Over the past several months, more than a dozen lawsuits have been filed on behalf of over 120 retired NFL players and their wives. The suits allege that the NFL deliberately concealed information regarding the medical effects of repeated hits to the head and ignored decades of studies regarding brain trauma. Legally speaking, the players have an uphill battle proving these allegations, but these lawsuits are something the NFL has to take seriously, or else risk the possibility of tremendous fallout.
Many of the plaintiffs allege that, starting with the formation of the Mild Traumatic Brain Injury Committee (MTBIC) in 1994, the NFL began systematically concealing the connection between concussions and long term brain injury. According to the suits, the MTBIC habitually engaged in discrediting and concealing scientific analyses linking on-the-field head trauma with long term neurodegenerative diseases. Starting in 2000, the MTBIC criticized and rebutted peer-reviewed scientific studies, some using former NFL players, concluding that concussions can lead to permanent brain damage, vision impairment and even death if not properly managed.
As some of the suits note, in 2007, the NFL distributed a pamphlet to players regarding concussions that said, "Current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems if each injury is treated properly." The pamphlet also stated that "there is no magic number for how many concussions are too many." However, in 2010, the NFL placed posters in every locker room that uses words like "depression" and "early onset dementia" in addition to warning that repeated concussions "can change your life and your family's life forever."
"We believe that the long term medical complications that have been associated with multiple concussions – such as memory loss, impulse anger-control problems, disorientation, dementia – were well documented, and that factually the NFL knew or should have known of these potentially devastating neurological problems, and yet it didn't take any active role in addressing the issue for players," said Larry Cohen, who represents seven former retired NFL players, including former Chicago Bears quarterback Jim McMahon.
As for the NFL's position, outside counsel Brad Karp stated, "The NFL has long made player safety a priority and continues to take steps to protect players and to advance the science and medical understanding of the management and treatment of concussions. The NFL has never mislead players with respect to the risks associated with playing football. Any suggestion to the contrary has no merit."
The retirees face a variety of legal hurdles that they will have to overcome in order to have their cases go forward. There is the issue of assumed risk, given the violent nature of football. Another issue is proving that their head injuries were caused by head traumas occurring in the NFL and not in high school or college. Additionally, the plaintiff's will have to overcome a high burden of proof in showing what the NFL knew when, and that the league deliberately hid information from the players.
The NFL also is taking the position that the claims made by the players should be handled under the collective bargaining agreements that they signed during their NFL careers. The players argue that as retirees, they are no longer party to those collective bargaining agreements and that they discovered the extent to which they were not warned about concussions only after their retirement. One federal judge has already ruled that the claims are to be governed by the CBAs signed by the players.
Just before the year's end, the NFL and several of the plaintiffs asked the Judicial Panel on Multidistrict Litigation, a federal board, to combine all the cases and move them to federal court in the Eastern District of Pennsylvania. This clearly would be to the NFL's advantage, as it would prevent the possibility of inconsistent rulings in various jurisdictions as well as the possibility of dismissing or settling all of the lawsuits at once. Assuming the cases are not dismissed, it is paramount that the NFL handle these cases with extreme care. Any discovery done could lead to the production of information that could potentially wreck irreparable damage to the league's image.
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