- Lester Munson, Legal Analyst
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The words and phrases of the NFL's concussion crisis are dramatic enough -- depression, diminished brain function, dementia, wrongful death, and allegations against the league of conspiracy and fraudulent concealment.
But the numbers are more dramatic. At least 3,000 former players or their families are filing lawsuits, and there may be many more. They seek money damages for lives altered or ended by concussions. If the suits succeed in pinning the blame for the troubles on the NFL, they will yield damage awards, small amounts for those with minor injuries and enormous amounts for those who are disabled or dead. If the average award is $500,000, the NFL faces a loss of $1.5 billion.
During a four-day period last week, 1,847 former players filed their paperwork in Philadelphia. Among them: Tony Dorsett, Scott Dierking, Keith Byars, Leroy Kelly, Garo Yepremian, Marcus Dupree, Don Beebe, Roger Brown, Jim Grabowski, Donny Anderson, Eric Dickerson, John David Crow, Mark Rypien, Tony Mandarich, Todd Marinovich, Curt Warner, Kyle Turley, Chris Doleman, Tommy McDonald, Terry Metcalf, Tommy Nobis, Joe Kapp, Steve Bartkowski and Joe DeLamielleure. The list, which includes Hall of Fame players, marginal players and even a kicker, shows how difficult the process will become.
The numbers are reaching the point where the litigation now qualifies as "mass tort," a legal term that has been used to describe litigation on tobacco, asbestos and toxic medications.
The players are also demanding in a separate class action lawsuit that the NFL fund a program of medical monitoring for all former players (even those who did not play enough to qualify for retirement benefits), a program that would provide periodic examinations for early signs of concussion damage. The number of retired NFL players is uncertain, but players' lawyers and their union estimate that there are at least 20,000 players who would be covered in the program. If the examinations include brain scans and clinical evaluations every two years as recommended by experts, anyone who has recently looked at a medical bill will know that the cost per player would quickly exceed $30,000. It would be a total cost to the NFL of $600 million for current retirees, with additional expenses as additional players retire.
The combined total loss of $2.1 billion for the NFL is a worst-case scenario. The lawyers representing the players will have to answer the league's legal arguments and discover evidence to support their assertions that the league knew of the consequences of concussions, actively concealed them from players, and even misled players and the public with bogus medical opinions.
The NFL and its own high-powered lawyers will argue that the league has always been concerned first and foremost about player safety and that any problems players may have should be removed from courts that produce large jury verdicts against prosperous businesses and sent to arbitrators who serve under the agreement between NFL owners and the players' union.
As players file their cases, NFL spokesmen have been repeating what has become the league's mantra: "Any allegation that the NFL intentionally sought to mislead players has no merit. It stands in contrast to the league's actions to better protect players and [to] advance the science and medical understanding of the management and treatment of concussions."
While the league fights the PR war against former players, its lawyers are trying to convince U.S. District Court Judge Anita Brody in Philadelphia, where the players' lawsuits have been consolidated, that she must dismiss all of the players' claims -- the individual lawsuits for injuries and wrongful death, and the class action for medical monitoring.
Known among lawyers and judges as "preemption," the league's argument will be based on the idea that the players and the owners are governed by a series of collective bargaining agreements that began in 1968. The league's lawyers will file their preemption papers Aug. 9.
The preemption argument is powerful and worked well for the owners last year when they used it to stop the players from obtaining a court order that would have ended the owners' lockout. And it will be a tempting argument for the 77-year-old Brody, who could use it to dispose of thousands of individual lawsuits and a massive class action that will otherwise take years to resolve.
The league's lawyers are relying on sections of the CBAs that provide for player safety, the allocation of responsibility for treating injuries, decisions on when to return to play after an injury, and compensation for injuries. The NFL lawyers also will say the CBAs bar players from filing lawsuits against the league and require players and owners to submit all disputes to arbitration.
Although the attorneys for the players recognize that the preemption ruling will be of critical importance to whether their case continues, they did not seem worried in interviews with ESPN.com. Asking for anonymity because of the pending litigation, three players' lawyers asserted that the concussion-caused injuries and deaths could not have been a part of any CBA because the league did not publicly acknowledge any connection between concussions and cognitive disorders until 2010.
"When they suggest preemption, they are saying that the CBA covers something that they said did not exist. Concussions and the injuries they cause were never a part of any bargain," said one of the lawyers.
If Judge Brody decides that concussions were part of the CBAs and sends the players' claims to arbitration, it would be a major setback for the players. Arbitration awards are usually dramatically lower than awards made by juries, and the private arbitration process would remove the issue from public scrutiny that would otherwise force the NFL to consider more generous settlements.
A decision on the preemption issue is not expected until November or December.
If the players succeed in avoiding arbitration and keeping their claims in the courts, they will also face other major hurdles before they can hope to settle with the NFL or to present their cases to juries. Over decades of disputes with players, NFL owners and their lawyers have perfected the legal techniques of delay and obfuscation. I have been around judges and lawyers for more than 40 years, and I have never seen an organization that defends itself more tenaciously or more creatively than the NFL.
