Leucadia Law & Mediation

Highlights from Maxwell v. NFL

A group of 75 plaintiffs, led by Vernon Maxwell, recently filed suit against the National Football League and its helmet manufacturer(s), alleging that the NFL knew the risks of exposing its players to repeated concussions and hid those risks from players.

The complaint, which can be read in its entirety here, claims that multiple concussions caused Chronic Traumatic Encephalopathy (CTE), and led to the early deaths of several former players.  The lawsuit states that in 2002, Dr. Bennet Omalu found CTE in the brain of former Pittsburgh Steelers center Mike Webster.  Then, in 2004, the NFL Committee on Mild Traumatic Brain Injury (MTBI) published their findings showing “no evidence of worsening injury or chronic cumulative effects” from multiple concussions.  Finally, in June, 2010, the NFL acknowledged that concussions can lead to dementia, memory loss, CTE, and related symptoms.

The lawsuit at Paragraph 111 claims the NFL knew as early as the 1920s of the harmful effects of concussions on players’ brains, and that these effects were concealed until 2010.  The suit goes on to allege in the next paragraph that the 75 plaintiffs did not know the long-term effects of concussions and relied on the NFL and the helmet makers (referred to in the complaint as the “Riddell Defendants”) to protect them.

The suit states that it arises for two reasons: (1) the failure to warn and protect players against the long-term brain injury risks, and (2) because the NFL negligently failed to enact league-wide guidelines and mandatory rules regulating  post-concussion medical treatment and the “return-to-play standards” for players who suffer one or more concussions.  These statements are interesting because the league has recently enacted such guidelines and rules and the scuttlebutt is that the players are already devising ways to beat the tests to get back on the field.  If this case makes it to trial, it is not a stretch to say that the entire culture of the NFL will be on trial.

The suit contends that the NFL’s failures have resulted in the deaths of some players and brain injuries to others, including these plaintiffs.

The crux of the suit centers on the creation in 1994 of the NFL’s Mild Traumatic Brain Injury Committee, which is more or less alleged to be a farce and a sham, complicit in duping the NFL’s players into believing that concussions were, singularly or cumulatively, harmless.  The NFL’s MTBI Committee is alleged to have studied the short-term effects of concussions on NFL players and concluded that “because a significant percentage of players returned to play in the same game [as they suffered a mild traumatic brain injury] and the overwhelming majority of players with concussions were kept out of football-related activities for less than one week, it can be concluded that mild TBI’s in professional football are not serious injuries.”  In tenth grade I did a science fair project on the effects of a rock concert on hearing loss.  Based on my own personal experience, I concluded that ringing in the ears for 24-48 hours is expected but thereafter hearing returned to normal.  It appears as though I should have set my course on becoming a doctor for the NFL in spite of the “D” that I received for my efforts.

The suit goes on to claim that the NFL, through its MTBI Committee, intended to deceive its players until the body of evidence regarding the long-term effects of concussions was simply too great and, in 2010, the NFL capitulated under the weight of the evidence.

Initial reaction from fans, by way of message boards and blogs, indicates an overwhelming reluctance to buy into the former players’ cause.  Implicitly or explicitly, the “court of public opinion” believes that players assumed the risks of injuries, including multiple concussions.  “Primary assumption of risk arises where a plaintiff voluntarily participates in an activity or sport involving certain inherent risks; primary assumption of risk … bar[s] recovery because no duty of care is owed as to such risks.” (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 11.)  The NFL has a duty not to increase risks to its players, which it arguably violated by and through the (allegedly) sham NFL MTBI Committee.   (Note: The NFL MTBI Committee was established in 1994; only 20 of the plaintiffs in the lawsuit played in 1994 or later.)  The NFL will argue that its only duty was to decrease the risk of violent collisions, which are certainly inherent in the sport, and therefore it breached no duty.

Finally, the suit lists 36 sources of information “available and easily accessible to the Defendants” regarding the long-term effects of concussions”; if that information was available and easily accessible to the Defendants, doesn’t that also mean that it was available and easily accessible to the players and their union?  The plaintiffs’ argument in this regard certainly cuts both ways.

What we know for sure is that concussions (aka mild traumatic brain injuries, or MTBIs) are cumulative, and that the long-term effects are both dangerous and debilitating.  The Maxwell plaintiffs are going to have to overcome several prominent legal hurdles, including (1) issues with the applicable statute(s) of limitations, as many of these players’ careers ended 10, 20, 30, or even 40 years ago, (2) that the players did not assume the risk of the head injuries when they chose football as their respective careers, and (3) showing that the NFL had access to knowledge that the players did not have regarding the long-term effects of concussions, and that the NFL actively concealed that knowledge from the players.  Stay tuned…

To view a PDF of the operative complaint, click here.