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OTL report overstates the relevance of NFL disability awards

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It’s been a rough year for ESPN’s Outside the Lines.  From the Bernie Fine fiasco or the Mickey Loomis wiretap witch hunt, Bristol’s investigative unit has been doing plenty of swinging — and plenty of missing.

Friday’s supposed bombshell in the concussion cases against the NFL, while not erroneous in its factual content, makes an illogical leap in interpretation.  Specifically, cases from the NFL’s disability board in which benefits were paid to former players for long-term health consequences are being characterized by ESPN as the “smoking gun” in the concussion litigation brought by former players.

As the argument goes, if the NFL’s disability board was willing to conclude that the late Mike Webster’s brain trauma came from playing football in 1999, the NFL should have at that point been sharing with the players warnings regarding the potential long-term risks of playing football.

Apart from the fact that the information has been well known for years and the NFL’s disability board is independent from the league, the fact that the board consists of representatives from both the NFL and the NFLPA underscores the fact that the players’ union (i.e., the players themselves) had an integral role in the development of knowledge and/or the alleged concealment of it from players.

Even though the former players who are suing the league have opted not to sue the union, the absence of the union as a party to the case eventually will be used against the plaintiffs in the concussions cases.  Before that argument becomes relevant, however, a judge will have to find that the labor deal allows these cases to be pursued in court.  The NFL has argued that the claims must be pursued via the avenues available under the Collective Bargaining Agreement.

For now, the findings of the NFL’s disability board have no bearing on the concussion lawsuits.  If they ever do, the “smoking gun” will shoot both ways, with the outcome showing that both the NFL and the NFLPA knew that concussions created potential long-term problems.  And if the NFLPA (i.e., the players) had that information, there was no need for the NFL to issue any warnings to the players (i.e., the NFLPA).

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8 Responses to “OTL report overstates the relevance of NFL disability awards”
  1. plt2006 says: Nov 17, 2012 12:35 AM

    There are bigger issues regarding the Concussion MDL.

    Preemption Under Section 301 of the Labor Management Relations Act (LMRA), as argued by the NFL would mean this all goes to arbitration.

    Also, given that the NFL has the 88 Plan to provide benefits to injured players,there are a Rule 23 (b) (2) & (3) issues if you go class action.

    If you treat this as a class action you’ve also got too much variance in injury claims (unless you get too specific), too long of period of time for a medical monitoring program if you’re going to include any current players or young NFL alumni, a lot of difficulty in dividing up the classes (rules eras? positions? years? CBAs?) and then proving causation of the harm given that almost all the players played HS and College ball and you’re not likely to find detailed medical records of head trauma in discovery.

    There are a lot of issues with the case and it’ll be interesting to see what the plaintiffs response to the motion to dismiss is going to be.

  2. chronholio says: Nov 17, 2012 12:54 AM

    I’ve never been a fan of OTL, it’s too stuffy. They try way too hard to be like Real Sports. I like my sports news delivered with a dose of Seinfeld throwbacks.

  3. philvil41 says: Nov 17, 2012 4:27 AM

    The NFL will win this case if it ever gets to court.Oh, and ESPN really sucks.

  4. jacksprat57 says: Nov 17, 2012 4:55 AM

    Nice to know that sensationalism and tendentiousness aren’t universally the order of the day in the modern media, Mike. Watching the OTL video, I half expected to see Al Gore’s name in the production credits.

  5. joetoronto says: Nov 17, 2012 5:38 AM

    Always consider the source first.

  6. fuglyflorio says: Nov 17, 2012 6:53 AM

    Some of the guys they mention … including Webster … we’re huge steroid abusers. Maybe that had an effect? Ya think?

  7. plt2006 says: Nov 17, 2012 8:28 AM

    Truthfully, this will never make it to trial. Both sides are just jockeying for a better position for the inevitable settlement that is coming.

  8. fightnamish says: Nov 17, 2012 9:17 AM

    anyone else think this will hurt espn during the next tv negotiation?

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