A Look At The NFL Concussion Litigation: Q&A With Paul Anderson – Part 2

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

4.  Assuming a player has suffered a concussion-type injury, how can it be determined that the injury occurred during the NFL? Rather than peewee, high school, or college football?

The issue of causation will certainly be at the heart of the players’ case. Proving that the NFL’s wrongful conduct actually and proximately caused the players’ injuries will be difficult, but perhaps not impossible.

First, the causation chain will be driven by medical-causation experts — guided by experienced trial attorneys. If they can convince the jury that the NFL’s wrongful conduct at least contributed to the players’ injuries, then there is a likelihood of success.

Second, the plaintiffs’ lawyers will seek to apply the “multiple-causation theory.” Remember your 1L Torts class and Summers v. Tice or Landers v. E Tex. Water Disposal? This legal theory has been repeatedly and successfully applied in asbestos and other toxic torts cases.

Basically, the short-circuited, conflated, argument will be: Yes, former players were exposed to head trauma prior to entering the NFL, and perhaps other prior industries were negligent in failing to warn. But, nonetheless, the NFL is the defendant currently being sued, and it has been the “purveyor” of all things football since the inception of the game. As the industry leader, it is appropriate for the NFL to be held jointly and severally liable for substantially contributing to the players’ injuries.

No doubt, it is a legal stretch, which will be vigorously opposed by the NFL, but it’s a viable theory that may open the door to the construction of new case law.

2.     Given the NCAA and NFL’s close ties and the fact that many players’ head injuries may have been caused during their college years, should the NCAA be hailed as a co-defendant?

I think some would argue that the NCAA should also be named as a defendant in the NFL Concussion Litigation. (Applying the legal theory above may overcome this purported defect.) But, I think adding the NCAA would simply muddy the waters.

Here, the plaintiffs’ theory hinges on the NFL’s conduct as the “guardian of football.” In this role, the NFL allegedly had the capacity to force incremental change through its historical conduct. Instead of driving change, the NFL allegedly turned a blind eye and “sensationalized” big hits. The plaintiffs would rather place the sole blame on the NFL, which has a $9.5 billion purse, as opposed to confusing the issues by adding the NCAA.

Notwithstanding, the NCAA has its own issues regarding its lackadaisical attitude of head injuries in sports, which I’ll save for another day. It should be noted that the NCAA is currently fighting its own class action concussion battle in the Northern District of Illinois.

3.     If the judge rules in the players’ favor how will that impact the future of the NFL?

Since 2010, the NFL has arguably taken appropriate steps to try to make the game safer. The operative word there is “try.” Unfortunately, the game of football is inherently violent, and I don’t think this game can ever be completely safe. Rule changes can only go so far, and the NFL may have already reached its limit. Of course, you can always increase the season to 18 games because that will obviously make the game safer!

Whether the lawsuit is successful or not, I think the former players have already won. They have opened our eyes to the serious risks of head injuries and we, as a society, have benefited. Millions of dollars are now being poured into research and awareness campaigns relating to head injuries in sports. Although there is a lot more that needs to be done, I think the former players have laid the groundwork.

Even if the players win a significant monetary judgment against the NFL, I think the NFL will continue to thrive. The NFL’s biggest impediment will be the role parents’ play in the decision of whether this game has become too dangerous for the kids to play. If this occurs in a dramatic fashion, I think that would lead to the demise of the NFL, as opposed to litigation being the downfall.

7.     The judge is expected rule on July 22nd, what are your expectations?

I think the players will be successful, and Judge Brody will deny the NFL’s Motion to Dismiss, at least in part. Of course, the NFL will immediately appeal to the 3rd Circuit. But, Judge Brody will likely allow discovery to proceed.

The NFL has, I’m sure, already made a decision on whether it should continue to fight this battle in court, or if it is time to discuss a global settlement in earnest.

If the NFL decides it wants to fight this thing out, I’d expect the litigation to go on for several more years. On the other hand, if a global settlement is reached, I think the cost of a medical monitoring regime would be north of $2 billion dollars. Only time will tell in this high-stakes game of NFL complex litigation.

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