NFL Concussion Lawsuits in Philadelphia

by The Rothenberg Law Firm LLP
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Earlier this month, a federal court in Philadelphia heard arguments about concussions in the National Football League (NFL).  More than 4,100 plaintiffs, who are part of 222 consolidated lawsuits, are at the beginning of the process of having their cases heard.  The former NFL players allege that the NFL "deliberately and fraudulently" concealed the dangers of head trauma. The lawsuit further claims that the NFL did not fulfill its duty to warn players that they could face an increased risk of permanent brain damage if they played too soon after a concussion. According to the former players, the league hid the evidence of the long term results of head trauma for decades.

What’s At Stake in the Hearing?

At this stage, federal judge Anita Brody will decide whether these cases should be heard in federal court, or whether they should go through the process of the NFL’s collective bargaining agreement (CBA).  The NFL would like to keep the cases out of the courtroom and has argued that all of the post-career conditions for its players—including any related to injuries that they sustained while on the field—were collectively bargained for with each player’s explicit agreement to be governed by the terms of the NFL’s CBA.

The former NFL players want their cases to be heard before a court, and they’re arguing that the CBA shouldn’t apply to their claims.  Why?  According to NFL.com reporter, Andrew Breer, the players claim that “because the league set up the Mild Traumatic Brain Injury committee (made up of doctors) independently of the CBA, their claims of negligence and fraud also exist outside the realm of the CBA; they[ ] say this proves the league has taken on traumatic brain injury as its duty.”

In other words, the players claim that the NFL acknowledged its duty toward traumatic brain injuries by setting up the committee, and that the league was negligent when it failed to deal appropriately with the players’ traumatic brain injuries.  According to CNN.com, David Frederick, the lawyer for the former players stated that the NFL did not do anything about the injuries these plaintiffs suffered because they “didn't cause bleeding or broken bones.”  Frederick argues that “[t]he NFL had held itself out to be the guarantor of safety. ... When the NFL began to glorify and monetize violence on the field, it breached its duty of due care."

What Injuries Have Former Players Sustained?

Former fullbacks Kevin Turner and Steve Smith suffer from ALS, also known as Lou Gehrig’s disease. Other former players, such as Chicago Bears quarterback Jim McMahon, are dealing with dementia.  Similarly, the former New Orleans Saints lineman Kyle Turley suffers from a seizure disorder.  These are just a few of the players who are part of the lawsuit and are suffering from various neurological issues.

Others, such as Junior Seau (whose family’s case was consolidated with those in Philadelphia), took his own life last year, and autopsies have confirmed that he suffered from chronic traumatic encephalopathy (CTE). CTE, according to the Center for the Study of Traumatic Encephalopathy at Boston University, is a “progressive degenerative disease of the brain found in athletes (and others) with a history of repetitive brain trauma,” which includes “symptomatic concussions” and “asymptomatic hits to the head.”  After months, years, and sometimes even decades, the disease can lead to “memory loss, confusion, impaired judgment, impulse control problems, aggression, depression, and eventually, progressive dementia.” As of now, CTE can only be definitively diagnosed through an autopsy, but new research continues to suggest the looming presence of CTE in the brains of retired football players. Many former NFL players have indicated their desire to donate their brains after death so that doctors will be able to explore the long term effects of head trauma on football players.

So how will the judge decide the cases in Philadelphia?

At the end of the hearings, Judge Brody indicated that she needed more time to examine the facts.  Some commentators suggest that we may not know anything for months.  This case is important not only to the plaintiffs bringing the lawsuit, but it could determine the NFL’s future role in caring for players with football-related traumatic brain injuries.

 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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