NFL Concussions Report May Lead to Claims Against Clubs

By Allen Smith, J.D. Apr 7, 2016
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National Football League (NFL) players may be able to sue their clubs for fraud if allegations in a hotly disputed article on concussions by The New York Times are true, according to Jennifer Yelen, an attorney with Posternak Blankstein & Lund in Boston.

The Times reported that the NFL’s concussion research was “far more flawed than previously known” and emphasized that not all of the clubs submitted data on concussions.

In 2013, the NFL reached a $765 million settlement with players regarding concussions. While that settlement may protect the league from further lawsuits, Yelen said the clubs still may be targeted for claims.

Accidental injuries on the gridiron may be compensable under workers’ compensation laws except in a few states, such as Florida, she noted.

But if there was an intentional injury, and arguably there may have been if there was a cover-up of the extent to which concussions endanger players, football players may instead be able to bring so-called tort actions against clubs, she said. While workers’ compensation claims are the exclusive remedy for injuries arising out of and in the course of employment, exceptions have been made for some tort claims of intentional injuries.

Even if recovery in most states is limited to workers’ compensation, there’s the potential for lifetime benefits, Yelen noted. The payment of lost wages could be a substantial recovery.

But punitive damages would not be available unless someone could sue under a tort, such as fraud.

In this case, the tort would be fraud by omission, Yelen remarked, saying facts may have been withheld in an attempt to mislead the players, if The New York Times story is right.

NFL Tackles Article

The NFL vehemently denies that it is.

The article was based on studies that “themselves expressly noted the limitations in their work and never claimed to be based on every concussion that was reported or that occurred,” the NFL said in a statement. “The fact that not all concussions were reported is consistent with the fact that reporting was strongly encouraged by the league but not mandated, as the documents we provided to the Times showed. We nevertheless agree that these limitations could have been more clearly stated. But that alone does not give any credence to the Times’ claims.”

The NFL added that “The studies that are the focus of the Times’ story were necessarily preliminary and acknowledged that more research was necessary.”

It also stated that “The Times’ sensationalized story is further refuted by the NFL’s ongoing commitment on the issue of player health and safety—notably, to the support of research, including that of our most vocal critics, on the long-term effects of concussions in all sports, and to change our game in an effort to make the sport of football as safe as it can be.”

The league noted that since 2002, it has made 42 changes to its rulebook to make the game safer. “Contact sports will never be concussion-free, but we are dedicated to caring for our players, not just throughout long careers but over the course of long lives,” it said.

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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