So I was speaking to a buddy of mine, Seth Price, a brain attorney, about the NFL head injuries cases. This recent public issue raises some really important contract issues, that law students and informed Americans all need to be aware of. Fraud vitiates consent in any contract. I should say if you can “prove it to the judge or jury.” In essence, if someone lies to you (conceals vital information, or deliberately misrepresents info), in order to obtain your signature, on say, an NFL union contract, a court can invalidate that provision of the contract you were lied to about, or the entire document.
So just being a really good injury lawyer is not always good enough. Sometimes a good contract lawyer, or business lawyer is needed to get your potential personal injury case to first base. Or, you just need an excellent injury attorney like Seth Price, who actually gets it. And Seth says that is the essence of what is happening in the NFL case. The players have a union contract. They are claiming the league lied and made public misrepresentations that there was a serious risk of brain injury and death, from playing football. As will be discussed, the players allege they were damaged from the misrepresentation, and thus, the provisions of the contract that shield the League from being sued, should be invalidated. The League is basically arguing that the Players assumed this risk, and were well paid (A person assumes any risk inherent in a sports activity, such as a football head injury, etc).Â I really find this fascinating, and the rest of the story below will give this all even more context.
Former NFL players, and their family members, have taken the league to court over claims that the organization concealed the long term effects of concussions. The list of parties to the suit has grown to over 4,200 and is still growing. Many of the former players are dealing with dementia, depression or Alzheimer’s disease. Some players have even committed suicide. Others are worried about potential problems and want monitoring services, claiming that the league rushed them back into the game at their own peril. The suit must clear a major hurdle before proceeding. The NFL has argued that the suit should not be allowed to go forward, claiming that player grievances should be handled by the union contracts that govern disputes between the players and the league.
The players argue that the union contracts are inadequate. They claim that these contracts do not protect them from fraud or negligence by the NFL. They believe that the league hid the dangers of play related head injuries to protect the multi-billion dollar sports empire. The players believe that the league alone had the power to address this issue and that they instead chose to create a massive misinformation campaign designed at keeping players in the dark. Many are worried that the process will fade behind closed door should the NFL ultimately prevail on this point.
Arbitration in this case wouldn’t allow for public airing of evidence and testimony, and wouldn’t be reviewable by a higher court. Former U.S. Solicitor General Paul Clement has been hired by the NFL. David Frederick, a former assistant to the solicitor general, is representing the player. Frederick has appeared 30 times before the U.S. Supreme Court.
During the hearing held in April 2013, Frederick argued that federal court is the appropriate venue for the case. He went on to state that the NFL was guilty of fraud and negligence, specifically pointing the assembling of a â€œsham committeeâ€ to address head injuries. He also claimed that the NFL knowingly hid information from players on the risk of brain damage from playing the gladiatorial sport. Clement said that the NFL’s collective bargaining argument is only the first step of their defense. He stated that layer histories and other factors will be an integral part of their defense should the case proceed.
Kevin Turner, a former Philadelphia Eagle now battling Lou Gehrig’s disease, attended the hearing with a handful of other players. They have accused the league of concealing emerging science about brain injury risk associated with concussions. Researchers from UCLA and Boston University, in separate reports, claim to have found evidence of the degenerative brain disease chronic traumatic encephalopathy (CTE) in former players. Another report, published in JAMA Neurology claims that retired NFL players are more likely to have cognitive impairment and depression. These players are also more likely to show physical brain changes on an MRI scan. The NFL recently donated $30 million to the National Institutes of Health for research into the subject.
I wanted to thank Seth for cluing me in on the NFL brain injury issue and for showing us all a little more about how other areas of law can cross over into tort law, and what that can mean for your bottom line as both a practitioner, and a victim.Â Â To learn more about Seth, give him a call at: 202-600-9400.