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Class action against NFLPA raises old, new allegations

DeMaurice-Smith Getty Images

Before the Vikings launched a Friday night bad-news dump regarding the ongoing Chris Kluwe drama, the NFLPA launched a preemptive Friday afternoon bad-news dump regarding the first concussion lawsuit filed a day earlier against the union.

PFT has since obtained a copy of the complaint.  While it contains plenty of the same allegations made against the NFL in the many concussion lawsuits, the first attack on the NFLPA contains some contentions unique to the players’ union.

The gist of the argument is that the NFLPA “deliberately ignored, failed to warn, and actively concealed . . . information” from football players at all levels and the general public.  The complaint also contends that the NFLPA “spent no significant funds on research and development of safer helmets, safer competition rules, or safer football equipment that could prevent or mitigate brain trauma to players,” and that the NFLPA failed to certify medical personnel to treat players for head injuries, even though the NFLPA certifies agents and others who interact with players.

The class action, which if certified will encompass all former NFL players, points to the “unparalleled access to and knowledge of data relating to the relationship between head impacts on football players and cognitive decline,” from among other things the union’s participation in the controversial NFL’s Mild Traumatic Brain Injury Committee, which allegedly concealed the risks of concussions and “attacked” (paragraph 75) studies showing a link between concussions and brain damage for years.

At paragraph 40, the complaint alleges that the NFLPA received in 1994 a report from the National Institute for Occupational Safety and Health regarding player death rates.  The report suggested further study over time on the question of whether four cases of ALS were the result of chance, or something else.  At paragraph 41, the complaint claims that the NFLPA concealed the results of the study.

At paragraphs 44 and 45, the complaint contends that the NFLPA received information from the Center for the Study of Retired Athletes suggesting a substantial link between head impacts and cognitive decline, and that the “consistently concealed, ignored, and turned a blind eye to the studies’ results.”

At paragraphs 46 through 52, the complaint focuses on the NFLPA’s role in the Retirement Board, arguing that the Mike Webster case shows the NFLPA knew of the link between head injuries and brain damage (once hyped inaccurately by ESPN and the Fainaru-Wadas as a “smoking gun” for NFL liability), given the NFLPA’s role in the Retirement Board.

The complaint also includes quotes from past NFLPA leadership, including the late Gene Upshaw, long-time executive director of the union.  In 2007, Upshaw allegedly said in response to the suicide of former Eagles safety Andre Waters, “We all get alarmed when we see something like this.  But it’s not like we’ve been just sitting on our hands.  That’s what’s being implied here, that no one is looking at this, that no one’s studying this, that no one cares about this.  If that was true, I’m irresponsible and I haven’t been doing my job, and neither has the NFL.”

That same year, Upshaw allegedly downplayed the link between football and brain damage.  “I think we’re just a reflection of society,” Upshaw said.  “I don’t want to take that next leap to say, you know, football caused dementia.  I just don’t believe that.”

The complaint also attacks comments from former NFLPA president Kevin Mawae attacking the NFL’s efforts to make the game more safe.

“For the Commissioner and for the NFL to say they are going to increase fines because hits seem to be vicious or violent — I think it’s ridiculous and I think the skirt needs to be taken off in the NFL offices,” Mawae said in November 2010.

The complaint also seizes on comments from current NFLPA executive director DeMaurice Smith (pictured) regarding the past failings of union leadership.  “[T]he days of denigrating, suppressing, and ignoring the medical findings must come to an end,” Smith wrote to Congress in 2009.

The complaint repeats a quote we have mentioned several times in this space, given by Smith to Congress that same year:  “There is simply no justification for the NFL to have previously ignored or discredited Dr. [Bennet] Omalu and others with relevant, valid research,” Smith said at the time.  “For far too long, our former players were left adrift; as I emphasized at the last hearing, we were complicit in the lack of leadership and accountability, but that ends now.  I am here again to make it clear that our commitment is unwavering.”

When former NFL safety Dave Duerson committed suicide, Smith said Duerson’s death “makes it abundantly clear what the cost of football is for the men who played and their families,” and that “any decision or course of action that doesn’t recognize that as the truth is . . . perpetuating a lie.”

Based on those allegations, the plaintiffs claim that the NFLPA fraudulently concealed the risk of harm arising from repetitive head trauma, that misleading information about the health risks was given to players and the public by the NFLPA, that at a minimum the misrepresentations made by the NFLPA were negligent, that the union generally engaged in negligence regarding the handling of issues and information relating to brain injuries, and that the NFLPA conspired with the NFL “to perpetrate the fraudulent concealment of the connnection between repetitive TBI and long-term neuro-cognitive damage, illness, and decline.”

