Smoking Guns, Big Tobacco, and the Demise of Football: Everything You Ever Wanted to Know About the NFL Concussion Litigation

Oakland Raiders receiver Darius Heyward-Bey, seen here leaving the field on a stretcher following a brutal hit by Steelers safety Ryan Mundy on Sunday, spent the night in a hospital recovering from a severe concussion.

Replacement referees blowing game-deciding calls might just be the best thing to ever happen to the NFL. While fans and the media work themselves into a frenzy over the sad state of football officiating, the concussion litigation continues to move forward in a federal courthouse in Philadelphia. The referees are a temporary embarrassment. This litigation, however, could deal the NFL a knock-out blow much like lawsuits did to the tobacco industry in the 90s.

What began in August 2011 with one lawsuit filed by seven former NFL players and their wives has grown to include 2,000 plaintiffs in nearly 150 individual suits. Now known as the National Football League Players’ Concussion Injury Litigation, U.S. District Judge Anita Brody in the Eastern District of Pennsylvania is overseeing the fast-tracking multi-district litigation (MDL).

To truly understand the significance of this litigation we decided to call in the big gun and pick the brain of concussion litigation expert Paul D. Anderson. Mr. Anderson (@PaulD_Anderson) graduated summa cum laude from the University of Missouri-Kansas City School of Law and recently passed the Missouri Bar Exam. The former judicial clerk now runs NFLconcussionlitigation.com to provide up-to-date coverage and legal analysis of the lawsuits filed by former NFL players against the NFL regarding its alleged concealment of the risks associated with concussions. He explains the ins and outs of this litigation after the jump.

When did you decide to start your website? Did you anticipate becoming a go-to source on the concussion litigation?

Shortly after the first concussion-related class action was filed I came across a blawg that discussed the lawsuit. I decided I’d write a law review note on the litigation. As my research progressed more lawsuits were filed, and I figured this had the potential to become a very hot topic.

So, in January of 2012, I launched my website with the hopes of trying to break into the sports law arena. I certainly didn’t anticipate becoming the go-to guy on the litigation – but it has definitely been a remarkable, and rewarding, experience. I should thank Jeff Blumenthal, Darren Rovell and Mike Florio for taking an interest in my work and introducing it to the public at large.

In the simplest terms, why should America care about this litigation?

It’s probably fair to say that football is America’s #1 form of entertainment, and it could all be gone in the next 5-10 years, according to some. Add the fact that concussions have become a public health issue and it should be clear why people should take note of the litigation.

There are billions of dollars at stake, former players are, arguably, dying from football, and according to some doomsday theories, a several billion-dollar judgment could send shockwaves through our economy.

However, I tend to disagree with the outlook that concussion litigation could bring the NFL to its knees.

The more important concern here, whether the lawsuits are successful or not, is the impact that it has already had. A culture change has occurred right in front of our eyes. The science about concussions has evolved rapidly in the past five years. It’s clear that there is a link between repeated blows to the head and later-life cognitive decline. I’m not sure this rapid change would have occurred but for the litigation.

Anderson

In your analysis, is the district court in Philadelphia the best venue for the plaintiffs?

Federal court is generally not a plaintiff’s first pick. They prefer to be in state court, which is known to be more plaintiff-friendly. At least for now, the parties are stuck in federal court until Judge Brody rules on the preemption issue.

Due to the unique nature of labor law, federal courts have original jurisdiction over labor issues. See Section 301 of the Labor Management Relations Act.

To that end, the parties appear to have drawn a highly respected, and fair, jurist in the Honorable Anita Brody.

The NFL likes to argue that players must go through arbitration, per the CBA, and not sue in court. Why is the concussion litigation different?

The NFL argues this often and with much success. That is the threshold issue that must be decided by Judge Brody. The NFL, in its motion to dismiss, argues that the players’ claims do not belong in court because the CBAs set forth the parties right and duties, and thus it must be interpreted, if at all, by an arbitrator.

On the other hand, the players will argue that these are garden-variety common law claims that have nothing to do with the collective bargaining agreements.

The players, in my opinion, may have a stronger argument. I think the players’ fraud claims should be able to withstand the CBA argument. However, this doesn’t mean they won’t be dismissed later at the 12(b)(6) or summary judgment stage — if no smoking gun is found.

What is your prediction on the scope of discovery? Is it possible for there to be a smoking gun?

I think it will be long and drawn out, but the plaintiffs will certainly try to go on a fishing expedition. It’s conceivable a smoking gun will be found. The Mild Traumatic Brain Injury Committee, and in particular Drs. Ira Casson and Elliot Pellman don’t appear to pass the smell test.

The recent revelations in the Ed O’Bannon v. NCAA litigation may turn out to be peanuts in comparison to the NFL Concussion Litigation. On the other hand, and to the plaintiffs’ chagrin, only a water gun may be found. Only time will tell.

As an analyst, my biggest fear — assuming the parties get to the discovery stage — is that the NFL files a protective order seeking to have all court documents filed under seal. Then, unfortunately, we may never get to see what turns up unless there is a trial.

Could the outcome of this litigation impact other professional sports leagues too? If so, how?

