You are on page 1of 33


NFL DAVID S. CERRA* A lot of people think were gladiators, but were human beings. We get injured and weve got the rest of our lives to worry about. Playing football is like a vaporits here and its goneand you still have the rest of your life to live. New York Jets offensive lineman Damien Woody.1 If youre worried about concussions, youre in the wrong business. - Carolina Panthers fullback Brad Hoover.2 I. INTRODUCTION A. Waking Up Concussions in sports have received a significant amount of attention in recent years.3 Opinions are changing about the proper treatment of concussions and in particular the amount of time an athlete should abstain from participating in sports after receiving a concussion.4 Football is viewed as a particularly * David S. Cerra is a student at Villanova University School of Law, J.D. Candidate 2013, graduate of Syracuse University, and Villanova Sports and Entertainment Law Journal Staff Member. 1 NFL Players Quotes About Concussions, SEATTLE TIMES (Nov. 18, 2009, 1:40 PM), squotebox.html. 2 Id. 3 See, e.g., Andrew B. Carrabis, Head Hunters: The Rise of Neurological Concussions in American Football and its Legal Implications, 2 HARV. J. SPORTS & ENT. L. 371, 372 (2011) (stating nearly four million sports-related concussions occur each year in United States according to Center for Disease Control and Brain Injury Research Center); Daniel J. Kain, Its Just a Concussion: The National Football Leagues Denial of a Causal Link Between Multiple Concussions and Later-Life Cognitive Decline, 40 RUTGERS L.J. 697, 699 (2009) (asserting studies showing connection between multiple concussions and longterm conditions received national exposure after New York Times featured front page story about the suicide of ex-NFL player Andre Waters in January 2006). 4 See Lindsey Barton, More Conservative Approach to Concussions in Children, Teens Recommended, MOMSTEAM.COM (Sept. 2, 2010), (advocating longer periods of time off from sports for younger athletes following concussions); Carrabis, supra note 3, at 372 (stating New York Times has reported that since 1997, over fifty football players high school age or younger nationwide have been killed, or 1

hazardous activity associated with frequent, violent collisions.5 As a result of the increased attention on concussions, over the past few seasons the National Football League (NFL) has made multiple revisions to the rules pertaining to player safety, particularly with respect to head injuries.6 However, these changes have been met with criticism as they threaten the continued existence of an aspect of football essential to its tradition and appealhard hits.7 In a sport where savage blows are frequent, expected, and embraced, the dangers associated with concussions are greatly amplified. Resulting from the brain hitting the skull, concussions can change the way the brain functions for a period of time after they occur.8 Any subsequent concussions received within this

have sustained serious brain injuries, on the football field.); ASSOCIATED PRESS, Trade Sending Veteran RB Brown to Lions Voided, SI.COM (Oct. 19, 2011, 8:25 PM), html (reporting Detroit Lions head coach Jim Schwartzs uncertainty as to how long running back Jahvid Best would be out after receiving third concussion since 2009). Schwartz stated: Well have a whole protocol that he has to get through to get back on the field. Coming back from a concussion isn't like coming back from a sprained ankle or a bad shoulder or a pulled hamstring. Some of those things you can tough out. You can't tough out a concussion. Id. 5 See Carrabis, supra note 3, at 373 (acknowledging American football has always been violent game and asserting players at all levels are becoming bigger, faster, and stronger thus increasing force of collisions and risk of injuries). 6 See, e.g., ASSOCIATED PRESS, Owners Pass Four Rules in an Attempt to Make the Game Safer, NFL.COM (2009), (announcing new rules with focus on player safety). The initial force of a blindside block cant be delivered by a helmet, forearm or shoulder to an opponents head or neck. Initial contact to the head of a defenseless receiver also will draw a 15yard penalty. Our clear movement is to getting out of the striking in the head area, [NFL officiating director Mike] Pereira said. On kickoffs, no blocking wedge of more than two players will be allowed. A 15-yard penalty will go to a violating team. Id. For a further discussion of recent changes made by the NFL, see infra notes 14-15 and accompanying text. 7 See, e.g., Kain, supra note 3, at 697 (asserting [v]iolent collisions are essential aspect of NFLs popularity). 8 See Carrabis, supra note 3, at 373 (describing physiological effects of concussion). 2

time, therefore, increase the risk of permanent brain damage.9 In some cases, returning to play too soon after receiving a concussion can be fatal.10 Multiple concussions can lead to a disease called Chronic Traumatic Encephalopathy (CTE), a progressive neurodegenerative disease caused by repetitive trauma to the brain which eventually leads to dementia.11 CTE is not a new discovery and has been observed in boxers for decades as so called punchdrunk syndrome.12 However, CTE among football players has only recently received significant attention.13

The brain is a soft organ, surrounded by cerebrospinal fluid and protected by the tough, bony skull. Normally, the fluid around the brain serves as a protective cushion for the brain, isolating it from direct impact to the skull. When the head suffers violent impact, the brain can hit the skull, causing the brain temporarily to stop working normally. This is called a concussion. Id. 9 See id. at 374. (explaining dangers of head trauma soon after concussion and possibility of Second Impact Syndrome (SIS)). A concussion causes brain cells to become depolarized and allows neurotransmitters to behave in an abnormal fashion, causing such symptoms as memory loss, nausea, and confusion. After the initial concussion, when the brain is not fully healed, it is very fragile and susceptible to minor accelerative forces. Thus, subsequent minor hits may cause traumatic and permanent brain injury. This is the heart of the problem: players returning to the football field before allowing their initial concussion to heal fully. When the player returns to the field too early, he is at risk for [SIS]. SIS is the event that ensues when there is a subsequent brain impact before the initial concussion has been given time to heal. Id. 10 See Kain, supra note 3, at 703 (explaining SIS is potentially fatal). 11 See Carrabis, supra note 3, at 374 (discussing connection between concussions and CTE). Playing with even a mild concussion carries the risk of fatal head injury and brain damage. See id. at 377 (describing risks of playing with concussion). Long term or permanent symptoms can include confusion, disorientation, inability to focus, and inability to maintain balance. See id. (discussing possibility of permanent brain damage). 12 See Kain, supra note 3, at 701 (CTE was first described in 1928 as being characteristic of boxers who take considerable head punishment. . . .). Symptoms described in 1928 included confusion, slowing of muscular movement, speech problems, hand tremors, and mental deterioration necessitating commitment to an asylum. See id. (listing known symptoms of punch-drunk syndrome [CTE] as seen in boxers). 13 For a further discussion of CTE among football players coming to the publics attention, see supra note 3 and infra note 32. 3

As a result of the NFLs new focus on head injuries helmet-to-helmet hits, hits on defenseless receivers, and defenders launching themselves (using the head as a weapon) have resulted in particularly heavy fines.14 The NFL has also implemented new rules regarding when a player can return to play after receiving a concussion.15 Consistent with the trend towards greater safety, NFL teams are becoming more conservative with players that experience multiple concussions within a short period of time.16 To the chagrin of some fans, the NFL has taken actions to fundamentally change professional football into a gentler, safer sport.17 The wide-scale change in opinion regarding concussions in professional football is largely attributable to increased publicity surrounding the suffering of retired NFL players and research like that of Boston University School of Medicines Center for the Study of Traumatic Encephalopathy (CSTE).18 Formed

See, e.g., Immer Chriswell, James Harrison: Time For the NFL to Make an Example Of Him, Hes Earned It, BLEACHERREPORT (Nov. 30, 2010), (describing NFLs fines on Pittsburgh Steelers linebacker James Harrison including $75,000 for helmet-to-helmet hit on receiver Mohamed Massaquoi resulting in concussion). 15 See, e.g., Caleb Hellerman, NFL to Require Sideline Test After Head Blows, CNN.COM (Feb. 25, 2011 9:47 AM), (describing NFL Sidelines Concussion Exam, instituted for 2011 season which automatically holds player out of game based on comparison of post-concussion test score to pre-season baseline). 16 See, e.g., Eric Goska, Green Bay Packers QB Matt Flynn has Fine 1st Road Start, GREENBAYGAZETTE.COM (Dec. 19, 2010 11:10), 8/Eric-Goska-column-Flynn-turns-in-fine-1st-road-start (discussing quarterback Aaron Rodgers who sat out two games at end of 2010 season after receiving second concussion jeopardizing playoff spot and ending consecutive start streak in process); Sean Leahy, Colts Place Concussed Austin Collie on Injured Reserve, USATODAY.COM (Dec. 22, 2010, 12:29 PM), (discussing Colts wide receiver Austin Collie who sat out remainder of 2010 NFL season after receiving two concussions in four weeks). 17 See, e.g., David Xaviel, Cult of the Quarterback: Why NFL Rules to Protect the QB Erode the Game, BLEACHERREPORT.COM (Nov. 26, 2009), (lamenting NFL rules protecting quarterbacks). 18 See Carrabis, supra note 3, at 375-76 (describing NFLs changing stance regarding CSTE); id. at 380-81 (describing Section 88 plan). The 2006 Collective Bargaining Agreement (CBA) included a provision compensating retired NFL players who suffer from brain injuries and dementia. See id. (describing CBA provision). Section 88 is named after John Mackey the former Baltimore Colts 4

