NFL concussion lawsuits may turn on workers comp rulesPosted On: Jan. 29, 2012 12:00 AM CST
The National Football League is expected to use an exclusive remedy defense in liability litigation filed by hundreds of former pro football players who suffer from concussion-related injuries and cognitive disorders.
The NFL is named as a defendant in 21 suits that allege the league negligently misled at least several hundred players about the dangers of concussions and other head injuries. Riddell Inc., the league's official helmet maker, also is named as a defendant in some of the suits.
The lawsuits have been filed in various federal courts, including Atlanta, Miami, New York and Philadelphia.
In Miami last week, a hearing was held to determine whether the concussion cases should be consolidated into multidistrict litigation, and the NFL and some plaintiffs asked for the cases to be heard in Philadelphia. A decision is expected in 30 days, said Richard Lewis, a partner with Hausfeld L.L.P. in Washington.
Additional lawsuits could be filed in the case, said Mr. Lewis, whose law firm represents more than 100 former NFL players.
Michael McGlamry, an attorney with Pope, McGlamry, Kilpatrick, Morrison & Norwood P.C. in Atlanta who represents about 50 players, said it's likely that the NFL will argue football players who suffered concussions should be covered solely by provisions of the league's collective bargaining agreement.
Those include workers compensation, disability benefits and the NFL's 88 Plan, which pays for medical and custodial care of retired NFL players with dementia.
While some players have been able to receive benefits for concussion-related injuries, Mr. McGlamry said player attorneys are seeking to prove, in part, that their clients face health problems due to negligence that extended beyond typical workplace hazards.
“I think this is something that you're going to see more and more players become a part of...and I think the general public will be amazed at the numbers of guys that are suffering from these kinds of injuries,” Mr. McGlamry said.
The NFL declined to comment about the pending lawsuits. In a statement, the league said it “has long made player safety a priority and continues to take steps to protect players and to advance the science and medical understanding of the management and treatment of concussions.”
“The NFL has never misled players with respect to the risks associated with playing football,” the league said in the statement. “Any suggestion to the contrary has no merit.”
Beth Wilkinson, an attorney for the NFL, described the litigation as “a workmans comp issue” covered by the collective bargaining agreement, the Miami Herald reported last week.
Hausfeld's Mr. Lewis said workers comp is not the appropriate remedy for players in theses cases since the NFL was not their direct employer.
In addition, Mr. Lewis disagrees that the collective bargaining agreement would cover concussion-related player claims in these cases.
The NFL is “clearly going to make that argument,” Mr. Lewis said. “I don't think it's right, but that's something the court will decide.”
Among allegations in the litigation are assertions that the former players suffer from headaches, dizziness, memory loss, psychological problems and other neurological issues after sustaining concussions during football games and practice.
The suits seek unspecified damages for medical expenses, disability and loss of potential employment or income, among other tort claims.
“The NFL, likely the richest professional sports league ever, has demonstrated a repeated unwillingness to take adequate care of retired players who are suffering from the consequences of on-field repeated and chronic head impacts incurred during their respective league careers and have made the game of professional football in this country what it is today,” according to one suit filed in New York last month.
Concussion-related injuries are one of the league's most pressing concerns, said Richard Berthelsen, Washington-based general counsel for the National Football League Players Assn., the union for NFL athletes. He declined to comment specifically about the litigation.
“There's no more important issue that players face today than issues regarding concussions and brain injury, and it's something that we are devoting a lot of time and effort to in a lot of ways,” Mr. Berthelsen said.
Exclusive remedy has played a key role in at least one previous NFL-related lawsuit. The defense was used in the case of Korey Stinger, a Minnesota Vikings player who died of heat stroke after practice in 2001.
Mr. Stringer's wife sued the Vikings, several Vikings employees and physicians for alleged negligence in Mr. Stringer's death. But in a split decision in 2005, the Minnesota Supreme Court said that workers comp was the only remedy in that case.
Sports risk management consultant Herb Appenzeller of Appenzeller & Associates Inc. in Summerfield, N.C., said it will be interesting to see whether courts interpret the NFL lawsuits as being a matter of negligence or workers comp law.
“I think there's no question in this particular case that the football players in the NFL are definitely employees,” Mr. Appenzeller said.
Mr. McGlamry said he's hopeful that the litigation will bring attention to the plight of NFL players who face adverse effects long after their NFL careers are done.
“This is not something that the NFL could not have foreseen...from players that were playing 20 years ago,” Mr. McGlamry said. “It is such a physical game.”