By Joseph M. Hanna
Goldberg Segalla LLP
Since the first concussion-related lawsuit was filed against the National Football League back in August 2011, the concussion litigation has escalated into a massive class action that has captured national attention. As of February, more than 4,100 ex-NFL players have signed on as named plaintiffs[8] in the suit accusing the league of intentionally downplaying the risks of concussions and failing to warn players of the long-term effects these head injuries could have on their cognitive well-being. The numerous complaints were consolidated into a multi-district litigation in the U.S. District Court for the Eastern District of Pennsylvania last June.[9] Oral arguments on a motion to dismiss filed by the defendants took place earlier this April, and a decision is still pending.[10]
But the NFL does not stand alone in this struggle. The complaint also named helmet manufacturer Riddell, Inc. as a co-defendant.[11] Riddell has enjoyed a lucrative contractual relationship with the NFL since 1989, when Riddell struck a deal with the league to provide deep discounts on helmets and other protective gear so long as the NFL equipped at least 90 percent of its players with Riddell helmets.[12] In essence, the complaint accuses Riddell of falsely marketing its helmets as having the ability to reduce the risk of concussions.[13] Apparently, one marketing statement for Riddell’s Revolution helmet read:
“The helmet was designed to protect players from concussions but also provides the best jaw protection available on a football helmet.”[14]
The alleged false marketing may not even represent the full extent of Riddell’s wrongdoing. Recently, reports have surfaced that accuse the company of actively assisting the NFL in attacking the safety of helmet designs not affiliated with Riddell, despite lacking scientific reasons for doing so.[15] Whatever the ultimate truth surrounding these allegations may be, it certainly doesn’t look good for the helmet manufacturer. If raised at trial, it would create an image that the NFL and Riddell colluded for mutual financial gain while hampering efforts to improve player safety.
While we have yet to see how the NFL concussion litigation case will play out against Riddell, recent news has given the company a reason to be fearful of an adverse result. Last week, a jury in Las Animas County, California, returned an $11.5 million verdict against Riddell and several school officials in a case involving a teen football player injured in 2008.[16] Previously, the Ridolfi family had filed a lawsuit against the defendants after their son Brett suffered a concussion during high school football practice. Brett wasn’t immediately taken to the hospital, and he later suffered permanent brain damage and paralysis on his left side. His family then brought suit against Riddell and others to recover for Brett’s injuries.
The jury assessed Riddell’s proportion of fault at 27 percent, making the company liable to the tune of $3.1 million, In its decision, the jury referred to Riddell’s culpable conduct and its failure to warn those wearing its helmets about the dangers posed by concussions and related head injuries.[17] Still, the helmet manufacturer said in a statement, “While disappointed in the jury’s decision not to fully exonerate Riddell, we are pleased the jury determined that Riddell’s helmet was not defective in any way.”
The lawyer for the Ridolfis, Frank Azar, is also representing numerous plaintiffs in the ongoing concussion litigation against the NFL and Riddell. Azar believed that the verdict created figurative storm clouds for the helmet manufacturer, stating, “I think this jury has said they’re in very serious trouble.”
For now, oral arguments and the pending motion to dismiss have focused on whether the claims, as issues of player safety, are necessarily claims arising under the player’s collective bargaining agreement, making them subject to mandatory arbitration.[18] While a decision on the motion isn’t expected anytime soon, a ruling adverse to the plaintiffs — i.e., one compelling arbitration of the suit — could be a financial lifesaver for both defendants (or at least the legal equivalent of holding the opposition to a field goal instead of allowing a touchdown). Arbitration awards, on average, are much lower than jury verdicts, and right now the NFL is hoping its defense will hold up.
Joseph M. Hanna is a partner at Goldberg Segalla LLP, where he leads the firm’s Sports and Entertainment Practice Group. He represents professional athletes, along with management, ownership, and companies that serve the sports and entertainment industries, in commercial and litigation matters. He is Vice Chair of the American Bar Association’s Arts, Entertainment and Sports Law Section, and Co-Chair of the ABA Minority Trial Lawyer Committee. Mr. Hanna is the founder of Bunkers in Baghdad, a nonprofit that collects and ships golf equipment to U.S. soldiers and Wounded Warriors across the world.
[8] See NFL Concussion Litigation “Plaintiffs/Former Players,” http://nflconcussionlitigation.com/?page_id=274.
[9] Sam Farmer, Former players consolidate concussion lawsuits against NFL, L.A. Times (June 7, 2012), http://articles.latimes.com/2012/jun/07/sports/la-sp-nfl-concussions-20120608.
[10] John P. Martin, Lawyers square off in NFL concussion case, The Inquirer (Apr. 10, 2013), http://articles.philly.com/2013-04-10/sports/38406793_1_workplace-safety-concussion-lawsuits-former-professional-football-players.
[11] Darren Heitner, Why Football Helmet Manufacturer Riddell Should be Very Concerned about Concussion Litigation, Forbes, http://www.forbes.com/sites/darrenheitner/2012/06/21/why-football-helmet-manufacturer-riddell-should-be-very-concerned-about-concussion-litigation/.
[12] John Helyar, Helmets Preventing Concussion Seen Quashed by NFL-Riddell, Bloomberg (Mar. 18, 2013), http://www.bloomberg.com/news/2013-03-18/helmets-preventing-concussion-seen-quashed-by-nfl-riddell.html.
[13] See Heitner, supra note 11.
[14] Id.
[15] See Helyar, supra note 12.
[16] Associated Press, Colorado jury awards $11.5M to family in helmet lawsuit, USAToday.com (Apr. 15, 2013), http://www.usatoday.com/story/sports/nfl/2013/04/14/jury-riddell-helmet-lawsuit-11-million-dollars/2083251/.
[17] Catherine Tsai, Colorado jury finds helmet maker Riddell negligent, AP (Apr. 14, 2013), http://bigstory.ap.org/article/colo-jury-finds-riddell-negligent-helmet-suit.
[18] See Defs’ Mot. to Dismiss, Nov. 11, 2011, available at http://www.scribd.com/doc/77899568/NFL-Motion-to-Dismiss-Copy (providing a copy of the NFL’s motion to dismiss the original Easterling complaint back in November of 2011); Greg Ryan, NFL Taps Clement for Concussion MDL, Law360.com (Dec. 20, 2012), http://www.law360.com/media/articles/402972.