in 2008, the CSTE has been studying the brains of deceased former NFL players with many more living players pledging their brains for research after their deaths.19 The CSTE has found signs of severe degradation in the brains of exNFL athletes and also that former NFL players between the ages of thirty and forty-nine experienced memory loss at a rate nineteen times higher than the average population.20 B. The NFLs Stance on Concussions before 2005 Until the connection between football and later cognitive decline became more public and undeniable, the NFL maintained a far different stance on the effects and regulation of concussions. The NFLs long time policy was to hold a player out of a game only until concussion symptoms subsided.21 This meant many players could return to a game after receiving a concussion and incur the risk of subsequent concussions and permanent brain damage.22 Only in 1994 did the NFL create the Mild Traumatic Brain Injury Committee (Concussion Committee) to study the effects of concussions.23 The NFLs Concussion Committee was chaired by Dr. Elliot Pellman, a rheumatologist who had no special knowledge of brain injuries or concussions.24 The NFL buttressed its position on the long term risks of multiple concussions through the Concussion Committees research.25 According to one authoritya law firm practicing Football Concussion Injury[t]he NFLs efforts to protect players from concussions and their after-effects, have been weak at best and nonexistent at worst.26

and Syracuse University tight end who suffered from dementia and died in 2011 at age sixty-nine. See id. (discussing John Mackey). See also Kain, supra note 3, at 699 (asserting suicide of former player Andre Waters was widely publicized). 19 See Carrabis, supra note 3, at 375-76 (describing genesis of CSTE). More than one hundred and fifty former athletes (including over forty NFL players) have signed up with the CSTEs brain registry. See id. at 375 (discussing brain registry). 20 See id. at 376 (discussing findings of CTSE). 21 See id. at 377 (describing less stringent NFL concussion rule). 22 See id. ([B]ecause the full damage of a concussion could not be evaluated until forty-eight hours after the incident and initial injury, this policy was ill-advised.). 23 See Joseph Hanna & Daniel Kain, The NFLs Shaky Concussion Policy Exposes the League to Potential Liability Headaches, 21 N.Y. St. B.A. Ent. Arts & Sports L.J. 33, 33 (2010) (discussing creation of Concussion Committee). 24 See id. (asserting neuropathologists felt Dr. Pellman was not qualified for position). 25 See Kain, supra note 3, at 725 (asserting Concussion Committee denied knowledge of a link between concussions and cognitive decline and claimed years of research were required to reach definitive answer). 26 Football Concussion Injury Litigation (July 22, 2011, 1:42 PM), [hereinafter Concussion Litigation]. 5

C. The NFLs Stance on Concussions 2005-2010 The NFLs treatment of concussions and studies through the Concussion Committee became subject to scrutiny as a result of independent scientific research which was in stark contrast to the NFLs findings.27 The Concussion Committee published its findings in a 2006 article, concluding that: Because a significant percentage of players returned to play in the same game [in which they suffered a mild traumatic brain injury] and the overwhelming majority of players with concussions were kept out of football-related activities for less than 1 week, it can be concluded that [mild traumatic brain injuries]s in professional football are not serious injuries.28 This statement both ignored the fact that players and teams have incentive for players to return to games despite persistent symptoms and uses the rule to prove the logic of the rule.29 During this period, the Concussion Committee fought and discredited independent research which asserted that concussions were more dangerous than initially thought.30 On August 14, 2007 after being presented with face-to-face presentations of such contrary findings, the Concussion Committee released an informational pamphlet stating that [c]urrent research . . . has not shown that having more than one or two concussions leads to permanent problems and there is no magic number for how many concussions is too many.31

See Hanna & Kain, supra note 23, at 33 (stating that between the years 2005 and 2007, Dr. Bennet Omalu and Dr. Robert Cantu examined brain tissue of former players and determined CTE was partial cause of their premature deaths). In 2005, Dr. Kevin Guskiewicz found a strong correlation between multiple concussions and Mild Cognitive Impairment through a large survey of former NFL athletes. See id. (discussing findings). 28 Concussion Litigation, supra note 26 (quoting National Football Leagues Committee on Mild Traumatic Brain Injury, Concussion in Professional Football: Summary of the Research Conducted by the National Football Leagues Committee on Mild Traumatic Brain Injury, NEUROSURGICAL FOCUS, Oct. 15, 2006). 29 See Kain, supra note 3, at 711-13 (asserting NFL player contracts incentivize players to withhold concussion symptoms). For a further discussion of the financial incentive to hide injury, see infra notes 136-139 and accompanying text. 30 See Kain, supra note 3, at 725-26 (claiming between 1994 and 2010 Concussion Committee published articles producing contrary findings whenever it anticipated studies or information implicating causal link between concussions and cognitive deterioration). 31 See Hanna & Kain, supra note 23, at 34 (explaining NFLs reaction to contrary information in 2007). 6

Only in 2009, when news outlets and Congressional scrutiny brought the NFLs stance on concussions to the publics attention were significant changes effected.32 In the wake of this publicity two of the Concussion Committees cochairmen (who had previously combated contrary findings) resigned, the NFL suspended the Concussion Committees research before appointing well respected neurologists to the vacated committee chairs, and partnered with the CSTE who had been at the forefront of discrediting the NFLs studies.33 Independent local doctors were put in charge of examining players and determining whether they should return to play after sustaining a concussion and NFL spokesman Greg Aiello made the watershed admission that [i]ts quite obvious from the medical research thats been done that concussions . . . lead to long-term problems.34 The disparity between the NFL and the scientific communitys stances on long-term concussion effects as well as the shortcomings of helmet manufacturers is the basis for a law suit filed in the summer of 2011 by seventy-five former NFL players against the NFL and helmet maker, Riddell.35 If successful, Maxwell v. NFL may open the door to future litigation against the NFL by former players and possibly anyone who has ever played football.36 This Comment argues that the Maxwell plaintiffs may be able to prevail on negligence and fraud causes of action against the NFL by comparison to previous football concussion suits and tobacco litigation but face challenges in proving causation between the NFLs alleged misconduct and their injuries.37 This Comment further argues that the Maxwell plaintiffs whose careers ended before 2005 and to a greater degree those whose careers ended before 1994 face an uphill battle in establishing the NFL had a duty with regard to concussions.38 This Comment then argues that the plaintiffs have weak claims against Riddell absent more proof of misrepresentation or its equipment being far inferior to the standards at the time.39 Section II examines

See id. at 33 (noting that in fall of 2009 media outlets like GQ, The New Yorker, Forbes, and 60 Minutes [treated] NFL concussions as a novel topic and Congressional hearing on subject was held on October 28, 2009). 33 See id. at 34 (discussing NFLs subsequent remedial measures). 34 See id. (discussing implementation of new concussion procedure and contemporaneous statement). 35 See Maxwell v. NFL, No. BC465842 (Super. Ct. Cal. July 19, 2011) [hereinafter Maxwell]; Plaintiffs Complaint for Damages and Demand for Jury Trial, Maxwell v. NFL, No. BC465842 (Super. Ct. Cal. July 19, 2011) [hereinafter Complaint]. 36 For a further discussion of potential lawsuits by other athletes, see infra notes 199-202 and accompanying text. 37 For a further discussion of negligence and fraud claims against the NFL, see infra notes 106-164 and accompanying text. 38 For a further discussion of the difficulty in establishing the NFLs duty over time, see infra notes 106-188 and accompanying text. 39 For a further discussion of the claims against Riddell, see infra notes 189-190 and accompanying text. 7

the relevant law and the complaint filed by the plaintiffs in Maxwell.40 Section III analyzes Maxwells validity in light of the relevant law and evidence presented.41 The impact of Maxwell is discussed in Section IV, along with the possibility of settlement.42 II. BACKGROUND

A. Relevant Law Maxwell is not the first time a case has been brought based on the improper treatment of concussions in professional football. Merrill Hoge (Hoge), an NFL running back, successfully sued the Chicago Bears on a failure to warn cause of action in Hoge v. Munsell.43 One observer noted [t]he case was one of first impression in that it represented the first litigation focusing on an NFL physicians duty to warn an athlete about the risks and dangers inherent in returning to sports participation too quickly after sustaining a concussion.44 Hoge received two concussions in seven weeks which resulted in permanent injury and ended his football career.45 Hoge claimed the Chicago Bears trainer was negligent in allowing him to return to play without a follow up exam and failing to warn him about the dangers of subsequent concussions.46 Hoge argued this information would have changed his own decision to return to play.47 Hoge overcame an assumption of the risk defense because assumption of the risk requires knowledge or awareness of the particular hazard that caused the injury.48 The Chicago Bears downplayed the seriousness of the concussion and


