There are also issues that stem from the special relationship between the NFL and the players. Principal among these complications is workers' compensation law. Although some states pointedly exclude professional athletes from the law's reach, in other states the general rule applies: Workers' compensation law provides the exclusive remedy for physical injuries incurred in the course of employment. The injured party can't sue in civil court.
But state courts are in conflict over whether an employer's intentional misconduct allows the employee to escape the exclusivity of workers' comp. In some states, even a workplace condition that is fraudulently concealed—as is expected to be alleged in the case against the NFL—isn't enough to take the case out of workers' comp and into tort law. Kofron v. Amoco Chemicals Corp., a Delaware case that involved the employer's alleged knowledge and cover-up of the dangers of asbestos in the workplace, is typical in this regard. The court held that the focus of workers' comp was on the type of injury, not on the level of the employer's culpability, and found the tort claim barred. Other states disagree, holding that these laws were not meant to shield from tort liability an employer who injures employees through intentional acts.
So, depending on the relevant state's workers' compensation law, many players would be fenced out of civil court. But problems also arise under workers' comp laws themselves. Most of them require that the claim be filed within a specified time after the injury occurs—typically, no more than five years. California, though, has become a sort of haven for ex-football players. There, the clock doesn't start running until the employer files notice of the injury. Even better, the state's workers' comp agency welcomes anyone whose employment took them into the state, however briefly. Play one game against the Chargers or the 49ers, and you're in.
So why not just use workers' compensation in California? Wouldn't that be as good as a lawsuit? One potential benefit for the athlete here is that while he needs to show the causal connection between injury and employment, he doesn't have to show that the employer is at fault at all. Yet workers' compensation is a limited remedy. It doesn't compensate for pain and suffering, instead offering a fixed rate of compensation for given injuries and reimbursement for medical care. And punitive damages are not available.
Another (probably not final) issue is the league's collective bargaining agreement. Any potential claim expressly covered by the CBA, or that requires interpreting it, is pre-empted by federal labor law, meaning that no common law tort claim could proceed in state court. Players with grievances arising under the agreement must first go through arbitration and would face a difficult task in getting such a decision reversed by a federal court.
Some courts have read this ground for pre-emption quite broadly. In 2001, Minnesota Vikings offensive lineman Korey Stringer died of heat stroke after a workout during summer training camp. Stringer's widow sued the NFL for her husband's wrongful death, allegedly caused by the combination of unsafe equipment and improper supervision and medical care. One of her claims against the NFL—that the league had provided poor supervision and medical care—was dismissed for a reason that could have resonance in this case: The care and safety of the players is the responsibility of the team physicians, and their duty is governed by the CBA.
A court inclined to find pre-emption could make a similar case here, although the facts are quite different. While the ex-players' suits might allege that the doctors were negligent in letting them play too soon after a concussion, the stronger claim might have to do with the cumulative effect of concussive and sub-concussive impacts. It's hard to see how the CBA speaks to that.
Considering all the obstacles that the NFL could throw in front of a class action suit, it might seem that playing defense is the league's best option. But it isn't. Such a suit, whether ultimately successful or not, would create immediate, negative publicity for the league. And if a suit progresses far enough, documents might be unearthed, or testimony given, that would further embarrass the NFL.
Going on offense is a better strategy. The league already has an elaborate disability compensation and treatment system in place, recently enhanced by a neurological care program that provides "NFL alumni" with access to specialists at five leading medical centers. There is also the "88 Plan," which pays up to $88,000 annually for the institutional care of former players suffering from dementia who have "vested" under the NFL's retirement plan. There are also other, longer-standing disability categories that provide compensation.
But the NFL can and should do more. In addition to working on a series of rules that can, all told, lead to a significant decrease in the risk of long-term neurological damage, the NFL should establish a deep compensation fund for those suffering from injuries and conditions that have been sufficiently linked to concussions and sub-concussions. These might include early-onset Alzheimer's, ALS, and chronic traumatic encephalopathy, a condition that has been found in the brains of several players whose lives have come to a tragic end (sometimes through suicide).
Such a fund should approach tort law in the generosity of payments, and it would be a better remedy than tort law. By establishing certain covered conditions, the fund would eliminate vexing questions of individual causation in most cases. A model for this approach already exists: The National Vaccine Injury Compensation Program pays hefty compensation to those who suffer serious but rare consequences from being immunized against childhood diseases. The vaccine program relies on a table of injuries that have been linked to given immunizations; if your injury is on the appropriate table, causation is presumed. (Otherwise, the claimant must prove causation—no easy matter.) A similar approach would work well in pro football. As the science progresses, more covered conditions could be added to the list.
Football isn't tennis; it isn't even basketball. It's violent by design. But that doesn't mean the violence and injuries must escalate without end. If the NFL accelerates the proactive approach it's demonstrated lately, the results won't just redound to the benefit of current and former pros. Given the league's prominence and influence, its safety stance could cause a safety dance to break out: Everyone from college and high-school football players to athletes in other contact sports will begin to get the message.