The pending $765 million concussion settlement gives the NFL one very significant benefit: The ability to pull the plug on litigation before anyone knows what the league knew and when the league knew it about the long-term effects of head injuries.
That benefit could be undermined by a new lawsuit brought by a group of players who could have the ability to take a blow torch down the rabbit hole.
Earlier this week, five former members of the Chiefs filed suit in Missouri against only the Chiefs. The quintet of Chiefs all played during the six-year window from 1987 through 1993 when the NFL had no labor deal in place. This means that the league’s strongest threshold argument against players who played under a labor deal — that they can’t sue in court for concussions but must seek relief under the collectively-bargained contract — won’t be available to the league or to the Chiefs.
Another factor that makes the Chiefs a viable target comes from a Missouri law that allows employees who chose not to seek workers’ compensation benefits to file suit instead. The window created by that 2005 Missouri law closes on December 31, 2013.
Then there’s the issue of the statute of limitations, which in most jurisdictions gives only two years after a plaintiff knew or should have known about the violation of his rights. The lawsuit, a copy of which was forwarded to PFT by the attorneys who filed it, explains that the pending class action in Pennsylvania delays the expiration of the deadline for suing.
The motivation to sue comes in large part from the fact that the proposed settlement potentially would give these five plaintiffs nothing.
“I think all of our clients were disappointed,” lawyer Ken McClain said regarding the broader settlement, via the Kansas City Star. “It doesn’t appear that they will receive any compensation from it; it only affects players with very severe injuries, those that have dementia or currently diagnosed cognitive skills.”
McClain is right. Although all retired players will be included within the global settlement, only players with a “severe cognitive impairment” will be eligible for compensation. Under the new lawsuit filed against the Chiefs, no such restrictions will apply.
It’s unknown whether other lawsuits are planned. The decision of these five players to proceed with a new lawsuit shows that some players (especially those not bound by the requirements of a federally-recognized Collective Bargaining Agreement) may decide to opt out of the settlement and roll the dice, if for no reason other than to force the NFL to answer questions and disclose documents regarding the league’s alleged efforts to conceal information about the risks of concussions.
But here’s the catch. (And there’s always a catch.) The bulk of the NFL’s alleged efforts to deny reality and hide the truth came under the auspices of the Mild Traumatic Brain Injury Committee, which was formed in 1994, after a federal labor deal returned to the NFL.
As a result, any former player who hopes to expose the worst of the league’s alleged misconduct will still have to persuade a judge to ignore the terms of a labor deal that slams the door on most if not all civil lawsuits that a player could pursue on his own.
This also means that the players who fit within with 1987-93 window will have to conjure evidence that, as of 1987 through 1993, the league knew more than it admitted about the true risks of concussions. Or, at a minimum, that the league should have known more than it did.
While that burden may not be insurmountable, it would be a lot easier to be able to point to the efforts from 1994 through 2009 to deny and ignore the evidence of the concussion risks.