For a further discussion of the background of Maxwell, see infra notes 43-87 and accompanying text. 41 For a further discussion of the validity of Maxwell, see infra notes 88-190 and accompanying text. 42 For a further discussion of the impact Maxwell and possibility of settlement, see infra notes 190-203 and accompanying text. 43 See Hoge v. Munsell, 835 N.E.2d 200 (Ill. App. Ct. 2002); Carrabis, supra note 3, at 377 (discussing Hoge case); Kain, supra note 3, at 713 n.99 (Due to the fact there is no appellate record in the case, much of Hoges story is reconstructed through anecdotal evidence, including newspaper, magazine, and internet accounts.). 44 Kain, supra note 3, at 713 (quoting Alexander N. Hecht, Legal and Ethical Aspects of Sports-Related Concussions: The Merril Hoge Story, 12 SETON HALL J. SPORT. L. 17, 30 (2002)). 45 See Carrabis, supra note 3, at 377-78 (explaining facts of Hoge). 46 See Kain, supra note 3, at 714-16 (explaining legal argument of Hoge case). 47 See id. at 715 (explaining Hoges assertion contained in complaint) 48 See id. at 715-16 (discussing assumption of the risk defense in Hoge). 8

thus Hoge lacked the requisite awareness.49 While Hoge knew the risks of playing football, team trainer (Dr. Munsell) and the Bears failed to warn him of the risks associated with subsequent concussions.50 Other plaintiffs at the lower levels of football have succeeded in settling what likely would have been negligence suits for failure to adopt proper concussion procedures.51 In 2005, a La Salle University football player settled with the school after being allowed to play in a game two weeks after receiving a concussion in practice.52 The player experienced another concussion in a game one month after his initial injury which resulted in swelling of the brain and permanent difficulty walking and speaking.53 In 2009, a high school football playerafter receiving a concussionwas allowed to finish the game, practice, and play in the next weeks game where a subsequent blow to the head resulted in permanent brain damage.54 While the case was settled, the school district appears to have conceded it lacked an adequate concussion policy by adopting the procedures suggested at the time by the Department of Health and Human Services Center for Disease Control and Prevention (CDC) shortly after the lawsuit was filed.55 Fraudulent Misrepresentation Causing Harm (fraud) is an intentional tort. One who by a fraudulent misrepresentation or nondisclosure of a fact that it is his duty to disclose causes physical harm to the person or to the land or chattel of another who justifiably relies upon the misrepresentation, is subject to liability to the other.56 Plaintiffs have successfully sued tobacco manufacturers for putting out information that denies or downplays the harms of using tobacco and the addictive nature of nicotine.57 In California, the workers compensation act does

See Carrabis, supra note 3, at 378 (asserting Bears and head coach claimed it was just a concussion warranting little treatment). 50 See id. (explaining courts differentiation between general risks of playing football and specific risks associated with subsequent concussions). 51 See SHAMBERG, JOHNSON & BERGMAN, Football Concussion Result in $3 Million Settlement with High School Coaches and Administrators in Brain Injury Case, SJBLAW.COM (2009), (asserting standard of care was established in part by CDCs publication which school district later adopted). 52 See Carrabis, supra note 3, at 381 (describing facts leading up to La Salle suit). 53 See id. (describing injuries of La Salle plaintiff). 54 See id. at 384 (describing facts leading up to high school suit). 55 See SHAMBERG, JOHNSON & BERGMAN, supra note 48 (discussing adoption of suggested CDC standards). 56 RESTATEMENT (SECOND) OF TORTS 557A (1977). 57 See Williams v. Phillip Morris Inc., 48 P.3d 824 (Or. Ct. App. 2002) (holding (1) plaintiffs husband, as smoker, was an intended recipient of manufacturers misrepresentation that there was legitimate controversy regarding connection between cigarette smoking and human health; (2) evidence supported jurys finding that manufacturer conveyed misrepresentation over many years, and in many ways; (3) evidence supported reasonable inference that husband purchased 9

not serve as a defense to a fraud action by an employee against an employer in certain circumstances because fraud by an employer was not a risk of employment contemplated by the California legislature.58 B. The Maxwell Complaint 1. Overview

On July 19, 2011 seventy-five former NFL players and many of their spouses brought suit against the NFL, NFL Properties, and sports equipment manufacturer Riddell in the Superior Court of California.59 The complaint includes counts of negligence, negligence-monopolist, fraud, strict product liability, failure to warn, and loss of consortium.60 The descriptions of the plaintiffs are relatively similar in that they all claim to have suffered multiple concussions, been improperly diagnosed and improperly treated throughout [their] career, and not been warned . . . of the risk of long-term injury due to cigarettes in reliance on misrepresentation; (4) federally-required warning on cigarette packages limited widow to allegations of affirmative misrepresentations); Wright v. Brooke Group Ltd., 652 N.W.2d 159 (Iowa 2002) (holding product manufacturers failure to warn or disclose material information will support fraud claim by customer only when disclosure is necessary to prevent prior representation from being misleading). 58 See RESTATEMENT (SECOND) OF TORTS 557A (1977) (discussing fraud exception to workers compensation under California law); Childress v. Churchs Fried Chicken, 196 Cal. Rptr. 404, 408 (Cal. Ct. App. 1983) (illustrating treatment of workers compensation defense and fraud in California). 59 See ASSOCIATED PRESS, 75 NFL Retirees Sue League Over Concussions, BALTIMORESUN.COM (July 20, 2011, 5:32 PM),,0,6573493.story (announcing filing of suit). The plaintiffs are represented by Thomas Girardi, an attorney famous for his association with the Erin Brockovich case which settled for a record $333 million. See John Culhane, Concussions and Cigarettes, SLATE.COM (July 26, 2011, 1:19 PM), [hereinafter Concussions and Cigarettes] (discussing Thomas Girardi); Stuart Hampton, Just What PG&E NeedsErin Brockovich, BIZMOLOGY.COM (Mar. 10, 2011, 9:23 AM), (discussing amount of damages). In the complaints Prayer for Relief, the plaintiffs request compensatory and general damages, special and incidental damages, punitive damages, costs of proceedings. See Complaint, supra note 35, at 81 (requesting damages). The plaintiffs claim they are able to sue the NFL because [t]he Supreme Court . . . ruled that the NFL is a separate entity from each of its teams.59 See id. at 10 (citing Am. Needle, Inc. v. NFL, 130 S. Ct. 2201 (2010)) (claiming American Needle allows Maxwell plaintiffs to sue NFL). 60 See Complaint, supra note 35, at 69-80 (stating causes of action). 10

[concussions], or that the league-mandated equipment did not protect [them] from such injury.61 The ailments allegedly suffered by the Maxwell plaintiffs range from headaches and memory loss to dementia.62 The complaint begins by contrasting popular science and the research conducted by the NFL.63 The complaint describes the non-NFL affiliated research of Dr. Bennet Omalu who found CTE in the brains of former players in 2002 and 2007.64 Dr. Omalu stated [w]here was the NFL when we found this disease?65 An independent survey also showed retired players who had received multiple concussions were more likely to experience depression.66 The complaint goes on to describe the NFL Concussion Committees research as completely devoid of logic and science and contrary to well published medical literature.67 The complaint alleges that only in 2009 did the NFL enact proper concussions procedures and only in 2010 did the NFL acknowledge the long term risks of concussions by warning players.68 2. Negligence Claims

The Maxwell plaintiffs claim the NFL as an industry icon owed a duty to them, as well as all football leagues, players, and the public at large.69 The duty allegedly owed to the plaintiffs was to protect them on the playing field and educate them as well as trainers and physicians about CTE and concussion injury.70 Additionally, the complaint claims the NFL had a duty to have in place strict return-to-play guidelines and design rules and penalties for riskier hitting
61 62

See, e.g., id. at 50 (describing plaintiff Christopher Calloway). See id. at 23-69 (detailing plaintiffs and their injuries). 63 See id. at 11-12 (discussing findings of Dr. Bennett Omalu not found by NFL Concussion Committee). 64 See id. at 12 (supporting notion that Concussion Committees research was inadequate). 65 Id. at 12. 66 See id. at 11 (recounting study of depression in former NFL players).

See id. at 29 (criticizing work of Concussion Committee). The committees published findings in 2004 showed no evidence of worsening injury or chronic cumulative effects from multiple concussions and found many NFL players can be safely allowed to return to play on the day of a concussion, if they lack symptoms and are cleared by a doctor. See id. (discussing published findings of Concussion Committee). Commissioner Roger Goodell stated publicly that the NFL had been studying the effects of traumatic brain injury for close to 14 years, in June of 2007. See id. (recounting statements of Commissioner Goodell). 68 See id. at 12 (claiming dates when NFL enacted procedures and warned current players). 69 See id. at 12-13 (alleging NFLs duty extended beyond active players). 70 See id. (alleging scope of NFLs duty). 11

and tackling.71 The complaint asserts the defendants conduct rises beyond mere negligence.72 In the first negligence cause of action the complaint states that the NFL had a duty to players and the public as a monopoly to protect their health and safety. 73 This duty was allegedly breached by failing to enact rules, policies and regulations to best protect its players, failing to provide complete, current, and competent information, and failing to provide reasonably safe helmets.74 The plaintiffs claim were it not for this breach of duty they would not have suffered from their conditions or would have recovered more rapidly.75 In their second negligence cause of action, the Maxwell plaintiffs claim the NFL has assumed a tort duty to invoke rules that protect the health and safety of players and has violated Section 323 of the Restatement (Second) of Torts as adopted by the courts of California.76 The plaintiffs claim by enacting safety rules the NFL confirmed this historical duty but failed to create any guidelines related


See id. at 13 (claiming NFLs dutys included maintaining proper concussion guidelines and protective rules). 72 See id. at 23 (explaining level of culpability). The Complaint states: The aforementioned acts and omissions of the Defendants demonstrate that the Defendants acted with callous indifference to the rights and duties owed to Plaintiffs, all American Rules Football leagues and players and the public at large. The Defendants acted willfully, wantonly, egregiously, with reckless abandon, and with a high degree of moral culpability. Id. 73 See id. at 69-72 (claiming duty and breach of NFL with regard to negligencemonopolist cause of action). 74 See id. (explaining NFLs breach of duty) 75 See id. at 74 (claiming plaintiffs injuries flow from NFLs breach of duty). 76 See id. at 72-74 (alleging breach of duty); RESTATEMENT (SECOND) OF TORTS 323 (1965) (explaining negligent performance of undertaking to render services). The Restatement defines the tort thusly: One who undertakes . . . to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking. Id. See also Coffee v. McDonnell-Douglas Corp., 503 P.2d 1366, 1370 (Cal. 1972) (holding that when employer required prospective employees to undergo physical examination it assumed duty to conduct and complete examination with due care). 12

to mental health and safety until August 14, 2007.77 The complaint also claims the NFL has never warned past players of the long term harms of concussions.78 3. Fraud Claim

