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NFL Concussion Litigation
by Paul Anderson ©
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Until now, none of the 93 concussion-related lawsuits named a Club
as a defendant. A lawsuit filed yesterday in Hillsborough County,
Florida, is the first to specifically target several Clubs.
The lawsuit includes four former players; the most notable player is
four-time Pro Bowler, Jimmie Giles. The other three players – Donald
Smith, Calvin Woods and Arron Sears – each played less than three
years. Sears has been arrested several times since being released by
the Buccaneers. Sears’ lawyer will probably argue that his
mental-health issues were caused by football-related injuries.
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In addition to naming the NFL, NLF Properties,
and Riddell Helmets, the plaintiffs name the Buccaneers, Lions,
Bills, Dolphins, Eagles and Titans as defendants — all of whom were
the plaintiffs former employer.
The plaintiffs are represented by former-player-turned-lawyer,
Charles E. Emanuel. Emanuel was a defensive back in the NFL for one
year and then went on to law school, earning his J.D. from Florida
Coastal School of Law.
Prior to this suit, the plaintiffs’ lawyers purposefully refrained
from naming the Clubs as a defendant. Primarily because it gives
rise to a strong argument that the lawsuit is barred by workers’
compensation.
NFL players are employees of the team in which they play for; as
part of this employer-employee relationship, workers’ compensation
is generally the exclusive remedy for work-related injuries. In
other words, employees give up the right to sue in exchange for
workers’ compensation benefits (i.e. if you are injured on the job,
you are entitled to benefits regardless of fault.)
However, there is an exception to the exclusive-remedy rule, which
may allow an employee to sue his employer if the injury was
intentional (i.e. fraud, battery, etc.). Here, the players are
arguing that the Clubs purposefully misled the players about the
long-term risks about concussions. Of course, this will be very
difficult to prove unless the proverbial “smoking gun” memo is found
during the discovery process.
The NFL may also use the exclusive-remedy argument later down the
road, but the NFL’s argument isn’t as strong because it is not the
employer of the players.
This lawsuit will eventually be consolidated with the multidistrict
litigation in Philadelphia, but it will be interesting to see if any
other lawyers decide to follow suit and name a Club as a defendant. |