I think it really depends on how this litigation shakes out. If the plaintiffs win, then I wouldn’t be surprised if the NHL or AFL becomes the next targets.

However, I don’t think we will see litigation on a massive scale like what is going on here.

There is no doubt that concussion litigation is here to stay for the foreseeable future. It will occur at all levels: from pee wee up to the pros. For example, in the past year, there has been a flood of concussion lawsuits at the high school level.

Some pundits have compared this litigation to the Big Tobacco cases. Do you think that is a fair assessment? Could this be the end of the NFL?

There certainly appear to be some parallels between tobacco litigation and the current NFL litigation. In 2009, Congresswoman Linda Sanchez infamously analogized the NFL’s conduct to Big Tobacco.

The plaintiffs’ lawyers argue that the NFL “took a page right out of Big Tobacco’s playbook.” In the 1950s, Big Tobacco created a committee that was tasked with discovering the effects of smoking. Instead of applying science, Big Tobacco engaged in several years of fraud – creating “junk science” that refuted the link between smoking and cancer – which subsequently cost the tobacco companies billions of dollars in damages.

Similarly, the plaintiffs argue, the NFL created the Mild Traumatic Brain Injury Committee which reportedly spent years developing studies that refuted the link between concussions and later-life cognitive decline.

As for the assumption of the risk doctrine in the sporting context, the defendant can show that it didn’t owe a duty to prevent risks inherent in the sport. The NFL will argue that concussions and the effects of concussions are part of the game, and thus it owed no duty to protect players from the inherent risks of football.

Of course, the players assumed the risk of having knee, back, joint pains, etc., but the players will argue that they weren’t warned about the lasting brain damage concussive and sub-concussive blows can cause. Further, they will argue, if the NFL warned us about these risks we would have 1) not engaged in the conduct of covering up our headaches; 2) we would have hung up our cleats a lot earlier or 3) not played the game at all.

In addition, there is an exception to the doctrine when the defendant acts recklessly or intentionally. The players will argue that the NFL acted intentionally when it concealed the risks about concussions.

There is also a notable difference between tobacco and concussion litigation. Here, the players were compensated while smokers purchased the product that allegedly caused their damages.

Many of the plaintiffs’ lawyers involved in the litigation made millions off the tobacco litigation, and they probably plan to pursue the same aggressive tactics as those used in the tobacco litigation.

Whether we will see tobacco-like damages is yet to be determined, but it is at least conceivable. Like I said earlier, I don’t think the litigation, or a couple huge jury verdicts, will bring the NFL to its knees — but the replacement refs might.


In your opinion is there anything the NFL could or should have done differently to avoid these lawsuits?

The luxury of hindsight makes it easy to criticize the NFL. But at the time, the NFL must of thought it was getting out in front of the concussion issue by creating the Mild Traumatic Brain Injury Committee. These lawsuits really have teeth due to the allegedly wrongful conduct of the MTBI Committee.

According to this 1994 Sports Illustrated article, the NFL had two paths to choose: the Elliot Pellman route (i.e. concussions are a vocational hazard and aren’t serious) or an independent neurologist’s view point (i.e. concussions can have a lasting impact and must be taken seriously). The NFL chose the Pellman path, and its now paying the price in the court of public opinion and by having to defend the concussion lawsuits.

Steve James, the director Hoop Dreams, has a new documentary coming out about concussions called Head Games. Now that people are making movies about concussions do you think we’ve reached the apex of awareness about head injuries in this country or will this be an issue for a long time to come?

Without writing a full essay about this, I think it’s here to stay. Until there is a product created that prevents concussive and sub-concussive blows, which I don’t ever see happening in our lifetime, this will continue to be a major public health issue. I don’t think we’ve even broached the full impact of the concussion crisis.

By the way, another great documentary, The United States of Football by Sean Pamphilon, will be released soon, and it will have us talking about this issue for years.

What is your prediction for the outcome of this litigation?

I think the plaintiffs will survive the NFL’s motion to dismiss, and the parties will proceed to discovery. Depending on what’s uncovered, we will either see a long (e.g. 5 to 10 years) and expensive discovery battle, or the NFL will propose a global settlement on fair terms shortly after Judge Brody’s decision is affirmed or reversed by the Third Circuit – I think an appeal is inevitable.

I tend to lean more on the side of a long litigation battle filled with lots of motion practice and nebulous disputes over the scope of discovery. If the owners’ position in the referee lockout has taught us anything, it’s that the owners will not be rolling over and handing out money despite the public outcry.

If the plaintiffs reject an offer and demand a multi-billion dollar settlement, then I think, and assuming the plaintiffs survive all pre-trial motions, we will see a bellwether case go to trial. This will, presumably, give the parties an indicator for what the cases are worth and what a fair global settlement should be.

In short, I don’t see a quick settlement or resolution on the horizon. The plaintiffs’ lawyers are going to have to work extremely hard, spend a lot of money, and hope for a smoking-gun, if they want to score big.

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One Response to Smoking Guns, Big Tobacco, and the Demise of Football: Everything You Ever Wanted to Know About the NFL Concussion Litigation

  1. Pingback: League of Denial: A review of the PBS documentary | Clinical Journal of Sport Medicine Blog

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