The complaint alleges that from 2005 through June of 2010, the NFL through its Concussion Committee made material misrepresentations that there was no link between concussions and later life cognitive/brain injury.79 The plaintiffs claim the Concussion Committee knew these misrepresentations were false and intended to defraud the plaintiffs.80 The harm allegedly flowing from this misrepresentation is that plaintiffs justifiably relied on these misrepresentations to their detriment in getting care for their injuries.81 4. Claims Regarding Equipment

The complaint also asserts the NFL was negligent in mandating equipment, namely Riddell helmets, which provided insufficient protection. NFL Properties breached its duty to ensure that the equipment it licensed and approved were of the highest possible quality and sufficient to protect the NFL players . . . from the risk of concussive brain injuries.82 They claim NFL Properties breached its duty by knowing or having reason to know the helmets were negligently designed and/or manufactured.83 As a result plaintiffs claim they suffer long term effects of concussive brain injuries.84 The plaintiffs also attack the helmet makers themselves, accusing Riddell of strict liability for design and manufacturing defect in addition to failure to warn


See Complaint, supra note 35, at 72-74 (explaining NFLs confirmation of duty and breach). 78 See id. at 70 (alleging NFL has not warned retired players). 79 See id. at 75 (detailing alleged material misrepresentations). 80 See id. (alleging intention of Concussion Committee to defraud plaintiffs).

See id (alleging plaintiffs reliance on misrepresentations caused injury). See also Ashley Hayes and Michael Martinez, Former NFL Players: League Concealed Concussion Risks, CNN.COM (July 20, 2011, 7:16 PM), (reporting comments of widow of ex-NFL player Dave Duerson). The widow of Dave Duerson who committed suicide and requested that his brain be studied stated on the subject of the Maxwell suit stated: [I] truly believe the NFL must have known on some level because there were always doctors present, you know, with these guys. . . .). 82 See Complaint, supra note 35, at 76 (alleging negligence in providing insufficient equipment). 83 See id. (explaining breach of duty with regard to mandated equipment). 84 See id. (alleging injuries flow from breach of duty). 13

and negligence.85 The plaintiffs claim Riddell helmets were improperly tested as well as defective in design, unreasonably dangerous, and unsafe for their intended purpose86 The negligence and failure to warn claims against Riddell stems from alleged failure to provide instructional materials and warnings of the risks and means available to reduce concussive brain injuries.87 III. ANALYSIS

A. Rationale for Lack of Class Action Status Maxwell is not a class action suit.88 One commentator describes Maxwell as being more analogous to seventy five separate suits containing similar facts.89 Maxwell is not a good candidate for a class action suit because the damages suffered by the plaintiffs vary too widely in their nature and extent.90 The suit is likely brought as one complaint merely because the allegations are the same.91 B. California as Venue for Maxwell The decision to file Maxwell in California state court has several strategic benefits. The plaintiffs might be stymied by workers compensation law which usually provides the exclusive remedy.92 State courts conflict regarding whether an employers intentional misconduct allows employees to escape workers compensation.93 In California there is an exception to workers compensation in instances of fraud which are alleged in Maxwell.94 While most states workers compensation laws require a claim to be filed within five years, in California the


See id. at 76-78 (detailing design defect and manufacturing defect causes of action against Riddell). 86 See id. at 76 (claiming oversights of Riddell with regard to equipment safety). 87 See id. at 79-80 (detailing failure to warn and negligence causes of action against Riddell). 88 See id. at 83 (leaving box blank on complaint cover page thereby indicating not class action suit). 89 See Concussions and Cigarettes, supra note 59 (analogizing Maxwell to seventy five separate suits). 90 See id. (discussing why Maxwell is not good candidate for class action suit). 91 See id. (speculating why Maxwell was brought as one complaint). 92 See id. (discussing implication of workers compensation law on Maxwell. 93 See John Culhane, The NFLs Next Big Headache, SLATE.COM (Feb. 2, 2011, 4:27 PM), [hereinafter Headache] (discussing how states differ with regard to intentional misconduct by employers). 94 For a further discussion of the fraud exception, see supra note 58. 14

statute of limitation does not start until the employer files notice of the injury. 95 This is significant as most of the Maxwell plaintiffs careers ended before 2006.96 Furthermore, anyone whose employment took them into the state of California is eligible for workers compensation.97 Based on the NFLs matchup scheme most players have likely played a game in California.98 All these factors have led to California being referred to as a haven for ex-football players.99 Under workers compensation the plaintiffs also would not have to show the employer is at fault.100 This is important because the Maxwell plaintiffs were not employees of the NFL but claim their injuries are a result of their employment.101 Workers compensation also has certain drawbacks, namely, the limited remedies it provides.102 C. Applicability of Collective Bargaining Agreement The defendants may argue that the claims made in Maxwell should be covered by the Collective Bargaining Agreement (CBA) in which case the plaintiffs would have to start over in federal court and likely face arbitration.103

See id. (discussing statute of limitations under California workers compensation laws). 96 See Complaint, supra note 35, at 23-69 (detailing years in which plaintiffs played professional football) 97 See id. (describing coverage for workers whose employment brought them even briefly into California). 98 NFL Announces 2002-2009 Schedule Rotation, FOOTBALLINJURIES.COM, (last visited Oct. 28, 2011) (describing rotation whereby teams play every other team more often). The San Francisco 49ers, San Diego Chargers, Oakland and Los Angeles Raiders, Los Angeles Rams are or were California professional football franchises. NFL.COM, (last visited Oct. 28, 2011). 99 See Headache, supra note 93 (explaining Californias reputation as haven). 100 See id. (asserting one must show causal connection between injury and employment but not that employer is at fault). 101 See Brown v. NFL, 219 F. Supp. 2d 372, 383 (S.D.N.Y. 2002) (At the time of his injury, [player/plaintiff] worked not for the NFL, but for the Cleveland Browns Football Company, a Delaware limited partnership and an entirely separate entity which happens to be a member of the NFL.). 102 See Concussions and Cigarettes, supra note 59 (explaining workers compensation does not compensate for pain and suffering, offers fixed rate of compensation for given injuries and reimbursement for medical care, and punitive damages are not available). 103 See Headache, supra note 93 (explaining potential problem presented by Collective Bargaining Agreement). The author explains: Any potential claim expressly covered by the CBA, or that requires interpreting it, is pre-empted by federal labor law, meaning that no common law tort claim could proceed in state court. Players with grievances arising under the agreement must first go through 15

At least one authority feels this is an unlikely result considering the type of arguments being made.104 The complaint itself asserts that plaintiffs claims are not preempted by federal labor law because historically, the NFL retired players have never been the subject of or a party to Collective Bargaining and at the time the Collective Bargaining Agreement did not exist.105 D. Negligence 1. Overview

The plaintiffs basic assertion is that the NFL has breached an assumed duty to protect its players by not enacting sufficient league-wide procedures for handling concussions and failing to warn players of the long-term risks of multiple concussions.106 The evidence that this duty exists according to the plaintiffs is that the NFL has created other rules concerning safety and took it upon themselves to study the effects of concussions.107 The complaint alleges the NFL owed a duty to protect the safety of both players and the public.108 One difficulty for the Maxwell plaintiffs is that there is no real comparable entity to the NFL for the sake of legal argument. The closet analogue would be the National Collegiate Athletic Association (NCAA) or an entity like a state board which controls asbestos regulations. The NFL is not the NFL players

arbitration and would face a difficult task in getting such a decision reversed by a federal court. Id. For example in a suit by the widow of Minnesota Vikings offensive lineman Korey Stringer who died of heat stroke, a claim against the NFL for providing unsafe equipment, improper supervision, and medical care was dismissed on the basis that the care and safety of players is the responsibility of team physicians whose duty is governed by the CBA. See id. (discussing impact of 2001 suit by widow of Korey Stringer on Maxwell); Erica Ryan, Judge: Korey Stringer Lawsuit to Proceed, WASHINGTONPOST.COM (Feb. 1, 2007, 8:10 PM), (announcing federal judge dismissed claim against NFL but found claims against NFL Properties and Riddell were not preempted by CBA); Stringer v. NFL, 749 F. Supp. 2d 680, 685 (S.D. Ohio 2009) (explaining dismissal of claim against NFL). 104 See Headache, supra note 93 (explaining its hard to see how the CBA speaks to a suit based on the cumulative effect of concussive and sub-concussive impacts). 105 See Complaint, supra note 35, at 11 (asserting plaintiffs claims are not preempted by federal labor law). 106 See id. at 69-74 (detailing negligence counts against NFL). 107 See id. at 12-13 (alleging scope of NFLs duty). 108 See id. 12, 69 (alleging duty based on monopoly over American football and discussing negligence-monopolist cause of action). 16

employer but makes rules which impact the safety of employees.109 As a result, the Maxwell plaintiffs may find it difficult to find persuasive case law and the NFL and Riddell will have ample opportunities to distinguish themselves from the defendants in any cases which are produced. 2. Failure of NFL to Adopt Proper Concussion Procedures

