Last year the NFL had another magnificent season with excellent TV ratings and the incredible excitement of fans, who were not even bothered by the NFL’s long lasting lockout. In this joyful environment a process has been started concerning a serious problem, the dark side of the game. A process, which may lead to a long legal battle between former players and the NFL. This battle may also have an effect on amateur football and globally known companies. The fight between the former players and the NFL is not about the post-career benefits like the Eller vs. NFL case, it concerns more serious problems like concussions, brain damage, dementia, constant lifelong pain, death and suicide… Sad stories are part of this process, stories that must be heard by everyone who wants to be associated with the game of football and every parent who has to make a decision about letting his/her child participate in this sport on any level. This time we will not try to make some kind of judgement, we will only discuss the lawsuits and their possible effects on the game of football. As of today, 3,236 former players have been named plaintiffs in 124 lawsuits overall. 24 of the 3,236 former NFL players are the members of the Pro Football Hall of Fame (overall members of the HOF: 267, members alive: 196).
To get the readers close to this exciting topic, I have invited an expert in this field, the editor of the NFL Concussion Litigation blog, Paul D. Anderson to an interview.
Anderson’s work is frequently cited by the american media, and he’s been considered the “go-to guy” on the NFL concussion litigation. He graduated summa cum laude from the University of Missouri-Kansas City School of Law. He focused on Sports Law, Class Actions, Labor & Employment Law, and Business Litigation. He clerked with the law firm of Monaco, Sanders, Gotfredson, Racine and Barber, and last summer, interned with Senior U.S. District Judge Ortrie D. Smith at the United States District Court of the Western District of Missouri. He spent his final semester of law school interning at the Department of Labor, and devoted the remainder of his time covering the NFL concussion litigation.
After introducing Paul, let’s turn our attention to the questions and the answers:
Sándor Gaál: What are the most effective arguments of the players and the NFL in your opinion?
Paul D. Anderson: Both sides have strong arguments. The players’ best argument arises in the time period in which the Mild Traumatic Brain Injury Committee was in place (e.g. 1994 – 2009). During this time, there were several independent scientific studies that linked repeated blows to the head and long-term brain damage. The MTBI Committee, throughout this period, created its own studies directly refuting the link. The players will argue that instead of embracing the studies and building upon them, the NFL and the MTBI Committee acted as roadblock, creating “junk science” that made current and former players believe their cognitive decline was not the result of concussions and sub-concussive blows.
Conversely, the NFL’s first argument will be one that it uses often, and with much success: the lawsuits do not belong in court because they are preempted by the Collective Bargaining Agreement (CBA).
A federal judge in Philadelphia, Judge Anita Brody, will soon hear arguments from both sides to determine if the lawsuits belong in court. If she rules in favor of the players, discovery will begin and we are likely in for a long litigation battle, probably several years. If she rules in favor of the NFL, the lawsuits will be kicked out of court and pursued, if at all, through the dispute provisions of the CBA.
Sándor Gaál: How dangerous is this situation for the helmet manufacturers?
Paul D. Anderson: Riddell Helmets has been named a defendant in several of the lawsuits. The claims against Riddell are primarily based on a product liability theory. The players are arguing that the helmets were 1) defective and 2) that Riddell failed to warn the players that no helmet can prevent concussions.
In regard to the first argument, I don’t think the players have a strong argument. Riddell, and other leading helmet manufacturers, has created a helmet with a superior design. The players will have an extremely difficult time arguing that the helmets could have been made safer. The players have a much stronger argument regarding the failure to warn. To this day, players around the world believe that a helmet can prevent concussions. That simply is not true. No helmet can prevent a brain from rattling around in one’s skull. A helmet was created to prevent the skull from fracturing, not to prevent concussions.
Sándor Gaál: How dangerous are these lawsuits for amateur sports (NCAA, High School football, etc.)? Do these endanger their future?
Paul D. Anderson: The NCAA is currently facing a similar class action lawsuit that could cost it millions. There are also several lawsuits at the high school level brought by individual students who were severally injured after a coach returned a student to play after failing to notice the signs of concussions.
Though they have the potential to scare parents away, I think they actually will create change for the better. The lawsuits have brought on a new sense of awareness about the dangers of head injuries in sports. It has allowed parents, coaches, health care providers and administrators to get educated about concussions. Contact sports can continue to thrive as long as there are responsible and educated people around to supervise the game.
Sándor Gaál: What could be the effect of these lawsuits on the future of the NFL?
Paul D. Anderson: I really think the NFL is too big to fail. The NFL is a $9 billion industry and it is projecting $20 billion of revenue by 2020. Even if a multi-billion dollar judgment was rendered against the NFL, I don’t think it would bring the NFL to its knees.
The game cannot be fundamentally changed. It is, and will always remain, inherently violent. The players today – post 2009 -- are assuming the risk of long-term brain damage. And now, they can either choose to take on those risks while getting compensated handsomely, or they can walk away from the game and enjoy a better quality of life.
Sándor Gaál: What will be the verdict of this litigation in your opinion? Will there be a settlement?
Paul D. Anderson: That’s a tough call. The NFL is not looking good in the court of public opinion. As more tragic stories materialize about former players committing suicide and suffering from cognitive decline, the NFL may decide to reassess its legal strategy and start talking a global settlement.
If the players survive the motion to dismiss/preemption argument, I think the NFL will consider discussing a reasonable settlement.
A settlement would likely consist of a medical monitoring program that is created to allow former players to get baseline testing and cognitive therapy. I don’t think a settlement would include a massive amount of compensation (i.e. money in the player’s pocket).
On the other hand, the NFL could grind it out over the next 15-20 years. The NFL’s lawyers are getting paid on an hourly basis. Meanwhile, the plaintiffs’ lawyers are bank rolling this lawsuit on a contingent fee basis, which means the lawyers don’t get paid for their legal services unless a settlement or judgment is rendered in their favor.
In either event, I don’t see a quick resolution in the foreseeable future.
Sándor Gaál: Thank you very much for the interview.
Paul D. Anderson: It was a real joy, thank you for the opportunity.