Fordham Law


For N.F.L., Concussion Suits May Be Test for Sport Itself

Mark Conrad in The New York Times, December 29, 2011

Media Source

By KEN BELSON

The long debate over the National Football League’s handling of concussions is reaching the courts in a flurry of lawsuits, raising the possibility that dozens of former players will go before juries to outline the league’s medical practices and describe long-term cognitive problems they say were caused by the sport.

More than a dozen suits, filed since July on behalf of more than 120 retired players and their wives, say that the N.F.L. and in some cases helmet manufacturers deliberately concealed information about the neurological effects of repeated hits to the head. Several suits also say that even if the league did not know about the potential impact of brain trauma sustained on the field, it should have known.

Taken together, the suits filed in courts across the country amount to a multifront legal challenge to the league and to the game itself. While the retired players, including stars like Jim McMahon and Jamal Lewis, face a time-consuming and difficult battle, the N.F.L. will have to spend heavily on lawyers to fend off the chance that juries might award the retired players millions of dollars in damages.

The league must also grapple with unflattering publicity as former players claiming to be hobbled by injuries and, in some cases, suffering from financial problems sue their former employer, the steward of America’s most popular sport. The stakes will only get higher if any of the cases go to trial, where details may emerge about what the N.F.L. knew about concussions and when, how it handled that information, and whether it pushed manufacturers to make the safest helmets possible.

“I don’t think the N.F.L. can consider these cases nuisances,” said Mark Conrad, who teaches sports law at Fordham University. “They will take them seriously because if it goes the wrong way, it could be a bombshell.”

The N.F.L. is no stranger to the courts. In the past few years, it has tangled over merchandising, drug testing and antitrust exemptions. But those issues were largely alien to the average fan and barely slowed the league’s primary mission to put on games.

The notion of retired players telling a jury the league is at least partly liable for their dementia and other cognitive disabilities is an entirely different matter, legal experts say, because the players’ testimonies are bound to get a sympathetic audience and cast a shadow over the league.

“We believe that the long-term medical complications that have been associated with multiple concussions — such as memory loss, impulse anger-control problems, disorientation, dementia — were well documented, and that factually the N.F.L. knew or should have known of these potentially devastating neurological problems, and yet it didn’t take any active role in addressing the issue for players,” said Larry Coben, who represents seven retirees, including McMahon, the quarterback who helped lead the Chicago Bears to a Super Bowl victory in 1986.

Brad Karp, an outside counsel for the league, said: “The N.F.L. has long made player safety a priority and continues to take steps to protect players and to advance the science and medical understanding of the management and treatment of concussions. The N.F.L. has never misled players with respect to the risks associated with playing football. Any suggestion to the contrary has no merit.”

A trial is not imminent, however, and may never occur, legal experts said. The league will try to get the cases dismissed, they said, and the former players must hope a judge will allow the cases to proceed.

In a sign of the high hurdles facing the retired players, the league has successfully convinced at least one federal judge that any claims by the players should be handled under the collective bargaining agreements that they signed during their N.F.L. careers.

The retired players, naturally, disagree. They argue that as retirees, they are no longer party to those collective bargaining agreements and that only since they stopped playing did they unearth evidence that they were not adequately warned of the dangers of concussions.

The debate over this issue may be settled in Philadelphia after the league and many of the plaintiffs ask the Judicial Panel on Multidistrict Litigation, a federal board, to combine all the cases and move them to federal court in the Eastern District of Pennsylvania. The N.F.L. prefers this approach because it allows its lawyers to focus on a single case that will produce a single resolution, and reduce the possibility of inconsistent rulings by different judges.

Assuming the players can persuade a judge to let their case go forward, they will most likely argue that the N.F.L. rejected widely accepted science on head trauma for years, and that the league’s doctors produced research that later was found to be severely flawed.

Several suits note that in 2007, the league distributed a pamphlet to players that said, “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 league left open the question of “if there are any long-term effects of concussion in N.F.L. athletes.”

The cases also note that in October 2009, Roger Goodell, the commissioner of the N.F.L., was criticized by lawmakers for neglecting the league’s handling of active and retired players with brain injuries. A month later, the two directors of the N.F.L.’s committee studying concussions who were accused by the retired players of whitewashing the issue stepped down.

Only last year, the retired players say, did the N.F.L. begin alerting current players to the long-term effects of concussions. One poster created by the league used words like “depression” and “early onset of dementia.” Another document warned players that repeated concussions “can change your life and your family’s life forever,” a nod to retired players’ wives who have spoken out on the issue.

The league, though, is expected to point out that these publications are part of its continuing efforts to care for players, and that the league provides medical benefits for retired players. The league will also argue that the players knew that the sport was dangerous when they played and yet they did not stop.

“The N.F.L. will try to convince the court that the game is inherently risky,” said Matthew J. Mitten, the director of the National Sports Law Institute at Marquette University. “There is this warrior mentality in the N.F.L. where you play through pain.”

A far murkier obstacle for the players is proving that the concussions they sustained in the N.F.L. caused their current health problems. It will be difficult to prove that any impairment is not a result of head trauma sustained while playing in high school and college.

“The proof problems will be enormous,” said Paul Haagen, the co-director of the Center for Sports Law and Policy at Duke University. “Everyone who has played in the N.F.L. has played in the lower levels and suffered some injuries that are consistent with these.”

The retired players may also have difficulty proving the league deliberately hid information from them. Even if they do, legal experts said, the league will point to the rule changes it made to outlaw spearing and other dangerous practices involving helmets, and the millions of dollars it has spent over the years to study head trauma.

“The problem is there isn’t necessarily a smoking gun,” said Robert Boland, who teaches sports law at New York University. “The N.F.L. will say we found out about it when you did, and we never saw this kind of damage before.”