2012. augusztus 7., kedd

The concussion litigation II. - Interview with Péter Rippel-Szabó

After the popular interview with Paul D. Anderson, we are continuing our journey in the world of law, we will focus on the concussion lawsuits against the NFL again. This time my guest is a Hungarian sports lawyer, Péter Rippel-Szabó.

Péter is a dedicated researcher in sports law and has special expertise in the field of commercial agreements and functioning of sports governing bodies. He graduated ‘summa cum laude’ from the University of Pécs before going on to obtain a Magister LL.M. degree focusing on sports law at University Erlangen-Nuremberg. Currently, Péter works for the Bird & Bird Law Firm where he provides advice on sports law, competition law and general corporate and commercial matters.  He is a guest lecturer at the Faculty of Law of University ELTE Budapest, co-authored the textbook 'Sports Law - The Civil Law of Sport' and has publications in law journals and on other prominent sports websites on a regular basis. His Facebook page: www.facebook.com/sportjog.

Sándor Gaál: What are the most effective arguments of the players and the NFL in your opinion?

Péter Rippel-Szabó: The players’ most effective argument can be that the NFL deliberately concealed the possible health risks (such as post-traumatic symptoms caused by concussions) associated with playing football and, as a result of this failure of the NFL, the players suffered damage to health (so called ‘damage caused by incitement’ under Hungarian law). In order to be awarded damages the existence of damage, the unlawfully conduct of the tortfeasor (NFL), the related causation and the fact that the players suffered damage to health acted in good faith and in a reasonable manner all have to be proven.
The existence of damage (concussions, other damage to health, post-traumatic symptoms and deaths) is beyond doubt, however, the unlawfully behavior of the NFL (i.e. the NFL failed to appropriately inform the players about possible health risks connected to playing football), and the fact that players acted in good faith and in a reasonable manner is subject to the outcome of taking of evidence. In this context the key question is causation, i.e. the players have to show that NFL’s failure was the cause of suffering concussions and any further related damage to health.
Expectedly, in its defense the NFL will also put strong emphasis on the lack of some elements necessary for awarding damages. It is important to highlight that collisions or strikes are inherent part of the game and it can be questioned whether the NFL can be held liable for the fact that one player fouls or incidentally hits or crashes the other one, or the coach of a team explicitly encourages the players to play ‘hard’. From the medical point of view it is not entirely clear if the players’ post-traumatic symptoms are diagnosed because they had previously played in the NFL. Finally, it can be that some players suffer post-traumatic symptoms because of different illnesses or collisions happened prior to playing in the NFL.
It must also be noted here that the NFL may successfully come up with the argument that the lawsuits are not subject to the jurisdiction of ordinary state courts since injury issues are covered by the collective bargaining agreement.

Sándor Gaál: How hard it is to represent the position of the plaintiffs and the defendants?

Péter Rippel-Szabó: Concerning cases being in media spotlight it can be said that legal representatives are under more increased pressure. So there may be no difference in the representatives’ position from this point of view. In lawsuits the burden of proof lies primarily on the plaintiffs, consequently the position of the plaintiffs’ representatives seems to be more difficult. The legal counsels of the NFL may find themselves in a more favorable position as they must only prove in the first place that the NFL had done everything in its power to prevent any damage and no precondition for awarding damages is fulfilled. Of course, the parties’ situation and the burden of proof can significantly change in some lawsuits because of the different legal issues which can arise in procedural and substantial law.

Sándor Gaál: How dangerous is this situation for the helmet manufacturers, can this lawsuit ruin them?

Péter Rippel-Szabó: Although Riddell, as NFL’s official helmet manufacturer, had been named in some of the individual suits as defendant, it seems rather unlikely that Riddell or any other helmet manufacturers would be condemned in the lawsuits. The only significant risk to which helmet manufacturers could be exposed is if it can be proven that they intentionally or negligently (i.e. unlawfully) failed to inform the players that they can suffer damage to health in spite of wearing helmets. However the likelihood of this scenario is also rather low.
From another point of view helmet manufacturers could be affected if, due to the lawsuits and the negative media publicity, the number of future athletes playing football would decrease what could lead to reduction in the sales volume of football helmets. 
The positive image of helmet manufacturers could even grow if they can prove in the lawsuits that the helmets manufactured by them had had and maintained the highest safety standards possible from the outset.

Sándor Gaál: How dangerous are these lawsuits for amateur sports (NCAA, High School football, etc.)? Do these endanger their future?

Péter Rippel-Szabó: Regarding the amateur sports the primer question is whether amateur players, encouraged by the developments in NFL lawsuits, would file actions against the amateur sports leagues based on the same legal arguments. It can also be possible that parents will not allow their children to play football what could affect grassroots development. Consequently, popularity and income of amateur sports, similarly to the NFL's, may drop. Their future however should not be directly compromised for a while.

Sándor Gaál: What could be the effect of these lawsuits on the future of the NFL?

Péter Rippel-Szabó: Regardless the outcome of the lawsuits there are more aspects of the cases which negatively affect the public perception of the NFL. In the first place such aspects are the deaths, concussions and post-traumatic symptoms already associated with the NFL brand as well as the rumours on the NFL’s failure to provide proper information about the risks of playing football.
Moreover any change in the rules of the game may reduce the popularity of the NFL as the appeal of the NFL for many supporters is its certain grade of aggression. It is doubtful whether it is possible to change the rules of the game and simultaneously preserve its original roots. The question can also arise whether players will be deterred from playing?
The media campaign started by the NFL may not be sufficient in order to offset the above negative impacts. As per the future revenue generating ability of the NFL it might be that sponsors and media companies will not provide the same amount of money as earlier to the NFL. In the light of the above, reduction of the popularity of football and certain decrease in income of the NFL can be expected the extent of which partially depends on the outcome and length of the lawsuits. In the end, the future of the NFL should not be compromised.

Sándor Gaál: What will be the verdict of this litigation in your opinion? Will there be a settlement?

Péter Rippel-Szabó: There may be different decisions in some lawsuits depending on the specific matters of fact of the given case. As a result, it is possible that in some lawsuits damages will be awarded in part or to full extent to plaintiffs. However, expectedly in the vast majority of the cases, the plaintiffs will not be able to put forward proper evidence in order to prove all necessary facts what will result in dismissing their claims. 
Even so, it can be expected in more class action lawsuits that, even if the NFL is in a more favourable position from a legal point of view, there will be some settlements, as the continuous reduction of the NFL’s positive public perception resulting from the ‘never-ending’ lawsuits can cause much grater damage to the NFL than the advantages deriving from the non-payment of damages.

Sándor Gaál: Thank you very much.

Péter Rippel-Szabó: Thank you for the opportunity.

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