Greetings & National Football League: XLVI vs. MDL

Greetings Prawfs nation! I'm excited to have the opportunity to make my blogging debut for you.

With Superbowl XLVI rapidly approaching, the biggest NFL news yesterday was either the market democratizing media day OR the anticipated decision by the U.S. Panel on Multi-district Litigation to consolidate at least four of the lawsuits that have been brought against the NFL by retired players suffering from degenerative brain disease, dementia, mental illness (and others concerned about developing these conditions). Hundreds of former athletes, wives, and family members are suing the NFL for negligence and intentional misconduct in how it has handled the treatment of concussions and head injuries. Senior U.S. District Judge Anita Brody (E.D. Pa.) will handle pre-trial issues in the MDL (approximately twenty such class-action suits have been filed thus far), which will feature interesting questions of pre-trial discovery, ERISA plan rights, and how to create a class for medical monitoring.

Rather than speculate what Judge Brody might do with the MDL (plenty of time for that - lucky we have a leap day this month), today I want to focus on what we know and don't know about the riskiness of football. It's no secret that TBI and CTE (that's traumatic brain injury and chronic traumatic encephalopathy) have crept in alongside TDs in the football vernacular. Football in the 21st century must cope with the data that concussions cause degenerative brain disease, dementia, and other mental illnesses. Autopsied brains of former football players exhibit identical brain damage to that found in long-term boxers. The NFL long denied any link between permanent brain damage and football, even maintaining that position in Congressional hearings as recently as October of 2009. (They have since reversed course; I will hold back from commenting on the position switch until after I see the NFL's safety ad that will air during the Superbowl.) The NFL lawsuits are worth watching to see what legal recourse will be available to athletes who played at different times, on different teams, in different venues, and with different injuries, all on account of the league's continued denials and even deliberate efforts to downplay the risk of head trauma.

The MDL will include some legal questions that engage only the civ pro or ERISA affectionados. Similar to the tobacco industry litigation, it will feature discovery questions, many aimed at learning who knew what information and when. One curious issue is what medical expert information will be presented and for what purpose. There is emerging data that repeated "sub-concussions," i.e., head trauma that does not produce concussion-like symptoms, may aggregate over time to create brain damage that has previously only been associated with concussive trauma. Using monitoring helmets, researchers have discovered that the force of impact and repeated number of hits recorded in football is far far greater than anyone imagined, even at the college or high school level of the sport.

Accordingly, even if the NFL was in denial or covering up known risks of concussive TBIs, many athletes may be suffering (or will suffer in the future) symptoms on account of the aggregated mini-trauma that occurs on most every single football play. Even researchers and experts in TBIs and CTE did not make this connection until recently. This raises a significant question of causation, because it may be that the athletes already had incurred significant brain trauma prior to playing in the league, and it may be impossible to differentiate between damage caused by more severe TBIs as opposed to that caused by thousands and thousands of mini-traumas.

As a PR move, though, the NFL may not want to embark on a legal strategy that shifts from standard player assumption of risk/collective bargaining defenses (which may hurt the NFL if there was informational asymmetry or deliberate misrepresentation about concussive risk) toward an emphasis on the fact that professional football may be SO dangerous on even routine contact that no one actually realized the extent of harm. Personally, I can't see the league offering this medical evidence, even if it was the only legal defense possible to avoid liability.

What do you think Prawfs nation? Do you think it matters if the NFL admits that professional football causes brain damage even in athletes who sustain no known concussions? Has the data or lawsuits about TBI affected your plans for Superbowl XLVI? Are you eagerly anticipating the NFL's safety ad or will you wish you were watching a clever Star Wars-referencing car commercial instead?