There is support for the claim that the NFL breached a duty by not adopting the safest available guidelines by comparison to a suit involving a high school law football player which was settled.110 In that case according to one observer, the schools lack of a concussion guideline policy increased [the player]s chance of permanent injury.111 Similar to that school district which paid for having out of date procedures, the plaintiffs in Maxwell claim the NFL has harmed players by failing to update its own procedures in light of readily available information. The plaintiffs strongest point is that the National Hockey League (NHL) and World Boxing Association (WBA) adopted much stricter concussion guidelines long before the NFL.112 While many school districts may have an argument that they lack the resources to give the best care or use the most modern equipment, the NFL which controls a multi-billion dollar industry appears to be much more culpable. If a school district can be liable for not adopting the CDCs suggested guidelines the NFL might also be liable for not adopting guidelines up to par with those used by the NHL and WBA. 3. Failure to Warn

Success by the plaintiffs on their failure to warn claims may be achieved by an extension of the Hoge decision.113 Hoge successfully argued that his teams doctor breached a duty to exercise the skill and care of a team physician who makes the decision of when a player may return to play after a concussion.114 Hoge argued that had he been properly warned of his condition he would have

For a further discussion of why NFL is not players employer, see supra note 101. 110 See Carrabis, supra note 3, at 384 (stating school district settled suit with high school football player who suffered permanent brain damage). For a further discussion of this suit, see supra notes 54-55 and accompanying text. 111 See Carrabis, supra note 3, at 384 (asserting lack of concussion policy was factor in players injuries). 112 See Complaint, supra note 35, at 74 (asserting concussion procedures of NHL and World Boxing Association were ahead of NFL). 113 See Kain, supra note 3, at 717 (discussing implications of Hoge verdict combined with evidentiary link between multiple concussions and cognitive decline). For further discussion of the Hoge case see infra notes 40-45 and accompanying text. 114 See id. at 714-15 (recounting the duty Hoge claimed team doctor owed him). 17

waited until he had completely recovered from his initial concussion before returning to play.115 The Maxwell plaintiffs claim that only in June of 2010 did the NFL warn active players and the NFL has never warned past players or the public.116 One key question for both the failure to warn and failure to adopt proper concussion guidelines aspects of Maxwell will be when the NFL had notice of the long term risks associated with multiple concussions. One key date is 2005 when independent studies found a connection between concussions and cognitive problems like depression and dementia.117 The death of Andre Waters publicized research contrary to the Concussion Committee and prompted the NFL to hold a league-wide concussion summit in June 2007 which along with Congressional scrutiny resulted in an August 2007 pamphlet on the proper treatment of concussions.118 The complaint claims that before August of 2007 the NFL failed to establish adequate guidelines and procedures and did not acknowledge the longterm risks until June of 2010.119 The majority of the Maxwell plaintiffs played before 2005.120 It is easier to argue that the NFL undertook a duty with regard to the players when it formed the Concussion Committee in 1994. However the Maxwell plaintiffs that played before that year have a more difficult task in arguing that the NFL knew of more obscure sources dating back to the 1890s and undertook a duty with regard to concussion injury simply by enacting various general safety rules.121 One factor which favors the plaintiffs is that before 2010 there was no requirement that an independent neurologist assess players who received concussions during games.122 One legal authority points out that the relationship between medical providers, trainers, and teams inherently presents a conflict in
115 116

See id. at 715 (explaining failure to warn aspect of Hoge case). See Complaint, supra note 35, at 70 (alleging when NFL acknowledged and warned players) 117 See Kain, supra note 3, at 698 (explaining research of Dr. Bennet Omalu, M.D. and Dr. Kevin Guskiewicz). 118 See id. at 699 (discussing article about Waters); Hanna & Kain, supra note 23 at 33 (discussing origin of pamphlet). 119 See Complaint, supra note 35, at 70 (alleging when NFL established protective guidelines and acknowledged long-term risks despite other sports organizations earlier adoption of concussion management rules.) 120 See id. at 23-69 (listing plaintiffs). Two plaintiffs, Brett Romberg and Todd Johnson, played between 2003 and 2010. See id. at 41, 59 (discussing careers of Romberg and Johnson). 121 See id. at 14-18 (listing sources beginning with life story of football player Admiral Bull Reeves in the 1890s up to medical journal articles published in the 1990s); id. (listing variety of safety rules enacted between 1956 and 2005 including facemask, spearing, and horse-collar tackle). 122 See Carrabis, supra note 3, at 379 (detailing implementation of stricter guidelines by NFL including use of independent neurologist). 18

that there is incentive to keep star players on the field.123 The NFL likely should have been aware of this fact considering the Hoge decision turned on the team and the teams doctor minimizing concussion risks.124 4. Assumption of the Risk Defense

A potential flaw in the plaintiffs case is that it relies on showing the risks of concussions were obvious in light of the information readily available.125 This begs the question that if this information was so obvious to the NFL and helmet manufacturers then it should have been equally obvious to players and the players union.126 The NFL will also likely assert that football players assumed the risk of brain injuries as lifelong players of the sport who have first-hand experience of, and often revel in its violence.127 However, players having put themselves in highly dangerous situations by playing football may not be fatal to a negligence claim against the NFL. One legal commentator makes the comparison that [s]kiing is inherently risky . . . [b]ut if the owners of the ski slope increase the risk, say by leaving a snow-making machine on the slope, skiers should be able to sue for the unnecessary increase in that inherent risk.128 The general notion is that participants in an athletic event assume the risks of injury associated with the sport.129 However injuries which result from conduct not reasonably foreseeable are of a different nature.130 The conduct by

See Kain, supra note 3, at 708-09 (asserting that being official healthcare provider of team brings advertising privileges and team trainers are under pressure from coaches and management to return most talented athletes to the field as soon as possible). 124 For a further discussion of Hoge, see supra notes 43-50 and accompanying text. 125 See Concussions and Cigarettes, supra note 59 (explaining plaintiffs set forth dozens of reputable sources that indicate effects of concussions were well known as far back as a century ago); Complaint, supra note 35, at 14-18 (listing sources which plaintiffs claim should have been apparent to NFL and Concussion Committee ). 126 See Concussions and Cigarettes, supra note 59 (asserting science establishing long-term risks of concussions is not new and players or their union should have been aware of it). 127 See Headache, supra note 93 (asserting football players all knows of risks and quoting oft-fined Pittsburgh Steelers linebacker, James Harrison: I try to hurt people.). 128 See id. (illustrating by example that suit for negligence is possibility even when engaged in risky behavior). 129 See Hanna & Kain, supra note 23, at 35 (discussing assumption of the risk in sports context). 130 See Kain, supra note 3, at 715-16 (discussing exception to assumption of risk in sports context); Darryll M. Halcomb Lewis, An Analysis of Brown v. National Football League, 9 VILL. SPORTS & ENT. L.J. 263, 286-87 (2002) (asserting 19

the NFL may amount to such careless disregard for the safety of others as to create risks not fairly assumed.131 The plaintiff in Hoge, a longtime football player, was also able to overcome an assumption of the risk defense because he was not apprised of the specific risk of playing soon after sustaining a concussion.132 The Maxwell plaintiffs however need to prove the NFL had a duty which was much clearer in Hoge where the tortfeasor was the players doctor.133 The Maxwell plaintiffs on the other hand claim the NFL took on a duty merely through its monopoly power, its history of enacting general safety rules, and organizing a research group to study the effects of concussions. Another difficulty for the Maxwell plaintiffs who retired before 1994 will be arguing that before the creation of the Concussion Committee, the NFL had information which the plaintiffs did not. The team trainer in Hoge was in a superior position with respect to access to information because he was licensed doctor.134 Before the Concussion Committee was created in 1994, the players and NFL had the same access to the sources named by the Maxwell plaintiffs medical literature and knowledge of former football players and boxers who experienced brain maladies later in life.135 Even for those plaintiffs who played after the creation of the Concussion Committee, the NFL can still assert its decisions regarding an uncertain area of science were made in good faith. It is only once the Concussion Committees findings became contrary to multiple

reasonable foreseeability in sports is determined by rules and regulations of game, and customs and practices which are generally accepted); Hanson v. Kynast, 526 N.E.2d 327, 333 (Ohio 1987) (finding athlete is not necessarily immune from liability for tort when demonstrated intent to cause injury separate from heat of contest); Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979) (crucial question is what professional football player would reasonably expect to encounter in professional contest). 131 See Kain, supra note 3, at 715-16 (discussing exception to assumption of risk in sports context); Hanna & Kain, supra note 23 at 35 (asserting Restatement and Prosser, Law of Torts maintain plaintiff must have actual knowledge of the risk at issue in order to invoke the assumption of risk doctrine) 132 See Carrabis, supra note 3, at 378 (explaining Hoge argued he lacked particular and adequate information of the risks of the particular hazard, playing with subsequent concussions). For a further discussion of Hoge, see supra notes 43-50 and accompanying text 133 See Kain, supra note 3, at 715 (describing Hoges claim that doctor breached to exercise skill and care of a physician for football team). 134 See Cobbs v. Grant, 502 P.2d 1, 10 (holding integral part of physicians obligation to patient is duty of reasonable disclosure of available choices with respect to proposed therapy and dangers inherently and potentially involved in each). 135 See Complaint, supra note 35, at 14-18 (listing sources indicating concussion risks available to defendants since 1890s). 20

independent studies which were highly publicized by mainstream news sources that it looks more like the NFL had information which players did not. 5. Contributory Negligence Defense

The NFL will likely assert that NFL players have financial incentive to hide concussions and return to games thereby increasing their own likelihood of developing CTE or other serious brain injuries.136 To an NFL player, sitting out an extended time means having ones role filled by another player who may be younger, cheaper, or is the heir-apparent as a high draft pick.137 Additionally, the nature of NFL contracts makes it easy to cut players in the middle of multi-year deal.138 Many players also have escalator provisions in their contracts providing bonuses based on the amount of games or snaps played. Further escalators for reaching the Pro Bowl or for receiving individual accolades such as defensive player of the year or rookie of the year are unlikely to be reached if a player misses significant time due to injury. The NFL may also assert that many players are aware of the risks of concussions and are simply willing to accept sacrificing their quality of life in old age in return for short term wealth.139 Californias adoption of a system of comparative fault is significant to the Maxwell plaintiffs in that it abrogates the use of a contributory negligence defense. Even if players purposely misled team physicians and lied about their

See Carrabis, supra note 3, at 377 (explaining financial incentive for players to hide concussion symptoms and return to game).

