~ A Mediator's Musings ~

December 3, 2012 ~ We’re Back! The NFL and Concussions

While we were away, the number of ex-players suing the NFL in the consolidated concussion litigation has grown to almost 4,000. The NFL has filed a motion to dismiss the case on the grounds that the players’ claims cannot be heard in a courtroom. The NFL argues, in summary, that these claims essentially arise under the collective bargaining agreement (“CBA”) with the Players Association or are at least in large part governed by that agreement and that under the federal labor law, the grievance and arbitration process provided in the CBA is the sole forum in which the claims can be adjudicated. The ex-players naturally disagree; they want their day in court before a jury. The applicable law in this area is extremely complex and the outcome quite uncertain. This mediator thinks it unlikely that the judge will dismiss the case at this point, but the NFL’s arguments are strong—the CBA has extensive provisions dealing with the subjects of players’ medical care and injury, and there are extensive benefits in the CBA and the various plans established under it for players who suffer the kinds of injuries the ex-players claim. We will probably know sometime early in 2013 whether the NFL’s motion is granted. And either way, there will probably be appeals, settlement negotiations and perhaps, ultimately, a trial or series of trials—hard to imagine, but maybe even 4,000 of them?!

So what does this mean for the NFL? With 4,000 plaintiffs, even a $100,000 payment to each of them would reach $400 million in total. And based on the claims here, if the NFL is held liable to the ex-players for damages, it is hard not to think that an awful lot of players could receive—especially from a jury—many times $100,000. So the financial consequences to the NFL—our richest, most successful sports league—could be very serious. I should think that we will be reading about these cases for years, with the outcome uncertain. It’s hard to imagine that these cases pose a financial threat to the ultimate survival of the NFL—after all, both the current and former players have an interest in making sure the league survives and perhaps even prospers because otherwise they are likely to receive far less in disability and other benefits. But these kinds of litigation situations lend themselves to getting beyond anyone’s control, with very unpredictable consequences.

Recently, reporters for ESPN and PBS’s Frontline added fuel to the fire in their report on the Mike Webster case.1 Mike Webster was a Hall of Fame player for the Pittsburgh Steelers who brought a claim for benefits under the NFL’s retirement plans. The Board responsible for administering the plans found that injuries he suffered during his football career caused him to suffer total and permanent mental disability and awarded him benefits on that basis in 1999. The Board denied more lucrative benefits that he would have received had the injuries caused him to become disabled during his career or shortly after his career ended; he appealed those denials and, after his death at age 50 in 2002, in unpublished opinions a Maryland federal district court in 2005 and the Fourth Circuit Court of Appeals in 2006 found in favor of his estate. One report suggested that his estate would receive $1.5-2.0 million as a result. In any event, the Board itself decided as early as 1999, before the appeals, that his football injuries caused total and permanent mental disability; the only question for the appeal was when that disability arose.

The basic accusation that the ex-players make is that the NFL has known of the risks and dangers of brain injury to its players and hid that knowledge from the players. Although the elements and theories of recovery the players have asserted arising from these basic accusations are complex and numerous, all of them pretty much require that the players prove that the NFL had knowledge that they didn’t have and had no access to, that the NFL told them things that weren’t true, and that they reasonably relied on what the NFL told them and suffered damage as a result. Although the players have very sympathetic cases—and no sentient being can help being moved by the stories like Mike Webster living in his car or Dave Duerson and Junior Seau committing suicide—proof of these elements may not be so easy. It’s hard to argue that he Board’s and courts’ rulings in the Mike Webster case didn’t put the NFL on notice that brain damage was a risk associated with a football career, especially in light of the medical testimony presented to the Board. None of that testimony appears to be scientifically conclusive, but it would seem hard to argue that it’s totally irrelevant. And the panel that awarded him benefits specifically decided that he had suffered total disability because of brain damage from football injuries. At the same time, however, the ruling also seems to undercut the players’ arguments that the NFL had knowledge that they didn’t. The Board that made the award in Mr. Webster’s case included three representatives of the players and three representatives of the owners. It’s easy to see the NFL arguing, at least somewhat persuasively, that the players had the same access to the panel findings that the league and the owners did. If the players had the same knowledge as the NFL, it’s more difficult for them to prove that the NFL defrauded them or otherwise should be liable because it withheld from them information about the connection between football and brain injury. It’s hard to see why the knowledge from the Webster case that informed the NFL and the owners didn’t inform the players as well. Just as it will be tough for the NFL to prove that it didn’t know of the risks of brain injury from playing football, it will be tough for the players to prove that they didn’t know of those risks and that the NFL hid the risks from them when their own representatives sat on the Board that decided Mr. Webster’s claim.

As brevity is the soul of wit, sayeth the bard, we’ll end here for today. We’ll have more on this topic next time. And we won’t wait so long for “next time.”

— Your still “hoping he’s not brain dead” mediator

1 The Master Complaint in the concussion litigation makes reference to Mr. Webster and the Board decision; the reporters seem to have simply highlighted the decision and its possible impact.