By Holt Hackney
The pass floated in the air for a brief moment, leaving the wide receiver extended and susceptible to a punishing hit from the safety.
That kind of violence has always been a staple of the NFL, producing billions of dollars for the league and, indirectly, millions of dollars for its players.
But something happened on the way to the bank. Former NFL players started noticing lingering effects from those violent plays. Some of them sued the NFL, saying it had not done enough to protect them. Then more of them sued. It’s gotten to the point today that its probably easier to count the former players who have not sued, than the ones that have. And that litigious trend shows no signs of ebbing.
Every day, there is a development on this front. In fact, as this story was being written, news that Billy Conaty of Montgomery McCracken had sent an email to former players, inviting their participation in a concussion lawsuit against the NFL, had broken:
“Like you, I am a former NFL player. I played 9 seasons on the offensive line before becoming an attorney,” he reportedly wrote. “You may be aware that hundreds of former players are suing the NFL for allegedly covering up what it knew about the long-term (sic) affects of concussions. It is not necessary that a player suffered a diagnosed concussion to join the lawsuit. Players who have ever had any concussion like symptoms while playing such as a headache, dizziness, disorientation, getting your bell rung, seeing stars etc., qualify to join. Many players are now experiencing post-concussion symptoms such as headaches, anxiety, depression, short-term memory loss, sleeplessness, etc. and are looking to hold the NFL accountable for their role in the alleged cover up. If you have any interest in joining this lawsuit please let me know and I can explain further. Please feel free to call me.”
While Conaty may be looking for clients, the Locks Law Firm appears to have attracted a critical mass, already exceeding 300. And it shows no sign of resting on the number.
Days before Conaty’s email was exposed, The Locks Law Firm, which has more than 300 ex-players participating in a lawsuit, and Mitnick Law Offices LLC created a web site, www.Playerinjury.com, as a way for current and former players to stay abreast of the concussion litigation. The site provides PDFs of the court filings, a questionnaire for athletes considering suing, a blog and related news articles.
The site also highlights the purpose Locks law firm’s class action – “to seek medical monitoring, compensation, and financial recovery for the short-term, long-term, and chronic injuries, financial losses, expenses and intangible losses suffered by the plaintiffs (all present and former players in the NFL) and their spouses as a result of the NFL’s misconduct.”
With grass roots efforts, such as those of Conaty, and the more sophisticated marketing initiatives like that of Locks and Mitnick, it is not a surprise that Craig Mitnick expects the plaintiff list to grow exponentially. “I am confident that the numbers of retired NFL players who will join the class action will be into the thousands,” he told the media.
Timothy Liam Epstein, partner and chair of the Sports Law Practice Group at SmithAmundsen LLC told Sports Litigation Alert that “we have never seen anything like this in the sports context. A comparison that comes to mind are the Mesothelioma Asbestos related suits, where firms have literally placed billboards, television, and radio advertisements all over the country seeking potential plaintiffs.”
The Arguments
Once the dust settles, the arguments appear to be relatively straightforward. The plaintiffs maintain that the NFL and other defendants intentionally and fraudulently misrepresented and/or concealed medical evidence about the short-and long-term risks regarding repetitive traumatic brain injury and concussions. They also claim the defendants failed to warn players that they risked permanent brain damage if they returned to play too soon after sustaining a concussion.
Locks Law Firm attorneys Gene Locks, Michael Leh and David Langfitt charge specifically that the NFL voluntarily joined the scientific research as well as public and private discussions regarding the relationship between concussions and brain impairment when it created the Mild Traumatic Brain Injury Committee in 1994. “Rather than naming a noted neurologist to chair this committee, it appointed Dr. Elliott Pellman, a rheumatologist who was a paid physician and trainer for the New York Jets, a conflict of interest, and had training in the treatment of joints and muscles, not head injuries,” said Gene Locks. “While the committee was established with the stated purpose of researching and lessening the impact of concussions on NFL players, it failed to inform them of the true risks associated with head trauma.
“Although athletes who suffered brain trauma in other professional sports were restricted from playing full games or even seasons, NFL players with similar head injuries were regularly returned to play with devastating consequences.”
Meanwhile, the NFL and the other defendants will likely counter that the plaintiffs assumed the risk of injury and that the NFL took proactive steps to protect its players when it learned of the risks they faced.
“The NFL has long made player safety a priority and continues to do so,” the league said in a statement. “Any allegation that the NFL intentionally sought to mislead players has no merit.”
Some experts have suggested that the plaintiffs have a tough road ahead of them, noting that the players’ health and disability benefits were covered by collective bargaining agreements negotiated by the players’ union. Another challenge may center on the difficulty of proving that long-term damage stemmed from their days in the NFL, and not their earlier years in college or high school football.
Regardless of the arguments, a perfect storm is building, according to Epstein.
“Besides the obvious monetary benefits, the potential class of plaintiff’s is easily identifiable, which makes this an easy target,” he said. “Essentially, all former players, however brief their playing career, could be involved. This is unlike latent illness cases, where plaintiffs may be difficult to find. Another factor is that many of these plaintiffs have an ax to grind, and money to gain. So convincing them to partake is not difficult either.”
