffs (think Big-Tobacco-like liability), the NFL will pump a lot of money into trying to put the litigation to bed at an early stage. The following article focuses strictly on the battle between the plaintiffs and the NFL.
All of the Complaints are based on former NFL players having suffered a form of head injury during their playing days. Independent studies from as early as 2005 indicated that football players who experience more than one concussion suffer from cognitive complications, including major depression, paranoia, panic attacks and early-onset dementia. The key issue will be whether the NFL took affirmative action in an effort to disprove such findings, effectively withholding information and failing to warn players about the long-term health risk when they suit up and enter the field of play. Articles like the one titled, Game Brain, written by Jeanne Marie Laskas in October 2009, will not help the NFL's position in its fight against the pending litigation. In that article, Laskas wrote that in 2005, three scientists from NFL’s Mild Traumatic Brain Injury committee (who were on the NFL's payroll) tried to get an article retracted from the prestigious peer-reviewed journal Neurosurgery, which used scientific evidence to explain that "repeated blows to the head sustained in football could cause severe, debilitating brain damage." The NFL's scientists disagreed with the findings and said that it was a complete misunderstanding.
Yet another study in 2005 based on a survey of more than 2,500 former NFL players found that those who suffered three or more concussions during their playing days were five times as like to develop earlier onset of Alzheimer’s disease than players who had no concussion history prior to retirement. Again, the NFL's Mild Traumatic Brain Injury committee sought to discredit the study, claiming that a survey does not get at "the underlying cause of what’s happening." Meanwhile, the committee continued to have its own papers published in major journals, which alleged that enduring multiple concussions “did not demonstrate evidence of neurocognitive decline.”
Then, on August 14, 2007, the NFL produced an "NFL Player Concussion Pamphlet." Along with educating football players by answering the question, "What is a Concussion?" with the obvious, "It's More Than a 'Ding,'" the NFL told all players that, "current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems if each injury is managed properly. It is important to understand that there is no magic number for how many concussions is too many" (emphasis added). Meanwhile, the independent studies were showing that three or more concussions suffered could have severe long-term consequences for NFL players.
The point really touches home when one reads the following extremely powerful statement that was made by Representative Linda Sanchez (California) to NFL Commissioner Roger Goodell at an October 28, 2009 House Judiciary Committee Hearing:
And it sort of reminds me of the tobacco companies pre-1990’s when they kept saying no, there is no link between smoking and damage to your health or ill health effects. And they were forced to admit that that was incorrect through a spate of litigation in the 1990’s. And my question to you is wouldn’t the league be better off legally...if instead of trying to minimize this issue, the league took the opposite perspective and said, look, even if there is a risk, however minuscule, that there may be this link, so we really need to jump on top of it and make kids and parents aware of this so that there isn’t this sort of sense that the NFL is really just slow walking the issue to death by saying, well, we have been studying the issue for 15 years, we are going to maybe study it another 15 more years, when there is already non-NFL paid for research that suggests that there is this very high correlation with cognitive impairment? Don’t you think the league, you know, would be better off legally...if you guys just embraced that there is research that suggests this and admitted to it?
It appeared that after that the NFL completely changed its stance on concussions following the House Judiciary Committee Hearing. Importantly, NFL spokesman Greg Aiello stated, "it’s quite obvious from the medical research that’s been done that concussions can lead to long-term problems." But the plaintiffs are not basing the vast majority of their claims on the NFL's warnings after the aforementioned Hearing. Instead the litigation is about what the NFL did not do to adequately warn players of the consequences of multiple head injuries during their playing careers.
In 2010, the NFL earned $9 billion in revenues. Should the plaintiffs, who appear to be growing in number by the day, eventually have their Master Complaint reach trial, it appears that the NFL could be confronted with the possibility of paying out tobacco-like damages reaching upwards of billions of dollars. That level of liability would likely bring the NFL to an abrupt end.
Darren Heitner is an attorney at Wolfe Law Miami, P.A. in Miami, Florida, Founder of Sports Agent Blog, Professor of Sport Agency Management at Indiana University, and Co-Founder of Collegiate Sports Advisors. Follow him at @DarrenHeitner.