The NFL’s concussion conundrum

They are the NFL’s mushrooms, seemingly popping up around every corner at a moment’s notice. Concussion lawsuits — 68 of which have been filed between July 2011 and last week — encompass more than 1,800 former players ranging from hall of famers to has-beens.

Easterling (in 1975) committed suicide last month. Photo by: AP IMAGES

Already percolating beneath the surface of the NFL’s money and popularity machine, the lawsuits took on an even greater significance last week, with both the league’s severe discipline of four players in the New Orleans Saints bounty scandal and the tragic reported suicide of veteran linebacker Junior Seau. Part of the reason the NFL is coming down hard on the Saints, many insiders in the sport believe, is to send a message that it takes player health and safety seriously. And while the factors that played into Seau’s story were unclear late last week, his death — on the heels of the suicides of Ray Easterling, one of the concussion plaintiffs, and Dave Duerson, whose family subsequently sued the league — has resulted in fingers being pointed at the wear and tear of the game as a culprit in the 43-year-old’s demise.

The ex-players suing the league last month asked a federal judge to begin depositions immediately because of their risk of death and dementia, even though she has not yet agreed to allow the lawsuits to continue.

Dorsett is one top name involved. Photo by: GETTY IMAGES

If the players succeed in charging the league with hiding the risks of playing the game, the NFL could face what experts say potentially could be billions of dollars in exposure, akin to the asbestos and tobacco cases of yesteryear. Players are seeking payments to cover medical monitoring, care and damages — but that could be years away, if at all. The NFL is moving to dismiss the cases, contending they are pre-empted by labor law that requires the complaints be settled through dispute-resolution mechanisms contained in NFL collective-bargaining agreements.

That path, however, won’t be without challenge, experts say.

“I approach the NFL argument with some measure of skepticism,” said Bill Gould, former chairman of the National Labor Relations Board and currently a Stanford Law School professor who has written extensively on sports law. “The mere fact that there is a CBA with dispute-resolution procedures is only the beginning [of the analysis].”

The NFL points to the Korey Stringer case as proof. In 2001, Stringer, a Minnesota Vikings lineman, collapsed and died during a hot training camp workout. His family sued the league, but a federal court dismissed the case, ruling it fell under the CBA, though other lawsuits connected to his death proceeded and ultimately were settled.

“[A] federal court, in Stringer v. National Football League, considered a claim against the NFL nearly identical to this — premised on the NFL’s alleged failure ‘to minimize the risk of heat-related illness,’ and ‘establish regulations’ to ensure ‘adequate care and monitoring of players suffering from heat-related illness’ … [and] held that plaintiff’s claim was completely preempted by [labor law],” the league argued in November in federal district court in Philadelphia where many of the concussion cases have been consolidated. The league’s motion will be renewed later this year, following the further consolidation of the cases.

The NFL’s lead counsel on the matter is Paul, Weiss, Rifkind, Wharton & Garrison.

The top plaintiff firms include Hausfeld; Anapol Schwartz Weiss Cohan Feldman & Smalley; and the Locks Law Firm. The firms must sort through their pecking order of case issues and submit a new master complaint by June 8. Riddell, the helmet maker, is named in several of the lawsuits, so among the decisions to come is whether to include the company as a defendant alongside the NFL.

The league wants discovery to stretch through 2018, contending it needs to depose each player, assess his medical records and determine how any alleged injuries were suffered. The players have suggested discovery through 2014 and last week asked Judge Anita Brody to begin depositions immediately for players at risk of dementia or dying.

The original case before Brody is the Easterling class. Easterling committed suicide last month.

Experts are split on what Brody will do. “The types of procedures the former players are saying should have been in place are clearly terms and conditions of employment that require the employer-teams to bargain with the union over,” said Gary Roberts, a former NFL outside counsel who now teaches at Indiana University. “This makes for a powerful defense.”

Michael Hausfeld, one of many attorneys for the former players, counters that the issues the players are suing over were either not known at the time of those CBAs, or the NFL misled the players.

“[The CBA] is not intended to focus on medical care issues, specifically those that manifest itself outside the term of employment,” he said.

And what of the period between 1989 and 1993, when a CBA did not exist? The NFL is contending that terms and conditions of previous and subsequent CBAs should apply.

Many top former players are suing, with some reports suggesting that all pre-1993 players might ultimately become part of the class. Top names include Tony Dorsett, Jim McMahon and Alex Karras.

Paul Anderson, a graduating law student whose website NFLconcussionlitigation.com has become a must-read for those following the lawsuits because of its depth and daily updates, concluded that both sides have good arguments. But, he added, “the safe money is on Judge Brody not dismissing the cases.”

She could rule by the end of the year on that question, and if she does not dismiss, the league is likely to appeal. But if the cases proceed, the league could settle, as the risk of a massive damages and inherent negative publicity from trials could be too great.

“Given the potential liability and sympathetic nature of these plaintiffs, it would seem settlement would be a viable strategy at that point,” said Gabe Feldman, director of the Tulane Sports Law Program.

And given the events of last week, it would seem a foregone conclusion the NFL would never want to let these cases go before a jury.