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Lessons learned from the NFL lawsuits

While it may be several years before it is all sorted out, the multiple lawsuits concerning allegations of misrepresentation and violation of safety protocol against the National Football League (NFL) provide some interesting fodder for Workers' Compensation pundits. Seemingly every week, there's a new lawsuit about the long-term effects of concussions or a news story about a suicide of an NFL star.

The issues are complex: there is a collective bargaining agreement; a massive lawsuit, considered by many to be the largest in sports' history, against the NFL and helmet manufacturer, Riddell, Inc. over concussion-related injuries; a fight between the league and the players over how and whether current and former players should be compensated for injuries incurred on the playing field; players filing Workers' Compensation claims in states where their teams aren't based, most notably California; NFL suing three dozen insurance companies to force them to cover the costs of defending the claims; the insurance companies suing the NFL to avoid paying for the defense of the claims; the special relationship between the NFL and the teams; conflicting state work comp laws; disputed evidence about the link between concussions to chronic traumatic encephalopathy (CTE), the debate over whether the NFL was negligent in withholding information about concussion data; a sport that is inherently dangerous and famous for its toughness and 'winning is everything' attitude as well as well-paid players; and the potential public image damage of the lawsuits.

Rough nature of sport

There are some who argue players knew they were getting into a dangerous, violent game and that they are paid well to do so, essentially assuming the risk of a workplace injury that is difficult to prevent in a sport that relies so heavily on physical contact. Yet, recently, Maryland's high court rejected the idea that football injuries should not be considered accidental because of the rough nature of the sport when it found longtime NFL punter Tom Tupa eligible for Workers' Compensation for a career-ending back injury he suffered while warming up for a preseason game in 2005 at FedEx Field when playing for the Washington Redskins.

Jurisdictional issues

Another aspect of the Tupa case was whether Maryland should have exercised jurisdiction over the claim when Tupa's contract was executed in Virginia, where the team's headquarters and practice field are located. Since teams play in many states, the lines are blurred.

Several cases have been filed in California to take advantage of the more liberal laws, most notably related to cumulative trauma. While many state comp systems do not recognize cumulative trauma that involves physical activities over a period of time, California allows a participant in a single game or practice in the state to pursue a cumulative injury claim.

The U.S. Court of Appeals for the Ninth Circuit has ruled that, if the player has suffered an injury in California, he can't be prevented from seeking Workers' Compensation benefits in California, regardless of any provisions in his contract to the contrary. Yet, recently, the NFL scored a legal victory in its continuing battle with players over where they can file for Workers' Compensation, as an appeals court ruled that the cumulative injuries long-time player, Bruce Matthews received over the course of his career were not grounds to file a claim in California.

Matthews had brought suit to vacate an arbitration award to resolve the Workers' Comp claims under Tennessee law as specified in his contract. While Matthews had played 13 games in California over his 19-year career, he could not point to an actual injury he incurred there, so he did not meet the minimum contact test that made him eligible under California law. Had he been able to prove he suffered an injury in California, the outcome may have been different.

Exclusive remedy

The basic allegations in the lawsuits say the NFL withheld from players evidence linking multiple concussions to CTE, a progressive and degenerative disease that causes headaches, dizziness, dementia, depression and possibly Alzheimer's disease. In one suit, the lawyer states "We are arguing they committed negligence, fraud and intentional misrepresentation separate and apart from, above and beyond" the collective bargaining agreement." Lawyers are expected to say that the exclusive remedy of Workers' Comp does not apply since the league was negligent, which put its athletes in greater danger than most workers normally face.

Many believe it's likely that the NFL will argue football players who suffered concussions should be covered solely by provisions of the league's collective bargaining agreement, including Workers Compensation where the exclusive remedy applies, disability benefits and the NFL's 88 Plan, which pays for medical and custodial care of retired NFL players with dementia. Other defenses may include contributory negligence, i.e., asserting that players contributed to the injuries by not reporting or underreporting symptoms and returning to play before the symptoms disappeared. Players may counter that the NFL contract incentivizes them to conceal the symptoms.

On the players' side, they face the task of proving that the NFL knew of the danger; that the effects of concussions on individual players leads to long-term brain damage and cognitive decline; and that there is a causal chain -- that the NFL's failure to warn resulted in permanent mental injuries (not high school or college injuries).

Player safety

While for many years the NFL denied any relationship between the violence on the field and the subsequent head traumas of former players, the systematic denial has ended. The widely publicized suicide of former NFL star, Dave Duerson, dramatically illustrated the changing attitude. Duerson sat on the six-person NFL committee that reviewed claims for medical benefits submitted by retired players. Duerson was known for his harsh line on these claims, apparently voting to deny benefits in many cases. Yet, he took the unusual step of shooting himself in the chest to preserve his brain for research, correctly believing he suffered from CTE.

The league has moved to limit future exposures with rules governing the handling of concussions, penalizing helmet-to-helmet hits, requiring an independent trainer at games to assist in identifying concussions and so on.

Wellness initiatives

Historically teams have recognized that their long-term success is based on the health and welfare of their players. They employ medical personnel specifically to detect and prevent player injuries and players are expected to maintain overall health and fitness, follow proper safety procedures, as well as train and work on perfecting their skills. In the wake of national attention this summer, the NFL created a wellness initiative that it says will provide mental health support and other assistance for current and former NFL players-thousands of whom are suing the league over concussion-related injuries. The program includes NFL Life Line, a 24/7 free consultation service to inform players and family members about the signs of crisis, symptoms of common mental health problems, as well as where to get help. Experts in suicide prevention and substance abuse are among those involved in developing and administering the program.

Lessons learned

Depending on circumstances there are many takeaways from the NFL situation. Here are a few that stand out: