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Thursday, November 15, 2012
Updated: November 16, 8:57 AM ET
NFL rulings require second look

By Lester Munson
ESPN.com

If the NFL retirement board has already decided that football caused brain damage and death for Mike Webster, how can the league and the owners now go to court and claim they did not know that concussions caused serious injuries?

As strange as it may seem, that is exactly what the NFL and its lawyers are doing.

The decisions on Webster and other players reported by Steve Fainaru and Mark Fainaru-Wada were conclusive determinations that concussions were responsible for depression, dementia and other crippling conditions. Nearly 4,000 other players who say they suffered concussions are making similar claims in a lawsuit against the league.

The logic seems inevitable: If an NFL disability board decided 12 years ago after a contested hearing that concussions cause serious damage, the NFL should be legally required to admit now and forever that concussions cause serious damage.

The attorneys for the players whose cases are pending in federal court in Philadelphia will no doubt use that logic in an attempt to shorten the litigation process. They will use the legal term "collateral estoppel" to suggest that the league is now barred (estopped) from denying that concussions cause damage. And they will ask U.S. District Judge Anita Brody to rule that the factual determinations in the Webster case before the Bert Bell/Pete Rozelle NFL Player Retirement Plan board must be applied to the current cases.

If the collateral estoppel argument were to be successful, it would shorten the litigation process by months, even years, and could lead to early settlements. But the argument is not likely to succeed. For the legal theory of collateral estoppel to work, the factual issues in the player cases must be identical.

The collateral estoppel rule worked well for NFL players, for example, in the early 1990s in their quest for free agency. After the players won a jury trial with findings that the league was a monopoly and that the owners had interfered unlawfully with player movement from team to team, the rule of collateral estoppel made every player whose contract expired into a free agent. Each player's situation was identical, and, instead of each player going through a trial to establish his free agency, application of collateral estoppel made it automatic. It prompted negotiations that led to a historic union contract that established free agency and enormous improvements in player benefits.

In the concussion cases, however, each player's situation is not identical. Their medical histories are unique. The number of blows to the head, the timing and severity of the blows, and the times of their returns to the playing field will be different in each case. Some of the injuries will have occurred in high school, some in college and some in the NFL.

The differences among the claims will allow the league and its attorneys to avoid the application of the Webster decision and to continue to deny each player's claim. The league's lawyers will be walking a fine line between accepted medical knowledge on concussions and the league's denial of responsibility, but it is the kind of thing the league's cadre of brilliant lawyers does well.

Unless the players and the league somehow find a formula for a massive settlement of the concussion claims, after the preliminary legal skirmishing is finished in Philadelphia, each player's lawsuit will be returned to the city where he filed it for a trial. In the trial, the player can rely on the witnesses and the medical knowledge that led to the Webster group of decisions, but he must prove each aspect of his own case. If the players are successful in their quests, there could be hundreds of jury trials that will determine the amount of money damages to be awarded to each player.

Even though the Webster decision is clearly favorable to the players and embarrassing to the league, it may hurt the players in an ironic and unexpected way. The Webster decision was made by a board that was originally established by collective bargaining between the players and the owners. The owners, fearful of the amounts juries may award to hometown players, want the concussion claims to be resolved in arbitrations that would be conducted under the terms of the union contracts that were in force during a player's career.

If Judge Brody is impressed with the board's decisions on the Webster group of cases, she may decide to send all of the current claims into arbitration. It would be a terrible setback for the players, and it would be the result of player triumphs in the earlier cases.