LZ Granderson, Kurt Warner, W. Chrebet, Concussions, ESPN.COM (Sept. 24, 2010, 4:52 PM), (describing motivation of ex-N.Y. Jets wide receiver Wayne Chrebet who suffered nine recorded concussions and currently suffers from headaches and sensitivity to light). Chrebet stated: [E]very year I see them bringing in younger and bigger guys from big-time schools, so if you ask me if I'm OK during the game what do you think I'm going to say? For a guy like me, I felt every game I was a free agent and that I had to make the team, so if you ask me if I'm OK, my response is on autopilot: 'yes.' Id.

See Kain, supra note 3, at 710-713 (asserting non-guarantee nature of NFL player contracts often allows teams to cut injured players after season and creates incentive to hide symptoms of concussions). 139 See Granderson, supra note 133 (discussing ex-quarterback Kurt Warners opinion that it would be difficult to ban players for achieving set limit of concussions because doing so deprives them of livelihood). 21

symptoms they could still recover to some extent from the NFL and Riddell under the comparative negligence theory of apportioning damages.140 California is one only thirteen states which has a pure comparative negligence system, meaning plaintiffs could still recover one percent of damages if they were found to be ninety-nine percent to blame.141 The NFL and Riddell may try to remove the case to federal court and change venue in order to negate some of the advantages to the plaintiffs of litigating in California state court. The defendants will likely want to get into a more defendant friendly forum as California is traditionally known as plaintiff and employee friendly.142 Moving to a venue which ascribes to contributory negligence would allow the NFL and Riddell to escape liability by showing the players in part contributed to their injuries. A more likely possibility is that the NFL will attempt to move to a modified comparative fault forum and argue as much liability as possible should be apportioned among Riddell, the plaintiffs, and other plausible sources of the plaintiffs past concussions such as the NCAA and the plaintiffs college or high school teams. E. Fraud The plaintiffs may succeed in their fraud cause of action through comparison to past lawsuits by tobacco users against tobacco companies.143 Early tobacco cases initially failed.144 The connections between tobacco use and


See Hanna & Kain, supra note 23 at 35 (discussing comparative and contributory negligence effect on a potential suit like Maxwell). 141 See Li v. Yellow Cab Co. of Cal., 532 P.2d 1226 (Cal. 1975) (adopting comparative negligence); PERSONALINJURYLAWYERDIRECTORY, (explaining comparative negligence). 142 J. Stanton Hill, Towards Global Convenience, Fairness, and Judicial Economy: An Argument in Support of Conditional Forum Non Conveniens Dismissals Before Determining Jurisdiction in United States Federal Courts 41 VAND. J. TRANSNATL L. 1177, 1185 (2008) (asserting substantive tort law of California is plaintiff-friendly). 143 See Kain, supra note 3, at 717-29 (asserting tobacco litigation provides potential template for suit against NFL); Concussions and Cigarettes, supra note 59 (asserting connection between Maxwell and tobacco litigation).

See Kathleen Michon, J.D., Tobacco Litigation: History & Recent Developments, NOLO.COM (2011), (explaining failure of early tobacco litigants). From 1950s to 1990s plaintiffs mostly failed on negligent manufacture, product liability, and fraud legal theories. See id. (explaining early plaintiffs legal theories). Tobacco companies refused to settle and relied on assumption of the risk defenses or claimed diseases like cancer were 22

diseases like lung cancer and emphysema were already well acknowledged as was the addictive nature of nicotine.145 However the tobacco companies maintained a contrary stance on the negative effects of tobacco and nicotine for years.146 The tobacco companies even attempted to counter these studies by organizing and presenting contrary information through its own scientific organization, the Tobacco Industry Research Committee.147 Tobacco executives claimed as late as 1994 that nicotine was not addictive.148 This misdirection amounted to fraud and gave plaintiffs a legal ground to stand on against the tobacco companies.149 Smokers became victims of a misinformation campaign perpetrated by Big Tobacco.150 The plaintiffs in Maxwell will likely make a similar argument concerning the NFL and its Concussion Committee which apparently downplayed the risks multiple concussions and combated contrary studies.151 The Maxwell complaint in fact seems to explicitly make this connection which indicates it is already a part of the plaintiffs trial strategy. The plaintiffs cite comments made by California Representative Linda Sanchez who compared the actions of the NFL and its caused by other factors. See id. (describing defenses employed by tobacco companies).

See Concussions and Cigarettes, supra note 59 (explaining scientific community already accepted risks of tobacco use and addictive nature of nicotine at time of tobacco litigation); History of the Surgeon Generals Reports on Smoking and Health, CDC.GOV (Oct. 29, 2011), (detailing surgeon generals warnings concerning tobacco as early as 1964). 146 See Concussions and Cigarettes, supra note 59 (explaining misdirection of tobacco companies). 147 See id. (explaining use of committee to legitimize contrary stance on tobacco). 148 See id. (explaining tobacco companies maintained contrary position on nicotine). On April 14, 1994 high ranking executives from seven tobacco companies declared under oath that nicotine was not addictive in front of Congress at the Hearing on the Regulation of Tobacco Products House Committee on Energy and Commerce Subcommittee on Health and the Environment. See Nicotine is Not Addictive News Clip, UCSF.EDU, (last visited September 11, 2011) (showing executives declare position under oath). 149 See Concussions and Cigarettes, supra note 59 (stating misinformation by tobacco companies influenced outcomes of tobacco lawsuits). Once the coverup and misdirection were laid bare, a legal switch was flipped. No longer were smokers seen as putting themselves in harms way. Rather, they were dupes of the industrys long suppression of evidence. Id. 150 See id. (asserting misrepresentation made smokers appear to be victims). 151 See id. (claiming attorney for plaintiffs is mounting similar strategy to tobacco litigants regarding misinformation by NFLs Committee on Mild Traumatic Brain Injury.) 23

experts to the tobacco industrys own acts of muddying the waters through private studies.152 The allegations of a fraudulent cover up are important because they open up the possibility of punitive damages.153 The complaint alleges the NFL controls the research and education of injuries for all football programs, physicians, trainers, coaches and individuals as a result of its monopoly power over American football.154 There is evidence that the NFL is the trend-setter in that its actions trickle down to the lower levels of football and to other sports. For instance, the NCAA has added some safety precautions that the NFL recently enacted and the NHL has adopted new concussion protocols following the NFLs own move towards greater head safety.155 The NFL could simply counter that this is a response to the same emerging scientific trend the NFL has recently discovered or fear of lawsuits like the one La Salle University settled in 2009.156 In fact, the NCAAs stricter concussion rules came only one month after the La Salle case was settled.157 Regardless, it appears both the NFL and NCAA are taking the stance of full disclosure by giving clear warning of concussion related risks and erring on the side of caution with regard to strict return-to-play policies. It is less clear whether they are doing so with an eye towards potential litigation.


