As we approach the conclusion of the NFL’s 2010-2011 season, the battlefield of mild traumatic brain injury has been brought back to the spotlight of league policy. A question posed in John Culhane’s article, entitled “The NFL’s Next Big Headache,” concerns the capability of the National Football League to withstand a class action lawsuit from players with brain injuries. Are we sitting in the backseat of a potential revisitation to the framework of Merril Hoge’s lawsuit (2000) against the physician employed by the Chicago Bears who failed to warn him of concussions as well as the dangers of returning to play while still exhibiting post-concussive symptoms? It may very well be so, but only time will tell. Let’s take a step back and view a general synopsis of the Hoge case, which was a successful shot at a culture so driven by financial capacity in opposition to its care for the players contributing to such profits.
According to Robert Fogel, Hoge’s attorney…
“[This] may be the one of the first [lawsuits] of its kind. . . . It is . . . an extremely important case because the message should go out that the brain is the most important part of the body, and it should be treated that way by doctors. [Physicians] have a responsibility to the players . . . to re-evaluate them, re-examine them before they go out to play, tell them about the signs and symptoms, and warn them about the risk of permanent brain damage or even death from second-impact syndrome.”
Following their declared victory and after drawing upon the malignancy of a culture stricken with compromised medical interests and treatment relationships, Fogel says the following…
“[The jury] sent a message to coaches at all levels . . . [that the] culture of medicine should supersede the culture of football. It is more important to treat an athlete properly than as a piece of property.”
Today, the imminent threat of two class action lawsuits sits at the doorstep of the NFL. What is to be expected is the accusation that the NFL had known, but suppressed, information on the long-term effects of playing football that hold risk for neurological impairment to one’s future. As an action coming from two different angles, the NFL expects to see the following claims…
The aggressive claim
The most aggressive claim would be that the NFL knew of the dangers and actively concealed them from the players. This kind of fraudulent concealment claim, if successful on the merits, would be a disaster for the league, because substantial punitive damages would be likely.
The less dramatic claim of negligence
The league might not have known of these risks at the time the class action plaintiffs were playing, but reasonably should have known. Successful ex-players in such a case could recover for economic loss and for their pain and suffering but would not be good candidates for punitive damages.
There may even be an implementation through utilization of the former players’ wives…
In either case, the players’ wives (and, in a few states, their children) might also be able to state a case for loss of consortium. Players with serious injuries might not be able to continue as sexual partners to their spouses and might be emotionally or physically absent from family life. Such injuries, too, are compensable—but only if the primary suit for personal injury is successful.
The NFL is prepared to respond to these lawsuits with a plethora of offensive strategies in repudiating any claims that can be directly placed upon their responsibility. Very rarely has it been seen where the NFL has lost in any case brought against them in such a context, for the ammunition that they have placed upon their side of the court is of immense proportions, and could very much so provide as an obstacle for those seeking compensation for the alterations of quality of life that can be connected to years of subconcussive damage.
Let us not forget that the lawyers involved in this situation will have plenty of ammunition of their own, waiting to be released to expose the National Football League for years of hypocrisy and denial of substantial scientific evidence that they failed to provide to their players for quite some time. But today, the culture of the NFL seems to be making significant strides with regards to the issue of concussions and neurodegenerative disease, and it is promising to see such implementations of policies that have served to address much needed revision in order to protect those who make this game so special. (On the other hand, do not dismiss the fact that the NFL is pushing to expand its season to an 18-game schedule).
Culhane puts it in very good terms here, when he says…
If the NFL accelerates the proactive approach it’s demonstrated lately, the results won’t just redound to the benefit of current and former pros. Given the league’s prominence and influence, its safety stance could cause a safety dance to break out: Everyone from college and high-school football players to athletes in other contact sports will begin to get the message.
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