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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).