NFL concussion saga moves to new phase: litigation

October 23, 2011 - 1:23 AM
NFL Concussion Lawsuits Football

FILE - This Oct. 7, 2011 file photo shows former quarterback Jim McMahon listening as President Barack Obama honors the 1985 Super Bowl XX Champion Chicago Bears football team during a ceremony on the South Lawn of the White House in Washington. After congressional hearings, increased media attention and revised rules, the NFL's concussion saga has entered its next phase: litigation. More than 125 former pro football players are suing the league _ and, in most cases, helmet-maker Riddell _ via at least five complaints brought in state or federal courts over the past few months and as recently as last week. McMahon is listed as a plaintiff on one of the suits. (AP Photo/Charles Dharapak, File)

After congressional hearings, increased media attention and revised rules, the NFL's concussion saga has entered its next phase: litigation.

More than 125 former pro football players are suing the league — and, in most cases, helmet-maker Riddell — via at least five complaints brought in state or federal courts over the past few months and as recently as last week. They say the NFL should have done more to warn about the dangers of head injuries and should do more to help retired players.

"We've moved on from a debate about whether or not it's really a problem — it's clear it is — to the next question: What do we do about it?" said Richard Lewis, a lawyer representing players in a class-action suit filed in California state court.

There also are at least three personal-injury cases against the NFL pending in California, along with a case filed in U.S. District Court in Pennsylvania. They're believed to be the first examples of former players joining together to file concussion-related lawsuits against the NFL. Many players' wives also are plaintiffs.

"We have three goals. One is to make necessary changes so that others playing this game don't go the same way. The second goal is to set up a medical process so these people can have medical attention for this injury as long as they need it. And the third goal is to get compensation," said Thomas Girardi, who is representing several dozen former players in two of the personal-injury complaints. "Some of these people are unable to work in a work setting because of their inability to understand common concepts."

The NFL's stance, as explained by outside counsel Brad Karp in a telephone interview, essentially focuses on these ideas:

— players knew there were risks of injury when they decided to play football;

— there was no misconduct or liability on the part of the NFL;

— any such claims should be addressed via arbitration, as outlined in the collective bargaining agreement between the NFL and the players' union, not in court — an argument made in a filing by the league to shift cases from state to federal court.

"The NFL has long made player safety a priority. It is continuing to make player safety a priority. And the NFL is not legally responsible for the medical difficulties that some players now are facing," said Karp, whose law firm, Paul, Weiss, Rifkind, Wharton & Garrison, has represented the league in various matters for 20 or so years.

"Head injuries, including concussions and the possible effects of concussions, have long been known risks of playing football," Karp added. "Players have known about the risks of playing football, they have chosen to play football notwithstanding those risks, and in so doing, have assumed those risks and all of their possible consequences."

The complaints filed in three of the cases are identical in some passages, particularly in supporting their contention that the "NFL fraudulently concealed the long-term effects of concussions." They say that while the NFL warned current players in a June 2010 poster put in locker rooms about "long-term risks associated with multiple concussions, including dementia," neither the league nor Riddell cautioned retired players.

Most of the players listed as plaintiffs are not household names, although former Bears quarterback Jim McMahon is included in the complaint filed in Pennsylvania.

Jack Yeo, who works at a public relations firm representing Riddell, declined a request for an interview with a lawyer or employee of the helmet maker, saying Riddell's policy is not to comment on pending litigation.

Citing various studies and articles from medical journals, the plaintiffs have set out to show there was a history of literature showing that multiple blows to the head can cause long-term damage, and that the NFL was aware of that connection. A complaint filed by Girardi's clients says the league's Mild Traumatic Brain Injury Committee, set up in 1994, was "part of the NFL's scheme to deceive Congress, the players and the public at large." Lewis' complaint says that the NFL's "disinformation campaign was spearheaded" by that panel.

On Wednesday, a Senate committee held a hearing about whether manufacturers of sports equipment make misleading safety claims. One key moment was a House hearing in October 2009, when lawmakers grilled NFL Commissioner Roger Goodell about the league's concussion policies and the connection between injuries on the playing field and later brain diseases; soon afterward, the league made several changes, including revamping its return-to-play guidelines and changing the co-chairmen of its committee on concussions.

"Congress has maybe a slightly different purpose for investigating than the family of an injured player has in filing a lawsuit, but it's all based on the same facts. One thing Congress and the plaintiffs share as a purpose is that these kinds of injuries be prevented in the future," said David Rosen, an attorney in one of the California-based injury cases against the NFL.

All told, the plaintiffs are seeking judgments in the millions of dollars, although specific amounts are not detailed in the court filings — and none of the lawyers interviewed would say exactly what is sought.

These disputes might take years to be resolved; no one on either side was willing to guess how long it could be.

And the NFL cases aren't the only ones related to football head injuries. At least two class-action suits, naming three former college football players as plaintiffs, were filed against the NCAA in federal court in Illinois.

Lewis' clients asked a California court to make the NFL and Riddell fund medical monitoring for players currently residing in that state. Instead of seeking compensation for injuries, that lawsuit seeks a program to test players over the years to see whether they wind up with medical problems that stem from concussions in their NFL days.

"It's been issued for communities that are exposed to a toxic chemical from a factory or hazardous waste dump. It's been used for people that have used an unsafe drug," said Lewis, whose firm also is involved in a suit against the NFL Players Association about benefits for retired players. "We think it makes sense here because we have an isolated population at an elevated risk. They're different from people like you or me because of the head impacts they received as a player."

If successful, Lewis said, cases could be pursued in other states that recognize medical monitoring as a remedy.

Similarly, Girardi said he expects to add plaintiffs who have what he termed "concussion syndrome."

"At the end of the day, if we're successful in the litigation, each player will be treated individually and hopefully get the compensation he's entitled to for the injuries that came about," said Girardi, who worked on the 1990s water pollution case that inspired the film "Erin Brockovich."

Asked what evidence he has that the NFL committed fraud, Girardi replied: "At this stage of the proceedings, we'd just as soon not turn over our hole cards."

"I will say this: We measured every word very carefully," he continued. "This wasn't a situation where we said the driver was drunk and going 100 mph and have no proof of it."

Said Karp, the lawyer for the NFL: "The league has done the right thing, and has been doing the right thing for many, many decades."

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Associated Press news researcher Judy Ausuebel in New York contributed to this report.