The noise is picking up about whether to name the National Football League Players Association as a defendant in the concussion lawsuits.
Of interesting note is NFLPA executive director DeMaurice Smith’s confession to Congress in 2010 that “the union shares blame with the league for the sluggish acknowledgement and reaction to the long-term perils of head injuries.”
With reference to the NFLPA’s role in the creation and efforts of the Mild Traumatic Brain Injury Committee in 1994, Smith went on to say, “There is simply no justification for the NFL to have previously ignored or discredited Dr. [Bennet] Omalu and others with relevant, valid research. For far too long, our former players were left adrift; as I emphasized at the last hearing, we were complicit in the lack of leadership and accountability, but that ends now. I am here again to make it clear that our commitment is unwavering.”
Smith’s confession along with the committee’s unwavering stance has the potential to elevate the NFLPA as a target for former players.
Why hasn’t it happened yet?
Some have theorized that the NFL has deeper pockets, which makes it a better target. Another reason could be that the NFLPA might become an ally of the NFL, creating solidarity around the contention that no one really understood the consequences of concussions until recently. In addition, targeting the union may widen the gap between ex-players and current players. Finally, suing the union may augment the argument that a Collective Bargaining Agreement was in place to govern claims like the ones currently being made.
For all of these reasons, a prudent legal strategy may call for the plaintiffs to spare the NFLPA as a target – for now.