The NFLPA already has said that the lawsuit has no merit, and the union undoubtedly will defend itself aggressively.  But even with the concussion lawsuits against the NFL moving toward a conclusion, the former players are now taking on, as a practical matter, the current players on the question of what the union did and failed to do over the years.

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7 Responses to “Class action against NFLPA raises old, new allegations”
  1. thestrategyexpert says: Jul 22, 2014 10:50 AM

    Wow I just have to say this sounds like an open and shut clear case to me, one of the easier cases I’ve had to think about in a while actually. Put me on the jury please, I’m ready to render a verdict with some kind of number.

  2. CKL says: Jul 22, 2014 11:22 AM

    I am not exaggerating when I say that I knew what a concussion was when I was 6 and that was many decades ago. We used to play on the playground and pretend fight and pretend we got concussions as injuries. This suggests that concussions were something that was suffered from by our tv action heroes since otherwise 6 year olds would have little reason to know what a concussion was. I don’t remember which show in specific, but possibly the 6 million dollar man or something like that. I don’t think it’s that far fetched to expect a reasonable adult would figure out that trauma to the same body part could cause aggregate damages, regardless of which part it was.

    I have to say though much as I hate lawsuits of this nature (as long as there was no proof anything was willfully concealed or not to be reasonably assumed as a job hazard and I have never seen evidence supporting there was willful withholding of information), it’s refreshing to see someone suing a union, a body which always purports to be a protection for the players but from which I have never seen a list of exactly how they spend the large amount of dues money they collect, other than on their own leaders’ compensation.

  3. losingisnotanoption says: Jul 22, 2014 12:24 PM

    These concussion lawsuits are genius and well worth the effort.

    Everyone knows that football is violent and violence can result in injuries. Soem of these injuries could be significant and casue long lasting damage.

    Its fully possible that the NFL and NFLPA had information that playing football causes brian trauma. But, again, this isn’t anything new. Common sense would lead anyone to that conclusion.

    The genius is that its makes these groups look like the are complicit in engaging in activities that took advantage of men willing to risk injury to play a game and get paid a lot of money for it.

    To use what any sane human would realize as the basis for a suit that could bring these lawyers tens of millions of dollars is nothing but a money grab. This has nothing to do with justice.

  4. pats4win says: Jul 22, 2014 1:07 PM

    The NFLPA should share in the burden of guilt when it comes to this issue. How many years has the PA done little to nothing to try and help retired/injured players? You can probably it off count on one hand.

    Along with the NFLPA all those players filing these lawsuits need to have a good close look at THEMSELVES and know that they too share in the blame. How many years did some of these litigants play the game, were members of the PA, and yet did nothing to help those who came before them and to help themselves in the future? It was a “pay me now, tomorrow be damned” attitude for decades.

    Now, its come home to roost. This is a mess. Cuban thinks over saturation of the NFL will be its downfall? No way. These types of issues right here are going to eat the league inside out.

  5. jbloggs13 says: Jul 22, 2014 1:10 PM

    DeMaurice Smith makes some incredible statements for someone who is supposed to be a lawyer. He actually hanged the union by himself.

    For all of you who keep bleating you know what concussions are and brain trauma, the research suggests that you really don’t. You might have taken a few in high school or college or pee wee. You were no told to go back on the field with the threat of your job after research conducted by the NFL (Elliot Pellman the league medical director then and now) and published in the Journal of Neurosurgery said, it was good.

    The NFL and the NFLPA placed flyers for concussion mitigating helmets in lockers. Research conducted by league sponsor Riddell and UPMCs Joe Maroon and Mark Lovell.

    Just to make sure you could stay on the field, these same quacks shot you up with Toradol. Basically a safe well tolerated drug, but prescribed in that was extremely dangerous.

    Smith knew, he, like Gene Upshaw, are nothing more than puppets for the owners. Make some noise once in while and back to golf. Ever notice, De starts lots of actions and never seems to finish them. It makes Smith appear like he works for the players instead of being Roger Goodell’s personal doormat.

  6. granadafan says: Jul 22, 2014 2:19 PM

    I’m surprised that the lawsuits haven’t extended to the TV Networks and the fans at this point. The networks profited by negligently showing the head shots and big hits over again. We fans contributed to the desire for big hits by cheering loudly and encouraging the players. It’s our fault. Sorry guys.

  7. rockyburnette says: Jul 22, 2014 5:37 PM

    I’m not sure how the networks would be legally culpable, although the “He got JACK’D UP” segment should have been the end of Tom Jackson’s media career. The sight of former NFL players giggling like school girls on ESPN at a devastating head-shots is sickening to this day.

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