Third and Long: The Former Players’ Lawsuit Against the NFL Illuminates Major Issues but has Serious Legal Flaws

Photo by: James Clayton

In August 2011, seven former professional football players brought a lawsuit against the National Football League, claiming the League had “willfully and intentionally” concealed the long-term health risks linked with multiple concussions.  As of October 2012, the number of lawsuits—alleging the same wrongdoing—had increased to 164, comprising approximately 3,700 former players.

The players’ requested relief includes personal damages as well as an injunction creating a court-supervised, NFL-funded medical monitoring program for former NFL players.

Following the consolidation of these lawsuits into one master complaint, the NFL responded with a Motion to Dismiss in late August 2012.

In that motion, the NFL contends, inter alia, that Section 301 of the Labor Management Relations Act (LMRA) governs all collective bargaining agreements (CBA) affecting interstate commerce.  This section preempts all state law tort claims “whose resolution is substantially dependent upon or inextricably intertwined with the terms of a CBA, or that arise under the CBA.”

The NFL asserts that the players’ claim falls within the existing CBA, which addresses player safety.  The motion states that “the Court would be required to interpret the CBAs  . . . to determine whether the NFL had such duties, the scope of any such duties, and the reasonableness of the NFL’s conduct in light of the CBA provisions” to resolve the plaintiff’s claims.  Accordingly, the disputes should be resolved according to the language of the CBA.

The potential preemption of the LMRA and the CBA poses a big problem for the players.  At least two federal courts have ruled that the CBA dictates players’ rights to compensation for injuries, including a lawsuit involving the late Dave Duerson, who took his own life in 2011.  Similarly, the Minnesota Supreme Court declined to rule on a wrongful death suit brought on behalf of Vikings lineman Korey Stringer, who died of a heatstroke following a 2001 practice, because the CBA preempted the claim.

If the Court agrees with the NFL’s preemption contentions and grants the Motion to Dismiss, the former players would be forced to follow the CBA’s arbitration procedures.  This out-of-court process would likely lead to a less-than-desirable result for the former players. “Arbitration awards are usually dramatically lower than awards made by juries, and the private arbitration process would remove the issue from public scrutiny that would otherwise force the NFL to consider more generous settlements,” ESPN writer Lester Munson wrote.

As Michael McCann, professor and director of the Sports Law Institute at Vermont Law School, said, since the preemption defense has been made prior to any discovery, it would be “a total victory for the NFL if the NFL wins on that.”

Did the NFL Know and Conceal the Health Risks of Head Trauma?

Even if the Court denies the Motion, the former players still face an uphill battle.  The NFL argues in the alternative that the lawsuit lacks any specific proof that the risks of head trauma were concealed.   As such, the crux of the ensuing litigation will likely be the medical science of concussions.

According to Travis Leach, an Arizona-based sports law attorney, the heart of this case is: “What did medical professionals know historically about concussions, and what was the common medical practice 10, 20 years ago when these issues started arising?”

Unfortunately for the former players, evidence supporting a link between concussions and Chronic Traumatic Encephalopathy (CTE), depression, early-onset dementia, and other long-term effects has just recently been discovered in the last several years.  Research findings released in September 2012 may illustrate the long-term consequences of repeated concussions in NFL players, but the researchers cannot establish causation without more data.

Barry Jordan, a renowned neurologist who studies the effects of brain trauma on athletes said that while the medical community’s understanding of brain trauma has grown rapidly in recent years, the need for more research is great as “there’s still a lot that we don’t know.”

The upshot is this: if a causal link between the concussions and long-term effects is not yet proven, then the NFL could not have “willfully and intentionally” concealed such health risks.  The NFL was not keeping information from the players if they did not know that the information existed.

What is the NFL Doing to Promote Health and Safety?

The NFL runs many health programs for current and former players, such as joint replacement, neurological evaluations and spine treatment programs, assisted living partnerships, long-term care insurance, prescription benefits, life insurance programs, and a Medicare supplement program.  In total, the League has spent more than a billion dollars on pensions, as well as medical and disability benefits for former players.  Most recently, the NFL donated $30 million to the National Institute of Health’s Neurology Institute for concussion research.

