The NFL and Former Players Knock Heads in Concussion Litigation
by Todd Goldberg
“Kill the head, and the body will die,” shouted Greg Williams, former defensive coordinator for the New Orleans Saints, as a rally cry to the team before an NFL playoff game last January. A few months later, as a result of the so-called “bounty” scandal, the NFL banned Williams indefinitely and punished the Saints for allegedly paying bonuses to players as an incentive to injure opponents.
Williams’ words are reprehensible; however, violence in football implicates a broader health concern for current and former players. According to medical research, because of repeated concussions, NFL players have an increased risk of Alzheimer’s and Lou Gehrig’s disease and greater exposure to chronic traumatic encephalopathy (CTE), a neurological disorder with broad physical and mental-health symptoms, but no known treatment. CTE gained attention when Junior Seau (a retired star linebacker) shockingly committed suicide in May 2012. Seau’s brain has been donated for research.
Alarmingly, as training methods produce larger, faster and stronger athletes, high-impact collisions between players have increased in force. While it now seems obvious that NFL players will face health consequences, former players contend that the NFL did not disclose long-term risks. Until the NFL convened a “concussion summit” in 2007, its statements had been inconsistent. In 1952, the New England Journal of Medicine recommended that players retire after three concussions, butthe NFL failed to diligently conduct research on the subject and did not publicly accept the study until 50 years later.
The parties’ dispute has escalated to the courtroom, as over 3,500 former players have filed lawsuits against the NFL concerning head injuries. The cases have been consolidated in a Pennsylvania court and are styled as, In re: National Football League Players’ Concussion Injury Litigation (Consolidated Litigation).
In the Consolidated Litigation, representative players filed a consolidated class action complaint against the NFL alleging state-law claims of fraudulent concealment and negligent omission. The players allege that the NFL engaged in a disinformation campaign regarding their long-term health, which violated the NFL’s duty to act in the best interests of the health and safety of players, and also failed to timely effectuate remedial measures.
In response, the NFL filed a motion to dismiss on the grounds that the state-law claims are preempted under the Labor Management Relations Act (LMRA) because the claims involve issues requiring interpretation of a collective bargaining agreement (CBA). In October, the players responded by asserting that the LMRA only preempts state-law claims that expressly turn on CBA interpretation, and that their claims arise from independent duties under state laws.
The court has not yet ruled on the pending motion, but this year, an Illinois federal court considered whether negligence claims by a former player against the NFL were preempted under the LMRA. Duerson v. Nat’l Football League, No. 12 C 2513, 2012 WL 1658353 (N.D. Ill. May 11, 2012). That court’s analysis appears to support the NFL’s request for dismissal of the NFL Concussion Litigation, particularly on negligence.
In Duerson, the court held that if the player’s alleged brain trauma was “significantly aggravated” by continuing to play (under the CBA), then the CBA created a duty to warn. Thus, the negligence claim requires interpretation of the CBA and is preempted by the LMRA. The court also noted that the existence of such a duty would tend to suggest that the NFL’s alleged failures to act were reasonable due to assumption of the risk.
Similarly, in the Consolidated Litigation, the players’ claims arise from an alleged duty of the NFL to protect players’ health and welfare. The players suggest that this duty was assumed by the NFL’s history of steps represented to be in their interests—not a duty under the CBA. However, if the Pennsylvania court follows the holding of the Illinois court and rejects the alleged distinction between the duties, the NFL’s motion to dismiss will likely be granted.
The NFL players may not be granted legal remedies, but whether or not the players prevail in the litigation, they have shined the spotlight on the welfare of players—past, present and future—and spurred a framework for progress. The NFL has taken notice, and recently implemented rule changes and policies to prevent and address concussion-related injuries. The NFL also made a $30 million donation to fund medical research. Moreover, the present CBA provides increased benefits to former players with the disorders associated with concussions. Hopefully, these efforts will increase the quality of NFL players’ post-career lives and allow current and next-generation players to avoid the same repercussions.
Todd Goldberg, an associate with Goldfarb LLP, focuses his practice on commercial litigation with an emphasis on complex business disputes and financial fraud matters. He can be reached at email@example.com.