A year ago, I wrote about a class-action lawsuit filed by former Redskins quarterback Mark Rypien and 125 other former professional football players. That lawsuit alleged that the NFL “deliberately ignored and actively concealed the dangers and risks of repetitive brain injuries and concussions for decades”. Fast forward to last week when the NFL attempted to have 222 consolidated lawsuits (involving one-third of the league’s 12,000 retired players) dismissed. On Tuesday, Judge Anita Brody of Federal District Court heard arguments on whether lawsuits accusing the NFL of glorifying violence should be governed by the legal system or by the collective bargaining agreement (CBA). The NFL argued that the teams bear primary responsibility for health and safety, along with the players’ union and the players themselves. Simply put, the NFL believes these cases amount to a labour dispute and therefore should be subject to grievance procedures and arbitration.  The lead attorney for the players argued that the NFL glorified and monetized violence through NFL Films, and in doing so, breached its duty of due care. Further, he argued that the league “deliberately and fraudulently” concealed the dangers of head trauma. It will be months before Judge Brody makes a ruling and writes an opinion, and appeals will likely follow. “I will rule when I sort this out for myself” she said after hearing 50 minutes of arguments. And indeed, much sorting lies ahead.  Issues of assumption of risk, contributory negligence and causation are all on the table.


At the end of the day, one of three outcomes will materialize: i) Judge Brody sides with the players, ii) Judge Brody sides with the league or iii) She takes a divide and conquer approach and divvies up which claims move forward in court, and which are dealt with in arbitration. Such a division would separate those who played under a CBA from those who did not (NFL.com reminds us that there was no CBA prior to 1968, and again from 1987-1993).  Regardless of how Judge Brody rules, the NFL is likely going to pay in spades; monetary damages (whether incurred as a result of a settlement offer or as a result of a liability finding) will exceed a billion dollars and the damage to the institution from a public relations perspective cannot be overstated.  The players are also seeking the establishment of an NFL-funded medical monitoring system for former players who may be suffering long-term effects from concussions.

In a strange twist of timing, on Sunday, a jury in Colorado found Riddell Helmets liable for failure to adequately warn players wearing their football helmets about the dangers of potential concussions.  In 2008, while participating in a "machine gun drill", high school football player Rhett Ridolfi sustained a concussion.  Ridolfi’s coaches ignored his complaints about headaches and allowed him to return to practice later that afternoon.  He subsequently collapsed, required emergency brain surgery, and was left paralyzed on one side of his body.  The verdict found the helmet manufacturer responsible for $3.1 million in damages.  Riddell has already expressed their intent to appeal.

Jennifer Hartman, guest blogger