January 25, 2013

by Bianca Iozzia

Recently, the National Institutes of Health (“NIH”) confirmed in a blind study that former National Football League (“NFL”) linebacker, Junior Seau (“Seau”), suffered from chronic traumatic encephalopathy (“CTE”). The study conducted by three neuropathologists showed that Seau’s brain contained clear signs of CTE in multiple regions of his brain. Subsequently, on January 23, 2013 a suit was filed in the Superior Court of California against the NFL and helmet manufacturer Riddell, Incorporated (“Riddell”). The suit was brought by Seau’s children, Sydney, Tyler, Jake and Hunter through their guardian, Gina Seau, along with trustee of Junior’s estate, Bette Hoffman.

The complaint boils down to the NFL’s alleged acts and omissions that concealed the effects of multiple head injuries. While Junior consented to the known risks of injury by playing the naturally violent game, the plaintiffs allege that he did not consent to the unknown risks that he NFL was fraudulently concealing. As to the Riddell Defendants, the allegations include negligence in the design, testing, assembly, manufacture, and marketing of its helmets.

Violence in the NFL

The plaintiffs suggest that the NFL “promotes a culture in which playing hurt or with an injury, including MTBI [Mild Traumatic Brain Injury],” is the norm. The suit alleges that the motivation for such behavior is that “failure to play through such an injury creates the risk that the NFL player will lose playing time, a starting position, and possibly a career.” The veracity of this statement is difficult to dispute, especially in light of recent events.

The case of San Francisco 49ers quarterback Alex Smith (“Smith”) presents an excellent illustration of the dangers of revealing a head injury. Smith was enjoying the most productive season of his career until he suffered a concussion in Week 10. With Smith injured, Colin Kaepernick assumed the role of quarterback and has since replaced Smith as the 49ers’s starter, bringing the team all the way to the Super Bowl. Would Smith be playing if he had not reported his concussion?  If the answer is yes, this could validate the plaintiffs’ statement that players choose not to report injuries for fear of losing playing time or their jobs. While somewhat irrelevant to the legal issues presented by the suit at hand, it is a concerning issue in terms of athlete safety in general.

Here, the complaint alleges that the NFL assumed responsibility for the protection of its players. Further, the NFL is in a position of ongoing superior knowledge as compared to the players, which creates a special relationship. Because of this relationship the NFL owed a duty of reasonable care to inform NFL players of safety risks. The NFL, through its MTBI Committee (today the Head, Neck, and Spine Medical Committee), conducted head injury research from 1994-2010 in which it disputed otherwise-accepted findings concerning short-term and long-term effects from football-related concussions. Players like Seau relied on such research and information to their detriment.

Seau’s Medical Struggles

At no point during his twenty-year NFL career was Junior ever listed on injury reports with a concussion, despite having “suffered innumerable blows directly to his head” throughout his career. The complaint reveals some telling side effects that Junior experienced as well as the transformation these head injuries had on his personality.

The plaintiffs explain that Junior often experienced dizziness and headaches. Dizziness would occur during the course of a game, but after sitting out a play or two Junior, though symptomatic, would return to the game. The complaint

Junior Seau (Photo by Al Bello, Getty Images)

suggests that Junior’s return to play was based on his reliance on the NFL’s fraudulent concealment and misrepresentation of the danger of returning to play with head injuries.

The complaint further details the transformation in Junior’s personality beginning in the mid 1990s. A once “warm and gentle Junior” became “extremely short tempered.” In addition to suffering from dizziness and headaches, Junior experienced more severe symptoms like insomnia, forgetfulness, periods of depression and even alcohol abuse. Junior’s emotional instability culminated with his tragic suicide on May 2, 2012. The complaint asserts, “The NFL engaged in a deliberate and systematic campaign to ignore, conceal and fraudulently misrepresent the facts about football-related impacts and long term brain injury.” Consequently, the plaintiffs allege that Junior did not have the necessary information to seek the proper medical treatment or make any decision related to his health and safety for that matter.

How do the claims compare to In Re National Football League Players’ Concussion Injury Litigation?

Many of the claims in Seau v. National Football League are similar to those alleged in the In Re National Football League Players’ Concussion Injury Litigation (“In Re NFL”) class action lawsuit. The Seau complaint alleges eight claims: fraudulent concealment, fraud, negligent misrepresentation, negligence, negligent hiring, negligent retention, wrongful death against the NFL defendants, and wrongful death against the Riddell defendants.

The In Re NFL litigation also includes claims for fraudulent concealment, fraud, negligent misrepresentation, negligence, negligent hiring, negligent retention, and wrongful death. Additionally, the In Re NFL complaint includes claims for medical monitoring, civil conspiracy, loss of consortium, and strict liability for design defect.

The Seau case will likely come down to Junior’s awareness of the risks. Also, for the plaintiffs to succeed they may need to overcome a statute of limitations issue. The NFL and Riddell defendants will likely argue that the clock starting running in 2009 when he retired. Therefore, the Plaintiffs must argue instead that the clock only starts ticking when Junior was diagnosed with CTE in January 2013.

Because of the similar arguments, the NFL will likely move to remove the suit to federal court and consolidate it with the other concussion suits still pending in the United States District Court for the Eastern District of Pennsylvania. The NFL’s response will likely be similar to its defense in the other suits, that is that the plaintiffs’ claims of negligence and fraud are preempted by the Labor Management Relations Act. As a result, the NFL argues that the claims should be dismissed and first undergo arbitration as mandated by the CBA which governs any remedies for failure to warn.

Implications

However, the Seau suit may have lasting implications beyond the Seau family. The outcome of this case could potentially spark a rush of new lawsuits against the NFL. Moreover, a successful outcome could be the catalyst for additional major rule changes in the NFL to protect athletes from the lasting effects of head injuries. That could further ignite a movement for rule changes at the collegiate and youth football levels as well. It is sure to be a long battle, but the Seau suit certainly adds to the publicity of the concussion litigation.