NFL sued for failure to protect ex-players from concussions

July 22, 2011

Health & Safety, Negligence

As speculated in Ben McGrath’s excellent piece in The New Yorker on 31 January 2011 (click here for the article), a group of 75 retired NFL players and many of their wives sued the National Football League and helmet manufacturer Riddell in the Superior Court of California three days ago (click here for the CNN piece and here for the New York Times article).

The lawsuit alleges that the players ‘did not know the long-term effects of concussions’ and relied on the league to protect them. ‘For decades, defendants have known that multiple blows to the head can lead to long-term brain injury, including memory loss, dementia, depression and (chronic traumatic encephalopathy) and its related symptoms.

‘This action arises from the defendants’ failure to warn and protect NFL players such as plaintiffs against the long-term brain injury risks associated with football-related concussions. This action arises because the NFL defendants committed negligence by failing to exercise its duty to enact league-wide guidelines and mandatory rules regulating post-concussion medical treatment and return-to-play standards for players who suffer a concussion and/or multiple concussions.’

The plaintiffs are critical of a study commissioned by the NFL Committee on Mild Traumatic Brain Injury whose published results in 2004 showed ‘no evidence of worsening injury or chronic cumulative effects’ from multiple concussions. In a related study, the committee found that ‘many NFL players can be safely allowed to return to play’ on the day of a concussion if they are without symptoms and cleared by a doctor.

The lawsuit alleges that the NFL study is ‘completely devoid of logic and science [and] … contrary to … 75 years of published medical literature on concussions.’

‘By failing to exercise its duty to enact reasonable and prudent rules to protect players [and warn past players] against the risks associated with repeated brain trauma, the NFL’s failure to exercise its independent duty has led to the deaths of some, and brain injuries of many other former players, including plaintiffs.’

The suit alleges that the NFL failed ‘to regulate practices, games, equipment and medical care so as to minimize the long-term risks associated with concussive brain injuries.’ It is further alleged that the ‘defendants acted with callous indifference to the rights and duties owed to Plaintiffs … [and that the] defendants acted wilfully, wantonly, egregiously, with reckless abandon and with a high degree of moral culpability’ in either ignoring medical research on the subject or for not disclosing to the fullest extent what was actually known.

The plaintiffs are mindful of NFL Commissioner Roger Goodell’s testimony to the US Congress in October 2009 where he didn’t acknowledge a connection between head injuries on the football field and later brain diseases even though there was compelling evidence to the contrary. The lawsuit accurately notes that US Representative Linda Sanchez, D-California, ‘analogized the NFL’s denial of a causal link between NFL concussion and cognitive decline to the tobacco industry’s denial of the link between cigarette consumption and ill health effects.’

The suit also contends Riddell’s helmets were defective because they didn’t ‘provide adequate protection’ from concussions. The plaintiffs will no doubt try to rely on representations made by the helmet manufacturer in their marketing during the period in which they played. The plaintiffs would have to argue that they relied upon these fraudulent claims reasonably believing that the helmets either substantially reduced or eliminated altogether the likelihood of sustaining a concussion. For what it’s worth, Riddell’s current website (as of 22 July 2011) makes no such absolute claims that wearers of their helmets will not suffer a concussion during a collision whilst playing football.

NFL spokesman Greg Aiello said the league ‘will vigorously contest any claims of this kind’ and Riddell will not comment on the pending litigation.

This is going to get very interesting.

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