By Cal R. Burnton, ESQ
Organized football has a problem. Concussion lawsuits are slowly advancing at all levels of play—professional, collegiate, and high school. Thousands of former players are joining the ranks of litigants. The target defendants have for the most part not yet had to open their files and subject their documents and emails to scrutiny, nor have their key employees had to give testimony under oath. The stakes are high—potentially billions of dollars are at risk. The plaintiff’s lawyers, some former tobacco litigation counsel, will seek substantial damages from juries if the cases are not resolved. But those trials will occur only after thousands of documents are produced by the defendants, hours of testimony taken, and no doubt millions of dollars in costs and attorneys’ fees incurred.
Recent developments suggest that a narrow window of opportunity may now exist to resolve these claims and to advance football into a safer era. The federal court overseeing the NFL concussion litigation has ordered that the parties submit their claims to mediation in the next two months to determine whether resolution is possible. Should this opportunity be wasted, the end result may be a protracted litigation and war of attrition in which no party but the lawyers profit. An April jury verdict involving a high school football player, a July class action motion in the NCAA litigation, and an arbitrator’s award involving an injured player suggest that now might be the time to think about what the endgame is for all of the parties involved.
The Lawsuits Plaguing Football
At present over 4000 retired National Football League players have brought suit against the NFL. The cases are largely consolidated in a multi-district litigation being overseen by United States District Court Judge Anita Brody. The claimants include the estates of several prominent players who recently took their own lives and then had their brains studied for signs of trauma, including Junior Seau, Dave Duerson and Terry Long. According to their representatives, those studies show traumatic brain injury caused by football.
The league has responded to the players’ claims with motions to dismiss the complaints based on the argument that the players’ claims are pre-empted under federal labor law by the terms of the various collective bargaining agreements that have existed between the players and the NFL over various years. Judge Brody is prepared to rule on the motions. If granted, most cases will have to be dismissed. If denied however, the NFL will be forced to submit to broad discovery of documents and information allowed under the federal rules of civil procedure. This would include production of documents, written interrogatories, and depositions under oath of key employees.
The players have asserted that the league knew or should have known of the dangers of concussions for many years. Instead of acting on that knowledge, assert the players, the NFL engaged in a long-running course of fraudulent conduct, including a campaign of disinformation lasting into 2010. This campaign included issuing a pamphlet to players in 2003 which stated that current research had not shown that having more than one or two concussions leads to permanent problems if the injury is properly managed, as well as testimony viewed by many as evasive by NFL Commissioner Roger Goodell to Congress in 2009. Goodell refused to concede any causal link between football and brain disorders. Discovery into these claims could be at a minimum distracting and potentially embarrassing to the league.
Concussion claims are not limited to the NFL. Former college football players have filed class action complaints against the NCAA. The suits seek to define the litigation class as “all former NCAA football players who suffered concussions or concussion like symptoms while playing at an NCAA school.” This is a sizable group—the NCAA’s own Injury Surveillance System estimates athletes suffered 16,277 concussions in football from 2004 to 2009 alone.
As with the NFL litigation, the former NCAA players who have brought suit assert that the NCAA turned a blind eye to the risks posed by concussions and also engaged in a long established pattern of deception with respect to concussions. They also assert the NCAA actively concealed its knowledge about the correlation between on-field concussions and their long term debilitating effects. The plaintiffs in July 2013 filed a motion for class action certification and seek lifetime medical monitoring as part of their damages.
Concussion litigation is also impacting the high school level. In April, 2013, a Colorado state court jury found football helmet manufacturer Riddell liable in claims brought by a permanently injured player. The jury concluded Riddell failed to warn of concussion hazards and awarded $11.5 million against Riddell and several high school administrators and coaches. Riddell was found responsible for 27% of the fault for the player’s injuries. A similar case is pending in California. Riddell is also a defendant in the NFL concussion litigation.
