Writers of Pro Football Prospectus 2008

20 Jul 2011

Report: 75 Ex-Players Sue NFL

Take one step forward if you're a sports league that thinks it is through with courtroom battles for the time being. Not so fast, NFL.

Per TMZ, a number of retired players have seen their shadows and are suing the NFL, claiming that the league covered up just how damaging concussions are for the past 90 years. If I'm reading my chart correctly, I think that means at least six more years of well-meaning concussion commercials.

Posted by: Rivers McCown on 20 Jul 2011

19 comments, Last at 23 Jul 2011, 4:20am by Whatev

Comments

1
by Temo :: Wed, 07/20/2011 - 1:34pm

So current players are complaining that the NFL won't let them play the way they want, and former players are complaining that the NFL didn't stop them.

9
by Revenge of the NURBS (not verified) :: Thu, 07/21/2011 - 12:10pm

This is a good point. Today's players do know the risks of concussions, and a lot of them still don't take it seriously. Would the players of the past really have behaved any differently? There's no way to know, but I doubt it.

12
by Kayle (not verified) :: Thu, 07/21/2011 - 1:42pm

I'm sure they're responses would have been non-uniform and only somewhat rational. To b sure, I hope the courts won't be spline surface to be walked all over.

2
by Temo :: Wed, 07/20/2011 - 1:35pm

Also, it's been a while since I've been on FO (lockout and all), and I see that the ads featuring impossibly busty women have been replaced by impossibly huge (photoshopped) body builders.

3
by Theo :: Wed, 07/20/2011 - 1:51pm

There are ad blockers for that... free and easy to use.
.
OT:
How did smokers do over there went they went to court 'not knowing' that smoking was bad for you.
Or a better case law would be workers who had to work in and got bad lungs.
The "I didn't know knocking myself dizzy a few times a week is bad for the brain" story seems very unbelievable to me. But then again, there's much more to this case...

4
by Temo :: Wed, 07/20/2011 - 2:34pm

Tobacco lawsuits have been plenty and fruitful for the litigants, but I'm not sure who actually ended up getting the money. I know the gov't got a lot (in the pretext of using it to promote tobacco awareness, which they have done and effectively, as smoking rates are down), and the lawyers of course, but actual lung cancer sufferers? Not sure.

6
by tuluse :: Wed, 07/20/2011 - 4:49pm

Of course the tobacco industry did intentionally deceive people. They knew it was bad and made commercials saying it was good for people's health anyways. Plus they suppressed studies showing the bad effects it had, and did all kinds of nasty things.

I think the NFL has a legitimate claim to ignorance.

19
by Whatev :: Sat, 07/23/2011 - 4:20am

I'm pretty sure that people have known that smoke inhalation is generally bad for you for several thousand years. As regards tobacco smoke specifically, the phrase "coffin nails" is about as old as cigarettes themselves. So while the tobacco industry did deceive people, those people were enthusiastic accomplices in their own deception. I'm fine with punishing the tobacco companies, but I'm sure as hell not for compensating their "victims."

11
by Revenge of the NURBS (not verified) :: Thu, 07/21/2011 - 12:13pm

Are you saying that the guy with trapezius muscles above his ears is photoshopped? I just assumed it was because he made one of the 3 BIGGEST bodybuilding mistakes.

5
by Bright Blue Shorts :: Wed, 07/20/2011 - 3:43pm

The NFL knew of the damage that concussions could cause back in 1920? Like they'd done well-tested, clinical studies of football players vs 'normal' people to understand whether it's caused by football or not. Hardly.

On a related note ... would there be a case for suing the NCAA? "I got given a football scholarship and I failed my degree because I got concussion from playing football but I would have passed if I'd been able to study."

7
by ChicagoRaider :: Wed, 07/20/2011 - 4:54pm

This has been obviously coming for quite a while. If you go back far enough, the owners may not be held responsible. But for anyone who has played in the past 5 years, the case that the owners did not do enough will be easy to prove. Just enter Tuesday Morning Quarterback articles into the record. Heck, ever since it became clear that Muhammad Ali's brain was killed by blows to the head.

Yes, yes, there is a doctrine called "assumption of risk." But I bet that case law has a lot of disclosure requirements to get the full benefit of it in the workplace environment. The NFL is going to have to settle this for large $$$.

8
by Dean :: Thu, 07/21/2011 - 9:43am

If I'm the NFL, I confront them and ask for actual EVIDENCE. These players have to actually prove these allegations.

There is plenty of anecdotal evidence that concussions are bad. There has been plenty of anecdotal evidence for decades, sure. But even as recently as the 80s and to a lesser extent, the 90s, the NFL had no actual facts, no actual studies, available to them to show the extent of the danger. It's comparable to suggesting that we had plenty of anecdotal evidence that the earth was round for a thousand years, but we didn't really KNOW it until Magellan proved it.

