With Head Trauma Lawsuits Rising, Time to Cash Out of the NFL?
Our civil justice system is "inconsistent and unpredictable," empowering lawyers and courts "to hold the fate of entire industries in their hands," writes law professor Lester Brickman in his book Legal Barons. Juries hit businesses with big awards for trivial infractions, and products that research has proven time and again are safe and effective, like the medicine Bendectin, get driven off of the market by waves of lawsuits. Meanwhile, people who act in reckless disregard for their own wellbeing are rewarded in court for behaving stupidly. And juries aren't the only ones to blame. "Too many modern judges have all sorts of theories why defendants should be held liable," observes the legal scholar Richard Epstein.
Now professional football is struggling to avoid getting sucked into the jaws of this civil justice system, facing more than 100 lawsuits (and still counting) by former players seeking damages for traumatic brain injuries.
They claim that the repeated battering they endured in the NFL has led to depression, memory loss and early onset dementia. Among the plaintiffs are more than 2,400 former living players, as well as the spouses or estates of others who died tragically, including former Atlanta Falcon Ray Easterling, who shot himself to death suffering from depression and dementia. Their lawyers draw parallels between these lawsuits and the decades-long litigation against the tobacco industry, claiming that the league had a sense of the danger that players were exposed to, but ignored it and encouraged them to sacrifice their health for the game.
Compared to some of the plaintiff bar's most notable class-actions against industries, from tobacco and asbestos to environmental torts, the litigation against the NFL is just in its infancy. The league's supporters, especially in the sports media and on fan sites, sound like they don't expect our courts to do anything rash to our new national pastime. They argue that players knew the risk in playing a violent game, and that despite mounting evidence of brain injuries among former players, there is still no ‘conclusive' scientific proof that a career in the NFL makes one more susceptible to Alzheimers-like disease later in life.
The NFL is banking on something else, namely that the courts will rule that these injuries are a result of players' service to teams and are covered by federal employment law and the league's collective bargaining agreement with players, which would bar players from bringing tort claims. Over the years, the league has employed the same legal tactic when players sued the NFL for negligence resulting from other injuries. The courts haven't been consistent in their interpretation of the law, throwing out some cases but allowing a handful of others to proceed.
If the NFL's move to dismiss fails, the league might suddenly start to look as vulnerable as other industries taken down by lawsuit mania. The league has been concerned enough about the impact of head injuries to have empaneled a committee going back to 1994 to study head trauma, but until recently nothing much of significance came out of that long-standing committee.
One investigative story published in 2009 claimed that the NFL's team of scientists from the committee tried to get a 2005 peer-reviewed article in the journal Neurosurgery which coined the term Chronic Traumatic Encephalopathy retracted. The Neurosurgery article described the condition of former Pittsburgh Steeler center Mike Webster's brain. Webster died at age 50 after a hall of fame career.
If these cases ever get to trial it might not be difficult for plaintiffs' attorneys to find former players, trainers and even team doctors who recount being told to get players back onto the field even though they showed troubling signs of confusion and disorientation. Trial lawyers are already examining movies produced by NFL Films glorifying violence, with titles like "Big Blocks and King Size Hits," and "Moment of Impact."
The NFL is a highly visible industry, but not nearly as rich as you might think. Its total revenues are estimated at $9 billion. If the league ever faces the prospect of going before a jury in these cases, it will almost certainly try to settle, but that won't be cheap. Unlike a business that admits to a dangerous work environment or faulty product and then fixes it or gets out of that particular business, the NFL can't just walk away from the contact which is essential to the game.
So any settlement will have to include not just compensation for those now injured, but a trust fund for those who are retired and might develop conditions later in life, as well as some kind of ongoing trust fund for those now playing and future players. Don't bank on the NFL simply forcing future competitors to sign a waiver not to sue. Putting a multimillion dollar contract in front of a 22-year-old kid and telling him he can get the big dough if he just gives up his right to sue 30 years from now might be seen by judges and juries as a form of coercion.
Going to trial, however, may be even more expensive because lawyers are likely to seek punitive damages against the league beyond the cost of medical care. This is where our tort system can especially turn into a runaway train. Already, some lawyers are trying to get cases, like the wrongful death case filed by the estate of Dave Duerson, remanded back to state court, where juries are more likely to hand out such awards. The sight of 50 year old men, once robust and athletic, now looking enfeebled and confused, will make former NFL players among the most sympathetic adult tort victims in recent memory, I suspect.
If the NFL needs to look for lots more revenue to settle these cases, it will have to test the limits of its popularity. The league's ability to deliver big audiences for live sporting events has allowed it to extract larger and larger media contacts and higher ticket prices and marketing deals. It will have to go much further. That will mean expecting much higher fees from its media partners, bringing on more of them, adding games, commanding higher advertising rates, and steeper carriage fees from cable outlets carrying the networks that broadcast these games. The aim of our tort system is often to spread out big costs throughout society, making everyone pay a little bit more. That will certainly be the case with the NFL, even for the average fan.
But part of the NFL's problem now is that other institutions essential to it are vulnerable, too.
Riddell, the maker of helmets used by the NFL, colleges and high schools, is being sued (and trying to drag its own insurer into the suits). Lawsuits against big-time college football programs, which provide the NFL with its players, could be next. High school sports programs, already under siege in many places because of a squeeze on local tax revenues, couldn't afford a wave of smaller suits against them by people who never made it to a big college program or the NFL, but suddenly are discovered to have CTE later in life.
It is no exaggeration to say that industries around the world fear America's civil justice system because it is unlike any other country's in its ability to produce class-action litigation that drags on for decades and delivers bankrupting judgments. If professional football can't win a quick dismissal of these suits, one day the ‘L' in NFL may come to stand for litigation.