The key evidence against Riddell is that in the early 2000s, it began developing what was described as a “highly anticipated new football helmet designed to reduce players’ risks of concussions.” Yet in 2000, a consultant advised Riddell that “no football helmet, no matter how revolutionary, could prevent concussions.” That report also concluded that even helmets that pass strict industry standards can leave a player with a “95% likelihood of receiving a concussion from a strong enough blow.” Yet Riddell didn’t stop marketing its helmet as one that could protect against concussions.
In another indication of how evidence will be perceived about how concussion risks were treated may be seen in an award in favor of a former NFL football player, Ben Utecht, against his former team, the Cincinnati Bengals. In July 2013 Utecht won his injury grievance against the Bengals, in which he had asserted that the team had allowed him to play too soon after a concussion. The arbitrator ruled the team was responsible for rushing him back too soon without being sufficiently tested in either a strength or aerobic reconditioning program or in sport specific activities. Utecht was awarded his full salary after suffering a severe concussion in training camp.
What is the Endgame?
Given the various claims, the risks of adverse verdicts, production of unfavorable documents and embarrassing testimony, it would seem to behoove the parties to have a plan to resolve the claims short of all out litigation war. At least one court may provide an opening. On July 8, 2013, Judge Brody ordered the parties in the NFL litigation to submit to mediation in order to see if consensual resolution was possible. No doubt the parties are far apart in how they view the strengths and weaknesses of their respective cases. The NFL believes it will win the motion to dismiss on grounds of preemption, and if unsuccessful, would contest that any negligent acts caused the injuries asserted by the thousands of plaintiffs. The league would also claim it wasn’t aware of the long term effect of concussion injuries until recent studies addressed the issue. On the other hand, if the Players succeed in defeating the preemption motion, they would secure access to the NFL’s confidential reports, correspondence and emails relating to the league’s knowledge of concussion injuries. From what plaintiffs have seen thus far, they believe the documents will demonstrate a willful misrepresentation by the League of the risks of concussions.
Similarly, the plaintiffs in the NCAA litigation have moved for class certification. Here, a class ruling would only be the first step in establishing liability and damages. Years of litigation addressing the merits of the claims would ensue. Just as with the NFL litigation, perhaps it is time for the parties to address whether resolution of the claims may be possible.
Finally, Riddell, a defendant in the NFL litigation and various high school claims, has a strong interest in resolving the various claims against it. Mass litigation threatens the very financial stability of the company, not to mention the effect on its continuing helmet business. One jury has already concluded the company is responsible for a permanent injury to a high school athlete. Now, before the cases progress too far, would be the optimum time to resolve the claims.
Opportunity for Progress
The benefits of an early resolution of claims are apparent with respect to the players and defendant organizations and companies. Any settlement will be used in part to finance necessary medical care and treatment, and to aide those who care for disabled players. The defendants benefit by eliminating the expense and risk of a vast number of lawsuits. In addition however, if done properly, a settlement of claims would also benefit players of the future. No doubt as part of any settlement, monies could be set aside not just for the well-being of the litigants, but also for studies and research about concussions. Awareness programs could be created. Policies and procedures could be implemented to insure that injured athletes are not rushed back to the field before they are ready. Through educational programs, trainers and coaches would be better able to recognize concussions and their effects on players. Research could be conducted to better improve the quality of equipment used by the players to minimize and prevent concussions.
The time is ripe to move football forward. Let’s hope the opportunity is not wasted.
Burnton is a partner in the Litigation Department of Edwards Wildman Palmer LLP. He has earned a national reputation for coordinating, managing, and defending mass toxic tort and complex product liability cases with a special emphasis on high-risk matters involving novel legal, scientific, and environmental theories. Over his 25-year career, Burnton has litigated and won numerous complex toxic tort and product liability cases for leading manufacturers and sellers of products such as chemicals, health care appliances, medical devices, electrical equipment, firearms, printing presses, industrial machinery, and power tools.
