Today’s post is a guest post from Paul D. Anderson highlighting the factual background of one case brought by former NFL players against the NFL arising from post-concussion cognitive disorders. All opinions expressed in this piece are those of Anderson.
Paul D. Anderson is a third-year law student at the University of Missouri-Kansas City School of Law. He is focusing on Sports Law. Business Litigation and Class Actions. If you have any questions, feel free to follow him on twitter @PaulD_Anderson.
Concussion Lawsuits Rattle the NFL
During the last decade concussions have become a major concern in sports. Some professional sports organizations were proactive and implemented return-to-play guidelines to ensure their athletes were no longer showing symptoms of concussions. However, one professional organization—the NFL—allegedly failed to take affirmative action and is now facing several lawsuits.
The leading class action lawsuit was filed in the Eastern District of Pennsylvania, captioned Charles Ray Easterling v. NFL. The lawsuit alleges that the NFL actively concealed the link between concussions and neurodegenerative diseases. The putative class seeks medical monitoring, and the complaint asserts four state-law claims: negligence, concealment, civil conspiracy and loss of consortium.
This article will combine the three lawsuits and discuss the allegations facing the NFL individually and its likely defense in blocking the lawsuits.
The Offensive Scheme
According to the complaint and others filed subsequently threafter, for more than 35 years the NFL concealed the link between concussions and long-term-brain injuries. In 1994 the NFL undertook the duty of creating the Mild Traumatic Brain Injury Committee (MTBIC). Its purpose was to study, “the effects of concussions on the long-term health of retired NFL players.” Drs. Elliot Pellman, Ira Casson and David Viano headed the committee. The complaints allege that their ultimate goal was to discredit and conceal all scientific studies that linked on-the-field head trauma with long-term neurodegenerative diseases.
According to the lawsuits, the persons that have suffered the most from this willful ignorance are the former players that sacrificed their lives to make football a multi-billion dollar industry. Various lawsuits assert that the plaintiffs have incurred debilitating neurological diseases, dementia, Chronic Traumatic Encephalopathy (CTE), paranoia, depression, and worst of all, death!
Take the tragic story of former Chicago Bears safety Dave Duerson who shot himself in the chest in February 2011. In his final plea for help, he left a note that stated, “Please, see that my brain is given to the NFL’s brain bank.” Duerson’s story is not an anomaly; several other former players—Mike Webster, Terry Long, Andre Waters, John Grimsley, and Tom McHale—were struck with similar neurological symptoms prior to their premature deaths.
As early as 2000, peer-reviewed studies were published within the scientific and neurological community that unequivocally stated that there is a link between concussions and long-term-brain injuries. One study led by the University of North Carolina and published in the September-October issue of the American Journal of Sports and Medicine stated, “Concussions can lead to permanent brain damage, vision impairment or even death if not managed properly.” Furthermore, a similar study authored by Dr. Kevin Guskiewicz in 2003 surveyed 2,500 former NFL players; 263 of the retired players suffered from cognitive disorders.
The NFL’s MTBIC disputed these findings and concluded that it was junk science and lacked “scientific rigor.” Accordingly, the MTBIC published its own studies in 2003 and 2004 in Neurosurgery. The studies concluded “that NFL players did not show a decline in brain function after suffering concussions.” Coincidentally, the editor of the scholarly journal was Mike Apuzzo, the New York Giants’ neurosurgical consultant. A conflict of interest, perhaps? These studies were heavily criticized by the neurological community as unreliable, heavily biased and industry-funded research.
The most compelling research linking concussions with later cognitive decline came between 2005 and 2008 through the independent studies of Drs. Bennet Omalu, Robert Cantu and Ann McKee. Their combined research has led to the finding of Chronic Traumatic Encephalopathy (CTE) in several former players (e.g. 14 of 15 player’s brains studied showed signs of CTE). These findings were published in Neurosurgery and concluded, “That Webster’s and Long’s deaths were partially caused by CTE, related to multiple NFL concussions suffered during their professional playing years.”
Despite these findings and numerous public reports discussing the severity of concussions, the MTBIC published an article in the Nerologoical Focus concluding, “that mild TBIs [traumatic brain injuries] in professional football are not serious.” In addition, the NFL continued to dispute its own studies, arguing that more research was necessary. Arguably, the most damning of all evidence to date, was a press release and pamphlet the NFL circulated to all teams and players in April 2007 explicitly stating, “Current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems…[t]here is no magic number for how many concussions is too many.” The plaintiffs assert that this is a fundamental allegation for proving fraudulent misrepresentation.
