Gridiron Games: Analysing the NFL Concussion Litigation
By Fatema Merchant
“Football isn’t a contact sport; it’s a collision sport. Dancing is a contact sport.”
-Duffy Daughtery, former American football player and coach
With an average team value of over 1 billion USD, the National Football League (“NFL”) is the most valuable sports business in the world. Formed in 1920, it is divided into two conferences – the American Football Conference and the National Football Conference, with each conference consisting of 16 teams. The regular league season runs from September to late December or early January. After the end of the regular season, the top six teams from each conference play in the NFL Playoffs, which culminates in the championship game, known as the Super Bowl. The NFL’s popularity can be evidenced by the fact that the Super Bowl itself attracted over 111 million viewers in 2012, making it the most watched US television programme of all time.
Though a highly profitable business, NFL too has had its share of problems. Some of the biggest concerns plaguing the NFL are head injuries and concussions suffered by athletes. In a contact sport like American football, athletes are highly susceptible to injuries. To prevent (or mitigate) these injuries, players are required to wear special protective gear such as padded plastic helmets, shoulder pads, hip pads and kneepads. This gear was introduced decades ago and is being constantly improved to help minimize lasting injury to athletes. However, an unintended consequence of all the safety equipment is an increase in the level of violence on the field. Therefore, athlete safety in American football has been a controversial subject over the years, with the main concern being concussions, a type of traumatic brain injury. According to the National Center for Catastrophic Sport Injury Research, between 2000 and 2005, 28 football players died from direct football injuries and an additional 68 died from dehydration or other examples of ‘non-physical’ dangers.
NFL Concussion Litigation
On June 7th, 2012 a U.S. Judicial Panel on Multi-District Litigation consolidated lawsuits initiated by hundreds of former NFL players alleging that the NFL deliberately hid critical information about the dangers of concussions and hits to the head. The total number of plaintiffs in the lawsuits is 3,356 including players, spouses and other relatives or representatives. These lawsuits have been consolidated into one master complaint against the NFL. The relief sought by the plaintiffs includes:
- Declaration of liability;
- An obligation of medical monitoring of plaintiffs;
- Compensatory and punitive damages; and
- Prejudgment interest and attorneys’ fees.
The concussion litigation has two components – ‘class action’ and ‘personal injury’. The class action suit aims at securing medical monitoring and related health benefits and perks for the former players. The ‘personal injury’ component enables any player, who has endured a concussion and symptoms like short-term memory loss, extreme irritation, anxiety, etc., to institute a personal injury suit against the NFL. In the present litigation, it is the contention of the players that the NFL actively concealed the detriments of and purposely misrepresented the risks of multiple concussions, which resulted in them suffering considerably; a scenario that could have been averted had the NFL not indulged in such conduct and had honestly conveyed all the relevant and truthful information to the players. Many of these players who have been named in the complaint and those who are included in the class of players are those who:
- suffered brain damage and latent neurological disorders and diseases as a result of the NFL’s acts and/or omissions; and/or
- are at a high risk of suffering from such conditions in the future.
Concussion and its Effects
A study conducted by medical experts in 2005, found that concussions were related to “translational acceleration-deceleration, with considerable head impact velocity and velocity changes.” In other words, when a person suffers a head injury, the increase in the strain on the brain tissues may sometimes induce them to tear or get bruised which may cause an temporary impairment in the functioning of the brain Even the use of helmets, cannot resolve the problem as they are primarily meant to protect the player’s skull and not the brain as such. Concussions can lead to acute problems like personality changes, memory loss, irritability, problems with impulse control and headaches.
Significant Aspects of the Litigation
The first obstacle the players will face is whether their state law tort claims against the NFL are pre-empted by federal law and subject to the arbitration clause of past and present Collective Bargaining Agreements (“CBAs”).
Pre-emption will work to the NFL’s benefit as federal law of the U.S. requires that “pre- empted claims must first be presented through the arbitration procedure established in a CBA” (Givens v. Tennessee Football, Inc., 684 F. Supp. 2d 985, 991 (M.D. Tenn. 2010) ). A court finding in favour of the NFL will dismiss the case and require the parties to proceed with arbitration.
Arguments on merit:
There are many factors, for example duty to warn, contributory negligence, assumption of risk, etc., that may increase, reduce or eliminate NFL’s liability.
