Head Case: Concussion Suit at Courtroom Crossroad

Published on 12-Apr-2013 by J Square Humboldt

Football - NFL    NFL Daily Update

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Head Case: Concussion Suit at Courtroom Crossroad

It's a class action that could last longer than some of its litigants.

The lingering lawsuit that the National Football League desperately wants to go away is at a point where it may get its wish. Or not.

Filed in March 2012 and constantly being joined by NFL veterans, its ramifications could be significant to the way the game is played. At issue is the matter of concussions, the injury that for decades has been addressed in hushed terms around the league office. Unfortunately, it took a few suicides -- such as that of Junior Seau -- for the issue to draw a surprised public's attention. And the toll isn't confined to pro players, as similar incidents in college have now been documented.

Most cases of this nature begin with separate legal filings and are consolidated. That's the status of this matter now, with the venue being a Philadelphia federal court. Here, the heavy hitters wear suits and ties:

  • Senior judge Anita Brody is handling the biggest litigation package in her career; to date, her most notable ruling came in striking down a federal regulation on retiree health care.
  • Paul Clement, a former United States Solicitor General, represents the NFL. He's been on the big stage frequently, and has just come from appearances at the Supreme Court involving Arizona's immigration law, same-sex marriages, and will soon return to argue against Obamacare.
  • David Frederick, a former Assistant United States Solicitor General and clerk to the late Supreme Court Justice Byron 'Whizzer' White, represents the players enjoined in the lawsuit. Like Clement, Frederick has considerable experience in the legal limelight.

The elements invoved are staggering. For example:

  • 4286 players have put their names forward as litigants;
  • 226 separate lawsuits have been consolidated; and
  • Claims against the NFL range from fraud to wrongful death.

The details are overwhelming. In-depth reporting can be found at these sites:

  • This is the Player Concussion website, established to comprehensively explain the stakes; and
  • This is the NFL Concussion Litigation website, which has aggregated related news reports. (Scroll 'way down to find the source of the soundtrack; it's just as surprising. The athletic activity ranking behind football in the occurrence of traumatic head injuries is cheerleading. Yes, cheerleading. The 11-minute video is stunning in itself.)

Billions of dollars and the future of how football is played are on the line. The current state of play is this: oral arguments have been made as to whether there are grounds for the matter to proceed to trial. In essence, Judge Brody will consider Section 301 of the Labor Management Relations Act. Her consideration will depend on how she views the collective bargaining agreement between the NFL and the NFL Players' Association and whether this section was sufficiently addressed. She can make a clear-cut decison one way or the other, or she can allow only segments of the suit to proceed. Either way, it's a certainty that appeals will follow. This matter is far from over.

Sometime in the next couple of years, a decision will be final (but expect an application to the Federal Court of Appeals to get a petition from the losing side, and possibly a further request for the Supreme Court to take up the issue after that). At that time, there is no doubt the headlines will be more prominent than they've been to date.

Until then, be prepared to see more public relations announcements from the NFL along the lines of their league 'evolving,' which, frankly, isn't fooling anyone.

As has been posited on this site previously, it's still quite possible the NFL will be forced to devolve instead.

Worse things could happen. The Rugby World Cup is on the rise. And it's Goodell-free.