NFL concussion litigation sparks widespread changes on the field

By Jon Campisi | Nov 30, 2012

Two months before the first lawsuit was filed in what has become a multi-district case docket titled the National Football League Players' Concussion Injury Litigation, Pennsylvania Gov. Tom Corbett signed into law a bill dubbed the "Safety in Youth Sports Act."

The legislation was designed to help prevent serious head injuries in student athletes and strengthen education on the risks of head concussions.

Was the timing coincidental? Was the proposed change in Pennsylvania law an eerie prediction of things to come?

After all, it wouldn't be long until a civil case would be initiated by a handful of former professional football players who allege the NFL fraudulently concealed the long-term health effects of head concussions sustained on the playing field?

Whatever the relationship, it can't be denied that the NFL court case is having an effect - be it directly or indirectly - on the sports world, from children's after-school activities to the professional turf.

"It's time to take concussions seriously, before they ruin young lives," Corbett, the Keystone State's chief executive, said on Nov. 9, 2011, while signing what became known as the "Concussion Bill" into Pennsylvania law. "That's why we passed this law for the young people you see standing here and on the playing courts and fields around the state."

Part of Pennsylvania's law requires student athletes who suffered a head injury to be removed from the sport and not allowed to return until they have been medically cleared.

It also requires youth sports coaches to be trained annually and establishes penalties for those who don't comply.

The law also requires the state Departments of Health and Education to post guidelines and other materials online to inform students participating in any sport, their parents and their coaches about the nature and risk of concussions and traumatic brain injuries.

Somewhat ironically, it was the defendant in the massive concussion litigation that stated in early 2011 that it desired to see all 50 states and our nation's capitol pass some type of legislation that could help cut down on concussions suffered by young football players.

In a Feb. 23, 2011, Associated Press news report Gabe Feldman, director of the Sports Law Program at Tulane University Law School, said it's unknown whether the NFL supports such legislation to shield itself from a potential public relations nightmare, or if the support is there because the organization wants to protect its product by helping to minimize concussions in what could be its future players.

There are about 135,000 children between 5 and 18 years of age who are treated in emergency rooms annually for concussions and other sports-related head injuries, the AP reported.

The story said the type of legislation most favored by the NFL is one in which youth sports coaches are required to remove any player from the game who shows signs of a concussion and bars the player from returning until cleared by a doctor.

By February 2011, nine states passed such laws, the NFL told the AP at the time.

That was nearly two years ago. Today, 31 states have similar legislation on the books, with Pennsylvania appearing to have been the most recent to pass such a law, according to the website of Allegheny County, Pa. lawyer Edgar Snyder.

Fast forward to present day, and it's that very same organization, the NFL, which stated its support for such measures to protect young people, that is facing claims that it intentionally misled former players by not divulging the long-term risks of on-the-field head injuries.

The multi-district litigation, which has been consolidated into one giant docket at the U.S. District Court for the Eastern District of Pennsylvania being overseen by federal Judge Anita Brody, continues to grow in volume.

As of Nov. 16, there were 3,962 named player plaintiffs in the 182 individual complaints, according to the website, which is run by recent law school grad and Minnesota-based sports law aficionado Paul Anderson.

That figure, however, excludes spouses. If you include wives, the plaintiffs actually exceed 5,450.

So, the question remains, what is expected to come out of the litigation?

Are we poised to see extreme changes in the way the game of football is played, both at the professional level and in youth contests?

If you ask Andrew Brandt, things have already changed, and it wasn't necessarily the immediate threat of litigation that prompted said changes.

"I think the whole trajectory of concussion awareness changed in 2009," said Brandt, the new director of the Jeffrey S. Moorad Center for Sports Law at Villanova University.

Brandt, who spoke by phone with a reporter for Legal Newsline, said the changes that year followed congressional hearings that took place to address the issue of concussions during game play and what those injuries meant for players.

"After that, you saw a much greater awareness," Brandt said. "You saw stepped up enforcement as far as fines and suspensions for violent hits, awareness of head and neck areas."

Brandt also noticed that in the past few years, independent trainers have been brought aboard to observe games.

And the playing rules have changed a bit as well, Brandt noted, such as the kickoff line being moved up a tad.

The NFL realized that kickoff returns were the plays that had the most problems with regard to head injuries, Brandt said, and so change was effected to accommodate this realization.

The organization has even considered doing away with the kickoff entirely, Brandt said, but then he rhetorically pondered, "In an inherently violent game, how do you remove the violence."

To some, the litigation is seen as a means to an end. But whether that end is increased safety awareness or monetary compensation depends upon with whom you're speaking.

There's no secret that some legal minds are comparing the NFL concussion case to the Big Tobacco litigation of yesteryear, in both size and scope.

After all, the present case surely has the makings of a large payday for plaintiffs' lawyers, who no doubt see dollar signs every time a former player approaches them with tales of post-retirement hardships.

Asked about this idea of the case merely being a way for trial lawyers to line their double-breasted suit pockets, Brandt said he's not surprised at this assessment.

Brandt said he has had former football players approach him about potentially jumping aboard the litigation.

His first question - do they display symptoms of injury? If the answer is no, Brandt asks why they desire to join the plaintiffs.

The response shouldn't come as that great of a surprise: the former players say it's free, the lawyers get paid on contingency.

When Brandt questions them on what he terms their own personal set of ethics, the players who have approached him responded by saying that the NFL used them over the years and bled them dry, so why shouldn't they try to go after one more big payday.

"There's no down side," the players who have approached him told Brandt on their rationale behind joining the litigation, he said.

Of course the big question remains, when, if ever, will this case see the inside of a courtroom?

That has yet to be determined. At this point, it's a mere waiting game.

In late August, the NFL, as was expected, filed its motion to dismiss, arguing that the plaintiffs' claims are preempted by the Collective Bargaining Agreement.

On Oct. 31, the former players' filed their memorandum in opposition to the defense dismissal motion.

Soon, Brody, the judge overseeing the case, will likely decide whether or not the matter can proceed to discovery.

After that, it's anyone's guess how things will proceed.

"I'm not sure when this would ever see a courtroom," said Brandt, the Villanova law professor.

"It's hard to predict winners and losers," he continued. "But I do think the issue for the NFL right now is public relations."

The key point made by the plaintiffs in the case is not only that the NFL ignored signs relating to the long-term risk of head trauma, but that the organization purposefully misled players, Brandt said.

And it's not so much about what the NFL has done to the game in recent time, but rather it's much more about issues of fraud, misrepresentation and concealment in years past, since the plaintiffs in the case are former, not current, players.

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