Smokers and pro football players have something in common: they engage in risky behavior that can be potentially harmful to their health over time.
And to hear some lawyers say it, the National Football League is the equivalent of Big Tobacco.
The recent wave of lawsuits filed on behalf of retired players use similar arguments made by lawyers representing smokers who sued tobacco companies for more than 15 years ago – in this case that the National Football League knew repeated concussions can cause brain damage and even conceal information.
More than 2,400 retired players in the plaintiffs are now looking at the kind of success were smokers against tobacco companies. The result then was a landmark $ 206 billion settlement between 46 states distributed. But the ex-players face a huge challenge as they take on the multi-billion dollar industry that is the most popular sport in the United States.
“I do not think it’s good versus evil, you have seen in the tobacco litigation, but there are some possible similarities,” said Gabriel Feldman, director of sports law program at Tulane University. “This is a much grayer on both sides. This may change if some smoking gun found during discovery, if the case gets that far.”
On the question of whether the NFL knew if there was no connection between football-related head injuries and permanent brain injury and take appropriate action. Lawyers for former players such as Jim McMahon and Art Monk accused the NFL of negligence and willful misconduct, in response to headaches, dizziness, and dementia that their clients have already been reported, even after the formation of mild traumatic brain injury committee to study the issue in in 1994. League has consistently and strongly rejects the claim.
“NFL took pages out of the pieces of the tobacco industry and is engaged in a campaign of fraud and deception, ignoring the risk of traumatic brain injuries in football and deliberately spreading false information in his players,” said Sol Weiss, one of the leading lawyers for the plaintiffs.
NFL said it has spent more than a billion dollars in retirement and disability benefits for retired players in partnership with the Association of NFL players. League officials say the player safety has long been a priority, and it makes the health programs available to current and former players, including neurological assessments.
“Any allegations that the NFL intentionally tried to mislead the players, or otherwise hide information from the players about the risks of treatment or management of concussions completely without merit,” the League said in a statement.
According to the Associated Press, consideration of the 95 lawsuits filed by last Monday, 2,425 players are now plaintiffs in concussion-related complaints with the NFL. Some plaintiffs have called more than one complaint, but the count AP does not include the names are duplicated in general.
Many suits have recently been combined before a federal judge in Philadelphia, and seek medical help.
League officials have heard the concussion of the tobacco comparison before.
Three years ago, NFL Commissioner Roger Goodell spoke before Congress about the concussion and did not recognize the connection between head injuries suffered on the field, and then the brain injury. Several members of Congress were frustrated with the testimony of Goodell, including Rep. Linda Sanchez, D-California. That said, the answer to the question of the NFL reminded her of tobacco companies say that’s not bad for health because of smoking, but was later forced to admit it.
These actions “could have been avoided if the NFL took active measures to solve this problem – pardon the pun – the head, rather than hiding it,” Sanchez said recently AP. “Common decency demands that the league is responsible for these players.”
However, some legal observers say the similarities between tobacco and concussion claims are superficial at best. Not only is there the team in the league coaches on the sidelines during the game, to measure the health of the player, but it is difficult to determine what effect will have a concussion, especially if someone is injured by another in the past.
“These accusations are dealing with what happens after a player is injured – and injuries are expected in football – in contrast to tobacco, where the initial injury – smoking-related illnesses – an event on the issue,” said the lawyer Steven Wade, who was part of a team of state prosecutors, who filed a civil racketeering lawsuit that led to the conclusion that the judge tobacco companies conspired to deceive consumers about the health risks of smoking.
“That’s where you come up with a key difference. On the football field, you have professionals who take care of these players and who has access to more research. In tobacco cases, the plaintiff already has an injury allegedly caused by the defendant before they doctor for treatment.”
Until next in court is the motion of the NFL league to dismiss the case, which may be filed on August 9. The question is whether the suits should be thrown out because they are pro-active compliance with federal law, labor collective bargaining agreement with players of the league. The deal includes the health care players, but Bill Gould, a professor of law at Stanford and a former chairman of the National Labor Relations Board, said the retired players are not part of the contract.
“Seniors are not employees under the Central Bank and the National Labor Relations Act,” said Gould. “There is no standard set of solutions to these issues within the Central Bank.”
NFL to succeed with a primary before. Minnesota Supreme Court denied the widow of Vikings lineman Kori Stringer wrongful conduct death suit after he died of heatstroke after a practice in 2001. The court found that the claim was a pre-emptive, because its resolution requires the interpretation of a CBA and was inextricably linked with the federal labor laws, Feldman said.
Stringer’s wife later moved to the NFL for the negligence claim.
“The priority argument is the league has already taken two federal judges in these same arguments, which concluded that the plaintiffs’ claims were largely dependent, and appeared under various collective bargaining agreements under which the plaintiff was playing and, therefore, preempted the federal labor law,” said the NFL.
Judge’s ruling on the preemption issue may take several months, but even if the claims could go forward, Feldman said that it would be difficult to show a direct relationship between the players took hits in the NFL game and injuries that prevent them now.
“Even if the league knew about these risks, as these players know whether those injuries suffered during a game, during practice or even earlier in the Pee Wee football or high school or college?” Feldman asked. “There are so many intermediate power break, or at least dirty (causal) chain.”
Most lawyers believe that the settlement should be considered at some point in the NFL and co-defendant helmet-maker Riddell Inc.
“The financial burden, not to mention the bad publicity from a protracted legal process, too much to bear,” said Gould.