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Personal injury lawyers are wondering if the NFL will be held liable for its failure to warn players of the risks associated with football-induced head injuries? That is the question posed by a lawsuit recently filed in the U.S. District Court for the Eastern District of Pennsylvania, In re: National Football League Players’ Concussion Injury Litigation, 2:12-md-2323.

Beginning in 2005, a series of independent clinical studies began to shed light on the increased risks for depression and early onset dementia in athletes who sustained multiple concussions. It started when Dr. Bennett Omalu and Dr. Robert Cantu examined the brains of deceased NFL players Mike Webster, Terry Long and Andre Walters. They concluded that chronic traumatic encephalopathy (hereinafter CTE) was at least a partial cause of their deaths. CTE is a neurological disorder caused by sustaining multiple blows to the head, which can lead to dementia or Parkinson’s disease. Upon learning of the study, the NFL Concussion Committee renounced it and asked the independent medical journal publishing the report to retract the article. In response, the neurologist-authors questioned the committee’s integrity, noting that none of the committee members criticizing the report was a neuropathologist.

Following several more damning clinical studies, the NFL finally took some action; in June 2007, the first league-wide Concussion Summit was held. Unfortunately for the players, the conference downplayed the risk of injury and the NFL specifically advised them that, “Current research has not shown that having more than one or two concussions leads to permanent problems.” After the Summit, several more independent clinical studies established a clear link between repeat head injuries and CTE. Again, the NFL’s Concussion Committee denied that there was enough reliable evidence to link football-related head injuries with CTE.

Finally, in 2009, members of the House Judiciary Committee held a hearing to discuss football-related head injuries. During the hearing, the NFL’s policies for player concussions were criticized, and at one point, Rep. Sanchez of California opined that the NFL’s failure to warn players about the cognitive risks posed by concussions was analogous to the litigation surrounding the tobacco industry’s failure to warn consumers of the health risks posed by smoking cigarettes.

Currently, all suits against the NFL are being consolidated into one class action in the Eastern District of Pennsylvania. Plaintiffs claim the NFL deliberately and fraudulently concealed from its players the link between football-related head impacts and long-term neurological injuries. Riddell Inc, the manufacturer of the helmets used in the NFL, has also been named as a defendant because they claimed their product reduced the risk of head injuries.

While the NFL and its co-defendants have asserted a variety of defenses to liability, it appears the strongest defenses are preemption based upon the collective bargaining agreement (CBA) with the players and the players’ contributory negligence. The NFL contends that the litigation is preempted under the CBA because players agreed to arbitrate any disputes regarding the NFL’s obligation to issue warnings for player safety.

The defense of contributory negligence will be less clear cut. Defendants are anticipated to argue that the players contributed to their own injury by failing to report their concussions and returning to play before symptoms dissipated completely, both in violation of the NFL’s concussion policies. The players will likely counter by arguing that the NFL’s contractual system encouraged players to withhold or minimize symptoms from their teams, because of incentive laden contracts and the fact that contracts did not guarantee payment beyond the season in which an injury occurred.

Whether or not liability rests with the league, Riddell Inc. or the players, or a combination thereof, we can expect a paradigm change as to how the game is played in the future if, as expected, further evidence is gathered that the past and current system presents an unreasonable risk of serious and long lasting head injuries to the players.
VERDICT: Undecided
COURT: U.S. District Court, Eastern District of Pennsylvania

Sources: Joseph M. Hanna, Players’ Class Action Suit Places a Bounty on the League, N.Y. State Bar Ass’n Journal, Oct. 2012, at 11.