By Ellen Webking
The Mike Webster case has been described as the smoking gun in the pending concussion litigation against the National Football League (NFL). In the case, the NFL Disability Board admitted that Mike Webster’s disability was a result of the concussions and injuries he sustained while playing football. In a bylined article entitled “Disability Board’s Acknowledgement of Webster’s Head Injuries While Playing: A Vicious Hit to NFL’s Position?” that appeared recently in Sports Litigation Alert, the author discusses the possible influence the Webster case may have on the larger NFL concussion litigation.
Although the Webster case is not actually against the NFL, but against The Bert Bell/Pete Rozelle NFL Player Retirement Plan et al., the author suggests that the outcome of the case will have an effect on the concussion cases against the NFL. In the case, brought by Sunny Jani, the administrator of Michael Webster’s estate, Jani sued for wrongful denial of benefits under the Employee Retirement Income Security Act (ERISA). Pl. Compl. ¶ 1 (May 21, 2004).
The suit was based on the fact that Webster had sustained multiple blows to the head, and, according to the NFL’s physician, had sustained “multiple head injuries” and “a dementing illness” that “result[ed] in complete disability in terms of being gainfully employed.” Id. Before his death in 2002, Webster applied for a disability pension from the NFL’s pension plan, but the NFL’s pension plan denied him a full payment claiming that his disabilities did not begin until four years after his football career was over despite “overwhelming evidence” that his disabilities were a result of an “active football injury.” Id. The Board acknowledged that the injuries Webster sustained during his football career were the cause of his mental disability after his retirement, but denied him benefits reserved for player’s whose disabilities began while they were still active players. The District Court ruled for the plaintiff and the decision was affirmed by an unpublished case. Sunny Jani v. The Bert Bell/Pete Rozelle NFL Player Retirement Plan; The NFL Player Supplemental Disability Plan, No. 05-2386, (4th Cir. Dec. 13, 2006).
The article discusses the high probability that the plaintiffs in the NFL concussion litigation will argue that the Disability Board’s acknowledgment that Webster’s disability was a result of the head injuries he sustained playing football is evidence that the NFL had prior knowledge that concussions lead to serious and permanent health problems. The author supposes that, despite the Disability Board’s decision in the Webster case, the NFL can still argue that the NFL Disability Board’s conclusions and determinations are independent from the NFL and that other causal issues between the concussions and the long-term health concerns exist. The author concludes by stating that the NFL can still argue it had no prior knowledge; however, the decision made by the NFL Disability Board could be brought in by the plaintiffs, who could use it as circumstantial evidence to prove that the NFL did have prior knowledge.
The article fails to make one very telling point: If the Webster case establishes that the NFL was in fact aware of the evidence of the long-term effects of concussions, then so, too, did the NFL Players Association. After all, the NFLPA is every bit involved with the Disability Board as is the NFL. What the NFL knew the NFL Players Association knew, at the exact same time. After all, the NFLPA participates equally on the Disability Board with the NFL.
In the Plaintiff’s Master Administrative Long-Form Complaint, one of the claims is that, “the NFL knowingly and fraudulently concealed from then current NFL players and former NFL player the risks of head injuries in NFL games and practices, including the risks associated with returning to physical activity too soon after sustaining a sub-concussive or concussive injury.” Pl.’s Compl. ¶ 295 (June 7, 2012). The author suggests that the Plaintiffs will use the NFL Disability Board’s decision in the Webster case in an attempt to prove that the NFL acted fraudulently. However, in addition to the fact that it is very difficult to prove that an omission of fact is a fraudulent misrepresentation, the plaintiffs will encounter a second obstacle.
In order for the Plaintiffs to prove that the NFL acted fraudulently they must establish: (1) a material misrepresentation of present or past fact (2) with knowledge of its falsity (3) with the intention that the other party rely thereon (4) and which resulted in reasonable reliance by plaintiff. Lightning Lube, Inc. v. Witco Corp. (3d Cir. 1993) 4 F.3d 1153, 1182. If the argument is that the NFL was aware of the information based on the NFL Disability Board’s conclusion in the Webster case, then because the Disability Board is comprised of an equal number both NFL and NFLPA members, the NFLPA must have also been aware of the decision. (See NFL Player Retirement Plan, Art. 8 pg. 36-41 (April 1, 2012)). The Plaintiffs’ complaint states that “[g]iven the NFL’s superior and unique vantage point, the Plaintiffs reasonably looked to the NFL for guidance on head injuries and concussions.” Pl.’s Compl. ¶ 294 (June 7, 2012). Thus, from the date of the Webster decision, the players could not reasonably rely on an omission of facts from the NFL. Their union, the NFLPA, was aware of the all of the same information in the Webster case as was the NFL. Therefore, because the union would also be aware of the information, the Plaintiff’s claim that the NFL acted fraudulently simply cannot stand following the Webster case.
This is also the case in the very first complaint filed against the NFL back on July 19, 2011. Vernon Maxwell et al v NFL, Los Angeles Superior Court No. BC465842. In the complaint, the Plaintiffs assert that the NFL had easy access to various sources indicating that injuries sustained playing football could result in long-term disabilities. Pl.’s Compl. ¶ 117(a-jj) The sources referenced range from medical articles to a story about an admiral who played American football in the 1890s and “suffered so many blows to his head that a navy doctor advised him that he could risk death or insanity if he received another kick to his head.” Pl.’s Compl. ¶ 117(a). The Plaintiffs argue that this information was readily accessible and the NFL was probably aware—or should have been aware—of it. They thus allege that the NFL acted fraudulently by failing to inform players of the risks. However, if the NFL knew about the admiral and the numerous articles written, then the NFLPA had similar access to the information. Moreover, because the plaintiffs allege that information dates back to the 1890s and the information was so accessible, the players could not reasonably solely rely on the NFL for the information in turn eliminating fraud.
As the author acknowledges, the Court could ultimately grant the NFL’s motion to dismiss and send the case to an arbitrator. In any event, the decision in the Webster case proves that NFLPA was equally aware of the long-term effects of concussions. This undermines an essential element of the Plaintiffs’ claim that the NFL acted fraudulently.
