A Look At The NFL Concussion Litigation: Q&A With Paul Anderson – Part 1

By:  Jared Berman, Ruling Sports Intern (Twitter:  RealSportsNLaw)

There have been a lot of changes to the NFL over the past few years regarding players’ safety. No longer can a team overload a formation to block a field goal or extra point, the kickoff was moved up five yards to the thirty-five yard line, and most recently the crown-of-helmet rule was enacted, which prohibits ball carriers from using the crown of their helmets outside the tackle box. These rule changes are part of a growing trend to make an inherently dangerous game safer. Unfortunately, the NFL’s efforts are long overdue.

On July 22nd, U.S. District Judge Anita Brody will rule on whether former players can sue the National Football League for concussion-related injuries. The NFL does not deny the allegations, but argues the complaints must be handled in arbitration in accordance with the collective bargaining agreement.

Recently, Paul Anderson, founder of nflconcussionlitigation.com took the time to discuss some of the pressing questions regarding the NFL concussion litigation.

1.     How did you get involved in sports law and more specifically, this lawsuit?

Shortly after the first concussion-related class action was filed I came across a legal blog that discussed the filing of the lawsuit. I decided I’d write a law review note on the litigation since the lawsuit was the perfect combination of sports law, complex litigation and torts.

As my research progressed more lawsuits were filed, and I figured this had the potential to become a very hot topic.   So, in January 2012, I launched my website with the hopes of trying to break into the sports law arena, while also providing a legitimate source to stay up-to-date on the litigation.

Ever since then, concussion litigation has become my passion, and it is quickly becoming an emerging area of the law. As you know, concussion litigation is not limited to the professional level. It has far-reaching implications, and society as a whole is being impacted by the litigation. The NCAA is currently facing a similar class action, Arrington v. NCAA, and there are several lawsuits pending at the high school level.

2.     Most believe that football head trauma was the catalyst for Junior Seau’s suicide. What type of an influence do you think that loss had on this lawsuit?

Although prior to May 2012 the NFL Concussion Litigation was picking up steam in both the media and the Court of Public Opinion, it wasn’t until Seau’s death that a spotlight was placed on the litigation. Seau’s death struck a cord with a lot of former and current players. Seau was never “officially diagnosed” with a concussion, yet he had CTE, which may have contributed to his suicide.

Seau’s death, as well as other suicides by former players, created a sense of fear and desperation for some former players. Accordingly, there was a strong influx of former players that joined the concussion lawsuit with hopes of being able to combat the fear of neurological disorders with the putative remedy of medical monitoring.

3.     The NFL has been around since the 1920’s, why are concussion-type injuries being brought today?

I think it has been driven by a few overriding forces. First, and undoubtedly, within the past two decades the science has evolved rapidly. What was once seen as a “benign injury,” is now considered an injury that can cause permanent damage if not treated properly.

In addition, the reality of CTE, and the damage from repetitive head trauma, is becoming clearer. Despite some “doubt casters,” multiple groups, including Boston University and the National Institutes of Health, have identified CTE as a neurological disease caused by repetitive head trauma. And, of course, football is an inherently violent game where an essential ingredient involves repetitive head trauma.

Second, the plight of former players and the staggering statistics related to the increased risk of neurological disorders set off the alarm bells. Plus, the high-profile suicides and bizarre deaths of dozens of former players in the past 20 years, led Congress to question the NFL’s sincerity regarding head injuries in sports.

Through political pressure – and now litigation – the NFL had no other option but to accept and embrace the reality that head injuries can no longer be ignored.

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