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
As of last night, the parents of Junior Seau, who are from the island of Aunu’u, American Samoa, were meeting with Samoan elders to discuss how to respond to requests by researchers for the opportunity to study Seau’s brain. Last Wednesday, Seau, former linebacker for the San Diego Chargers, was found dead in his Oceanside, California home. His death was ruled a suicide. The media is saturated this week with discussion of whether Seau’s NFL career played a role in his early death. There are a number of indisputable facts, between which one can interpolate:
• Seau took his own life by shooting himself in the chest. Fifteen months ago, former NFL safety Dave Duerson died of a self-inflicted gunshot wound to the chest, having left a suicide note asking for his brain to be donated for research. The Boston University School of Medicine Center for the Study of Traumatic Encephalopathy determined that Duerson’s brain indeed showed signs of CTE, the progressive, degenerative disease associated with repetitive closed head injuries.
• Up until April 19, 2012, Former Atlanta Falcons safety Ray Easterling was the lead plaintiff in a class action lawsuit against the NFL over concussion-related injuries. Since his death last month, by suicide, his widow has vowed to continue to fight the lawsuit her husband started after 20 years of suffering from symptoms of repetitive head trauma including memory loss, mood changes and depression.
• According to a 2011 study conducted by the Matthew A. Gfeller Sport-Related Traumatic Brain Injury Research Center at the University of North Carolina, the average life expectancy of a retired NFL player is 55 years. Some insurance providers have indicated that this is actually an overestimation, and that in fact the average age is somewhere closer to 51 years. For comparison purposes, the average male life expectancy in the United States is 78.2 years. [Note: If you played for the San Diego Chargers in 1994’s Super Bowl XXIX, then the odds against you are significantly grimmer. Eight of those teammates are dead, all before reaching the age of 45; a statistical anomaly since the 8 deaths lacked common cause.]
• The same UNC study suggested that retired NFL players suffer from dementia at a 37% higher rate than average.
• A 2006 report in the St. Petersburg Times found that the more games and practices an NFL player survives, the quicker he dies. In his first 14 pro seasons, Seau missed only 9 games.
If Seau’s parents decide not to donate his brain for research, we may never know with certainty whether he suffered from Chronic Traumatic Encephalopathy. One thing is for sure, there’s something about playing in the NFL that doesn’t bode well for one’s life trajectory. Are repeated head hits causing organic damage to the brain, after which depression is the next domino to fall? Or perhaps, as in Easterling’s case, organic brain damage brings on intolerable shifts in personality and cognitive functioning, but in an unkind twist, leaves one with just enough insight to see what lies ahead. Roger Goodell has made great strides since becoming NFL commissioner in 2006, introducing preseason baseline concussion testing, for example, not to mention the unprecedented smackdown of the Saints players implicated in the bounty scandal earlier this month. His work is far from finished.
Jennifer Hartman, guest blogger