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Former NFL Players’ Suit Against the League and Superbowl Season Bring Added Attention to Head Injuries and Helmet Safety

Date: 1/22/12

The brutal helmet to helmet hit that occurred in the first series of the San Francisco 49ers and New Orleans Saints playoff game on January 15, 2012 and the attention it received is an example of the role helmets play in both protecting and contributing to head injuries in football. In July 2011, seventy-five former NFL players invited the courts into the discussion on the ramifications of head injuries in the NFL.

Head Injuries in Football
Due to the nature of the game, head injuries are a common occurrence among players in the NFL; a head injury can be classified as either a closed or open injury. A closed injury is one in which the injured party receives a hard blow to the head by another object but the object did not fracture the skull. An open injury is one in which the object fractures the skull.  Typically, football players only experience closed head injuries due to the protection that a helmet provides.
The most common type of closed head injury is a concussion which is a traumatic brain injury resulting from the brain being shaken. The long-term health effects of concussions have received increased attention in recent years, specifically, the treatment of and the amount of time an athlete should abstain from activity after suffering a concussion.  A recent poll, conducted by the Associated Press, found that players are highly likely to conceal a possible concussion rather than be pulled from the game. This is alarming because the ramifications of multiple concussions and the long-term health effects of continuing to play after multiple concussions are central in the former players’ suit against the League.

Ramifications of Multiple Head Injuries
In 1994 the NFL created a committee of researchers and doctors to study concussions. The committee did not publish its findings until 2003 which concluded that “there were no long-term negative health consequences associated with concussions”. However, in the recent lawsuits filed by former players, the validity of those 2003 findings has come under fire. Specifically, the lawsuit is alleging that in 2010, when the NFL replaced the chairs of the committee, the new leadership stated the data used in the past findings lacked a scientific basis.  In addition, the members of the original committee were said to be affiliated with the NFL and did not include anyone from the medical community who specialized in brain research. Other studies conducted have shown that multiple concussions can cause long-term effects on the brain, such as dementia.

The purported lack of diligence on the part of the NFL is the cornerstone of the former players’ lawsuit against the League.

Legal Theories Behind Lawsuits
The first lawsuit by former players against the NFL was filed in July 2011 by seventy-five players (Maxwell v. NFL) against the League and an equipment manufacturer. The former players allege that the NFL knew, or should have known, about the long-term dangers of sustaining multiple concussions and that the League failed to enact proper guidelines to prevent multiple concussions. Since the initial suit was filed, numerous former players have followed course and filed suits around the country.  In total over 120 former players and their wives have sued the League. All allege that the NFL made misrepresentations about the seriousness of their injuries to induce players to return to play as soon as possible and to promote the aggressive nature of the game and attract fans. The former players will have to show that the League’s actions contributed to their alleged injuries and had the League provided them with proper information, they would have made difference choices regarding their medical care.

The allegations against the equipment manufacturer rest in products liability and are weak. The former players will have to show that the helmets that they were provided did not meet industry standards and that the helmets should have prevented the concussions. Given the type and mechanism of injury, this will be a difficult proof burden for the players.  It will  also be difficult to prove negligence against the League, because the players will have to admit that they  returned to the field after injury  because the League failed to hold them out or otherwise misrepresented the risks to them.

Potential Ramifications of Suits
The league and former players are now seeking to have all of the pending actions transferred to Judicial Panel on Multidistrict Litigation (MDL) in the Eastern District in Philadelphia. This would consolidate all of the pending state and federal actions and create one large lawsuit in which all of the claims will be litigated.

If the cases are given an MDL assignment,   certain uniform rulings ultimately will be made on plaintiffs’ general claims involving the League’s conduct and the fitness of the helmets. the potential long term impact of these lawsuits is difficult to predict at this early stage of litigation,  with the parties’ claims and theories yet to be fully fleshed out. However, what can be predicted is that if these lawsuits are successful , we will begin to see similar litigation initiated against sports organizations and protective equipment manufacturers.

Article By:
Robert J. Kelly, Managing Partner 
Littleton Joyce Ughetta Park & Kelly LLP

Christine M. Delaney, Attorney 
Littleton Joyce Ughetta Park & Kelly LLP


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