The NFL Concussion Lawsuit

The NFL Concussion Lawsuit

The weather is starting to cool and leaves are starting to turn. For many, that means the return of NFL football to stadiums across the country, the airwaves and of course, the Internet. Despite a precipitous drop in TV ratings in 2017,[1] professional football remains, far and away, the most popular sport in the United States.[2]

            For all its entertainment value, NFL football exacts a steep cost from its players. In a 2017 study, the Journal of the American Medical Association reported that 99% of the studied brains of deceased NFL players showed signs of chronic traumatic encephalopathy, a degenerative disease caused by repeated blows to the head, whose symptoms include cognitive impairment, depression, memory loss, suicidal thoughts and emotional instability.[3]

                  While it’s always been known (and indeed, is self-evident) that NFL football players are at risk for brain trauma, allegations surfaced over the past decade that the NFL intentionally suppressed or downplayed the long-term dangers inherent in NFL football. In 2011, more than 4,500 retired NFL players filed a class-action lawsuit against the NFL based on these allegations.

            The legal theories of the lawsuit illustrate the tension of two ingrained doctrines of tort law. The first is assumption of risk. Under the assumption of risk doctrine, a defendant is not liable for the injuries of a person who intentionally subjects himself to a known risk in an activity managed by the defendant. This principle has been applied many times in the context of sports injuries. In a famous case often studied in law school torts classes, Hackbart v. Cincinnati Bengals,[4] the 10th Circuit Court of Appeals ruled that injuries caused by actions that are anticipated parts of the game are not actionable.[4] Also, in Knight v. Jewett, the California Supreme Court ruled that a plaintiff could not recover for a broken finger sustained during a touch football game because the risk was known to the plaintiff when he chose to engage in the sport.[5]

            However, the application of the assumption of risk doctrine is tempered by another, equally important concept of tort law, which is the duty to warn. While a plaintiff who engages in dangerous activities may assume the risks of those activities, the organizer of the activities has the responsibility to warn of dangers that the participants may not have reason to know of, and to mitigate the risks to the extent reasonable. The same California Supreme Court that decided the Knight case found an amusement park liable for failing to minimize the risks of a bumper car ride, even though it acknowledged that the plaintiff had knowingly engaged in the dangerous activity.[6] Moreover, another California court held the organizers of a youth hockey facility liable for failing to appropriately notify users of their facility of an automatic external defibrillator that could have saved a teenager who had gone into cardiac arrest after being hit during a hockey game.[7]

            So, while everyone acknowledges that football players knowingly engage in dangerous activities, the NFL failing to appropriately warn its players of dangers known to the league could certainly result in liability.

            Rather than risk the uncertainty of a trial, the league decided to negotiate in response to the 2011 class action lawsuit. After years of negotiations, including 2013 settlement that was later reversed as unfair, the lawsuit was finally settled in 2015. Under the settlement, the NFL allocated more than $1 billion in monetary awards to affected former players and pledged to run education programs promoting safety and injury prevention in the league.[8] Of the billion dollars, about $112 million was earmarked for attorneys’ fees.[9]

    Various parties challenged the legality and fairness of the settlement, but the US Supreme Court finally approved the settlement in December 2016.[10]

                Unfortunately for the players and families involved, however, that is not quite the end of the saga. While there may be close to $900 million in a vast pot to be distributed to affected former players, the settlement does not dictate how the proceeds are to be divided amongst the thousands of former players vying for their shares. Former players (and representatives of deceased players) wishing to get their hands on some of the settlement monies need to go through a complicated application process to demonstrate their entitlements to the proceeds.

    Not surprisingly, many former players have hired attorneys to assist them in this process.[11] These attorneys’ fees are apart from the $112 million from the settlement proceeds that are going to the attorneys who brought the class-action lawsuit. These attorney fees sustained by the players seeking their shares can be between 15% and 40% of their awards.[12] Between both layers of attorney’s fees, costs, and a surcharge allowed to the class action attorneys in anticipation of future work on the case, many fear that half or more than half of the class-action proceeds will be consumed by attorneys’ fees.

    Jason Luckasevic, a Pittsburgh attorney involved in the litigation process, remarked "This case has done nothing but show lawyers at their worst" and another anonymous attorney called the situation a "feeding frenzy,” saying “It's dirty out there, and I don't like it. I have to shower twice a day."[13]

    In response to the allegations, lawsuits and the negative publicity associated with the NFL’s handling of player safety, the NFL has dramatically increased its focus on protecting players from head injuries. Examples include the concussion protocol, which requires that players thought to have possibly suffered concussions be thoroughly examined before returning to play,[14] disallowing runners and tacklers from initiating contact with the tops of their helmets[15] and penalizing “unnecessary” hits on defenseless receivers.[16]

    Nevertheless, the brain trauma settlement and its aftermath seems poised to remain a chronic abscess in NFL public relations.