See id. (highlighting that Maxwell plaintiffs explicitly make connection through use of quote). 153 For a further discussion of potential for punitive damages in Maxwell, see infra note 176 and accompanying text. 154 See Complaint, supra note 35, at 12 (claiming NFL influences football at all levels). 155 See Bruce Klopfleisch, Football Players and Concussions: Players Suffer Long-Term Effects from Multiple Head Injuries, SUITE101.COM (Dec. 18, 2009), (Following the NFLs lead, an NCAA panel is recommending a new rule that would keep an athlete out for the rest of the day if he or she suffers a concussionrelated injury like a loss of consciousness, amnesia or persistent confusion.); Dan Rosen, New Concussion Protocol Goes into Effect Tonight, NHL.COM (Mar. 16, 2011), (stating players suspected of having concussion will now be removed from game and sent to quiet place free from distraction to be examined using Sports Concussion Assessment Tool test as opposed to examination on bench). 156 See Sam Wood, La Salle to Pay Brain Injured Footballer $7.5 million, PHILLY.COM (Nov. 30, 2009), (announcing settlement of case between La Salle and football player). 157 Compare id. (showing La Salle case settled in November of 2009); with Carrabis, supra note 3, at 382-83 (discussing December 16, 2009 addition of new concussion rules concerning concussion treatment by NCAA Committee on Competitive Safeguard and Medical Aspects of Sports). 24

The complaint anticipates the counter argument by the NFL and Riddell that the players and union should have known the long term risks of concussions by stating that the NFL has a responsibility to protect them through its concussion policy because it controls the research and education of NFL players.158 The plaintiffs claim the NFL had information the players did not, stating: [p]laintiffs did not know of the long-term effects of concussions and relied on the NFL and the [helmet manufacturers] to protect them.159 Furthermore, safety in the workplace is generally the employer rather than the employees responsibility in tort law although the NFL was not the Maxwell plaintiffs employer.160 To succeed in a fraud claim the plaintiffs will have to show it was reasonable for players and their union to rely on the NFLs allegedly misrepresented facts.161 It looks more reasonable for players who were active between 1994 and 2005 to have accepted the opinions of the apparently reliable Concussion Committee because until 2005 contrary studies were not nearly as prevalent. Again, those players whose careers ended prior to 1994 have the tougher task of proving the NFL misrepresented information before it even began studying concussions or made any statements or rules related to concussion risks. The Maxwell plaintiffs claim the NFL knew of the true dangers of concussions and actively attempted to mislead players.162 There is no evidence, however, that anything this sinister actually occurred. The tobacco plaintiffs were able to rely on a smoking gun memo which indicated tobacco executives knew and were trying to hide the risks of tobacco and true nature of nicotine.163 There is evidence that the Concussion Committee engaged in a campaign to combat contrary studies but absent any documents emerging in discovery which indicate the NFL had ulterior motives, they should be able to rely on the defense that they assembled an independent research group which just happened to arrive at different results in an emerging and unclear area of scientific study.164

See Complaint, supra note 35, at 12 (alleging NFLs monopoly power over football); Concussions and Cigarettes, supra note 59 (asserting Maxwell plaintiffs attack possible counterargument by NFL in complaint). 159 See Complaint, supra note 35, at 12 (stating explicitly that NFL had information which players did not). 160 See Concussions and Cigarettes, supra note 59 (explaining attorney for Maxwell plaintiff stated in interview that player would be ridiculed for asking to wear a safer helmet and as basic principle of tort law employer cannot claim injury is employees fault for injury if employer did not provide equipment needed to prevent injury). 161 For a further discussion of the requirements for fraud claim, see supra note 5660 and accompanying text. 162 See Complaint, supra note 35, at 75 (claiming NFL knowingly made misrepresentations with intent to defraud plaintiffs and others). 163 See Michon, supra note 140 (stating leak of internal document changed fortune of tobacco litigants in 1990s). 164 See Hanna & Kain, supra note 23 at 33-34 (discussing shortcomings of NFL concussion committee from 1994-2009 and subsequent remedial measures). 25

F. Proving Causation The most difficult argument for the Maxwell plaintiffs may be proving that their claimed injuries which often have unclear origins are legitimate and are the result of these specific defendants misconduct. Many NFL players have played football for most of their lives and it will be nearly impossible to prove their injuries are the result of concussions specifically suffered while playing in the NFL as opposed to college, high school, or pee-wee football. While the connection between head impact and brain damage may seem obvious, the plaintiffs will all have to prove causation between the NFL and Riddells misconduct and their harm.165 Merril Hoge successfully overcame the hurdle of proving the origin of his injuries.166 Hoge successfully sued one specific team, the Chicago Bears, in relation to two concussions received in a seven week period even though he played in the NFL for eight seasons and was a four year starter in college.167 However, Hoge is distinguishable from Maxwell in that there was a clear event which ended the plaintiffs career.168 The Maxwell plaintiffs are attempting to place the liability on two defendants for symptoms that are the cumulative result of a lifetime of injuries. As a result of the cumulative nature of the Maxwell plaintiffs injuries, the allegations that the NFL owed a duty to the public and influences all levels of football through its monopolistic power over the sport becomes significant to the causation issue.169 The NFL will likely claim that it is impossible to distinguish the damage incurred from professional football concussions from concussions experienced at lower levels. The Maxwell plaintiffs will likely respond back that because the NFL sets the standards in football with regard to treatment of concussions, safety rules, and what equipment is used, that the head injuries which the Maxwell plaintiffs incurred while playing football at the lower levels is still partially the NFLs fault. This will then allow the Maxwell plaintiffs to further shift the amount of liability likely to be apportioned among the plaintiffs, the NFL, and Riddell under Californias comparative fault regime to the most lucrative defendantthe NFL.170

For a further discussion of the requirement of proving causation in fraud claim, see supra notes 56-60 and accompanying text. 166 See Carrabis, supra note 3, at 379 (stating Hoge was awarded lost earnings and monies needed for future care after claiming permanent post concussion symptoms ) 167 See id. (discussing facts of Hoge case) 168 See Kain, supra note 3, at 714 (explaining Hoge received concussion short time after receiving concussion described as an earthquake). 169 See Complaint, supra note 35, at 12 (claiming NFL influences football at all levels). 170 For a further discussion of comparative fault in California, see supra notes 140-142 and accompanying text. 26

While the claim that the NFL has harmed athletes at all levels may set the stage for future suits by football players who never made it to the NFL, it appears the accusation is made more out of strategy for the Maxwell plaintiffs than out of concern for the public.171 Some players and legal critics have argued that the NFL has already conceded the causation issue by agreeing to the Section 88 Plan which provides compensation for retired players suffering from brain injuries and dementia.172 In theory, by contributing money to ex-players who currently suffer from concussion related diseases, the NFL is paying for injuries that occurred long before these players ever entered the NFL. Lastly, the Maxwell plaintiffs will have to convince the finder of fact that their claimed injuries are legitimate and overcome being less than sympathetic plaintiffs. Claims of headaches, dizziness, and memory loss may appear easily faked. The defendants can cast significant doubt on the seriousness of these injuries if any of the plaintiffs are in bad financial situations as thousands of other players have been exposed to concussions and have not sued in the past. There is a perception that all professional athletes are overcompensated and undeserving of the pampering they receive for playing a game. News outlets love to publicize athletes who squander their fortunes through frivolous spending and ill-advised business deals.173 The Maxwell plaintiffs will have to come off less like they are looking for an opportune pay day and more like legitimate victims. Working against the plaintiffs is that they are the first to sue on this possibly valid legal argument while every other generation of NFL iron-men has lived with the consequences of playing for better or worse. The plaintiffs in Maxwell do have the advantage of being lesser known players. The public is likely not as aware of the numerous players who come into the NFL as low draft picks or go undrafted and are washed out of the league without ever receiving a lucrative contract. These types of players often spend much of their careers playing on special teams which brings higher risk of concussions and other injuries while covering kickoffs and punts.174 The


For a further discussion of potential lawsuits by other football players, see notes 199-202. 172 See Carrabis, supra note 3, at 380 (discussing legal implication of NFL agreeing to Section 88 plan in 2006 Collective Bargaining Agreement); Kain, supra note 3, at 726 (Players might argue that Section 88 of the 2006 NFL CBA serves as the NFLs constructive admission that multiple concussions do, in fact, cause later-life dementia.). 173 See e.g., Michael Martinez & Stan Wilson, Lenny Dykstra, Former MLB AllStar, Indicted for Bankruptcy Fraud, CNN.COM (May 06, 2011), (detailing downfall of ex-Philadelphia Phillies center fielder). 174 For a further discussion of the risks associated with kickoffs, see infra note 203. 27

plaintiffs in Maxwell have an opportunity to tell a more favorable story than a group of high profile former stars would. G. Quantifying Damages Potential damages are difficult to predict and will depend on which causes of action are successful and the extent of injuries that are proven.175 Success on a negligence claim without the accompanying fraud will likely not result in more lucrative punitive damages.176 As the plaintiffs strategically placed at the beginning of their complaint: [t]he NFL is a nine billion dollar-a-year business.177 It is likely that the league could absorb the cost of losing or settling this suit even in light of cases which have resulted in the payment of significant damages.178 Previous football suits may give an indication as to the amount of damages a player could recover. Merril Hoge was awarded $1.45 million for the two remaining years on his NFL contract and $100,000 for pain and suffering.179 Hoge originally requested $2.2 million as an estimate of lost earning and cost of future care.180 The La Salle University suit settled for $7.5 million.181 The case involving a high school player was settled for $3 million.182 However these cases involved specific traumatic instances which caused easily identified, permanent injuries and ended the football careers of the plaintiffs.183 Most of the injuries claimed by the Maxwell plaintiffs revolve around memory loss, headaches and


