Guest Post: The NFL’s Lingerie League Logic and the Concussion Litigation
By: Stuart Dean
Hypocrisy can be defined quite simply as ‘saying one thing but doing another.’ Given that definition it is all too easy to see the hypocrisy in the NFL’s decision to use officials this season that no reasonable person would consider qualified: at practically the very same time as that decision was made the NFL announced the results and penalties for the investigation of the bounty system of the New Orleans Saints, an investigation purportedly undertaken in the interest of player safety. Yet, by locking out its regular officials and fielding replacements with resumes that apparently include stints with the Lingerie League and various high schools and small colleges, the NFL effectively sent a message that player safety does indeed have a price–one that it is not willing to pay notwithstanding having not merely the ability but indeed the obligation to do so.
With respect to the concussion litigation, the implications of such hypocrisy cannot be overstated. Very much at issue in that litigation is the ‘knowledge’ and ‘intent’ of the collection of legal entities that constitute the NFL as the defendant. Proving the very real brain injuries of the plaintiffs in that litigation is sadly, and ironically, quite easy relative to defining and demonstrating what the NFL’s knowledge or intent may have been at any given time. That is because there is, of course, no actual ‘brain’ or ‘mind’ of the NFL that can be examined; to speak of the knowledge or intent of the NFL unavoidably calls upon the audience, whether judge or jury, to accept a certain level of inference and abstraction from the actual evidence. In this regard, however, the NFL’s behavior over the past several months has provided the plaintiffs with the evidentiary equivalent of manna from heaven.
Perhaps the most obvious element of this manna is the very fact that it is so easy to appreciate the otherwise abstract idea of the NFL’s mind, that is, its knowledge and intent. It is a lesson taught again and again with every game that is played, and with every call that is made with hesitation or in error. Far from being an abstraction, the NFL is a quite real presence now for all too many people. While it may not be fair to put any one face on the ‘person’ that is the NFL, it is fair to speak of it as one very hypocritical entity.
The fact that the NFL presents itself so obviously and repeatedly as a hypocrite is of vital importance to the concussion litigation. A key element of the plaintiffs’ claim is that the NFL defrauded players by hiding what it knew about brain injuries in order to avoid the costs incurred in acknowledging such injuries and to continue to make money promoting games. Essential to proving fraud on the scale that the plaintiffs allege is establishing a pattern of deceit that undercuts the validity of any formal statement or contract. In essence, as you can prove the NFL has lied in any one instance, it becomes progressively easier to prove it lied in another. Ultimately such a line of argument can allow for the terms of contracts and even the provisions governing the insulation of various legal entities and their respective officers and owners to be disregarded in determining liability. The patent hypocrisy of the logic underlying the decision to use unqualified officials makes that line of argument much easier to pursue than ever before.
As important as understanding the relevance of the NFL’s recent behavior for the substance of the fraud claim of the plaintiffs in the concussion litigation is the implication it has for the procedural posture of that litigation right now. The NFL recently filed a motion to have the federal court dismiss the plaintiffs’ claim, arguing that the arbitration provisions of one or more of the CBAs to which the plaintiffs are party control. Yet, the NFL’s blatant disregard for getting it right on the field casts this tactic for shifting the claims from federal court to an arbitration panel in an entirely different light than it might have had before. For relative to the procedural apparatus of a federal court proceeding, arbitration is the legal equivalent of the Lingerie League. The NFL is thus being, if nothing else, consistent in its behavior. It does not want to pay for real officials if it does not have to and it certainly does not want to face a real judge and jury if it does not have to do so.
To be sure, the relevance of the NFL’s recent bad behavior to establishing liability for many of the older concussion claims could be challenged. The concussion litigation, however, should not be viewed as having any one time line. The potential membership of the class of plaintiffs is ever growing; there is no reason to doubt that some players from this season have or will have reasons to join. For them, the NFL’s use of replacement officials is directly on point. Indeed, whatever the NFL may or may not have known in the past, by now it knows that there is a lengthy latency period before brain trauma symptoms emerge. The NFL, as well as others involved in football around the country, should consider the history of how asbestos litigation evolved; over time the growing number of plaintiffs in such litigation has overwhelmed an ever shrinking pool of solvent defendants. Could that happen with concussion litigation? It is hard to say but at a minimum it should serve as a reminder that short term considerations often look absurdly trivial in comparison to long term considerations of liability. The figures that I have seen discussed as being in dispute with the regular officials indeed look absurdly small compared to the liability exposure for using officials who, far from being reasonably suited to officiate NFL games, apparently in some cases did not even meet the standards of the Lingerie League. Obviously, the NFL sees some logic in that. I do not.
Stuart Dean is currently an independent consultant and writer in New York City who, among other things, also teaches yoga. He received his JD from Cornell and previously worked at a major law firm for 7 years and a major investment bank for 6 years.