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Entering the War Room

2012 November 16

The following is a piece that was published in the August edition of the Concussion Litigation Reporter. Today’s report by ESPN and the Fainaru brothers re-opens the question: Why hasn’t the NFLPA been sued for concealing the link between concussions and long-term damage? If the Retirement Board ruled, in 1999, that there was a link, then didn’t the NFLPA have a duty to inform the players? The Retirement Board is comprised of  three player representatives. Why didn’t they bargain for increased benefits and protection for the current and former players?

4th Circuit’s decision overturning the Board’s decision to deny medical benefits to Mike Webster.

CLR — This week the NFL will seek to slam the court door shut on the 3,000 plus players suing the league over head injuries, when it files a motion to dismiss on August 30th. Meanwhile, the NFLPA has sat idly by closely watching the litigation, but it has not even whispered comments about the lawsuits publicly.

Thus far, the NFLPA and the majority of teams have remained off the NFL head injury litigation docket.

The first concussion-related lawsuit named the NFL and Riddell Helmets as a defendant. Since then, the flock of concussion lawsuits has followed this strategy: suing the NFL individually or the NFL, NFL Properties and Riddell.

In May, a group of lawyers decided to change course and target several NFL teams – See Jimmie Giles v. NFL, Buccaneers, Lions, Bills, Dolphins, Eagles, Titans et al.

Though the teams were not technically named as defendants prior to this lawsuit, they, nonetheless, were implicitly part of the litigation. First, the master complaint alleges that the NFL, clubs, independent contractors, among others, conspired to conceal the risks about concussions. Second, the financial structure of the NFL invariably comprises both the League and the owners, though the holding in American Needle v. NFL et al suggests otherwise.

The Supreme Court in American Needle held that the NFL is not a single entity; rather, it is comprised of 32 individual entities, which are “independently owned [and] independently managed businesses….” American Needle Inc. v. NFL et al, 130 S. Ct. 2201 (2010).

At the end of the day, however, a significant portion of a settlement or judgment may come out of the owners’ pocket.

The NFL as Mastermind

The crux of the former players’ complaint, and where the lawsuits really have teeth, is that the NFL voluntarily inserted itself into the concussion discussion by creating the Mild Traumatic Brain Injury Committee in 1994. (And from all accounts, failed miserably.)

According to the complaint, Commissioner Paul Taglibue agreed to create the Committee. However, it is unclear whether this decision was made solely by Commissioner Taglibue and the NFL or if the owners and NFLPA had a voice.

If the plaintiffs get past the first major hurdle — preemption issue — discovery will begin, and the first inquiry will focus on the creation of the MTBI Committee (i.e. who, what, when, where and why).

If it is determined that the owners and the league conspired together, then it appears that the teams are equally as culpable in allegedly concealing information from the players.

The players’ current argument is that the NFL acted as the nerve center for concussion research and policy: whatever the NFL said about player safety and concussions, the owners and thereby the team doctors and trainers, were mandated to listen. This is in line with some accounts that several team doctors voiced their dissent over the research done by the MTBI Committee but were silenced or shunned on numerous occasions. See Dr. William Barr

In other words, the NFL, acting alone, was the mastermind of implementing guidelines, or the lack thereof, and allegedly perpetrating fraud on the current and former players.

The NFL will rebut this argument in its motion to dismiss and argue that the respective CBAs delegated health and safety concerns to the teams, team doctors and trainers.

Why all teams are not yet defendants

By targeting the teams it strengthens the argument that these lawsuits are barred by workers’ compensation. NFL players are employees of the team in which they play for.. As part of this employer-employee relationship, workers’ compensation is generally the exclusive remedy for work-related injuries. In other words, employees give up the right to sue in exchange for workers’ compensation benefits (i.e. if you are injured on the job, you are entitled to benefits regardless of fault.)

However, there is an exception to the exclusive-remedy rule, which may allow an employee to sue his employer if the injury was intentional (i.e. fraud, battery, etc.). Here, the players are arguing that the teams purposefully misled the players about the long-term risks about concussions. Of course, this will be very difficult to prove unless the proverbial “smoking gun” memo is found during the discovery process.

