By Carla Varriale, Esq.[1]
On September 7, 2012, the Texas Review of Entertainment and Sports Law (“TRESL”) hosted its Fall 2012 Symposium at The University of Texas School of Law. The Symposium, entitled “The Dark Side of Sports and Entertainment Law,” examined problematic legal issues including gambling and doping.
I joined panelists Darren Heitner, Esq, of Wolfe Law Miami, P.A. and Professor Derek Muller of Pepperdine University School of Law to discuss another issue that has been omnipresent in the media and in law journals—concussions. The panel, “Head Cases: Long-Term Tort Implications of Professional Sports,” initially tackled the recent blockbuster lawsuit, In Re National Football Players’ Concussion Litigation (the “NFL Concussion Litigation”) venued in the United States District Court in the Eastern District of Pennsylvania. Although we discussed the claims and likely defenses at issue in the NFL Concussion Litigation, the panel also described similarities to previous complex litigations, such as the tobacco and asbestos litigation. Our dialogue evolved into an analysis of the underlying purposes of tort law and whether the wellspring of concussion lawsuits made sports such as football safer for all participants.
At the outset, Darren Heitner and I outlined the various causes of action asserted in the NFL Concussion Litigation. The Master Complaint is a compendium of tort claims. The crux of the action against the National Football League (and other defendants, including helmet manufacturer(s) Riddell, Inc.) are that they breached a duty of care by allegedly concealing information about the long-term effects of multiple concussions from NFL players in order to profit at the expense of the players’ health.
The lawsuit claims that the link between concussions and brain diseases (including chronic traumatic encephalitis) was known by the NFL for years but the NFL withheld information from the players. The causes of action asserted in the NFL Concussion Litigation by the players and their families include conspiracy, fraud, negligence, negligent misrepresentation, negligent hiring and negligent retention. The claims against the helmet manufacturer(s) include failure to warn and strict liability for design defect with regard to the helmets.
There are, however, defenses, including some procedural defenses such as the expiration of the applicable statute(s) of limitation, and preemption by the parties’ collective bargaining agreement.[2] Other potential defenses include lack of causation (due to the difficulty of identifying the injury-producing concussion and because the plaintiffs could have sustained concussions prior to playing in the NFL) and the assumption of a known or obvious risk associated with the sport of football—an undeniable contact sport.
Professor Muller then outlined the distinct nature of “multidistrict litigation” (“MDL”), a federal legal procedure intended to streamline the litigation of complex cases.[3] Briefly, he explained that the NFL Concussion Litigation is civil action that involved one or more common questions of fact that had been pending in different districts. In order to process the claims of numerous plaintiffs in numerous federal courts, the NFL Concussion Litigation was appropriately consolidated under the MDL statute for pretrial proceedings, including discovery.
Professor Muller analogized the NFL Concussion Litigation to prior complex litigations such as tobacco and asbestos litigation. A common thread was the alleged nondisclosure to “consumers” about health risks and an alleged withholding of information. He further observed that the NFL Concussion Litigation was a “very deliberate litigation” because the plaintiffs had chosen to sue few defendants, leaving the defendants to point a finger at other potential defendants and implead them into the litigation. Professor Muller also characterized the NFL’s recent decision to move to dismiss the NFL Concussion Litigation on preemption grounds only as an astute move, as the case could be dismissed and arbitrated without the need to address any of the information the NFL defendants may have possessed about the supposed health risks associated with repeated concussions.
Whatever one thinks of the claims and defenses asserted in the NFL Concussion Litigation, the panel noted that there is no dispute that the litigation has had an impact beyond the NFL. Concussion awareness has transcended the NFL and the sport of football. Although there are reportedly 67,000 diagnosed concussions each year in high school football,[4] concerns about the long term impact of concussions have surfaced in sports as diverse as soccer and mixed martial arts. 40 states and the District of Colombia currently have concussion laws[5] and Michigan, Nevada, Ohio and West Virginia have pending concussion legislation. Participants (and parents of young participants) are now better equipped to determine if participating in sports like football is worth the risk of potential long-term health problems.
For example, Wisconsin recently implemented a new concussion law directed at “youth athletic activity.”[6] 2011 Wisconsin Act 172 created Wis Stat. section 118.293 of the Wisconsin Statutes effective on April 17, 2012 (the “Wisconsin Law”). The Wisconsin Law delineates an operator’s duties and responsibilities towards young athletes involved in organized activities (including but not limited to public or private schools but not colleges or universities ). The Wisconsin Law requires that operators of youth athletic activities must provide a concussion and head injury information sheet to coaches and participants. The information sheet must be signed and returned to the operator before the youth is allowed to participate in the activity. If the participant is under the age of 19, a parent or guardian must sign this form.
Importantly, the Wisconsin Law prevents a participant who is removed from a youth athletic activity for a concussion or head injury from resuming participation until that person is evaluated by a “health care provider.” The health care provider must have specific training and experience in evaluating pediatric concussions and head injuries and must be practicing within the scope of his or her credential. The health care provider must provide written clearance for the injured participant.
The Wisconsin Law affords certain immunity from civil liability for coaches, officials or volunteers. The immunity shields them unless the failure to remove the injured participant or allowing the injured participant to return to play without written clearance results in conduct that constitutes gross negligence or wanton and willful misconduct. This sort of balancing of the disclosure of the risks associated with head injuries with the desire to participate in athletic activities dovetailed with our discussion of the NFL Concussion Litigation.
The trajectory and outcome of the NFL Concussion Litigation remain a wild card. However, if the sine qua non of tort law is to encourage prudent behavior, the “head cases” and the focus on concussion risks are the start of a critical fourth quarter drive towards the end zone.
[1] Ms Varriale is a Partner at Havkins Rosenfeld Ritzert and Varriale, LLP located in New York. Her practice is focused on the counseling and defense of sports and entertainment operators and venues. She also teaches “Sports Law and Ethics” at Columbia University’s School of Continuing Education. She can be reached at Carla.Varriale@hrrvlaw.com.
[2] The NFL filed a motion to dismiss based on preemption grounds, i.e. that the plaintiffs’ terms and conditions of NFL employment were defined by the collective bargaining agreements and the NFL Constitution and Bylaws. Consequently, the NFL has argued that the NFL Concussion Litigation is as a labor dispute should not be before the Court because the dispute must be arbitrated. Therefore, the NFL argued that the NFL Concussion Litigation should be dismissed with prejudice.
[3] The MDL statute is set forth at 28 U.S.C. § 1407.
[4] See Broglio SP, Sosnoff JJ, Shin S, He X, Alcaraz C and Zimmerman J. Head impacts during high school football: a biomechanical assessment. J, Athl Train. 2009. 44:342-349.
[5] Those states are: Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Texas, Utah, Vermont, Virginia, Washington, Wisconsin and Wyoming. Seehttp://usafootball.com/news/featured-articles/see-where-your-state-stands-concussion-law
[6] This is defined as an organized athletic activity, not just football, involving participants under 19 years of age and it includes practices, games and competitions.
