On August 17th, Philadelphia attorney Larry Coben filed a lawsuit against the NFL on behalf of the following seven former NFL players against the league, all of whom claim significant brain injury as a result of their time as NFL players: Jim McMahon (QB; multiple teams, 1982-96); Charles Ray Easterling (DB; Atlanta Falcons; 1972-79), Wayne Radloff (OL; Atlanta Falcons; 1985-89); Joseph “Joey” Thomas (DB; multiple teams; 2004-10); Gerald Feehery (OL; multiple teams; 1983-89); Steve Kiner (LB; multiple teams; 1970-80); and Michael Furrey (WR; multiple teams; 2003- 09). (Easterling v. National Football League, Inc., 11-05209, USDC, Eastern Dist. of Penn.) Atty. Coben allegedly claims that the group collectively suffers from such things as dizzy spells, headaches, and dementia, and that one client even may lose his home because of his health-related problems. The suit contains causes of action for negligence and intentional misconduct and seeks (1) monetary damages and (2) class-action injunctive relief tied to the medical monitoring of current and future players. The Easterling case follows one filed in Los Angeles in July by seventy-five retired players who claim the league had known of the harmful effects of concussions for decades but concealed them from players until last year.
As for the damages element of his case, Atty. Coben also claims that the league has known about the dangers of concussions for many decades, but, for the sake of maximizing violence to entertain fans, it instructed players to hit with their heads, failed to properly treat them for concussions, and concealed links between football and severe brain injuries. In pursuing an injunction on behalf of “all current N.F.L. players who have in the past and/or will in the future experience a concussion,” Atty. Coben allegedly claims that the NFL should be using blood tests both to identify those genetically predisposed to suffer concussion and to diagnose existing concussions, saying the United States military has already begun using the latter technique.
Although Atty. Coben reportedly has realized significant success in prior product-liability cases involving head injury, this suit, for a number of reasons, appears to be little more than a public-relations stunt.
A. MONEY DAMAGES
1. Concussion Science is Modern
Mr. Coben’s claims to the contrary, the study of the true risks of concussion is a very recent endeavor. To suggest that the NFL has known the full risks of concussion since the 1970s is fantasy. Currently, concussions are receiving more attention from scientists and professional contact-sport leagues such as the NFL and NHL than they ever have. Only recently has science developed the tools necessary to perform the research, and many of the most serious effects of concussion, including chronic traumatic encephalopathy (CTE) do not appear until decades after the source concussions occur. Researchers appear to be doing everything possible to learn about concussions, and helmet manufacturers are now in a frantic race that began only two or three years ago to develop protective equipment that may reduce the risk of concussion.
2. Teaching to Lead with Head = Nonsense
The claim that NFL coaches have been teaching players to lead with their heads seems ridiculous. Any college player good enough to make it to the NFL already has been taught how to make a proper tackle. This argument is akin to a NASCAR driver complaining that his team owner failed to show him how to properly turn left. Further, the known risks of paralysis have been present far longer than knowledge of concussion, and leading with one’s helmet generally leads to missed tackles. As a late-1980s high-school linebacker, I can personally attest that our coaches taught us to tackle with our arms and shoulders, not our heads. Any coach who said otherwise at the professional level would have been ignored by anyone with an ounce of common sense.
In truth, it is the players who elect to lead with their heads. Generally called “spearing,” this technique involves a defender leaving his feet, diverting his eyes to the ground, and using the crown of his helmet to deliver a massive kinetic strike to an opponent. The effects can be physically devastating for both the defender and the offensive target, and these hits often made SportsCenter’s daily Top 10 list or Monday Night Football’s “Jacked Up” segment (which was hosted exclusively by former NFL players, with the exception of Chris Berman). All football coaches know, however, that for every huge hit, nine other defenders who attempt to use their helmets as weapons miss their targets, resulting in only hypothetical tackles and big gains for the offense. Thus, any NFL coach who promoted such a technique would not be long with the league.
3. NFLPA Protests
What else should NFL management have done? Have referees throw more flags? Suspend players? Fine them? The NFL is doing that right now, and the National Football League Players’ Association bellyaches virtually each time a player is fined $50,000 - $75,000 or more for a helmet-to-helmet hit or other serious offense. And this is occurring a time in history when the effects of concussions are becoming more and more clear. Imagine if the NFL had tried such a thing years ago, when those effects were not as clear.
A rising tide lifts all boats, and the reality is that NFL management and the NFL players walk hand-in-hand when it comes to anything that makes the sport more popular. When Mr. Coben accuses the NFL of wanting big hits for the purpose of drawing more dollars to the sport, he is being less than honest by failing to mention the players as the second partner in that alleged scheme. Owners and players divide in two parts the big money pie that they collect each year, and all labor disputes between the two sides primarily have been about how much of that pie each side gets.
4. Causation
How does Mr. Coben intend to prove causation? Specifically, how does he establish that the concussions suffered by his clients while they played in the NFL are the root cause of their current neurological problems? All of the named plaintiffs began playing football in high school or college, and some even played for other professional leagues (Gerald Feehery played in the USFL before he entered the NFL; Michael Furrey played for both the XFL and Arena Football League prior to entering the NFL.) Do they all intend to testify that they never suffered a concussion prior to entering the NFL? Unlikely.
