Happy Holidays, Football and Sports Concussion Establishment: 2012 Is the Year of the Tobacco-Style Lawsuit

“The year 2011 will be the one in which the American public and government confront the growing evidence of the public-health toll of violent collisions in sports and sports entertainment, and do something substantial about it…. The national cultural and political stars have begun to align.”

That’s what I wrote in November 2010. The rhetoric seems flowery in retrospect. And the “do something substantial about it” part remains elusive. But the prediction that the concussion issue was no fad holds up.

As 2011 winds down, a holiday season flurry of new lawsuits alleging that the National Football League covered up evidence of long-term traumatic brain injury has brought the total number of cases to eight in federal and state jurisdictions spanning from Miami to Los Angeles.

The named plaintiffs in these actions total around 150. According to the NFL, there are around 8,000 ex-players vested in the Pete Rozelle / Bert Bell NFL Retirement Plan (that is, they played four credited seasons prior to 1993, or three thereafter). More than 5,000 of these retirees seem to be affected in some way by the recent announcement of a centimillion-dollar “Legacy Fund” distribution. But when you tote up everything, and factor in the litigation avalanche over concussions, you can see that my ongoing characterization of the Legacy Fund as a down payment on past fumbles of the league’s and the NFL Players Association’s obligations to protect the health of employees is a fair one.

At least one of the eight new suits – the Hausfeld law firm’s “medical monitoring complaint” in New York federal court – seeks class action status. Several of the other “mass actions” will surely do the same as the process moves downfield.

Leaving aside the narrow definition of concussion-only lawsuits, I asked Independent Football Veterans leader Dave Pear to help quantify the legal landscape. Pear told me:

In the Players Inc. trial 2,062 retired players named were submitted to the courts and all received some restitution. Look at Michael Hausfeld’s lawsuit against the NFLPA when the union decertified and then claimed to represent retired players. Look at the NFL Films lawsuit filed by retired player Bob Stein, which is the owners’ side of Players Inc. and then the numerous concussion and brain damage suits against the NFL, NFLPA and the Bell/Rozelle board. The question becomes “what retired players are not involved in suing the the league?”

In fact, even retired players who are employed by the league are involved in suing the league. Example: In the Players Inc. trial, Nolan Harrison, Jeff Van Note, Dave Meggyesy, Sam McCullum, etc. each received a check for between $9,500 and $14,500, and they either work for the NFL or the NFLPA or the Bell/Rozelle board. (Van Note works on the Atlanta Falcons’ broadcast team and also sits on the disability board as a voting member.)

And there are more lawsuits to come. Look at the NFLPA. They continue to breach their fiduciary duty (just like they did in the Players Inc. trial) towards retired disabled players and their families. The plan is illegal and violates ERISA law. Nobody on the board is qualified or is a disability lawyer. Nobody!

According to the Groom Law Group (and their leader Doug Ell), who designed this disability debacle and runs the plan (and works for the NFLPA and the NFL), the board members all vote the same and avoid independent thinking – so it doesn’t really even matter if you have severe brain damage, as in the case of former voting board member Dave Duerson who killed himself. This is what Ell said to Alan Schwarz of The New York Times in May, when Duerson’s CTE findings were announced.

Of course, the apathetic will continue to turn their heads and the cynics will recycle lawyer jokes; that is the way of the world. We all know the moral bottom line, however. Litigation clusters happen for a reason – because our judiciary system is being asked to step into a vacuum of injustices that the executive and legislative branches failed to tackle.

Irv Muchnick

Look for our upcoming ebook UPMC: Concussion Scandal Ground Zero. Complete info on the Concussion Inc. ebook shorts series is here.