Posted on: 2/3/2012
William Staar, Morrison Mahoney
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Earlier this week, Heisman Trophy winner and NFL Hall-of-Famer Tony Dorsett became the latest and most prominent addition to a growing list of former NFL players suing the NFL for alleged long-term effects of concussions. The 57-year-old former running back for the Dallas Cowboys, who played from 1977 to 1988, acknowledges that he is not familiar with details of the lawsuit. He states that was approached about joining other former players, and he agreed to do so, to use his fame to draw attention to what he sees as a massive problem.
Dorsett remembers the hard hits that he took and recalls forgetting plays. He claims that former coaches forced him back in the game despite knowing that he was half dead. As a result of multiple concussions during his career, he reports that he routinely forgets peoples’ names or the reason he walked into a room or his destination while driving on the highway. Recent brain scans allegedly reveal that he is not getting enough oxygen in the left lobe of his brain, the part associated with organization and memory. Dorsett fears his memory issues are getting worse and that they eventually will develop into dementia.
Dorsett is the most famous of a quickly-expanding group. According to the Associated Press, at least 300 former football players, including former Chicago Bears Super Bowl-winning quarterback Jim McMahon, are plaintiffs in approximately 20 suits nationwide against the NFL and its teams. Those numbers do not include those who also have sued the NCAA and its schools. Their attorneys argue that, at best, the league was indifferent to the effects of concussions, and, at worst, knew that it was “condemning players to a future of mental hell.” Common medical problems currently alleged by these plaintiffs include depression, dementia, migraine headaches, memory lapses, and chronic traumatic encephalopathy (CTE), a type of neurodegenerative disease that mimics Alzheimer's disease. They seek various damages and other remedies, including one that wants the NFL and helmet-maker Riddell to fund a medical monitoring program that would test players over the years to see whether they wind up with problems that stem from concussions.
The plaintiffs, some of which stopped playing decades ago, face high hurdles. Their lawyers generally argue that the NFL was responsible for variety of bad acts designed to keep injured players on the field. Most importantly, they claim that more should have been done in the past to warn about the dangers of concussions and keep concussed players on the bench. The primary problem they face is that, according to most experts familiar with this issue, the scientific link between mild traumatic brain injury, including concussions, and the variety of mental problems former players now experience is, at best, a developing one. Although attitudes are beginning to change, few medical experts, even today, are willing to claim anything near absolute certainty that concussions are responsible for such later-in-life problems. To prove that the NFL should have known decades ago what is still developing science today will be difficult. Regardless, plaintiffs attorneys know that it only takes one well-paid expert to get their case to the jury. After that, anything is possible.
In addition to the problematic causation link, juror sympathy in favor of the plaintiffs is far from given. Reader comments to online reports about the Dorsett lawsuit suggest that many see former NFL players as wealthy men who they cannot relate to. Further, many assert that if the NFL knew the risks of concussion, so did the players. The players “knew what they were getting into” and risked their bodies for large paychecks. All of them were free men with the right to walk away from the game at any time. No one forced them to do anything.
Some may also assert that the players are their own worst enemy and see in current players the same flaws that plagued former players. Those clearly dazed from a hit often force themselves and each other to “shake if off” and get back in the game, sometimes even trying to lift a mostly-limp teammate off of the turf. According to several reports, Chicago Bears All-Pro linebacker Brian Urlacher recently said that he often would lie to his team doctors about his medical condition so he could continue to play. Despite the NFL’s recent attempts to prevent head-to-head hits, players on both sides of the ball continue to run at full speed, drop their heads, leave their feet, and spear one another with their helmets. When the NFL issues a $25,000 or $50,000 against a player for an illegal hit, the NFL Players Union is usually the first to protest. Finally, despite great efforts by today’s helmet manufacturers to introduce new technology and what they claim are the most protective football helmets in history, many players, including some prominent ones who will be playing in the Super Bowl this Sunday, elect to wear older-style helmets that they are familiar with.
What’s This Really About?
Skeptics will claim that all of these lawsuits have nothing to do with righting a legal wrong. Instead, what we really are seeing is an attempt to use lawsuits and bad press as a time machine to renegotiate long-gone collective-bargaining agreements. Several reports state that full lifetime medical insurance was not sought by current and former NFL union leadership because such a plan would cost an estimated $50 million a year. The NFL’s annual income reportedly is $9 billion and growing. Former players want a piece of that huge pie. As stated by Tony Dorsett “When you retire [from the NFL], you've got health insurance for a certain period of time and then it goes away. They've got money they can put in funds to take care of guys when they need to help. We need health insurance for life. Paid by the NFL. No question in my mind, we definitely need that."
Bill Staar is a partner in the Boston office of Morrison Mahoney LLP, Chair of DRI's Sports Law & Entertainment Group, and a member of the Sporting Goods Manufacturers Association’s Legal Task Force. He concentrates in the areas of product