You could forgive football fans if they watched this year’s Super Bowl with their hands tented over their eyes. Reporting by the New York Times’ Alan Schwarz, the advent of HDTV, and, paradoxically, the NFL’s own recent steps to penalize pro football’s hardest hits have drawn attention to the damage caused by repeated blows to the head. According to a recent story by Ben McGrath in the New Yorker, the NFL will soon have another reason for concern: At least two class action lawsuits by recent players against the league are in preparation. These suits are expected to allege that the league knew, but suppressed, knowledge of the long-term neurological risks of playing football.

Such suits might succeed, but they face long odds. Even so, the NFL should take them seriously—now, before they’re even filed.

Broadly speaking, the suits might make two different arguments. The most aggressive claim would be that the NFL knew of the dangers and actively concealed them from the players. This kind of fraudulent concealment claim, if successful on the merits, would be a disaster for the league, because substantial punitive damages would be likely.

A less dramatic cause of action would be for negligence: The league might not have known of these risks at the time the class action plaintiffs were playing, but reasonably should have known. Successful ex-players in such a case could recover for economic loss and for their pain and suffering but would not be good candidates for punitive damages. (A single lawsuit can allege both fraud and negligence and let the litigation process sort it out. This is called “pleading in the alternative.”)

In either case, the players’ wives (and, in a few states, their children) might also be able to state a case for loss of consortium. Players with serious injuries might not be able to continue as sexual partners to their spouses and might be emotionally or physically absent from family life. Such injuries, too, are compensable—but only if the primary suit for personal injury is successful.

The NFL will be able to raise a number of arguments in response, some based on the substance of the claim and others based on the procedural complexities that face any litigant suing a professional sports league. Let’s tackle the substantive problems first.

McGrath suggests that the suits might point to differences between two documents that were made available to NFL players. The first is a 2007 pamphlet stating that “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 other is a 2010 poster conveying a starkly different message: Concussions and repeated brain injuries “can change your life and your family’s life forever.”

Lawyers for the class action plaintiffs will have a field day with these documents, and not only with the differences between them. Even the more recent poster doesn’t speak to the dangers of sub-concussive impacts. The NFL probably has a duty to disclose full and accurate information, when it chooses to disclose anything at all.

But the objection will arise that neither the players nor the NFL Players Association should have relied on the NFL’s statements. Fraud cases can succeed only if the plaintiff can establish that a reasonable person would have believed and acted on the defendant’s misrepresentations. The league will likely argue that the players had the necessary information available to them (anecdotally, from retired players and news stories, and more formally from an increasingly hard-to-ignore pile of scientific studies and reporting on the issue).

That’s not the only problem the former players face. While the prospect of trauma-related dementia and other horrific consequences (possibly even including amyotrophic lateral sclerosis, commonly known as Lou Gehrig’s disease) might cause most of us to choose a different profession, professional football players are different. As the Pittsburgh Steelers’ James Harrison acknowledged earlier this season: “I try to hurt people.” Harrison was admonished for his truthful statement, but he summed it up well. Everyone who plays football at this level, today, knows that serious injuries—even death—are a possible outcome. So isn’t brain trauma just a risk that players assume?

Not necessarily. Skiing is inherently risky, as anyone staring down the face of a black diamond for the first time understands. But if the owners of the ski slope increase the risk, say by leaving a snow-making machine on the slope, skiers should be able to sue for the unnecessary increase in that inherent risk.

Ex-players might make an analogous argument here: Yes, football is dangerous and often harmful. But the NFL increased the danger of a particular class of injuries by failing to disclose what it knew and (as a result of that failure) took no measures to remediate the problem.

Next, there is the problem of connecting the NFL’s misconduct, even if established, to the injuries suffered by any given player. Although it might seem obvious that early-onset dementia is the result of repeated blows to the head, that connection needs to be proved in each case. A settlement would obviate the need for such a demonstration, and the case is likely to settle if for no other reason than the NFL’s desire to avoid adverse publicity—especially if there are damning documents lying around. But otherwise the league’s lawyers could contest every case on causation.

There are also issues that stem from the special relationship between the NFL and the players. Principal among these complications is workers’ compensation law. Although some states pointedly exclude professional athletes from the law’s reach, in other states the general rule applies: Workers’ compensation law provides the exclusive remedy for physical injuries incurred in the course of employment. The injured party can’t sue in civil court.

