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The NFL Opens Its Playbook

2013 April 3

Except for a few blanket talking points, the NFL and their lawyers have refrained from talking about the merits of the concussions lawsuits. But, lately, the NFL and their lawyers have flashed their hand.

A few weeks ago, NFL spokesman, Brian McCarthy, strayed from his usual script and shot a few holes in the players attempt at seeking class certification.

McCarthy told The Wall Street Journal, “These claims—like personal injury claims generally—cannot be decided on a class-wide basis because they turn on individual issues such as each player’s medical condition and injury history.”

On that point I’d have to agree.

The players will have a very difficult time certifying a class action because concussion and neurological injuries are inherently individualized, and each player has had various amounts of exposure. The conduct of the NFL has also changed   or “evolved”   overtime.

The NFL’s white-shoed lawyer, Brad Karp, also recently weighed in on the science by taking a swing at the players’ claims when it comes to the issue of causation.

Karp explained to the DC Bar, “as extensively detailed in the evolving medical and scientific literature, the causes of cognitive impairment and other brain–related issues are not known.”

“Cognitive impairment may result from a wide range of potential causes—ranging from injuries to the developing brain sustained in childhood or adolescence, to genetics, to drug or substance abuse, to aging, to high blood pressure, or to myriad other factors.”

Of course, the plaintiffs’ lawyers countered by saying that they will be able to prove causation at trial.

The contrasting views highlight the forthcoming battle of the experts. It will take medical and causation experts to persuade the jury that the NFL’s conduct, in fact, caused or contributed to the players’ damage.

These recent public comments — by agents of the NFL — may indicate that the NFL and their lawyers are revving up the rhetoric in case Judge Brody denies the motion to dismiss. Maybe it’s a calculated PR move – by noting that a settlement is NOT in sight, and the players’ claims are weaker than they appear.

The image-conscious NFL has taken a beating in the court of public opinion. Perhaps, it is time for them to start taking shots at folks like Pat White.

In any event, before we even get to the merits, the issue of preemption and whether the players’ claims belong in court will have to take center stage on April 9th in Philadelphia.

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