Should the NFL be Liable for Former Players’ Concussions?

Legal Blitz Scholar Samantha Ann Quinn, Esq. is a 2010 graduate of the University of Pittsburgh Law School and a member of the Pennsylvania Bar. She is currently clerking for the Hon. Idee C. Fox in the Philadelphia Court of Common Pleas.

During the 2009 Congressional Hearings investigating the dangers of concussions and head injuries in football, Representative Linda Sanchez (D-CA) compared the NFL franchise to Big Tobacco. However, while Big Tobacco actively worked to hide research about the dangers of tobacco for many years, it doesn’t take a scientist in a lab to tell you that multiple concussions are probably not good for your brain. Should the NFL really have to tell the players that? The former players think so.

In a lawsuit filed in the Superior Court of Los Angeles on July 19, 2011, 75 former NFL players filed a complaint against the NFL and NFL Properties alleging negligence, fraud and loss of consortium.  The former players also name helmet-manufacturing company Riddell, the league’s official helmet maker, as a defendant in a strict liability and negligence claim. As evidence, the complaint cites research from a study performed by Dr. Bennet Omalu on ten deceased NFL players. In the study, Dr. Omalu found the players’ brains showed signs of chronic traumatic encephalopathy (CTE), the same condition found in punch drunk boxers, and a condition caused only by being repeatedly hit in the head. The former players allege in their complaint that the NFL has known for decades that multiple blows to the head can lead to long term brain injury, including memory loss, dementia and CTE and its related symptoms.

In addition to memory loss, repeated concussions have been linked to depression, a disease with serious and unpredictable consequences.  Brain damage was found in the autopsies of both Andre Waters, a 44-year-old former Philadelphia Eagles defensive back who killed himself in November 2006, and Dave Duerson, a 50-year-old former Chicago Bears safety, who killed himself in February.

The former players specifically state the NFL was negligent by “failing to enact league wide guidelines and mandatory rules regulating post-concussion medical treatment and return-to-play standards for players who suffer a concussion and/or multiple concussions.” The former players say that when confronted about the growing evidence of long term brain injuries from playing football, the NFL vaguely represented to the public and players that “there is no magic number for how many concussions is too many.” In 2007, the NFL finally implemented concussion guidelines, and more stringent guidelines were adopted in 2009. Yet in 2010, in a written statement to the House Judiciary Committee, Dr. Ira Casson, former co- chairman of a league committee on brain injuries, wrote “my position is that there is not enough valid, reliable or objective scientific evidence at present to determine whether or not repeat head impacts in professional football result in long-term brain damage.”

It is easy to say NFL players assume the risks associated with multiple concussions when they continue to return to the game after repeated head injuries. While Big Tobacco truly misled addicted smokers for decades, it is hard to say that the NFL played a similarly sinister role given the players free choice. The difference is that the former players trusted that the NFL, their employer, would have had rules to protect them if there was a risk for long term brain damage, especially considering the many rules and regulations already created by the league. How responsible can a player be for his choice to return to the game when his coach and trainers tell him its ok?

Riddell is named in the complaint in a strict liability claim for design defect, manufacturing defect, and failure to warn as well as a negligence claim. Strict liability allows plaintiffs to prevail when there is a defective product, even if the manufacturer was not negligent in making it.  In every other state, the former players would have had to show that the defect in the Riddell helmets makes the product “unreasonably dangerous” as an element of their strict liability claim. However, the Supreme Court of California does not impose that burden on plaintiffs. To prevail under strict liability in California, the former players need only prove they sustained head injuries while wearing the helmets to prove the helmets are defective.

Of the two defendants, it seems the NFL has the greater duty to protect the players. Yet the question remains as to whether or not Riddell was and perhaps still is making a bad helmet. Riddell supplies helmets to many N.C.A.A. and youth football players. If the former NFL players prevail in their strict liability claim, who else will be able to sue Riddell?

It wasn’t until June 2010 that the NFL officially warned players there are long terms risks associated with multiple concussions. In 1992, the Catholic Church issued a statement vindicating Galileo, some 300 years after being imprisoned for life for discovering the earth revolves around the sun. Given the amount of research over the past decades regarding concussions and long term brain injury, the NFL’s official statement warning their players there are long term risks associated with multiple concussions issued in June 2010 shares the Church’s embarrassingly belated timing.  The former players seek unspecified damages from the NFL and Riddell.

Check out the original complaint below:
Concussion Lawsuit vs. NFL

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2 Responses to Should the NFL be Liable for Former Players’ Concussions?

  1. George Visger says:

    The NFL has known their industry is damaging to it’s employees for decades. John Madden even stepped forward last week to admit it was predetermined to always hold 2 fingers up when a player was dinged. And the players knew to answer two.

    I was concussed early in the 1st quarter during the first Dallas game, while playing DT for the 49ers in 1980. The trainers later told me I went through 25 – 30 smelling salts during the game. Everyone laughed about it, and I never missed a play or a practice.

    Early during the next season (1981 Super Bowl season), I developed Hydrocephalus and underwent emergency VP Shunt brain surgery. Now, at age 53 I have survived 9 emergency VP Shunt brain surgeries and still don’t qualify for NFL benefits.

    George Visger Story in Stockton Record Published December 19th, 2011 The indomitable George Visger was profiled yesterday in his hometown Stockton Record. See“Battlescars,” http://www.recordnet.com/apps/pbcs.dll/article?AID=/20111218/A_NEWS/112180320&cid=sitesearch.

    George Visger
    SF 49ers 80 & 81
    Survivor of 9 NFL Caused VP Shunt Brain Surgeries
    Benefactor of ZERO NFL Benefits

  2. Administrator says:

    George, we would love to talk to you more about your past. Please contact us at contact@thelegalblitz.com to tell more of your story.

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