By R. Anthony Salem
The National Football League (NFL) and thousands of former players recently reached a settlement in the ongoing concussion litigation. By settling the suit, the game has an opportunity to move forward and put the litigation in the rear-view mirror. So why, after a settlement with the largest sport in our country, are we witnessing the beginning of concussion litigation?
In 1996, former Chicago Bears fullback Merril Hoge filed a negligence lawsuit against the team doctor for the Chicago Bears, John Munsell. Hoge’s lawsuit was one of the first lawsuits that centered on the dangers of concussions. In the lawsuit, Hoge claimed that Dr. Munsell failed to warn him about the dangers of concussions. Three years later, a jury returned a verdict in his favor – $1.55 million.
Hoge’s case appears very similar to what we heard over the past couple of years from former players who sued the NFL. Hoge suffered a concussion in a preseason game on August 22, 1994 and failed a “return to play” exam after the game. He suffered another concussion in a regular season game on October 2 — his last game as a professional football player.
Fourteen years after Hoge first claimed victory in a courtroom, the players reached a monumental settlement with the former players in the concussion litigation – $765 million. Some may argue the concussion litigation has come full circle, with the NFL implementing guidelines and increasing awareness amongst the teams and players. However, concussion litigation is only beginning.
The awareness and dangers of concussions are more prevalent today than ever before. Increased knowledge will affect the standard of care applied in a negligence case. The standard of care is the type or level of care a reasonably competent and skilled healthcare profession, with a similar background and in the same medical community, would provide under the same circumstances. It is an evolving and abstract level that is constantly changing, especially in light of new information. The standard of care applied in a negligence lawsuit is critical.
A player’s knowledge of the dangers of concussions and their own negligence may also affect future lawsuits, depending on whether the jurisdiction follows comparative or contributory negligence standards. Today, players are keenly aware of Junior Seau’s suicide and the daily struggles of Jim McMahon. What affect does this information have on a lawsuit? The NFL will argue assumption of the risk, that the players knew the dangers they exposed themselves to when they played the game. The NFL could not make this argument in the litigation filed by the former players because the knowledge was not as widespread as it is today.
Concussion issues outside the NFL world continue to be an issue. Workmen’s Compensation immunity did not allow the former players to sue the respective teams they played for. In general, workmen’s compensation immunity does not allow the employee to sue their employer. That same immunity does not apply to the NCAA concussion litigation case. However, that begs the question, are collegiate student-athletes employees of the university? Or are they independent contractors? Can they amend their complaint to add each of the universities they played for? This would open up an entire new issue the NFL case did not present. Furthermore, unlike the NFL lawsuit, the collegiate student-athletes do not collectively bargain for their rights. They have no voice over their work conditions. They do not met with the university and NCAA to bargain over what the practice schedules are like during the season, like the NFL players have bargained for in their Collective Bargaining Agreement. Irrespective of the NFL settling the concussion lawsuit, the NCAA lawsuit will continue to be hotly debated and present new issues.
Other sports are next in line when it comes to concussion litigation. Major League Baseball (MLB) has so far avoided the concussion issue. However, in 2011 they developed the 7-day concussion disabled list for players. Since the 2011 season, players placed on the 7-day concussion DL has increased, from 11 in 2011, 13 in 2012, and 18 so far during the 2013 season. On top of those numbers is the sudden suicide of Ryan Freel, an 8 year MLB veteran, at the age of 36. Freel estimated he sustained nine or 10 concussions. During games, catchers are routinely placed in danger when they are asked to block home plate during the course of a game and absorb a collision by a base runner. Despite the dangers of the catcher position, Joe Mauer, catcher for the Minnesota Twins, did not suffer a concussion by blocking home plate He suffered a concussion when he was hit by an innocuous foul tip while playing catcher. MLB may be the next sport consumed with concussion litigation.
Major League Soccer (MLS) is not far behind. Bryan Namoff, former player with D.C. United, sued the team, along with their trainer and former coach, for negligence in failure to properly evaluate his 2009 concussion injury. Namoff sustained a concussion in a September 9, 2009, game against Kansas City when he collided with an opposing player. He played in another game three days later. In soccer, it is common to for players to use their head to control the ball and score goals. In that sense, head injuries are going to occur no matter what efforts are made to make the game safe. At this time, MLS is not a party to Namoff’s suit. It is only a matter of time until MLS is dealing with its own concussion litigation.
The National Hockey League (NHL) may be the most vulnerable. Irrespective of what they knew regarding the dangers of concussions, this is a sport where fighting is encouraged. It is so encouraged they have set penalties for players who engage in such conduct during games. Players are routinely slammed into the boards several times a game. Although the NFL is making strides to clean the game, as the NFL case showed us, what the sports does today to protect the players from concussions does not shield them from legal responsibility from the past.
The NFL is able move past the concussion lawsuit. However, other sports are just now beginning to confront the issue. Concussions will continue as long as the sports are played, regardless of the safety protocols implemented by the various leagues. Hoge’s initial lawsuit was filed in 1996. In 2013, the NFL settled the concussion litigation filed against it. It took seventeen years for the NFL to confront the issue. If that timeline holds true, this truly is the beginning of the concussion litigation.
R. Anthony Salem is an associate with Boyd & Jenerette in Jacksonville, His practice focuses on general civil litigation, including automobile and trucking negligence, product liability, and premise liability. Prior to his current work, he practiced as an Assistant State Attorney in Jacksonville where he prosecuted felonies and misdemeanors. He can be reached at asalem@boyd-jenerette.com and followed on twitter @anthonysalem13.