Here is a look at a few of the things the owners will do, how the players will respond, and what is likely to happen:
Sophisticated use of legal theories
In a 90-page "master complaint" with 425 numbered paragraphs setting forth the basis for all claims by all former players, the attorneys for the players assert that the NFL deliberately established itself as the "guardian of player health and safety" and then concealed from players that repetitive head impacts could cause the early development of "Alzheimer's disease, dementia, depression, loss of memory, mood swings, personality changes and the debilitating and latent disease known as chronic traumatic encephalopathy."
Instead of explaining what concussions did to a player, the league "deliberately ignored and actively concealed the information," telling players that returning to play after "repeated head impacts is laudable and desirable."
In addition to concealing the risks of returning to play too soon after a concussion, the league "promoted the game's violence" and "falsified a body of research" that told players there "were neither short-term nor long-term harmful effects from concussions."
These are, of course, serious allegations that impugn the integrity of the league, its officials and its owners. The NFL could demand an immediate trial and a chance to defend its honor, but that will not happen. Responding to the "master complaint," the NFL will file motions that ask the judge to dismiss the cases "for failure to state a claim."
In its motion, the league will ask for details of the concealment -- what was concealed, who concealed it, when they concealed it, and how they concealed it. It's a pointless series of demands. The players and their lawyers will ultimately provide the details as they discover them. But the league's attorneys will use the motion to delay the process of resolving the basic issues between the players and the league.
The players and their lawyers are already demanding documents from the NFL and a chance to interrogate league officials and physicians under oath in depositions. "Discovery" is supposed to allow the adversaries to know in advance of trial what the evidence will be and lead to settlements or more efficient trials. The process is a decades-old reform that has never really worked as well as it was supposed to work, and it is particularly slow when the NFL is involved. The league has a long record of fighting all discovery efforts, and its lawyers will do everything they can to avoid producing the materials and the witnesses that the players need.
One of the NFL lawyers has already suggested that the discovery in the concussion cases must continue at least until the end of the year 2018. The lawyer may be right. The NFL is entitled to take depositions from each of the players who have filed suit. Each one will take hours. The league is also entitled to what is known in the courts as an "independent medical examination" of each player.
There is nothing "independent" about these medical exams. The doctor who does the exam is hired and paid by the league's attorneys and will conclude that the player is not injured, a finding that will assist the NFL in minimizing any settlement. The players will then hire their own physicians, who will do an identical exam and conclude that the player is suffering from an injury that is serious, permanent and disabling.
The league and the players will follow a similar procedure in the wrongful death cases -- hiring experts who will contradict each other as they review medical records and autopsies to determine whether there is a scientific connection between concussions and death.
If the players are patient, the discovery process could lead to settlement discussions, but it will seem to be endless, particularly for retired players who are suffering and want immediate relief and do not want to hear about court dates in 2018.
Certification of players as a class
To succeed in their effort to establish a fund for medical monitoring, the players must convince Judge Brody that they are eligible to use the court system's class action procedure. It's never easy to qualify as a class, and the NFL will resist vigorously. But it's an argument the players will win. They share a common problem, they are easily identified and located, and it would be impractical for the court system to handle 20,000 individual claims. Even though it's a winning issue for the players, it will be another time-consuming aspect of the litigation.
Players' contributory conduct and causation
The players will use their medical records, their memories and their teammates to show that they suffered concussions in specific games or practices and will add that they suffered other "dings" that they did not report. Because the league was concealing the risks and the possible damage of concussions, they returned to play and suffered more injuries, leading to greater problems now. These impacts on their heads, they will conclude, are the cause of their current problems.
The league will respond with assertions that players are responsible for their injuries. Michael Irvin said famously that players sometimes "trade the reception for the concussion." They will accuse players, with some accuracy, of minimizing their injuries to teams' medical staffs in an effort to return to play and to keep their jobs. League lawyers will also look for injuries in college or other intervening causes such as alcohol, drugs, auto accidents or anything else in the arc of a player's life that may have caused his current difficulties.
Settlement discussion and return to home court
The individual lawsuits for injury and wrongful death are being consolidated in Philadelphia before Judge Brody. After the completion of pre-trial procedures, a process that will take at least a few years, the players and the league will face the decisions of whether to settle or to return to players' home courthouses for trial. If the league succeeds in any of its efforts to end the players' quest for compensation, there would be little to discuss. But if the players withstand the league's attacks on their claims, there may be discussions of a "global settlement" in which the two sides devise a formula for settlement and payment of damage awards to players.
Another likely scenario is that the players may select one of their more valuable cases for trial as a test of what juries will award. The jury's decision would become a major factor in determining settlement values of the remaining claims.
If all efforts to settle fail, then the player has the option of moving his case back to the court where he originally filed, usually a court in the city where he played or where he lives. A jury in his home court would then decide the value of his claim. There could come a time when the NFL faces trials in concussion claims in courthouses throughout the nation.
The NFL's players and owners have fought epic courthouse battles over free agency and other labor issues, including the lockout litigation that reached the U.S. Supreme Court. The concussion litigation may be the biggest battle of them all.
The words and phrases and the numbers are scary. Both sides question the other's integrity. Many of the players and their families are struggling to subsist. Will they find a way to a peaceful settlement? If they cannot, these cases will continue to plague the NFL for years. It bears watching.
In worst-case scenarios for the NFL, ex-player lawsuits demanding expanded health monitoring and damages could cost $2.1 billion. Courtside Seat examines the complaints and the potential legal strategies.