Failure to warn:
When there are special facts within one’s knowledge and understanding which are not apparent, a duty to warn about the potential danger arises. As the players began to raise the issue of safety, the NFL enacted certain minor changes in the rules of the game to make it safer. The first safety-related rule was introduced in 1962, which prohibited grabbing another player’s facemask. The head slap move (to strike an opponent above the shoulders) was banned in 1977 and in the 1979/78 season, the NFL created a rule prohibiting players from using their helmets as a weapon of defence. The rule stated that no player is allowed to use their helmet to ‘butt’ ‘spear’ or ‘ram’ into an opponent using the crown. However, this rule was not enforced as no penalty was prescribed for it. It was only in 1996 that the referees began announcing ‘personal fouls’ for such malicious moves. These rule changes highlight the fact that there is an implied admission by the NFL that severe head injuries could be caused due to impact to the head. However, their reluctance to enforce penalties for vicious moves evidences their lack of sincerity for many years which still continues.
The ‘Section 88’ amendment to the 2006 NFL CBA provides retired NFL athletes suffering from dementia with up to USD 88,000 annually to help cover the medical costs of care. ‘Section 88’ or the ’88 Plan’ is funded by the various NFL teams and jointly administered by the NFL Players’ Association (“NFLPA”) and the NFL. The NFL could hence argue that a player’s acceptance of Section 88 funds absolves the NFL of any future civil liability.
Assumption of Risk:
The general rule with regard to assumption of risks is that players are assumed to consent to obvious risks, but not the other hidden effects that those risks might produce. As mentioned earlier, in American football there is an inherent risk that a player is likely to be hit in the head during a game. NFL could argue that this risk is obvious and by playing the game, the players have assumed this inherent risk. Therefore, there should be no general duty to warn players about the risk of suffering concussions in football.
On the other hand, players can argue that there are certain risks, the effects of which are not apparent. For example, that concussion might cause long-term brain damage. This will test the scope of the duty to warn.
Contributory negligence refers to a situation where an injury occurs through the carelessness of another competitor, team, organiser or employer. In such cases, the injured person (the plaintiff) may have an action in negligence if, the following elements are proved:
- that the defendant owed the plaintiff a duty to take reasonable care of the plaintiff’s safety, and failed to do so; and
- causa proxima non remota spectator, i.e., that the defendant’s conduct which caused the injury was the proximate or immediate cause and not a remote cause.
In Noak v. Waverley Municipal Council [(1999) NSWCA 129], a rugby league player sustained an injury during a match after he hit a water sprinkler projecting from the surface on which he was playing. In this case, even though the player was made aware of the potential perils and hazards of playing on such a field, the League and the team of which the player was a part of were held liable nonetheless as the court found that they owed a duty of care to the player and had been negligence in the performance of such duty.
Therefore, the players can use ‘negligence’ for a successful claim against the NFL as it has consistently breached its duty to protect the ‘neurological well-being’ of its players by not enacting adequate rules, policies, and regulations. It is its duty to exercise reasonable care as the governing body of a game which creates a risk of physical harm. Similarly, the fraudulent concealment of information will be significant to the players’ claims which are being pursued against equipment manufacturers for product liability. Under the Restatement of Torts, “one engaged in the business of selling or otherwise distributing products, who sells or distributes a ‘defective product’ is subject to liability for harm to persons or property caused by the defect.”
A product can be deemed defective if it contains insufficient and inadequate warnings or instructions. Therefore, the players have alleged that if Riddle, Inc. (the NFL’s exclusive equipment manufacturer) possessed information concerning concussion effects it had a duty to warn or inform the players using the helmets. Ultimately, the success of these claims will boil down to the players’ ability to show that Riddell Inc. concealed information pertaining to the effects of head injuries and that those injuries caused long-term hazards to the injured.
A judicial pronouncement on the issue will lay the foundation for various practices and procedures to be established by the NFL in protecting the health of its players. For starters, more information should be provided to athletes on minimising concussion related injuries. Athletes should also be constantly monitored and assessed for concussion related health impacts, including brain injuries. It is also imperative to have a doctor with experience in treating concussion related injuries, present on-site during games.
The current concussion crisis could have a lasting impact on the future of American football. One of the main criticisms against American football is that while athletes in other professional sports who suffered similar concussions were disallowed from playing for a long period, NFL protocol allowed such players to return in that very game itself. Many players played “dinged” (NFL slang for a “concussion”) as they were not informed about the residual effects of concussions. Going forward, the NFL should draw up guidelines for players who suffer concussions and also give due consideration to compensation and pension schemes.
The NFL is now tasked with doing everything within its power to make American football a safe sport to ensure its continuity. Sports administrators and managers from other sporting disciplines are, without doubt, watching to see how this all unfolds.
© The Sports Law & Policy Centre