Concussion Litigation and Legislation in Sports

Christopher R. Deubert January 23, 2017

Disclosures • I am part of the Law & Ethics Initiative of the Football Players

Health Study at Harvard University, which is funded pursuant to an agreement with the NFLPA.

• Neither the NFLPA nor the NFL controls our research or findings.

• I am speaking in my individual capacity and not on behalf of the Football Players Health Study, Harvard, the NFLPA or any other party.

Litigation • National Football League (NFL) • National Football League Players Association (NFLPA) • National Hockey League (NHL) • Canadian Football League (CFL) • National Collegiate Athletic Association (NCAA) • Federation Internationale de Football Association (FIFA) and

United States Soccer Federation (U.S. Soccer)

Concussion Litigation in the NFL • First lawsuit filed in June 2011. • 240 lawsuits, consolidated in the United States District Court for

the Eastern District of Pennsylvania (January 2012). • More than 5,500 players. • Mild Traumatic Brain Injury Committee (1994).

• Chairperson: Dr. Elliot Pellman. • 2003-09: 16 papers in Neurosurgery. • 2005: First diagnosis of Chronic Traumatic Encephalopathy (CTE). • 2009: Congressional hearings.

NFL’s Alleged Duties 1) To inform or disclose the risks associated with brain injuries in

football. 2) To protect NFL players. 3) To competently study the risks of brain injuries in football.

*** • Claims for negligence, fraud, wrongful death and medical

monitoring.

NFL’s Defense: Preemption • Section 301 of the LMRA preempts (bars) claims substantially dependent

or “inextricably intertwined” with a CBA. • Allis-Chambers Corp. v Lueck, 471 U.S. 202, 213 (1985); Caterpillar, Inc. v.

Williams, 482 U.S. 386, 394 (1987).

• “[I]f Player is injured in the performance of his services under this contract and promptly reports such injury to the Club physician or trainer, then Player will receive such medical and hospital care during the term of this contract as the Club physician may deem necessary.”‖ (1993 CBA Appx. C § 9; 2006 CBA Appx. C § 9; 2011 CBA Appx. A § 9.)

• “Each Club will have a board-certified orthopedic surgeon as one of its Club physicians. The cost of medical services rendered by Club physicians will be the responsibility of the respective Clubs.”‖ (1982 CBA Art. XXXI § 1; 1993 CBA Art. XLIV § 1; 2006 CBA Art. XLIV § 1; 2011 CBA Art. 39 § 1.)

The Settlement Qualifying Diagnosis Maximum Award*

Level 1.5 Neurocognitive Impairment $1.5 million

Level 2 Neurocognitive Impairment $3 million

Parkinson’s Disease $3.5 million

Alzheimer’s Disease $3.5 million

Death with CTE** $4 million

ALS $5 million

* Actual amounts vary depending on age and experience level ** Death with CTE only funded until date of settlement

The Settlement – Objections • Players are not compensated for CTE after settlement date • Does not provide compensation for other psychological and

neurological conditions, including mood and behavioral disorders

• Offsets for age and seasons of experience • Claims process is unduly burdensome

*** • April 2015: Settlement approved. In re Nat’l Football League

Players’ Concussion Injury Litigation, 307 F.R.D. 351 (E.D. Pa. 2015).

Status of the Settlement • April 2016: United States Court of Appeals for the Third Circuit

affirms approval of the settlement, finding it to be reasonable. In re Nat’l Football League Players Concussion Injury Litigation, 821 F.3d 410 (3d Cir. 2016). • En banc rehearing denied.

• December 2016: Supreme Court denied certiorari; enrollment and administration of settlement begins.

• Currently approximately 169 opt outs (150 former players and 19 family members), who can pursue their own lawsuits.

Concussion Litigation against the NFLPA • Smith/Ballard v. Nat’l Football League Players Ass’n (E.D. Mo.) • Allegations mirror those of lawsuit against NFL – negligence

and fraud in handling concussions. • NFLPA’s Defenses:

• Preempted by National Labor Relations Act • Preempted by Labor Management Relations Act

• August 2015: Case dismissed • Ballard v. Nat’l Football League Players Ass’n, 123 F. Supp.3d 1161 (E.D. Mo. 2015). • Case not appealed.

Concussion Litigation in the CFL • Bruce v. Canadian Football League et al. (Sup. Ct. Brit. Col. Jul.

16, 2014); Banks v. Canadian Football League et al. (Sup. Ct. Ont. May 29, 2015).

• Lawsuit mirrors allegations brought in NFL and NFLPA cases – negligent handling of concussions.

• CFL moved to dismiss Bruce case, arguing that the players’ claims were preempted by the CBA.

• March 2016, court ruled that claims were preempted.

• Appeal pending.

Concussion Litigation in the NHL • First lawsuit filed in November 2013. • 11 lawsuits, consolidated in the United States District Court for the District of Minnesota (August 2014). • Only a few dozen players. • NHL Concussion Program (1997-2004). • Claims of negligence and fraudulent concealment. • November 2014: NHL moved to dismiss:

• Preempted by LMRA. • Failure to state a claim/statute of limitations (12(b)(6)).

• March 2015: Dismissal denied on 12(b)(6) motion. In re Nat. Hockey League Players’ Concussion Injury Litigation, 14-md-2551, 2015 WL 1334027 (D. Minn. Mar. 25, 2015).

• May 2016: Dismissal denied on preemption motion. In re Nat. Hockey League Players’ Concussion Injury Litigation, 14-md-2551, 2016 WL 2901736(D. Minn. May 18, 2016).

Concussion Litigation in NCAA • First lawsuit filed in September 2011. • Multiple lawsuits consolidated in the United States District

Court for the Northern District of Illinois (Dec. 2013). • Mostly football student-athletes. • Alleged negligent handling of concussions. • October 2014: Settlement reached.

• $70m medical monitoring fund. • $5m in concussion research. • Revised concussion policies.

• Dec. 2014: Settlement rejected. • Apr. 2015: New settlement – no change in funding. • Jan. 2016: Approved. In re: NCAA Student-Athlete Concussion

Injury Litigation, 314 F.R.D. 580 (N.D. Ill. 2016). • Student-athletes can still sue individual schools. • No appeal; no lawsuits against schools yet.

Concussion Litigation in Soccer • Mehr v. FIFA, U.S. Soccer, et al. (N.D. Cal. 2014). • Brought by youth soccer players generally alleging that the

defendants had failed to adopt proper procedures for handling concussions.

• July 2015: Case dismissed for jurisdictional and pleading defects - FIFA does not operate in California, none of the Plaintiffs alleged an injury. Amended complaint permitted against U.S. Soccer. Mehr v. FIFA, 115 F. Supp.3d 1035 (N.D. Cal. 2015).

• Nov. 2015: Settlement – no headers for players ten and under; limited headers for players ages 11-13.

Lystedt Laws

• Named for Zackery Lystedt • General requirements:

• (1) requires youth athletes suspected of having sustained a concussion to be removed from practice or a game; and,

• (2) prevents the youth athlete from returning to play “until the athlete is evaluated by a licensed health care provider trained in the evaluation and management of concussion and receives written clearance to return to play from that health care provider.”

• All 50 states and D.C. have a version of the law • NFL extensively lobbied for the laws

• No criminal or civil penalties under any of the laws

Questions?

Christopher R. Deubert cdeubert@law.harvard.edu