The NFL may also use the exclusive-remedy argument later down the road, but the NFL’s argument isn’t as strong because it is not the employer of the players.

Suing the teams

It appears to be a viable strategy to name the teams as defendants, at least to woo the public’s opinion in favor of the players. As we saw in the lockout, the public embraces the “millionaire vs. billionaire” argument. Take it a step further and give the defendants a face: former players dying and suffering, unable to afford health care vs. billionaire owners (e.g. Jerry Jones, as opposed to just the NFL Shield). That picture might resonate with a jury.

Another reason why the teams were targeted is because the attorneys are trying to keep from being sucked in with the multidistrict litigation in Philadelphia.

In mass tort litigation, it is often the law firms 1) who are the first to file, 2) have the most clients, and 3) are named to the Plaintiffs’ Executive Committee, that have control of the litigation and will get the largest slice of the pie if a global settlement is reached.

Latecomers, such as the law firm that filed the suit in Tampa, are trying to keep the case in state court so they can retain control of the litigation, potentially be the bellwether case, and hopefully get a huge verdict/settlement that they don’t have to share with 30 plus law firms involved in the MDL.

Despite naming the teams as defendants, I still don’t think it will keep the case from being transferred to Philadelphia. The NFL is currently in the process of trying to get the case consolidated with the multi-district litigation. The parties will follow the same procedures that occurred in Dave Duerson’s case – the NFL has removed the case to federal court and filed a motion to stay; the plaintiffs will file a motion to remand, and the federal judge in Florida will likely determine that federal jurisdiction is present based upon Section 301 of the LMRA; and then the Panel on MDL will also likely rule that this case shares common questions of fact and law just like the other 100 plus lawsuits pending in Philadelphia.

It is also telling that the defendant-teams are represented by the same law firm as the NFL: Paul, Weiss LLP. This may indicate a special type of fee arrangement is already in place where the NFL and owners are splitting the legal fees for the concussion litigation.

Should the NFLPA also be named as a defendant?

The NFLPA is certainly in the crosshairs of at least one of the Plaintiffs’ Executive Committee members, Hausfeld LLP. Michael Hausfeld was the lead attorney in the lawsuit against the NFLPA regarding its alleged breached of fiduciary duties owed to retirees. See Carl Eller v. NFLPA. The case is currently on appeal in the 8th Cir after a district court judge dismissed the case, holding that the retirees were not owed any fiduciary duties.

Hausfeld recently penned a piece for CLR arguing that the NFLPA was just as culpable as the NFL when it came to player safety and engaging in fraud. However, according to one source, “the Exec Committee is averse to naming the NFLPA.” Plus, it would probably bolster the argument that the litigation is “fundamentally a labor dispute.”

Hausfeld’s article, though not explicitly, raises some interesting questions that probably won’t be answered until discovery or until someone decides to sue the NFLPA. Wasn’t the NFLPA privy to the same independent scientific information relating to the long-term effects of repeated blows to the head? Why didn’t the NFLPA adopt such studies and bring it to the negotiating table when the CBAs were negotiated in the ‘60s, ‘70s, ‘80s, ‘90s and 2000s?

Arguably, the NFLPA’s hands are not entirely clean; it just wasn’t the one that voluntarily decided to create the MTBI Committee and allegedly engage in several years of refuting the link between concussions and long-term cognitive decline.

Another bite at the apple

In the event the lawsuits are dismissed against the NFL, the plaintiffs’ lawyers may attempt to go after the NFLPA, likely to no avail, but it may be on the radar of some attorneys. Publicly, there is nothing that shows that the NFLPA engaged in fraud or concealed such information from its players. Thus, the facts are not on the players’ side like they are in the NFL concussion litigation.

As the litigation proceeds, additional defendants may be named, which may include the teams, the NFLPA, the Retirement Board, doctors and even trainers. Nothing is off the board when it comes to strategizing the concussion litigation, if the plaintiffs can find a culpable target, it will, and should, be sued.

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