The NFL Lawsuit

About a year-and-a-half ago, I wrote a post about how assumption-of-risk principles might apply to the claim that ex-NFL players were suffering from dementia and other chronic brain problems due to repeated blows to the head.  I didn’t realize at the time that we would see a lawsuit against the league along these lines so soon.  While extensive discovery is still ahead, there is a decent chance that the NFL will be found liable for not doing more to protect players.

One issue in the case is “What did the NFL know and when did they know it?”  If this is like the tobacco litigation and NFL officials knew, say, 20 years ago, that there was a problem and did nothing, then liability is all-but-certain.  It is more likely, though, that this is not true.  What then?  Product liability suits with a long latency period (the time between exposure and symptoms) pose very tricky problems.  One way of viewing the issue is that it is unfair to hold a firm liable when the consensus was that the product was safe–how were they supposed to know better?  Another thought is that a firm that puts a product into the stream of commerce and injures people should always pay because they profited and to do otherwise would force an innocent victim to bear the loss. Complicating that is the extent to which the consumer is aware of a risk, though not THE risk, of the product.  Obviously football players knew that they could get seriously hurt.  But does it matter that they did not know that they could get hurt in the way that, say, Dave Duerson was?

This is actually not a bad topic for a symposium, but in the meantime what do you think?  (The prospective question of how you can make football safer is a separate issue.)

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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6 Responses

  1. Daniel S. Goldberg says:

    What makes you confident that the NFL likely did not know 20 years ago of the dangers of mTBI?

    Having written on the issue in context of the NFL’s encouragement of rank conflicts of interest among team physicians and the official NFL-TBIC, I do not share this confidence.

    (That is not to say I am confident that the NFL did know. Without examination of primary source documents that I obviously could not access outside of a discovery context, I cannot say. But there is a lot of circumstantial evidence suggesting the presence of smoke. Thus I do not share your confidence in the NFL’s lack of knowledge, constructive or otherwise on this point).

  2. I wonder how “knowledge” of this sort can be attributed to the NFL without some sort of scientific research data base. Were sytematic studies of such things made over twenty years ago? Even ten years ago? If so, who conducted them and under what auspices, etc.? Is not that sort of information more or less easy to come by (i.e., publicly available)?

    One thing I did discover is that several years ago, a “study commissioned by the NFL showed that retired players might have a higher rate than normal of Alzheimer’s disease or other memory problems. Experts said that the work wasn’t definitive but that it fit in with other studies suggesting a long-term risk from head injuries in sports.” A more recent study of “1,063 ex-players were asked if they had ever been diagnosed with dementia, Alzheimer’s disease or other memory-related disease. About 2 percent of the former players ages 30 to 49 said yes. That’s 19 times the rate for the same age group in the general population. For retirees over 50, the rate of about 6 percent was about five times higher. The study, which hasn’t been published in a peer-reviewed journal, was done for the NFL by researchers at the University of Michigan. The results show the topic is worth further study, but they don’t prove a link between playing football and later mental troubles, lead author David Weir said.” Of course the fact that the study was commissioned by the NFL doesn’t inspire confidence in the lead author’s summary of the data. One would think this would prompt more research, this time ’round, to be published in a peer-reviewed journal.

    Then of course it becomes in part a question of the manner in which the NFL availed themselves of this admittedly limited knowledge. It seems to me, without having examined this in any depth, that the applicable research is fairly recent. In any case, knowledge of some sort has been acted upon: “New ‘Head Impact Telemetry System’ technology is being placed in helmets to study injury mechanisms and potentially help reduce the risk of concussions among American football players.” And recent rules changes involving tackling, etc. demonstrate some level of concern on the part of the NFL, so we might ask from whence and when did that concern come?

    And does the NFL Players Association bear any liability whatsoever? In 2009 they formed a committee to “address diagnosis, treatment and prevention of concussions and brain injuries in active players and the long-term cumulative effects of isolated or repetitive traumatic brain injuries in NFL players as patients.” Does anyone know what came of that?

  3. erratum: “Were systematic studies….”

  4. AYY says:

    The first question I have is how do you get around the worker’s comp limitations on suing your employer? Then if they’re dealing with retired players, there’s probably a statute of limitations problem, and if you’re dealing with active players, you don’t have much in the way of damages. And even if you get around that, what assets does the NFL have apart from the value of the teams? So I don’t understand the point of suing the NFL.

  5. Ken Rhodes says:

    In re the question “What did they know and when did they know it,” I’d like to point out that “20 years ago” sounds like a long time, but 1992 was not the dark ages of medical knowledge. By the 1990’s medical science had most of the knowledge it has today about problems, other than genetic. It’s mostly the solutions that have advanced in the intervening two decades.

    But it wasn’t just yesterday somebody noticed that fighters get punchy. Anybody who says “Gee, what could we have done? We didn’t know about all this stuff way back then” is blowing smoke.

  6. Ken,

    Folks may have “noticed,” but as I’m sure you realize, we’re talking about what may or may not count as evidence of the relevant knowledge, and then we must deal with stuff like the Daubert standard, right? And thus what otherwise might be understood as “common knowledge” may be irrelevant.