The NFL's Concussion Problem Hits the Courts

When former Pittsburgh Steelers guard Ralph Wenzel passed away, after a long battle with dementia, he had the brain the size of a one-year-old's. The defensive stars Dave Duerson and Junior Seau, both of whom recently committed suicide, were found to have a severe brain disease associated with repeated blows to the head. These and countless more cases have made the public increasingly aware that the immense profits generated by the National Football League have been made possible by players battering themselves into miserable and premature death.

On Tuesday in Philadelphia, more than 4,200 former NFL players brought their case that the NFL should be liable for these injuries before federal judge Anita B. Brody. While the evidence that playing NFL football frequently leads to severe brain injuries and premature death is increasingly strong, the lawsuit faces numerous hurdles if it is to proceed. First, there is a question of individual responsibility. Tackle football is not illegal, and adults are generally allowed to make informed choices to engage in legal activities that put their health at risk. The key word, however, is "informed." The former players allege that the NFL not only concealed but provided willfully misleading information about the severe long-term effects of concussions. And they did so while glorifying violence through their marketing. If the lawsuit is allowed to proceed, the players are likely to have a strong case that the NFL should be legally liable for the injuries suffered by former players.

Perhaps the bigger problem facing NFL players, however, is a frequent barrier to holding corporations liable for injuries to workers and consumers: preemption. Paul Clement, the conservative legal superstar on the league's legal team, argued Tuesday that the suit should be thrown out because remedies for player injuries are governed by the collective-bargaining contract between the NFL and NFL Players Association. Because it is the product of collective bargaining, NFL players would have access to a fairer arbitration process than the ordinary consumer would. A finding that the lawsuit is preempted by the collective-bargaining process would be suboptimal for a couple of reasons. First, the remedies available to inured players under the arbitration process are likely to be much more limited. Second, arbitration would be a private process. All the evidence revealed in discovery about how playing in the NFL affects players' health would be off-limits to the public.

It was unclear to most observers of Tuesday's proceedings whether the lawsuits would be allowed to proceed. As Lester Munson explains, the crucial question is whether the language in the collective-bargaining agreement is specific enough to cover the trauma from head injuries. If not, based on controlling federal precedent, the lawsuit would not be preempted and sent to arbitration. There is an additional potential problem for the NFL: Between 1987 and 1993, NFL players played without a collective-bargaining contract, and it will be difficult to argue that lawsuits from players from that group of players are preempted. Of course, a lawsuit limited to that narrow group of players would be less than desirable, denying the vast majority of players their day in court. But it would at least allow for a public airing of evidence.

Given the mounting evidence of the disastrous health consequences of playing in the NFL, one must hope that the lawsuit will go forward. The NFL has good reason to want this lawsuit thrown off the federal court's docket: It will be hard to argue that the league doesn't bear substantial responsibility for the injuries sustained by its players. Given the frequency and severity of the injuries, the potential liability is large. Remembering the sad fate of players like Wenzel, Duerson, and Seau, it would be very unfortunate if the question was settled behind closed doors. The players and the public deserve to know what the NFL knew, and when it knew it.

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