The second part of the monopolist theory anticipates the argument that the union should have, or could have, known what the NFL is alleged to have known. Because it controls the research and education of football players, as well as their safety, the suit argues that the NFL has a responsibility to protect them by establishing a responsible concussion policy. Making explicit the point that the NFL had information that the players didn't, the complaint says that the "[p]laintiffs did not know of the long-term effects of concussions and relied on the NFL and the [helmet manufacturers] to protect them."
There's something to this. As Girardi put it to me, a football player would be ridiculed if he walked into the locker room and said, "Hey, I've got this new helmet that's safer. Can I wear it today?" It's usually the employer, not the employees, who are responsible for safety in the workplace—not just in the NFL, but as a basic principle of tort law. If the boss doesn't provide the equipment needed to keep workers from getting injured on the job, he can't later argue that they have only themselves to blame for not providing that equipment.
Yet even if the NFL was determined to cover up the increasingly troubling facts about the long-term effects of head injuries, the case remains tricky. Was the union reasonable in relying exclusively on the NFL, given the many other sources of information? To succeed on a fraud claim, one typically must prove that it was reasonable to rely on misrepresented facts. It's notable in this regard that a bunch of these sobering sources are detailed in the complaint itself.
Other obstacles to success loom, most of which I detailed back in February. The suit might be deemed barred by the workers' compensation law, which typically provides the exclusive remedy. (But if the suit does end up in a workers' compensation court, then California was the right place to file it—the state's workers' comp law is probably the most employee-friendly in the country.) The claim might also be deemed covered by the league's collective bargaining agreement, in which case an entirely different lawsuit would have to proceed in federal court. Even if these jurisdictional and general liability issues are ultimately resolved in favor of the plaintiffs, there will then be 75 separate suits to win. As Girardi acknowledges, this isn't a proper suit for a class action because the damages suffered vary so widely in their nature and extent. They've been brought as one complaint because the allegations against the defendants are the same for all, yet it's more accurate to think of them as individual suits containing many of the same facts.
Girardi likens this case to the one against Vioxx, where pre-trial discovery revealed varying levels of injury, ranging from mild strokes to severe heart attacks. Here, he says, the damages start subtly—with mild memory loss, for example—and often progress to the more severe symptoms that ground many of these claims.
That's his story. The NFL, even if forced to get to the merits, will try to tell a different one: about former players whose impairments are questionable and have unclear origins.
It's hard to guess how much of a hit the NFL could take if these lawsuits succeed. It depends on the extent of damages proved, and whether punitive damages are awarded. Still, it's easy to imagine liability in the range of the $333 million settlement against Pacific Gas and Electric in the Erin Brockovich case. It would take a lot more than that—perhaps a separate set of wrongful death suits—to dent the NFL's financial armor.
What's the next step? The defendants will likely move to dismiss the complaint, but if it survives that motion we'll likely be in for a long slog. The NFL's new collective bargaining agreement means the league will have labor peace until 2021. But if these claims have any traction, the NFL's legal battles will simply be fought in a different arena.
Correction, July 27, 2011: This piece originally misspelled the first name of former New York Giants running back Ottis Anderson. The piece also incorrectly named Anderson as a plaintiff in a concussion lawsuit. His name has been removed from the lawsuit. (Return to corrected sentence.)