The NFL seems to be doing a good job of educating players and warning them about the potentially hazardous effects of playing with concussions.  The NFL’s Fall 2012 Health and Safety Report indicates there has been a crackdown on hits to the head, innovative sideline concussion testing, an increase in the number of independent trainers monitoring games, and a 40-percent drop in concussions during kickoff returns.  Moreover, the kickoff location has moved five yards closer to increase the number of touchbacks and give players less of a running start, and the frequency of unnecessary roughness penalties has increased.

However, some are not buying the authenticity of the NFL’s concerns.  Cleveland Browns linebacker Scott Fujita wrote earlier this month that he was disappointed in the league and Commissioner Roger Goodell’s positions on player health and safety: “He failed to acknowledge a link between concussions & post-career brain disease, pushed for an 18-game regular season, committed to a full season of Thursday night games, has continually challenged players’ rights to file workers compensation claims for on-the-job injuries, and he employed incompetent replacement officials for the start of the 2012 season.”

Regardless of the NFL’s true intentions, there seems to be an inconsistent dichotomy between current and former players.  While former players complain about not being informed, many current players think a concussion is not debilitating and refuse to be taken out of the game.  Kurt Warner, former NFL quarterback, Super Bowl champion and current NFL commentator, said, “The mindset is completely different when you’re a young guy.  You feel you’re invincible, and you think football is the rest of your life.  That mindset changes as you get older.”

Current players’ disregard for their health and safety has been exemplified repeatedly, even in the 2012 season during the ongoing litigation.  Detroit Lions wide receiver Calvin Johnson recently said, after a brutal helmet-to-helmet collision in which he believed he had suffered a concussion, “It’s a part of football—you get concussed, you gotta keep on playing.” Just three days after Robert Griffin III was concussed against Atlanta and could not remember the score or the quarter, he was practicing again.  Four days after the concussion, he was playing.

Likewise, Pittsburgh Steelers linebacker James Harrison revealed that he had suffered “double-digit” concussions in his career but that everything is fine because he stuck a strip of Kevlar inside of his helmet and he hasn’t “seen any spots or had any blackouts.”

As Michael Irvin, former Dallas Cowboys wide receiver, disclosed in an NFL Gameday special regarding concussion treatment, “I went to as many doctors as I could to find one who said I could get back on the field.  The barbaric side of that football mentality will make you get out there every time.”

And one can only wonder how many players suffer concussions and never say anything to their coach or trainers about it.  Or how many concussions these players have sustained in high school and college.  Oftentimes the ego of young players seems to outweigh any concern for future harm.

What Does the NFL Need to Do Next?

There is no question the former NFL players involved in this lawsuit are dealing with serious, life-threatening health concerns.  And some of these illnesses are inextricably linked to their history in a violent, intensely physical, inherently dangerous professional sport.  But is it fair to claim that the NFL purposefully concealed information from these players?

While it would be best for the NFL, legally and monetarily, for the Court to grants its Motion to Dismiss, the public response to such an outcome may be unfavorable.  As Von DuBose, an Atlanta attorney who specializes in sports law, said, “the public perception is going to be that the NFL escaped on a technicality and they’re unwilling to do anything to help these guys long-term.  The sentiment is going to bleed down to the high school and youth football ranks.  Parents are going to look at the sport and say, ‘Why would I let my son play?’”

This litigation illuminates both the NFL’s need for more consistent medical follow-ups for retired players as well as for continued research regarding the long-term effects of concussions.  An NFL-funded medical monitoring program for former players seems like a reasonable response as more scientific evidence becomes available.

What does not seem reasonable, however, is holding the NFL fully responsible for concealing evidence of something that the medical community is just learning exists.


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About Jacqui Merrill, Former Features Editor (8 Articles)
Jacquelyn Merrill served as the Features Editor for the Campbell Law Observer during the 2013-2014 academic year. She was born and raised in Asheville, NC, and graduated in 2011 from the University of North Carolina at Chapel Hill, where she studied Journalism and English. During law school, she interned at the National Center for Victims of Crime in Washington, D.C.; the Wake County Public Defender's Office in Raleigh; the Supreme Court of North Carolina for the Honorable Robert H. Edmunds; the Pierce County Department of Assigned Counsel in Tacoma, WA; Toshiba Global Commerce Solutions in Research Triangle Park; and the Durham County District Attorney's Office in the juvenile court. Jacqui also had the unique opportunity to facilitate mediations through Campbell Law School's Juvenile Justice Project beginning her second year and continuing through her third. She is interested in pursuing a career rooted in social justice after her graduation from Campbell Law School in May 2014.
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