The Name of the Game is Lawsuit Lotto
Ray Easterling was among the very first players to file suit against the National Football League alleging that league officials knew for years about the long-term damages caused by concussions suffered by NFL players.
Easterling played safety for the Atlanta Falcons for several seasons in the 1970s. He was found dead in his Richmond, Va., home on April 19. Authorities reported that the apparent cause of death was a self-inflicted gunshot wound to the head.
Easterling was represented by Philadelphia attorney Larry Cohen. Cohen filed the suit in federal court in Philadelphia in August 2011, after working with Easterling for six months. A number of other former players were also listed as plaintiffs in that lawsuit.
Cohen told USA Today that the Easterling lawsuit will be changed from a personal injury case to a wrongful death case with Easterling’s wife, Mary Ann, as the named plaintiff. Cohen said that since the filing of the lawsuit he had noticed changes in Easterling’s behavior.
“In the last six months, I guess, I could tell he was not on his game,” Cohen said. “He kept repeating himself and getting confused. It’s pretty tough, pretty tough.”
According to the website NFLConcussionLitigation.com, 61 concussion-related lawsuits have been filed on behalf of about 1,260 former, retired NFL players. More plaintiffs are being added on a weekly basis. That site notes that there are some 10,000 living, retired NFL players, so the current number of plaintiffs represents only a fraction of those players who might claim concussion-related injuries.
Most of these cases have been consolidated in federal court in Philadelphia, where U.S. District Court Judge Anita B. Brody will hold an initial attorneys conference on April 25 with all attorneys involved in the cases timetable and framework for future proceedings. The 61st lawsuit was filed on April 20 in Philadelphia on behalf of 28 former players. The lead plaintiff is former Green Bay Packers tight end Mark Chmora.
The NFL, of course, contends that all such lawsuits are frivolous. It may be that the most valuable players in the NFL this coming season will be the defense attorneys representing the league in its various lawsuits. Former players are also pursuing litigation involving denial of disability, and workers’ compensation benefits allegedly owed to former players injured during their playing days who now are disabled and unable to work.
Another area of litigation that is beginning to gain publicity involves the use by the league of players’ likenesses. A lawsuit was filed in August 2010 in federal court in California that has since grown to involve more than 6,000 current and former NFL players. The plaintiffs have sued EA (Electronic Arts) Sports, which in 2005 acquired the rights to produce and market the Madden Pro Football video games. The players’ group is alleging that their likenesses have been used without permission and with no royalty payments to the players, even though, EA Sports has made millions from sales of the games that cost roughly $50 each.
A group of consumers has also sued EA Sports over its alleged over-pricing of the games. The NFL has become involved in these actions because of its contracts with EA Sports under which is it paid a licensing fee for each game sold.
Finally, the Independent Football Veterans group will soon hold its second annual conference in Las Vegas. This group has started up about 18 months ago to advocate for the interests of retired NFL players. This conference offers panel discussions on a wide range of topics of interest to retired players, with an emphasis on the various lawsuits currently being litigated. In addition to lawsuits already mentioned, one panel discussion will highlight the suit filed by Carl Eller, Willie Gault and a group of retired players against the league and the players union in March 2011 when the league locked the players out.
This lawsuit in essence argues that the negotiations between the league and a decertified union ignored certain considerations already promised to retired players. A key issue in this lawsuit is the so-called Legacy Fund, which was negotiated as part of the lockout settlement that allowed the 2011 season to go on. The suit alleges that monies supposedly earmarked for retired players have not materialized and that this group of players is simply being ignored in the implementation of the agreement that ended the strike.
Fortunately for the NFL and its current owners and players, the league seems to print money. There is so much money available that the league, its teams and its players union can all afford to spend millions litigating numerous lawsuits. Looming on the horizon are the legal actions coming over the operation of bounty programs by the New Orleans Saints and other teams that allegedly targeted certain players to be injured and removed from games. NFL coaches and team and league officials may spend more time in depositions and in court than in game preparations over the next couple of years.
All of this is a sad commentary on sports and society. The NFL is the most profitable sports league in the world. It built its current legacy largely through the efforts of thousands of players who played during the growth of the modern game, beginning in the 1950s. Those players have been forgotten and ignored for years. It now appears that team and league officials may have had information years ago about the impact of traumatic brain injuries and the league never brought it to the attention of players because no one wanted to rock the boat.
Society now deals with those former players whose football injuries have left them unable to work or even to care for themselves. And so in the best tradition of the American legal system, we look to the courts to order large amounts of money to be redistributed in an effort to make up for these past mistakes. Somewhere in all of this the essence of the game tries to keep from being lost.
Dr. Greg Tyler, Esq., is The Sport Digest editor and the Library Director/Archivist at the United States Sports Academy. Before joining the Academy, Tyler practiced law for a number of years. He also currently teaches online classes on sports issues at the Academy and in the past Tyler has lectured on intellectual property law.