Earlier this month, over 2,000 former NFL players filed a personal injury and intentional tort lawsuit against the league over head injuries. The lawsuit alleges the NFL ignored and concealed information on the seriousness of football related concussions that have caused permanent brain damage to many players. The action was filed after several NFL players recently committed suicide, including Junior Seau and Dave Duerson, allegedly caused by depression, dementia and/or other disorders from brain damaged produced by concussions during their football careers.
As with any personal injury lawsuit alleging negligence, the NFL players must prove the elements of their case and defeat any affirmative defenses. Specifically, the NFL players must prove: 1) the NFL owed the players a duty of care; 2) the NFL breached that duty of care; 3) the breach of that duty of care caused injury; and 4) specific damages resulting from that breach of care. The parties will inevitably battle over each of these elements.
Regarding duty of care, the players will likely argue the NFL had a duty to properly inform their players about the risks of brain damage caused by concussions and to impose reasonable safety measures designed to reduce concussions and prevent further damage after a concussion. The NFL will likely deny they owed any such duty and argue that, in either event, players knew about the inherent risks of head injuries caused during football and chose to assume those risks when they agreed to play football. The players will likely counter by agreeing they knew about the general risks of football injuries but were not properly informed about the risks of permanent brain damage caused by continuing to play with a concussion. The players will likely also argue the league knew about the link between brain damage and concussions yet failed to provide adequate safety measures designed to prevent players from continuing to play football while showing clear signs and symptoms of a concussion.
Regarding breach of care, the players allege, among other things, that: "despite its knowledge and controlling role in governing player conduct on and off the field, the NFL turned a blind eye to the risk and failed to warn and/or impose safety regulations governing this well-recognized health and safety problem." The NFL denies this allegation or any other allegation suggesting they did not attempt to properly protect players against head injuries while, at the same time, preserving the essential nature of the game. The players would likely counter that there were measures that could and should have been taken that would have made football safer such as strictly prohibiting and enforcing helmet-to-helmet hits, as well initiating policies prohibiting any player from continuing to play with signs and symptoms of a concussion.
Regarding the final two elements, causation and damages, the NFL players will argue concussions from football caused them to suffer serious neurologic injuries such as Dementia, Alzheimer's, depression, and/or mood disorders. The NFL will likely deny anything they did or did not do caused these alleged conditions. In doing so, the NFL will likely challenge the general science behind the link between concussions and brain damage or, alternatively, argue the players cannot prove the precautions suggested by the players would have prevented brain damage from football-related concussions in any particular case. Ultimately, the validity of link between concussions and permanent brain damage will come down to complex expert testimony.
Even assuming the NFL players are able to prove the elements of their case, they may have some additional legal hurdles. For example, the NFL will likely argue even if they negligently caused or contributed to some of the brain injuries in football players, the NFL may argue the players "assumed the risk" of these injuries. Under the law of assumption of the risk, certain states prohibit any recovery to a plaintiff who knowingly assumed the risk of an injury for activities that are inherently dangerous. In addition, there may be a statute of limitations problem for many of the claims brought by the players. The statute of limitations is a time deadline by which a lawsuit must be filed in order to recover. However, there are certain exceptions to the statute of limitations which may include mental disability. To the extent some of the NFL players who filed suit have a mental disability such brain damage caused by concussions, this could allow them to continue forward with their suit despite the statute of limitations.
ABC News, Former NFL Players File Lawsuit Against League Over Concussions, June 7, 2012.