To suggest that the NFL owners deliberately didn't study the issue because they were afraid of what they might find is probably true, and a very effective arguement in the court of public opinion, but essentially worthless in a court of law.

All the anecdotal evidence in the world isn't going to get these guys a single penny. They're going to need to prove not only that the NFL owners had access to legitimate studies showing these dangers, but that the owners also deliberately, willfully, and maliciously conspired to supress and ingore this information. All of this may actually be true - it wouldn't suprise me in the least - but good luck proving it.

13
by tuluse :: Thu, 07/21/2011 - 4:21pm

The Greeks knew the Earth was round like 2000 years before Magellan.

It just takes some math and solid measurements.

15
by Dean :: Fri, 07/22/2011 - 9:22am

No. They BELIEVED it was round. In the same way we BELIEVE all sorts of things about interstellar astronomy that we assume by taking measurements and applying quantum physics to what we measure. Then we constantly find out that we don't know what we previously thought we know as we learn more information. The actual proof didn't come along until Magellan actually sailed around the world. The world wasn't any less round, but all the mathematical measurements were purely hypotesis (albeit correct) until he proved it by actually getting out there and circumnavigating.

18
by tuluse :: Fri, 07/22/2011 - 4:08pm

By that logic we still only believe the Earth is round, after all the only evidence we have is based on human senses which we all know are extremely flawed. In fact I only believe the entire universe exists, the only real truth I know is that I exist. I have no evidence of anything else existed beyond my own lying eyes.

Also, the Greeks knew the Earth was curved, I guess maybe you could argue they didn't know it went all the way around, but they did KNOW it was curved.

14
by RickD :: Thu, 07/21/2011 - 5:17pm

Just enter Tuesday Morning Quarterback articles into the record.

Um...that's ordinarily not a great path to walk down.

10
by Jeff M. (not verified) :: Thu, 07/21/2011 - 12:11pm

Properly bargained, an early class-action settlement could be well worth it to the NFL.

It would insulate them against any future individual suits by ex-players, and they could possibly get the judge to rule that current policies and disclosure are now sufficient to absolve the NFL from liability for current players' concussions.

16
by Tarrant :: Fri, 07/22/2011 - 11:47am

This is an excellent point.

While it's often said that corporations "hate" class action suits, they can also be quite beneficial because once certified as a class, anyone that might be effected has to affirmatively opt out of the class in order to retain rights down the line. In this case, a settlement with these 75 that admits no wrongdoing or fault effectively bars future claims.

That said, if it did get to a courtroom, I don't think the players here have much of a chance - the science of the brain is still in its infancy. This isn't like tobacco, where people have known for a very long time what the ramifications were, and thanks to whistleblowers, there was clear evidence that the firms selling the products knew about the dangers, publicly claimed there were none despite knowing otherwise, and conspired with each other to hide them. In this case, concussion science is tricky - the effects often show years down the line, and can be attributed to many factors. If players want to claim that the NFL *could* have been funding the kinds of studies they're funding now to look at concussions, but didn't, that's a legitimate argument, but not a winning one in court, because it effectively admits the NFL didn't really know before.

In order for the players to prevail in court they'd have to be able to show that the NFL knew that multiple-concussion syndrome was a real thing, that they had fairly reliable science backing up that position, and that they intentionally hid that data from players, or at the minimum decided to willfully ignore said data. They'd also have to overcome the burden of risk - this isn't some activity where no one would know they're going to get hit - playing in the NFL means a player assumes some risk of injury in the process of playing the sport. It's a hard hitting game and players can't say they didn't know that in advance and that there is risk of injury inherent in such an activity.

A best bet for the players involved is a settlement, although that may not be "best" for other players necessarily. The optimal solution is for the NFL Player's Association to bargain some benefits for former players that include mental health (and they did win some gains for retired players in the soon-to-be-ratified agreement), but any gain for retired players essentially is a small bite out of the money current players get, so there's only so far they're going to be willing to go.

17
by sundown (not verified) :: Fri, 07/22/2011 - 1:12pm

One area that I wonder about concerns helmets. Mark Kelso was wearing a Pro Cap helmet back in the early '90s and from what I've read, he never suffered another concussion after he started wearing it. But Pro Caps are funny looking. Any chance NFL marketing took a look at them and determined their widespread use would hurt league image and memorabilia sales? If the players got a hold of some email even debating that sort of thing, it could be extremely damaging to the NFL, particularly given the fact that the NFL's vendor of choice, Riddell, is just now coming out with a helmet they claim will limit concussions. Would that be enough to win a lawsuit? Possibly not. But it would be a tremendous PR hit to the league. It'd be worth it to the NFL to avoid revelations like that if they could.