Can Recent NFL Retirees Score Big in Head Trauma Suits?

The recent story about the large number of famous NFL players who are now suing the NFL for their head injuries has to stir up conflicting emotions in any neutral observer. Unlike many law suits of this sort, I doubt that there are many outsiders who would dismiss these claims on the simplest and most powerful of grounds: there is no injury worthy of compensation. Football is a tough, sometimes brutal, game. And injuries can come with frightful suddenness, as when Jack Tatum hit Darryl Stingley.  Alternatively, the full fury of some injuries is only revealed long after retirement following a career’s worth of cumulative and insidious damage.

If the fact of injury were all that it took to win a lawsuit, the NFL and its various teams would find themselves in hot water. But the fact of injury is only the first step on a long trip to recovery.  I don’t know much about the particulars of each individual case, but I do know enough to explain why at the outset of this lawsuit the players are at a great disadvantage. 

Here are some of the difficulties.

First, there is causation. As a matter of basic tort theory it takes more than an injury to establish a lawsuit. There must be shown that there is some causal connection between what the defendants did and what happened to the plaintiff. In this case, the problems with causation are not complex philosophical disputes. They are the nuts and bolts questions of who hit whom, and when. The professional players did not start as pros. They played in Pop Warner, in high school, college, developmental leagues, overseas and yes, in the NFL.  Some of the superstars had long and successful careers. But it really matters when and how these accidents occurred, and it is exceedingly difficult to think of any mass resolution of different claims, given the wide variation in circumstances.  A class action will not work on this issue, and letting the parties join with each other voluntarily creates all sorts of conflicts of interest.

Second, there are the knotty and interrelated questions of whether there was a duty to disclose and, more ominously, whether there was some intentional soft-pedaling of the harms in question.  And again, the issue is just plain tough. The first point is, is there really any reason to warn about these injuries, given that the risk of concussion from collision is as plain as the nose on one’s face? The kinds of harms here would be impossible to conceal from players who have seen others suffer from concussions and chose to continue to play themselves after diagnosed with injuries. The fraud claim is even more difficult to make out given the want of direct communications between the league and the players—at least if that is true. 

Someone might, of course, locate a smoking gun, but it will be hard to win this case without it, and hard to show that the same gun applies to all players who worked for different teams at different times under quite different circumstances. The bounty scandals of the New Orleans Saints may heighten awareness as to the seriousness of the problem, but, if anything, they hurt the players’ chances. After all, why give recovery in cases where there is no evidence of any sort about this kind of dispute.  The dramatic incident can easily become the floor below which there is no recovery in this litigation.

Then, there is the nasty issue of player privilege. These athletes received very substantial salaries throughout their career.  It is easy for someone to think that these count as a “risk premium” for danger. The idea here is that the high salaries are payments in advance for any future injuries, which the players should deal with in their own ways. Whether this is true of all players is again an open question, but it is surely an issue that will haunt the players and make it unlikely in these hard economic times that they will gin up much sympathy from the public at large.

And lastly there are the procedural questions of whether litigation is possible so long as the collective bargaining agreement—remember these are union players—makes arbitration the only forum for the resolution of these grievances. That question depends on the interaction between the specific contract language, which tends to favor arbitration, and a background set of judicial norms that is ambivalent toward it.

Let me close with this general observation:  There are responses that the players can raise to each of these points.  The question of causation puts the loss on defendants so long as their conduct is one of multiple causes. The duty to warn is imposed not about the fact of the risk, but also about its extent. The advance premium view of agreements presupposes that one knows what the correct wage levels would be if those risks were not assumed.  And arbitration arrangements may be set aside. 

Here, of course, the players have to win on just about every point to score big.  I don’t think that the odds are in their favor. Yet settlements are always possible because neither side will relish carrying out this dispute in public. Exactly what is offered will be hard to say, but it will likely take the form of a system-wide solution that either minimizes the differences in individual cases, or adopts some kind of a grid system that arrays cases by some measure of severity (as the Vioxx cases were settled).   

  1. Chris Johnson

    Wonderful illumination on the legal aspects.

    Historically, I think the NFL and the Player’s Association all agree on a couple of things: there are damaged players that need care and the only place to get the money for that care is from the exisiting League and the current players.  Obviously, history and past agreements won’t take care of those people that are having serious problems now, and that weigh heavily on the League and the players.

