Bloomberg News

NFL Can’t Claim Concussion Suit Immunity, Lawyer Says

April 09, 2013

The National Football League can’t claim immunity from lawsuits brought by thousands of former players over concussions they say they sustained on the field, one of their lawyers told a federal judge.

The league has established itself as the “guarantor of player safety” since the 1920s and can’t now hide behind collective bargaining agreements to shirk its duty of care, David Frederick, an attorney for ex-football players, told U.S. District Judge Anita Brody today in Philadelphia federal court.

“When the NFL began to monetize and glorify violence on the field, it breached its duty of due care,” Frederick said. “It can’t claim immunity simply because clubs have a contractual relationship with a players union.”

The NFL is seeking to have the suits dismissed, saying the claims are a matter of workplace safety governed by contracts with the league’s union and its 32 member clubs. Paul Clement, a lawyer for the NFL, said the players’ association and the teams share responsibility for player safety with the league.

“You can’t think of the league’s responsibility in a vacuum,” Clement said. “The league can’t unilaterally change rules without participation from the clubs, players and the union.”

4,000 Players

More than 4,000 former NFL players have sued the league seeking damages for head injuries. The complaints, which are consolidated before Brody in Philadelphia, accuse the league of negligence and failing to inform players of the link between repeated traumatic head impacts and long-term brain injuries.

The players claim the NFL knew as early as the 1970s about the increased risk of repetitive head injuries and allegedly took no substantial steps to address the issue until 1994. It later sought to suppress medical literature showing a link between head injuries and post-career brain damage.

Autopsies of Junior Seau, who was an All-Pro San Diego Chargers linebacker, and two other former players showed they suffered from a progressive brain disease known as chronic traumatic encephalopathy before committing suicide. The two other players were Dave Duerson, a Chicago Bears’ safety, and Andre Waters, a Philadelphia Eagles defensive back.

Their families are suing the NFL and Riddell Sports Inc., the league’s official helmet provider, for refusing to properly acknowledge or address the concussion threat.

Neurological Risks

“The NFL for decades had information about neurological risks, and because it didn’t cause bleeding and cause broken bones, the league ignored it,” Frederick said.

The collective bargaining agreements, first established in 1968, address issues of player safety and health, Clement said. There’s no way to evaluate the NFL’s duty of care without interpreting the agreement that was negotiated, he said.

About 300 players in the lawsuit who played before 1968 or from 1987 to 1993 aren’t covered by a bargaining agreement, Brian McCarthy, an NFL spokesman, said today. The claims for those players would nevertheless be barred because they’re still receiving retirement benefits, Clement said.

“Players who played in those years are the most difficult cases for us,” Clement told Brody.

Riddell, a unit of Van Nuys, California-based Easton-Bell Sports Inc., argued today that the players’ lawsuits against it should be dismissed because the claims don’t single out a particular helmet as having a defect.

Similar Products

It’s not appropriate to combine the lawsuits just because they claim use of similar products, Paul Cereghini, an attorney for the helmet maker, said.

He asked Brody to either sever and dismiss the cases against his client or sever them and have the plaintiffs file amended individual complaints.

Such an action would result in the filing of cases in different courts over the same issue, Martin Buchanan, an attorney for the players, said. Riddell may still be liable even if Brody finds the players’ lawsuit against the league is barred by contract, Buchanan said.

“The case against Riddell involves garden-variety claims that don’t arise from the CBA,” Buchanan said. “It involves standard duties imposed on a manufacturer in any state.”

Brody, who is supervising the exchange of pretrial evidence in the case, will decide whether the players’ claims can proceed to trial. She didn’t indicate during today’s hearing when she would rule. The losing side may ask Brody for permission to appeal.

The case is In re National Football Players’ Concussion Injury Litigation, 12-md-02323, U.S. District Court, Eastern District of Pennsylvania (Philadelphia).

To contact the reporter on this story: Sophia Pearson in Philadelphia at spearson3@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net


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