By Nicole M. Bryson, Esq.
In conjunction with the spike in workers’ compensation claims being filed, several hundred retired players have joined together to file multiple lawsuits in various federal district courts naming the National Football League (NFL) as a defendant. They seek damages for concussion related symptoms, alleging that the NFL fraudulently misled players in regards to the dangers of concussions.
The Plaintiffs however, have been careful not to name any of the thirty-two NFL teams as a defendant in these suits. Because the teams are considered the players’ employer, and the concussion related symptoms are industrially related, the exclusive remedy would be workers compensation. By choosing to sue the NFL rather than their individual team, players have access to additional remedies in tort which can be much higher than the permanent disability awards available in workers’ compensation.
The Plaintiffs are trying to execute a judicial end-run around the exclusive remedy for work related injuries provided in the NFL’s Collective Bargaining Agreement (CBA). Under the CBA, in addition to state workers’ compensation benefits, injured players are already entitled to Line of Duty Disability Benefits, and the NFL’s 88 Plan, which provides physical and custodial care for retired players with dementia.
To allow players to get around the exclusive remedies provided in the CBA by suing the NFL in tort for the same neurological injury constitutes “double dipping” on the part of retired players, who have already been compensated for their concussion related symptoms from the workers’ compensation, line of duty disability, and NFL’s 88 plan as guaranteed by the CBA. This double dipping also amounts to an undue financial hardship on the individual teams who are forced to compensate the players for the benefits guaranteed by the CBA and would undoubtedly be required to contribute to any award for damages in tort.
Nonetheless, to date, at least 21 lawsuits have been filed to date in various federal district courts including, New York, New Jersey, Miami, Philadelphia, and Atlanta. A suit was also filed in California state court, and then removed to federal court on behalf of approximately seventy-five retired players from various teams for concussion related symptoms, the result of their employment as football players.
In the lawsuit currently being considered by the California Federal District Court for the Central District, of the seventy-five plaintiffs named in the lawsuit, fifty-one of the seventy-five players, or seventy-five percent, have already filed workers’ compensation claims in the State of California for work related injuries including neurological symptoms related to concussions sustained while playing professional football. Of the fifty-one players who have already filed workers’ compensation claims, more than half have actually settled their permanent disability claims, which include neurological injuries. Settlements have ranged from $150,000 up to $475,000 and in some cases even more.
In my experience as a workers’ compensation defense attorney, I can attest to the fact that the majority of these same players are also pursuing Line of Duty Disability benefits, and the NFL’s 88 Plan if eligible. Once retired players have passed through workers’ compensation, Line of Duty Disability, and the NFL’s 88 Plan, they have already been compensated from three separate benefit sources for the same concussion related symptoms.
Also, the exclusivity doctrine generally prohibits civil suits against employers for work-related injuries. However, there are only a couple limited instances where suits in tort have been permitted by players against the NFL, and/or one of its member clubs in the past; Hackbart v. Cincinnati Bengals and Bobbie Clark, and Brown v. NFL. However, as will be discussed below, the concussion cases are factually distinct from Hackbart, and Brown, and do not warrant the extraordinary tort remedy provided in those cases.
In Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (1979), Dale Hackbart, a defensive back for the Denver Broncos, was permitted to sue the Cincinnati Bengals and running back Bobbie Clark in tort. Hackbart sustained multiple fractures to vertebrae in his neck from an elbow to the back of the head by Clark, after play on the field was whistled dead. The 10th circuit permitted Hackbart’s personal injury claim rationalizing that the intentional conduct by Clark was not a normal hazard of the game. Pro football players do not consent to being intentionally beat up when playing.
Also, In Brown v. NFL, 219 F. Supp. 2d 372 (2002), Orlando Brown, an offensive tackle for the Cleveland Browns, was permitted to sue the NFL in tort for injury to his eye from a penalty flag unsafely weighted with “bb” gun pellets. The court focused on the fact that the NFL specifically instructed its referees not to weight penalty markers with “bb” gun pellets. By using the flag, the league violated its own rule designed to protect players from this very type of injury and general duty of reasonable care.
Pursuant to case law, to determine whether a lawsuit is permitted to proceed in tort against the NFL, the Court must ask whether the CBA between the National Football League Management Council (NFLMC), and the National Football League Players Association (NFLPA) must be interpreted in order to adjudicate the plaintiffs claim. If an interpretation of the CBA is required, the Plaintiffs in the concussion cases would not be permitted to proceed in tort against the league. See Brown v. NFL, 219 F. Supp. 2d 372 (2002)
Unlike the intentional tort, and breach of duty alleged by the Plaintiffs in Hackbart and Brown, the league’s policy regarding concussions and the treatment/benefits related thereto are collectively bargained for by the NFLPA, and NFLMC. Therefore, any lawsuit involving a claim for damages from concussion related symptoms will require an interpretation of the CBA. Since an interpretation of the CBA is required to adjudicate the concussion cases, the Plaintiffs should not be permitted to proceed in tort against the NFL.
Both the NFLPA and NFLMC have been aware of the harmful effects of multiple concussions for some time. Player safety is a priority for the NFLMC, [as well as the NFLPA], and strides continue to be made toward providing better treatment of concussions through the collective bargaining process. Thus, any assertion that the league intentionally misled players regarding the harmful effects of concussions is absurd. Moreover, since the players involved in these concussion cases have already received compensation from multiple benefits sources including, workers’ compensation, line of duty disability benefits, and the NFL’s 88 plan, there is no need to provide an additional monetary benefit in tort.
On January 31, 2012, the US Judicial Panel on Multidistrict Litigation granted the consolidation of all concussion cases and transferred the litigation to the Federal District Court in Philadelphia, Pennsylvania. I am curious to see how the Philadelphia court will conclude on the merits of the case. The ruling has massive financial implications for the NFL and will undoubtedly impact the right of individual players to file tortious claims against the league.
Bryson, an attorney based in California, is a frequent contributor to Sports Litigation Alert and Professional Sports and the Law, especially with regard to workers compensation issues. She can be reached via email at nmbryson@dons.usfca.edu
