Absence of NFLPA looms over concussion lawsuits

Former NFL lineman Dave Pear, an advocate for former players and one of the many who are suing the league, wants former players to sign a “declaration of independence” from the NFL Players Association, according to the Denver Post.

There’s a better way for former players who are suing the NFL to separate from the NFLPA.  They can sue the union, too.

To date, none of the hundreds of players who have sued the NFL have joined the NFLPA as a defendant, even though the NFLPA had a central role in the creation and efforts of the Mild Traumatic Brain Injury Committee in 1994.  Indeed, NFLPA executive director DeMaurice Smith confessed to Congress in early 2010 that the union shares blame with the league for the sluggish acknowledgement and reaction to the long-term perils of head injuries.

“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.”

The commitment may be unwavering, but Smith’s confession is also potentially damning.  Still, the NFLPA has not landed in the former players’ cross hairs.

The strategic decision to give the Players Association a pass likely arises from several factors.  First, the NFL has the deep pockets that the lawyers hope to raid; in comparison, the NFLPA has peanuts.  Second, suing the NFLPA would motivate the union to join with the NFL and show that nothing was hidden because no one really understood the consequences of concussions until recently, at which time the parties mobilized to make changes to the game.  Third, if the NFLPA were sued, the union would have every reason to broaden the divide between current and former players, recruiting current players to testify about things some of the plaintiffs may have said regarding whether they would have played football even if they had known the risks, whether they don’t really fault the NFL for what happened, whether they’re not actually injured, and/or whether they’re simply in it for the money.

Fourth, and perhaps more importantly, a direct assault against the NFLPA would highlight that the players themselves failed to do enough to protect their own interests, since the union is the players and the players are the union and the union was working directly with the NFL from 1994 on as both parties tried to understand the impact of concussions.

As to the latter point, not suing the NFLPA won’t avoid the problem.  The NFL undoubtedly will point to what lawyers call the “empty chair,” claiming that an absent party the plaintiffs chose not to sue is as culpable if not more culpable than the NFL itself.

Moreover, the fact that the plaintiffs were represented by the NFLPA creates a threshold hurdle for the entire litigation, given that the NFL has argued that the former players were subject to a Collective Bargaining Agreement that contained a grievance procedure for claims like the ones currently being made.

So while some former players may now hope to split with the NFLPA, their past connection to the union will be impossible to erase — and that could make it much harder for the former players who are suing the NFL to prevail.

17 responses to “Absence of NFLPA looms over concussion lawsuits

  1. This just highlights the fact that this is just a money grab.

    I have always had my grandmother tell me when I was a kid to not take “licks” to the head. If grandma (non football fan) knew this, how could college educated (some barely) athletes not know this.

  2. When are these cases going to be heard? Anyone know when the first one is up?

  3. This article’s point is exaggerated. The NFLPA is perhaps culpable for faulty representation, but the owners literally own the game, control the rules, etc. Their ‘control’ over the game makes them central to the culpability being alleged by the former players.

  4. Once the lawyers get involved it gets ugly. This isn’t even the tip of the iceberg concerning where this is headed. Wait until they include the bounties etc. The NFL will never be the same IMO.

    The former players are going to shoot the present players cash cow right between the legs.

  5. The lack of even basic understanding of the law, and how it works, among many of the posters here is jaw dropping. At least learn to not speak when you are utterly clueless.

  6. wow, more drama about concussions, nothing to write about, so let’s bring up concussions, which have been written about, or talked about to death, I think I’m going to puke

  7. Why isn’t every single player using the same type of helmet that is best against concussions? Because the Union said no. The players prefer to choose their own mostly due to comfort and fit. They can blame themselves.

  8. These players are starting to annoy me. They know that 99% of them would had still played whether they knew the dangers or not.

  9. Let me just say that I was at a game at Soldier field once and got hit by a snowball right in the head.
    The NFL knew about the potential hazards of head trauma and did nothing about it (they left the snowing sitting there).
    My lawsuit is on the way.

  10. We know that somewhere in the neighborhood of 1900 players are suing the league. How many lawyers are involved? How widely will the 30% be split?

    At a certain point all these players and lawyers have to split the eventual pie. The lawyers will get a lottery ticket and the former players will get a pittance.

    Ain’t American “justice” great?

  11. kane337
    Because, just like motorcycle helmets, they all have to meet certain standards. Therefore, with all else being equal, the smart thing to do would be to select the one with the best fit for your head shape, just like with motorcycle helmets. You think they can choose ANY helmet they want? No. Only those that meets specs. No leather helmets even if they wanted. Duh.

  12. Of course this is a money grab…There is no doubt about it. Are these players suing there pop warner, high school and college teams?? Didn’t they have just as much of an obligation to warn them of the risks of playing??? If this was a fair and just case these organizations shold be sued as well. Yhey are not suing them because they don’t make the money the NFL else does. If I was a judge I will dismiss this case just for the fact that these players had a choice in what their career could be.. No one made them play football. For the most part they had a college education. And look at the players before them that played with no or leather helmets. Are they suing the league or their familie. At least they would have a re more viable lawsuit. It doesn’t take a genius to figure constant hits to the head is not good for you.

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