October 2013 Concussion Update

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Judge Anita Brody of the Eastern District of Pennsylvania announced that the National Football League has entered into a $765 million settlement with the players in the concussion injury multi-district litigation (MDL).

The case is titled In re: National Football League Players’ Concussion Injury Litigation, No. 12-2323 (E.D. Pa) and the settlement amount will be used to pay for a combination of medical exams by players, compensation for those players dealing with the effects of their concussions and to develop a program of medical research to help retired players and their families.  The case is subject to approval by the Court and in addition to the above, the NFL will pay for court-approved attorney fees.

Former NFL players have filed hundreds of lawsuits against the NFL alleging that the long-term effects of concussions were withheld by the NFL from the players.  The cases were consolidated in the District Court and assigned to Judge Brody, then reduced to essentially two complaints filed in the MDL in June of 2012.  The complaints alleged that the NFL has known of the risks associated with repetitive head injuries and impacts that occur in games, practice and training camp but, have kept this information from players, or flatly disregarded it, in an effort to cover up this information from the players and derive more profit.  Essentially, at its heart it is a fraud case and quite similar to the tobacco litigation cases.

As many personal injury practitioners know, the effects of Traumatic Brain Injuries (TBI) are extensive yet difficult to prove as a jury cannot see a physical defect.  Fortunately, science has been able to link repeated TBI’s to long standing neurological issues.  As a result, awareness of the issue continues to advance and more juries and people are beginning to realize the impact a TBI can have on someone’s life.

The claim alleged that the “NFL, as the organizer, marketer, and face of the most popular sport in the United States, in which MTBI is a regular occurrence and in which players are at risk for MTBI, was aware of the evidence and the risks associated with repetitive traumatic brain injuries virtually at the inception, but deliberately ignored and actively concealed the information from the Plaintiffs and all others who participated in organized football at all levels.”

In August of 2012 the NFL attempted to dismiss the complaints under Section 301 of the Labor Management Relations Act by claiming that the cases were a labor dispute and subject to the collective bargaining agreements (CBA) between the players and their teams.  However, perhaps hinting at the ruling that would come on that motion, the judge ordered the parties to mediation prior to making a decision, resulting in the settlement.