But state courts are in conflict over whether an employer’s intentional misconduct allows the employee to escape the exclusivity of workers’ comp. In some states, even a workplace condition that is fraudulently concealed—as is expected to be alleged in the case against the NFL—isn’t enough to take the case out of workers’ comp and into tort law. Kofron v. Amoco Chemicals Corp., a Delaware case that involved the employer’s alleged knowledge and cover-up of the dangers of asbestos in the workplace, is typical in this regard. The court held that the focus of workers’ comp was on the type of injury, not on the level of the employer’s culpability, and found the tort claim barred. Other states disagree, holding that these laws were not meant to shield from tort liability an employer who injures employees through intentional acts.

So, depending on the relevant state’s workers’ compensation law, many players would be fenced out of civil court. But problems also arise under workers’ comp laws themselves. Most of them require that the claim be filed within a specified time after the injury occurs—typically, no more than five years. California, though, has become a sort of haven for ex-football players. There, the clock doesn’t start running until the employer files notice of the injury. Even better, the state’s workers’ comp agency welcomes anyone whose employment took them into the state, however briefly. Play one game against the Chargers or the 49ers, and you’re in.

So why not just use workers’ compensation in California? Wouldn’t that be as good as a lawsuit? One potential benefit for the athlete here is that while he needs to show the causal connection between injury and employment, he doesn’t have to show that the employer is at fault at all. Yet workers’ compensation is a limited remedy. It doesn’t compensate for pain and suffering, instead offering a fixed rate of compensation for given injuries and reimbursement for medical care. And punitive damages are not available.

Another (probably not final) issue is the league’s collective bargaining agreement. Any potential claim expressly covered by the CBA, or that requires interpreting it, is pre-empted by federal labor law, meaning that no common law tort claim could proceed in state court. Players with grievances arising under the agreement must first go through arbitration and would face a difficult task in getting such a decision reversed by a federal court.

Some courts have read this ground for pre-emption quite broadly. In 2001, Minnesota Vikings offensive lineman Korey Stringer died of heat stroke after a workout during summer training camp. Stringer’s widow sued the NFL for her husband’s wrongful death, allegedly caused by the combination of unsafe equipment and improper supervision and medical care. One of her claims against the NFL—that the league had provided poor supervision and medical care—was dismissed for a reason that could have resonance in this case: The care and safety of the players is the responsibility of the team physicians, and their duty is governed by the CBA.

A court inclined to find pre-emption could make a similar case here, although the facts are quite different. While the ex-players’ suits might allege that the doctors were negligent in letting them play too soon after a concussion, the stronger claim might have to do with the cumulative effect of concussive and sub-concussive impacts. It’s hard to see how the CBA speaks to that.

Considering all the obstacles that the NFL could throw in front of a class action suit, it might seem that playing defense is the league’s best option. But it isn’t. Such a suit, whether ultimately successful or not, would create immediate, negative publicity for the league. And if a suit progresses far enough, documents might be unearthed, or testimony given, that would further embarrass the NFL.

Going on offense is a better strategy. The league already has an elaborate disability compensation and treatment system in place, recently enhanced by a neurological care program that provides “NFL alumni” with access to specialists at five leading medical centers. There is also the “88 Plan,” which pays up to $88,000 annually for the institutional care of former players suffering from dementia who have “vested” under the NFL’s retirement plan. There are also other, longer-standing disability categories that provide compensation.

But the NFL can and should do more. In addition to working on a series of rules that can, all told, lead to a significant decrease in the risk of long-term neurological damage, the NFL should establish a deep compensation fund for those suffering from injuries and conditions that have been sufficiently linked to concussions and sub-concussions. These might include early-onset Alzheimer’s, ALS, and chronic traumatic encephalopathy, a condition that has been found in the brains of several players whose lives have come to a tragic end (sometimes through suicide).

Such a fund should approach tort law in the generosity of payments, and it would be a better remedy than tort law. By establishing certain covered conditions, the fund would eliminate vexing questions of individual causation in most cases. A model for this approach already exists: The National Vaccine Injury Compensation Program pays hefty compensation to those who suffer serious but rare consequences from being immunized against childhood diseases. The vaccine program relies on a table of injuries that have been linked to given immunizations; if your injury is on the appropriate table, causation is presumed. (Otherwise, the claimant must prove causation—no easy matter.) A similar approach would work well in pro football. As the science progresses, more covered conditions could be added to the list.

Football isn’t tennis; it isn’t even basketball. It’s violent by design. But that doesn’t mean the violence and injuries must escalate without end. If the NFL accelerates the proactive approach it’s demonstrated lately, the results won’t just redound to the benefit of current and former pros. Given the league’s prominence and influence, its safety stance could cause a safety dance to break out: Everyone from college and high-school football players to athletes in other contact sports will begin to get the message.

The author thanksJoshua Marks of JM Law Group, LLC; John Hogan of John V. Hogan Law; and especially Michael Cozzillio of Widener University School of Law for their knowledge, time, and assistance.



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