Conner “Big Hit” Carter retired from professional football 10 years ago after a highly acclaimed career. Big Hit’s punishing tackles earned him numerous pro bowl appearances as well as a hefty pay check and several head injuries. Recently, Big Hit has experienced Alzheimer’s-like symptoms including memory loss, depression and severe mood swings causing him to join the lawsuit recently filed by over 2,000 NFL players alleging that the NFL promoted the violence of the game and deliberately concealed evidence that there were no long-term effects from concussions and no link between football related head injuries and long-term brain damage. How will the NFL likely respond to these allegations?

The Likely Litigation Strategy. Big Hit and his fellow plaintiff players will almost certainly employ many tactics successfully used by tobacco litigation plaintiffs, which resulted in a landmark $206 billion settlement. Players will argue that, like the tobacco companies that hid the connection between smoking and long-term congenital issues, the NFL hid important evidence downplaying the risks of multiple concussions and failed to disclose that head injuries could have been avoided if the league provided players with accurate and truthful information. It is likely that the NFL’s will move to dismiss the lawsuit arguing that that federal employment law preempts the player’s ability to file a lawsuit that is fundamentally a dispute under their collective bargaining agreement. Like a workers’ compensation claim, the labor agreement provides exclusive remedies for issues relating to player safety, treating injuries and compensating for head injuries. The NFL successfully employed this strategy in the past when the Minnesota Supreme Court refused to allow a claim brought by the widow of Vikings tackle, Korey Stringer when he died of heatstroke following a 2001 team practice. The NFL will also argue that it is impossible to prove with any certainty when the injuries took place. Was Big Hit injured while playing pee wee football, high school football or college football? Were the injuries the result of diet or simply hereditary? Another likely strategy employed by the NFL will be to avoid class certification and force players to file individual lawsuits (which will be both time consuming and expensive), by arguing that each state has different tort laws and remedies, that a class action is inappropriate because the injuries to each plaintiff are so unique and therefore separate lawsuits are required.

Tilting the Scales In Your Favor.

Workers’ compensation insurance is a powerful and often necessary tool for employers. As discussed in prior Tilting the Scales posts, workers’ compensation is a state-regulated insurance system that provides covered employees with income and medical benefits. Workers’ compensation coverage limits liability by preventing an employee from filing a claim in a civil suit, except in cases of gross negligence.