In 2007, the national media started covering the tragic stories of former players struck with neurodegenerative diseases, the findings of Drs. McKee, Cantu and Omalu regarding to CTE in former players, and the NFL’s stiff-arm and blatant denial that concussions lead to long-term cognitive decline. On October 28, 2009, Congress took note of the seriousness of concussions in the NFL after a University of Michigan study was released that found “NFL alumni are diagnosed with Alzheimer’s disease or similar memory-related diseases vastly more often than the national population—including a rate of 19 times the normal rate for men ages 30 through 49.” Appropriately, the judiciary committee summoned the NFL and others to report on the “Legal Issues Relating to Football Head Injuries.”
The Congressional hearings exposed what some assert to be the NFL’s insincere position and active concealment of the link between concussions and cognitive decline. Roger Goodell was peppered with questions as to why the NFL’s MTBIC continued to deny and discredit the medical community’s consensus that there is a clear link and that multiple former players are suffering from dementia, depression, and severe neurodegenerative diseases. In reply, Goodell deferred the questions to his cohorts (Drs. Casson, Pellman and Viano) by asserting the “empty-chair defense.” Dr. Casson and his crew failed to appear at the Congressional hearing, so the Committee played Dr. Casson’s comments on HBO Real Sports. Dr. Casson emphatically denied that multiple head injuries in the NFL could lead to dementia, depression, CTE, and early-onset Alzheimer’s. This denial led Congresswoman Linda Sanchez to analogize the NFL’s concealment to the tobacco industry’s denial of the link between cigarette consumption and health hazards, effectively foreshadowing the pending lawsuits against the NFL.
Following the Congressional hearings and the embarrassment and bad press the NFL received due to its failure to act, the NFL was arguably obligated to do a complete about-face. The NFL forced Drs. Casson and Viano to resign and suspended the work of its misinformed MTBIC. The NFL partnered with the Center for the Study of Traumatic Encephalopathy and started pouring money into its “brain-bank” operation. To be fair, the NFL has increased certain retirement benefits. Some reports allege that the process is notorious for its quick denials and monotonous administrative procedures, leaving numerous qualified recipients without coverage.
Despite the NFL’s subsequent remedial measures (although such action will not be admissible to prove fault, See Federal Rules of Evidence Rule 407), thousands of former players are still suffering from neurodegenerative diseases, unable to afford proper medical care and lack the ability to fill out the tedious forms required to qualify for the NFL’s retirement plans.
The NFL’s Counter Attack
On November 9, 2011, the NFL responded to the Easterling lawsuit by filing a motion to dismiss. The crux of the NFL’s argument is federal preemption. In essence, the response argues that the plaintiffs’ cause of action is barred by the Collective Bargaining Agreement (CBA) the players and the NFL entered into, and thus any dispute must be resolved through the grievance procedures set forth in the CBA. The CBA requires all disputes arising from the CBA to be interpreted by an arbitrator—outside of court—even worse, this so-called “labor dispute” may be barred by the six-month statute of limitations arising from Section 10(b) of the LMRA. The NFL’s response is well grounded in precedents and may very well rule the day.
The tragic irony of the case being dismissed on the pleadings is that the same agreement the players entered into to protect their rights, may be the biggest hurdle to providing the players with their day in court.
In order to overcome the NFL’s preemption argument and to prevent dismissal, the plaintiffs must persuade the court that the state-law claims are independent of the CBA and are not “inextricably intertwined with consideration of the terms” of the CBA. This indeed will be a tough argument to make; however with the ingenuity of a good plaintiff’s lawyer there are arguments to be made.
In short, the argument will likely be that the plaintiffs (i.e. retired players) are not a party to the CBA, and thus the CBA does not apply nor will it need to be interpreted to adjudicate the state-law claims. Furthermore, the NFL owed a duty to the players by undertaking the creation of the MTBIC. And then, applying the pertinent facts above, the NFL breached this duty by failing to inform the players of the risks of concussion, it misrepresented and concealed the link between concussions and cognitive decline, and thus materially harmed and caused damage to the former players.
In any event, the litigation battle has begun, and the ball is now back in the plaintiffs’ hands to respond to the NFL’s motion to dismiss. One can only hope that the former players’ needs are addressed. The saga will continue throughout the following year.
 Alan Schwarz, Dementia Risk Seen in Players in N.F.L. Study, N.Y. Times, Sept. 29, 2009, at A1. See also, Joseph Hanna & Daniel Kain, The NFL’s Shaky Concussion Policy Exposes the League to Potential Liability Headaches, NYSBA Entertainment, Arts and Sports Law Journal Fall/Winter 2010.
 Transcript of the hearing: http://judiciary.house.gov/hearings/printers/111th/111-82_53092.PDF