5. Players Knew and Assumed the Risks
I have written a fair number of articles related to concussions and read many more, and I have yet to see any claim that the NFL ever possessed a wealth of information about concussions that the players did not. Although both the players and the general public are learning more each day about the long-term effects of concussions, they always have known that blows to the head are very dangerous. Crying foul at this point is a bit like someone walking into a volcano and complaining that no one told them it was hot. These guys knew what they were getting into. NFL players stand to make millions of dollars each year, and they choose to risk serious injury or death to collect those millions. It has been that way for half a century or more. I have yet to read or watch an interview of an ex-NFL star who stated that, knowing even what he knows today, he would not have taken the same chances.
B. INJUNCTION
1. Blood Tests Remain Experimental
Blood tests that can determine (1) a person’s genetic predisposition for suffering concussions and (2) whether a person has suffered a mild to moderate concussion both remain theoretical. The former involves Apolipoprotein (Apo) E4 and other genetic markers in the management of sports concussion risk or injury outcome, and present results are unclear. The latter test tracks the release of a specific protein linked to concussions (S100B) into the bloodstream. Its purpose is to quickly diagnose concussions and avoid the potential harmful radiation effects of CT scans. The U.S. Army began testing its soldiers in early 2010, and as of April 2011, a team of Cleveland Clinic researchers, led by Damir Janigro, Ph.D., had begun tests on collegiate football players. Many scientists have called the research “very preliminary” and caution that much of the excitement about the potential test will remain only “hype” for several years to come. Dr. Robert Stern, co-director of the Center for the Study of Traumatic Encephalopathy at Boston University, reportedly said that “There is no good evidence available at this point to indicate that a specific gene or genetic marker puts people at greater risk for C.T.E.” Stern added that there were tests being developed “all over the globe” in an attempt to more effectively identify concussions but while “blood tests are important, we’re not there yet.” Furthermore, even if the tests gain a universal seal of approval from the scientific community, they may never see the light of day in the NFL. As a general rule, professional athletes, one or two of whom utilize banned performance-enhancing drugs, do not like to have their blood taken for any reason. I expect any attempts to incorporate these tests into the NFL likely to be subject to protests from the NFLPA due to a lengthy list of “concerns” that will require “discussion” for years.
2. Current Efforts Deemed Sufficient
A federal judge would be hard pressed to conclude that the NFL is sitting on its hands with respect to anti-concussion efforts and that he or she needs to step in. Both the NFL and the players appear to be doing all they can to both minimize concussions and help those who are suffering from long-term post-concussion problems. Several years ago, the NFL started the “88 Plan,” which has, to date, paid out $13M to 151 former players, each of whom may collect up to $88K per year for symptoms related to Alzheimer’s’ dementia, and ALS without respect to cause. Also, the NFL has donated millions of dollars to the Boston University Center for the Study of Traumatic Encephalopathy (CTE), and a number of former players have committed to donating their post-mortem brains to this program as well. Strict concussion-evaluation guidelines have been present in the NFL since 2007, and enhanced guidelines went into effect in February 2011. An updated set of guidelines and a neuro-cognitive disability benefit plan were incorporated into the new collective bargaining agreement signed earlier this month.
Jets linebacker Josh Mauga, who sustained a concussion last season, recently said the current concussion management program was thorough and sufficient. He described the series of tests that he had to pass (including balance and visual exams) before he could resume exercising after his concussion. “I did those balance and vision tests so many times,” he said. “Because any time I started to feel anything, I had to start all over again. It took me three weeks.”
For the 2011-12 season, the NFL even has enacted kickoff rules designed to minimize head-on collisions, including one eliminating wedge blocking and another requiring that kickoffs start at the 35-yard-line instead of the 30-yard-line, which already has resulted in a great increase in touchbacks during the pre-season.
3. Class-Certification Problems
A number of legal experts have opined that Mr. Coben’s efforts to obtain the certification necessary for class-action status are doomed to failure. The injuries and causation circumstances between plaintiffs are simply too dissimilar. Mr. Coben admits that he has his work cut out for him: "Our goal is . . . daunting. . . . We have to ultimately determine how many people are in the (legal) classes. How many people from the '70s are experiencing this, how many people from the '80s, from the '90s? And then, what are the losses?"
4. Ultimate Decision: Player Responsibility
Football players are adults, and each ultimately must make the decision as to how best to protect himself. As noted by current player, Brandon Moore, “We know there is a 100 percent injury rate in this league. If you’re not right, you need to say something.” Every player must balance the possibility of injury against his love for the game and very significant potential paychecks. Any player who feels that the risks are too great is free to walk away. He always has been.
Bill Staar is a partner in the Boston office of Morrison Mahoney LLP. He concentrates in the areas of product liability, construction disputes, toxic torts, and general business litigation. He is a member of DRI's Product Liability, Construction Law, and Commercial Litigation, Committees, vice chair of DRI's Sports Law, Specialized Litigation Group, and member of the Sporting Goods Manufacturers Association Legal Task Force. All comments are his own and not necessarily representative of those of Morrison Mahoney LLP.