Concussion Lawsuits: Is settling fair for the players?

November 23, 2014

Uncategorized

By Ryan Monty – Thompson Rivers University 3L JD Student

A recent concussion lawsuit filed against the Barrie Colts of the Canadian Hockey League reminds us that no contact sports league in North America, professional or otherwise, are immune to these legal proceedings. John Chartrand, a former player for the Colts, claims the medical staff of the team was negligent in clearing him to play even though he suffered a concussion in a car accident only days earlier. Although Chartrand’s original injuries occurred off the ice, it is still relevant in questioning the medical procedures and the culpability of the team and league when assessing the risks of allowing an athlete to return to play after suffering a head injury.

What amount of liability should the leagues governing these sports accept? One argument is that the players accept the inherent risks when playing contact sports like hockey. Any injuries or long-term side effects are their responsibility to deal with because it was their choice to participate. However, others argue the leagues were aware of the risks, and had more information regarding the long-term repercussions of head injuries than what was available to the players, making the teams culpable for allowing players who had recently sustained a concussion to return to play too soon. They also claim the leagues had the money to prevent players from suffering these on-field injuries but ultimately failed to do so. The National Football League settled a lawsuit with 1,400 former players for nearly $1 billion but as the case was not decided by a court, there isn’t an answer to what the duty of care is owed, if any, by the leagues and teams to their players, if they breached their standard of care, and what amount of compensation would be fair.

Some of the NFL players in the deal mentioned above are opting out because they believe the amount is insufficient. The process is also being stalled by players who are launching legal action against the deal itself in the hopes of preventing it from going through. As reported by USA TODAY, this has pitted the lawyer for the players, Craig Mitlick, against former players like Sean Morey. Mitlick believes that Morey, and players like him, are being greedy and hurting the other plaintiffs by delaying money that would fund their much needed medical treatments, while Morey feels the deal is not enough and is benefitting third parties, like the lawyers involved, too much. It is impossible for us to know who is right without the proceedings of a trial, but with the sheer amount of players seeking compensation, and the still relatively unknown extent of the long-term damages of concussions, the potential that former players accepting a deal from the leagues which is less than fair is increasingly more probable.

There is also the question of why no star players have been involved in any of these suits. Surely the settlement amount would be significantly higher with more high profile players attached. The highest profile athlete to date would have been Dan Marino, the former superstar quarterback of the Miami Dolphins. He was attached to a lawsuit against the NFL, along with 14 other players, but ultimately decided, days after the suit was made public, to remove his name from the list of plaintiffs, claiming it was a big misunderstanding.

Is it possible that higher paid athletes aren’t exposed to the same level of risk as other players? Unlikely. It’s more plausible that they do not want to alienate the game that made them rich, along with the fact that many former elite players, Marino included, end up working for the league or teams after retiring which makes the preservation of a positive relationship essential. This is where I believe the fallacy lies – the players, who are suffering from quantifiable damage, are either left with taking less than they should, or forced to suffer through the pain, holding out for a better deal because the players are not a unified group. There is no solidarity between the lower tier athletes and the elites, and until there is, or until one of these suits finally goes to trial, the players might not get the compensation they deserve.

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