Attorneys Lay Out Case for ‘NFLPA’s Continuing Complicity and Moral Failure’ on the Concussion Issue

(Editor’s note: what follows is a brief intro to a story written by Michael Hausfeld and Swathi Bojedla of Hausfeld LLP, which appears in the July issue of Concussion Litigation Reporter. Each monthly issue will feature six to eight stories on the legal strategies being deployed by practitioners in the concussion litigation space.)

With the recent filing of the master amended complaints in retired players’ concussions litigation against the NFL, a common question concerns whether the NFLPA should be a target of litigation. Thus far, the NFLPA has escaped scrutiny and legal action based on their failure to protect retired players from both the occurrence of concussions during their playing days as well as the short- and long-term effects of traumatic brain injury after their playing careers have terminated.

NFLPA’s Commitment to Provide Detection, Treatment and Care for Traumatic Brain Injury

The link between repeated head injuries and chronic traumatic encephalopathy, or CTE, has long been known in the academic world. For example, a 1962 study showed a heightened incidence of CTE in boxers, and a similar study the following year found that neurological damage stemming from repeated head injuries manifested in the form of dementia and impaired motor function. However, until recently, the NFL ignored established medical evidence, instead choosing to refute or deny the link between repeated head trauma and the myriad symptoms facing retired NFL players. During that same time, the NFLPA was silent despite their knowledge of the mounting evidence of retiree injury and medical causation.

Recently, the NFLPA has acknowledged its own failure to protect retired players and to promote their health and safety. In 2009 and 2010, the United States House of Representatives’ Committee on the Judiciary held hearings to investigate the legal issues relating to football and head injuries. During those hearings, NFLPA Executive Director DeMaurice Smith testified that, “as Executive Director, my number one priority is to protect those who play and have played the game. There is no interest greater than their health and safety.” Smith noted that the NFL had spent years suppressing and denigrating legitimate medical studies that detailed the link between repeated concussions and long-term side effects. He went on to acknowledge that the NFLPA “in its past has not done its best” and that the union was “complicit in the lack of leadership and accountability” in terms of acknowledging and dealing with traumatic brain injury and its effects on retired players.

In his testimony to Congress, Smith made a pledge to retired players: “To men like John Mackey and Brent Boyd and to the families of Mike Webster and Andre Waters, and other players that suffered and continue to suffer daily, I commit and we commit to this as our mission. We will not fail them or their families.” The NFLPA took the stance that they would protect and promote the health, safety, and welfare of retired NFL players. This promise has, to this day, remained unfulfilled.

NFLPA’s Continuing Complicity and Moral Failure

Despite Smith’s testimony that the NFLPA owed an “obligation” to “prevent, treat and manage the long-last effects of these injuries”, the NFLPA continued to block retirees’ efforts to enact meaningful change…

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