    Separately, there are those that believe the helmets, or at least the face masks, need to be removed.  The principle being that people do not lead with their heads when they are exposed.  That doesn’t help for heads that bounce back against the field, but it may reduce the number of forward impacts.

  2. KC Mulville

    In high school, I was the starter at left defensive tackle. Every day, I went up against the starting offensive right tackle, Gerry Feehery. We had a great team; both of our starting running backs went over a thousand yards, due in no small part to Gerry’s talent. I went on to the Jesuits, and Gerry went on to Syracuse and the NFL, where he played for several years. Gerry’s a proud conservative, a strong family man (he sent a son to the Naval Academy, who’s now in Afghanistan), and he’s always been a good friend to me.

    Gerry is one of the players in the suit.

    I have no idea what the law is, or how the suit will pan out. I’m not a lawyer. I do, however, have a rooting interest in this case, and I dread the idea that some of those retired-player horror stories would happen to Gerry and his family.

    To be honest, Richard, I know they may not gain much sympathy from the general public … but they certainly have my sympathy. 

  3. cdor

    With all due respect, KC, when football started players wore nothing but a leather cover on their heads and little, if any, padding on their bodies. Admittedly players are larger, stronger, and faster now. But we are talking about ending the game of football. That is the bottom line with these lawsuits and your friend will be a part of that consequence. A woman in some town has made the news by calling for the end of football in her public school system. We continue to feminize our society. Maybe this is good, I do not know. As Prof Epstein pointed out, the players make huge incomes from this game. Do they wish to see that end? I doubt it.

  4. Larry3435

    So having a 300 pound lineman slam your head into the ground over and over might be bad for you?  Wow.  Who knew?

  5. EThompson

    I think Joe Theismann could have sued the Giants and LT for ending his career, but do we really want to go down this road? Leave it alone; both players and owners are well aware of the risks involved when super-sized and physically aggressive men face each other on the field.

    Enough already. Play the game! (And pls… no pink ribbons.)

  6. EJHill

    The only point I would take issue with the esteemed Mr. Epstein is this:

    And lastly there are the procedural questions of whether litigation is possible so long as the collective bargaining agreement—remember these are union players—makes arbitration the only forum for the resolution of these grievances.

    The NFLPA does not represent players who have left the game. There are two competing organizations, The NFL Alumni Association (NFLA) and the Retired Players Association (RPA).

    The union is so concentrated on current players (Hey, that’s where the money is!) that the retired players sued and won $28M from the NFLPA after the union dropped its Group Licensing Authorization. The GLA was designed to market historical players for such things as video games but the NFLPA didn’t want to share the take that current players get from the use of their names in blockbuster titles like EA Sports’ Madden series.

    The RPA has repeatedly sued the NFLPA. Once the NFLPA was decertified as a union in the period prior to the new collective bargaining agreement reached last August, the RPA claims the union had no legal right to bargain on the behalf of retirees.

  7. barbara lydick

    The  famous photo of Giants quarterback Y A Tittle in the end zone (of the old Pitt Stadium, 1964), helmetless, bloodied, and kneeling after having been knocked to the ground is what I always think of when this subject comes up.  He was quoted as saying “That was the end of the road. It was the end of my dream.  It was over.”

    That said, still I would hate to see football outlawed.  (Can’t you just see Texas’ reaction to such a decision?  Talk about a reason for secession…)

  8. EThompson

    As an addendum, should Muhammad Ali now think of suing the Boxing Federation?

  9. Dramman

    I hope some can induge me a little, as this seems like a perfect opprotunty to add and review a little for my bar exam. Anybody feel free to correct me.

    Many here echo the defenses of consent or assumption of risk. I do not know the jurisdiction the case is filed in, but likely the claims will be reviewed under comparative negligence. So these are not an absolute defenses, and the player’s actions would offset the league’s negligent actions.

    With respect to Prof. Epstein,  I think he gave half an answer. It is not so much the question of causation from playing in the NFL alone, but whether the breach by the NFL (whatever it is) caused the harm. This might be where the more conspiratorial tones come in. The NFL new the dangers, and did not warn or mitigate, which it has a duty to do as regulators of the sport/workplace.

    I am surprised they are not suing equipment makers for breaches of express and implied warranties. There seems to be more of case here. Of course given what I understand of the plaintiffs, the SOL might be past.

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