Can Players Sue the NFL for Brain Injuries?

The National Football League has a big problem on its hands, one that threatens the future of the league.  In only the most recent attack on the viability of the safety of the NFL, the estate of deceased former football player Junior Seau filed a lawsuit after an examination by the National Institute of Health reported that Seau’s brain showed signs of the harmful neurodegenerative disease Chronic Traumatic Encephalopathy or CTE.  Seau, the glorified ex linebacker of the San Diego Chargers, Miami Dolphins and New England Patriots from 1990 through 2009, and one of the most popular players of his generation, committed suicide after dealing with bouts of headaches, depression and dementia.  He shot himself in the heart with a shotgun and requested that his brain be used to further brain studies. The lawsuit alleges that the NFL failed to protect players about the dangers of the sport, as well as fraudulently withholding or misrepresenting the risks involved.  It alleges that “the NFL was aware of the evidence and risks associated with traumatic brain injuries for many decades, but deliberately ignored and actively concealed the information from players.”  It further claims that Seau “reasonably relied on the NFL’s fraudulent concealment and affirmative representation regarding the danger.”  The lawsuit additionally names helmet manufacturer Riddel for defective products. In a potential PR nightmare, the NFL has stated that they have spent over a billion dollars in player medical costs, pensions and benefits, and they deny any wrongdoing.  However, Seau’s lawsuit, in addition to the thousands of other lawsuits filed by former players and their families can expose the league to crippling verdicts that could eventually spell the demise of the league. The viability of these lawsuits depends on whether the NFL is guilty on either of 2 different  causes of actions: (1) Negligence or (2) Fraud.

The Case for Negligence

The players strongest case against the NFL is for negligence.  Here, the plaintiff’s (players) will contend that the league, as their employer had a duty to protect their well-being and provide a reasonably safe working condition for its employees, taking into account the type of work and dangers associated with their job.  Furthermore, an employer must warn its employees of the potential KNOWN risks associated. As early as 1952, there were ample studies that notified the NFL of the potential dangers associated with the hard hits.  That year, the New England Journal of Medicine published a study indicating that football players should cease playing the game if they have suffered three or more concussions.  in 1994, then commissioner Paul Tagliabue commissioned a committee to study the effects of brain injuries and football. The NFL is an inherently dangerous sport, and the players that play the game understand, to an extent, the dangers associated.  However, the league failed to notify it’s players of the long term effects a concussion can have on a player’s livelihood.  In fact, because players often come back from concussions on the very next play, because there is no downtime and because there is no rehab, at least in the conventional sense, most players did not even consider a concussion an injury at all.  Undoubtedly, most players could not and did not appreciate the risks of getting hit in the head multiple times by other players. Furthermore, until very recently, the NFL failed to take protective measure to make the game a safe as possible.  They have made some efforts, such as the “Deacon Jones Rule” in 1977 outlawing head slapping, and the facemask rules.  But for years, players were instructed, coached and even rewarded  for injuring other players and using the crown of the helmet to brain injuries.  The NFL even admitted as much when they suspended Sean Payton and Greg Williams in the now infamous “bounty gate.” The NFL also failed to notify the players of the risks involved in continuing to play after suffering a concussion.  In fact, because NFL contracts are not guaranteed, failure to play after brain trauma might result in losing your job, or being labeled a “soft player.”  This culture of ignoring potentially serious brain hazards forced many players to ignore, lie or play in spite of serious brain injuries, sometimes during the very next play.  Junior Seau himself admitted that he would return to play after feeling dizzy and semi-conscious, after effects associated with concussions and traumatic brain injuries. By withholding this information from the players, the NFL stripped the players from making informed decisions.

Did the NFL Commit Fraud?

The players’ case for fraud is based on the notion that they adversely put themselves at risk based on the misinformation or withholding of information by the NFL.  The NFL for years has stated that there is no long term health repercussions from the repeated trauma caused by playing.  Not only did this cause players to be misinformed, but the Mild Traumatic Brain Injury Committee, commissioned by Paul Tagliabue,  led to league policy and rules that further endangered player safety. The NFL stance on brain safety contradicted every major study in the field of cognitive science.  They provided information that was generally regarded as false, while concurrently denying any link to long term brain damage.  It was not until 2009 that the NFL officially conceded that there is a relationship between brain damage and constant concussion.

What is the NFL’s Defense in Brain Damage Lawsuits

The NFL no doubt finds themselves between a rock and a hard place.  Admit to any wrongdoing, and they suffer the consequence of several more lawsuits.  Deny any fault, and they suffer a potential PR nightmare, and backlash from former and current players.  Plus, we are beginning to hear whispers that parents simply will not allow their children to participate in football related activities.  It won’t be long until this has a trickle up effect to high-school, college and professional levels. Assumption of risk The NFL is a dangerous sport, and the NFL will contend that players knowingly participated and assumed the risks involved.  The problem here is that players, until very recently, did not appreciate the full risks associated with the game.  They know that they might break their legs, or suffer a knee injury, but most don’t know that they will be 19 times more likely to suffer from dementia than other men.  Furthermore, the NFL did take every measure possible to keep the game safe, based on the information they had available to them. There is no link between playing football and brain injuries The NFL will have a hard time proving this defense.  It would go counter to decades of science in the field of concussions and traumatic brain injuries.  However, it is not farfetched to believe that the NFL would assert this defense.  In the 1990’s, they went as far as to say that NFL players are not prone to the types of long term brain trauma as the general population. No incentive to lie or keep information The NFL might claim that they did not lie because they had no reason to.  They could say that they lacked a motive to withhold data that would risk the safety of its players.  But the NFL is a billion dollar industry, and hiding information that could jeopardize the viability of the sport is plenty motive to me. The difference between these types of brain injuries and other types of injuries are that they are not immediately noticeable.  Therefore, once the player is experiencing the consequences of playing the game, he is outside the limelight, and poses little peril to the league.  However, these cases bring forward the potential consequence of playing this game.