Recent Events Cloud Picture of NFL Concussions

 

Since August, 2011 35 lawsuits have been filed against the NFL alleging negligent and intentional behavior that has led to permanent damages to former players.  These lawsuits have been filed on behalf of approximately 700 former players.  Players essentially have accused NFL officials of being aware of the long-term health dangers caused by concussions without taking any steps to warn or to protect players from these injuries.

The lawsuits allege that NFL officials knew about these dangers decades ago and yet did nothing out of fear of endangering the appeal to the public of this inherently violent sport.  Enough information has been brought forward over the past couple of years to convince pretty much everyone that these repeated blows to the head can (and have) led to long-term brain injuries and even to death (the recent lawsuit filed by the estate of former Chicago Bear player, Dave Duerson, is one example of a wrongful death lawsuit in this area).

Now we are being bombarded with reports about a “bounty” system wherein players were paid cash rewards for hits during games that injured opponents and/or caused them to be removed from games.  The New Orleans Saints were the subject of an investigation that lasted almost 2 years and so far has produced (according to NFL officials) some 50,000 pages of documents.  On March 6 the Saints general manager and coach admitted during a press conference to being aware of a scheme overseen by former defensive coordinator, Greg Williams, that lasted from 2008 until at least the 2010 season.

The question now arises as to what legal fallout will be felt from these revelations.  Spokesmen for the NFL have publicly stated that the investigation is continuing and that it could grow to involve several teams.  Players and former players have stated that such systems were common throughout the league in recent years.

Are we now going to see a series of lawsuits filed by players and former players alleging that they suffered damages as a direct result of this illegal practice?  Some former players have already stated that they believe their careers were cut short by injuries sustained in games against the Saints where they believe they were targeted by players seeking to collect a bounty.

Legal experts seem divided on whether or not such lawsuits will gain traction.  Professional football is a violent and dangerous sport.  NFL teams can carry 53 players on their active roster and another 7 on practice squads.  Every year teams on average place around 8 to 10 players on injured reserve, meaning they cannot physically play because of football-related injuries.  They do not count against the allowable number of players on the active roster.  This means that perhaps 15% of all players under contract in any given season cannot play because of injuries.

Some legal scholars feel that bounty systems go beyond the normal risks associated with the sport and thus cannot be excused as being within the usual and ordinary scope of employment as an NFL player.  It remains to be seen if such lawsuits will be filed in the coming months.

What is not in dispute is that this information could impact the concussion lawsuits already filed.  NFL and team officials have been united in stating that once solid medical information became available in the last few years teams the league have taken reasonable steps to identify the dangers and to come up with plans to deal with the situation and to protect players.

In civil lawsuits both sides have the right to conduct discovery prior to trial.  Each side has the right to try and find evidence that supports that side’s contentions in a lawsuit.  Imagine how eager plaintiff’s attorneys are to get their hands on the documents already generated by the NFL’s investigation of the bounty problem.  Such documents would be relevant and thus subject to discovery because they could offer information contradicting the NFL’s stated position that its people did not learn about the dangers from concussions until the past couple of years.

Coaches and players could be required to give depositions under oath where they would be asked about the bounty program.  Plaintiff’s attorneys would be seeking evidence that coaches, administrators and league officials all knew about the existence of bounty systems.  Evidence would also be sought showing that these individuals knew it was wrong and dangerous and did nothing to stop the programs, even though they also knew about the risks of concussions sustained from these hard/illegal hits.

Plaintiff’s attorneys in these kinds of lawsuits have the primary goal of getting a case to trial.  Imagine the impact on jurors who might be housewives or mothers of young boys when they hear testimony about players being paid for hits that caused players to be taken from the field on stretchers.  Is it hard to imagine jurors connecting the dots between testimony about money being paid for hits that knocked players out and testimony about the long-term impact of concussions caused by such hits?

The NFL is seen as a money-making machine.  Most teams routinely sell out their games.  TV ratings for the 2011 season went up from the levels of previous years in spite of the lockout that cost teams most of their preseason practices and games.  What kind of economic impact would be felt from losing or settling hundreds of lawsuits brought by former players.

The NFL ship is sailing into uncharted waters.  Commissioner Roger Goodell is likely to hand down massive fines and suspensions over the next few weeks.  The court of public opinion may already be lining up against teams on this issue.  Courts of law take a much longer time to bring lawsuits to a resolution.  This issue may hang over the NFL for the next two or three years.  In the end teams could take a massive financial blow.  The biggest hit of all may be meted out by the judicial system.

The old comic strip character Pogo used to say, “I have seen the enemy and he is us”.  The NFL may find that its toughest opponent is its own coaches and players.  Stay tuned.

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