See Concussions and Cigarettes, supra note 59 (claiming damages are difficult to predict). 176 See Headache, supra note 93 (discussing possible causes of action before Maxwell was filed). Successful ex-players in [a negligence] case could recover for economic loss and for their pain and suffering but would not be good candidates for punitive damages. Id. See also Concussions and Cigarettes, supra note 59 (By alleging a pervasive, fraudulent cover-up, the plaintiffs attorneys have made the case a candidate for punitive damages, which are available only when the defendants actions are worse than merely negligent.). 177 Complaint, supra note 35, at 11. 178 See Concussions and Cigarettes, supra note 59 (discussing NFLs ability to absorb damages). It would take a lot more than [$333 million settlement against Pacific Gas and Electric in the Erin Brockovich case]perhaps a separate set of wrongful death suitsto dent the NFLs financial armor. Id. 179 See Kain, supra note 3, at 716-17 (discussing damages awarded in Hoge). 180 See id. (discussing damages requested in Hoge). 181 See Carrabis, supra note 3, at 381 (stating amount of settlement paid by La Salle University). 182 See SHAMBERG, JOHNSON & BERGMAN, supra note 45 (stating amount of damages paid to high school football player). 183 For a further discussion of the facts of previous football concussion suits, see infra notes 43-55 and accompanying text. 28

other ailments that typically develop later in life.184 It will be much more difficult to argue that the Maxwell plaintiffs could have had longer careers if they had taken more time off following a concussion or had the aid of better helmet design. A more feasible option would be to use the cost of future care as estimated by an expert witness. This amount may be more quantifiable and it is possible to analyze the demise of players like John Mackey and the costs they incurred. It is also feasible that the plaintiffs could claim their lives will be shortened as a result of receiving multiple successive concussions.185 If the Maxwell plaintiffs have been unable to continue as sexual partners or their injuries have had an emotional or physical impact on their personal lives or those of their spouses then damages for loss of consortium are plausible.186 However, these losses are only compensable if the underlying claims of personal injuries are successful.187 The loss of consortium damages could be significant considering statements such as those made by the widow of John Mackey which describe the horrific deterioration process caused by dementia and the associated financial devastation it causes.188 H. Counts Against Helmet Manufacturer Football helmet manufacturers have been criticized for their lack of attention to concussions in helmet design: It wasnt until 2002 that Riddell (makers of the official NFL helmets) introduced their Revolution helmet, the first helmet designed to reduce concussions. They claimed wearers would be 30% less susceptible to concussion. Popular Mechanics noted that even with its innovations, the Revolution sticks to the standard

184 185

See Complaint, supra note 35, at 23-69 (detailing plaintiffs and their injuries). People with Dementia have Shortened Life Expectancies, ALZINFO.ORG (Feb. 20, 2008), (describing result of study finding average person diagnosed with Alzheimers lives another four and a half years). 186 See Headache, supra note 93 (explaining requirements to recover loss of consortium damages); Complaint, supra note 35, at 80 (alleging loss of consortium). 187 See Headache, supra note 93 (explaining requirement of proving underlying injuries). 188 See Kain, supra note 3, at 727-28 (explaining widow of John Mackey wrote three page letter to former NFL commissioner Paul Tagliabue which described dementia as slow, deteriorating, ugly, caregiver-killing, degenerative, braindestroying tragic horror and asking for help). 29

football-helmet format of a polycarbonate shell with internal foam padding that Riddell first introduced 70 years ago.189 However, it will be extremely difficult for the plaintiffs to show helmet manufacturers were negligent. Absent a showing that Riddell football helmets were drastically behind hockey or other sports equipment with regard to concussion prevention, this cause of action should fail. The plaintiffs have not alleged any specific facts that indicate Riddell could have provided safer helmets let alone that they purposely minimized concussion protection. It is possible the claims against Riddell were included in hopes of revealing some internal documents which indicate knowledge that helmets provided inferior protection against concussions. At the very least the allegations bolster the claims against the NFL which in part rely on the NFL having failed to provide adequate equipment to players. IV. CONCLUSION

The NFLs decision to settle Maxwell will likely depend on its tolerance for bad publicity.190 The NFL would like to keep its status as Americas most popular sport.191 The NFLs image has already been dealt a blow by the very public labor dispute which occurred during the summer of 2011.192 Those negotiations revealed the uglier business side of professional football and forced fans to watch both sides fight over billions of their entertainment dollars during a period of economic hardship for many Americans. A potential smoking gun type document such as one found in tobacco litigation which shows the NFL or Riddell knew about the risks of concussions


See Concussion Litigation, supra note 26 (citing Joe P. Hasler, Head Games: How Helmet Tech Works in 7 Different Sports, POPULARMECHANICS.COM, (last visited Oct. 28, 2011) (alleging past safety deficiencies in Riddell helmets). 190 See Concussions and Cigarettes, supra note 59 (predicting suit will create negative publicity for NFL and asserting settlement is better option). 191 Cork Gaines, The NFL is Still King Among American Sports Fans, BUSINESSINSIDER.COM (Oct. 21, 2011), (presenting results of survey which found NFL is sport in which most American adults have some interest, outpacing Major League Baseball by a wide margin). 192 B. Klein, NFL Labor Dispute: The Fans Are the Real Victim and Greed is the Motive, BLEACHERREPORT (Feb. 5, 2011), (criticizing perceived greed of NFL with regard to labor dispute). 30

might make avoiding discovery imperative and thus settlement more appealing.193 However, the NFL may be hesitant to settle Maxwell based on the possibility of opening the door to similar law suits by nearly any former player seeking settlement. Two similar suits have already been filed.194 It is possible the Maxwell plaintiffs have filed this suit at least in part with a fishing expedition in mind. The plaintiffs claim agents of the NFL knew [material representations] were false and intended to defraud [players] but present no evidence to back up their assertion. 195 Similarly the claims against Riddell might require evidence found in discovery to show their conduct was actionable.196 As a result it is possible this complaint will be dismissed under rule 12(b)(6) for not reaching the plausibility standard required in light of Iqbald and Twombly.197 If Maxwell goes to trial the NFL may be most vulnerable to players who experienced concussions between the 2005 widespread publication of the risks of concussions and the NFLs adoption of stricter guidelines and issuance of warnings in 2010. During this period, the NFL appears most culpable by first contesting the findings of scientists and ultimately reversing course in its treatment of concussions.198


See Concussions and Cigarettes, supra note 59 (proposing possibility of embarrassing documents or testimony); Michon, supra note 140 (stating leak of internal document changed fortune of tobacco litigants in 1990s).

See ASSOCIATED PRESS, Thomas, Six Ex-NFL Players Sue over Leagues Handling of Concussions, SI.COM (Aug. 18, 2011, 10:35 PM), dex.html#ixzz1VQSXjbkT /concussions.lawsuit.ap/index.html?sct=hp_t2_a3&eref=sihp (stating six former players and one current player filed class action suit in federal court); ASSOCIATED PRESS, Eighteen Retired Players Sue NFL for Head Injuries, SI.COM (Aug. 29, 2011, 9:41 PM), index.html#ixzz1WWWehKeM (stating eighteen former players filed suit in Los Angeles Superior Court claiming NFL and Riddell knew long-term effects head trauma and purposefully hid it from them). 195 See Maxwell, supra note 28, at 75 (detailing fraud count against the NFL). 196 For a further discussion of validity of claims against Riddell, see supra notes 189-190 and accompanying text. 197 Rakesh Kilaru, The New Rule 12(B)(6): Twombly, Iqbal, and the Paradox of Pleading, 62 Stan. L. Rev. 905, 909 (2010) (asserting higher standard is now required to survive 12(b)(6) motion). 198 See Hanna & Kain, supra note 23 at 33-34 (discussing shortcomings of NFL concussion committee from 1994-2009 and subsequent remedial measures). 31

Maxwell may set the stage for future suits against the NFL by college, high school, and youth football players.199 The plaintiffs in Maxwell claim that the NFL, as an industry icon and having a monopoly on American football acts as a template on which all other football in America models itself.200 As a result it is possible to allege injuries suffered at the lower levels are a result of the NFLs misinformation and negligence with regard to its own players.201 Similarly, if Riddell was negligent in its helmet design and manufacture then any football player who used these helmets could sue on a similar basis. One observer feels Maxwell may result in a suit by former professional wrestlers against their former or current employers.202 It is likely former NHL players and even college and high school players will be closely watching the development of Maxwell. They may consider a similar suit against the NHL, NCAA, or even the NFL on the basis that the NFL is indirectly responsible for their own injuries. Maxwell may also impact the level of entertainment for fans of the NFL. The 2011 rule change to kicking off from the thirty yard line was likely aimed at eliminating the kick returnan exciting aspect of the gamebecause of the risk of high speed collisions it entails.203 While this rule has been met with criticism, reversing the rule might make it appear as though the NFL was favoring entertainment over safety. In light of the negative publicity and lawsuits being initiated, the leagues image was likely a factor in the NFLs decision to keep the unpopular rule. Fans may see a trickle down effect to college and youth high

See Concussions and Cigarettes, supra note 59 (claiming plaintiffs argument that NFL is industry icon may serve as a template for suits by college, high school, and youth football players). 200 See Maxwell, supra note 28, at 12-13 (claiming NFL has monopoly power and is industry icon). For a further discussion of incidences where other sports organizations followed the NFLs lead, see supra notes 154-155 and accompanying text. 201 For a further discussion of the argument that the NFL is responsible for injuries suffered while playing football at the lower levels, see infra notes 169172 and accompanying text. 202 See Keith Harris, Should WWE Be Fearful of the NFL Concussion Lawsuit?, CAGESIDESEATS.COM (July 24, 2011, 3:29 PM), (proposing former wrestlers could sue on similar grounds as Maxwell and stating family of Chris Benoit whose murder suicide may have been related to concussions has several years remaining to sue World Wrestling Entertainment for wrongful death). 203 See Albert Breer, Early Returns: How Kickoff Rule Changes Could Impact Game, NFL.COM (Aug. 16, 2011, 01:29 PM), (predicting changes resulting from new rule); Dustin Fink, NFL Kickoff Change, THECONCUSSIONBLOG.COM (Mar. 23, 2011), (detailing risks inherent in special teams play). 32

school sports as these organizations increasingly fear litigation. The result may be a weaker product for fans of sports in their traditional form.