NFL concussion class action: Could the league withstand a lawsuit from players with brain injuries?

The stadium scene.
Feb. 2 2011 4:27 PM

The NFL's Next Big Headache

Could the league withstand a class action lawsuit from players with brain injuries?

Football helmet. Click image to expand.

You could forgive football fans if they watched this year's Super Bowl with their hands tented over their eyes. Reporting by the New York Times' Alan Schwarz, the advent of HDTV, and, paradoxically, the NFL's own recent steps to penalize pro football's hardest hits have drawn attention to the damage caused by repeated blows to the head. According to a recent story by Ben McGrath in the New Yorker, the NFL will soon have another reason for concern: At least two class action lawsuits by recent players against the league are in preparation. These suits are expected to allege that the league knew, but suppressed, knowledge of the long-term neurological risks of playing football.

Such suits might succeed, but they face long odds. Even so, the NFL should take them seriously—now, before they're even filed.

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Broadly speaking, the suits might make two different arguments. The most aggressive claim would be that the NFL knew of the dangers and actively concealed them from the players. This kind of fraudulent concealment claim, if successful on the merits, would be a disaster for the league, because substantial punitive damages would be likely.

A less dramatic cause of action would be for negligence: The league might not have known of these risks at the time the class action plaintiffs were playing, but reasonably should have known. Successful ex-players in such a case could recover for economic loss and for their pain and suffering but would not be good candidates for punitive damages. (A single lawsuit can allege both fraud and negligence and let the litigation process sort it out. This is called "pleading in the alternative.")

In either case, the players' wives (and, in a few states, their children) might also be able to state a case for loss of consortium. Players with serious injuries might not be able to continue as sexual partners to their spouses and might be emotionally or physically absent from family life. Such injuries, too, are compensable—but only if the primary suit for personal injury is successful.

The NFL will be able to raise a number of arguments in response, some based on the substance of the claim and others based on the procedural complexities that face any litigant suing a professional sports league. Let's tackle the substantive problems first.

McGrath suggests that the suits might point to differences between two documents that were made available to NFL players. The first is a 2007 pamphlet stating 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 treated properly." The other is a 2010 poster conveying a starkly different message: Concussions and repeated brain injuries "can change your life and your family's life forever."

Lawyers for the class action plaintiffs will have a field day with these documents, and not only with the differences between them. Even the more recent poster doesn't speak to the dangers of sub-concussive impacts. The NFL probably has a duty to disclose full and accurate information, when it chooses to disclose anything at all.

But the objection will arise that neither the players nor the NFL Players Association should have relied on the NFL's statements. Fraud cases can succeed only if the plaintiff can establish that a reasonable person would have believed and acted on the defendant's misrepresentations. The league will likely argue that the players had the necessary information available to them (anecdotally, from retired players and news stories, and more formally from an increasingly hard-to-ignore pile of scientific studies and reporting on the issue).

That's not the only problem the former players face. While the prospect of trauma-related dementia and other horrific consequences (possibly even including amyotrophic lateral sclerosis, commonly known as Lou Gehrig's disease) might cause most of us to choose a different profession, professional football players are different. As the Pittsburgh Steelers' James Harrison acknowledged earlier this season: "I try to hurt people." Harrison was admonished for his truthful statement, but he summed it up well. Everyone who plays football at this level, today, knows that serious injuries—even death—are a possible outcome. So isn't brain trauma just a risk that players assume?

Not necessarily. Skiing is inherently risky, as anyone staring down the face of a black diamond for the first time understands. But if the owners of the ski slope increase the risk, say by leaving a snow-making machine on the slope, skiers should be able to sue for the unnecessary increase in that inherent risk.

Ex-players might make an analogous argument here: Yes, football is dangerous and often harmful. But the NFL increased the danger of a particular class of injuries by failing to disclose what it knew and (as a result of that failure) took no measures to remediate the problem.

Next, there is the problem of connecting the NFL's misconduct, even if established, to the injuries suffered by any given player. Although it might seem obvious that early-onset dementia is the result of repeated blows to the head, that connection needs to be proved in each case. A settlement would obviate the need for such a demonstration, and the case is likely to settle if for no other reason than the NFL's desire to avoid adverse publicity—especially if there are damning documents lying around. But otherwise the league's lawyers could contest every case on causation.

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