The Future of the NFL Faced by Concussion Lawsuits

L ast month, the NFL Competition Committee passed another rule restricting the use of helmets as a point of contact during games.  The decision was met with a customary (read: excessive) amount of vitriol by fans and players.  Many fans seem to think that the NFL is irrationally rushing to protect players out of a fear of litigation expenses, rather than a genuine concern for safety.  Certainly, the league’s attempts to make the game safer coincided with an onset of litigation brought by former players suffering from the effects of concussions.  While I don’t claim that the NFL’s actions are wholly altruistic, I think that it is wrong to characterize the new rules purely as a response to potential lawsuits.

In connection with the NFL Concussion Litigation, helmet manufacturer Riddell is being sued under a theory of “strict liability” – liability without fault – for defectively designing their helmets.  Unlike a manufacturer, however, the NFL is not liable without fault for injuries suffered by players.  In fact, the NFL can shift the burden of player injuries through the affirmative defense of assumption of risk.  The players suing merely allege that, because the NFL affirmatively misrepresented, fraudulently concealed, and negligently failed to warn them of facts uniquely within the NFL’s knowledge, the players were unable to assume certain risks. Knowledge is a legal requirement for the defense.

This is where litigation avoidance fails to adequately explain the recent rule changes.  If the NFL is only liable for misrepresenting and concealing facts, the rule changes provide no legal defense to future litigation.  “Reduced risk” is not a defense; assumption of risk is.  Making the game safer may decrease the number of injuries, but only disclosing the health risks to players without misrepresenting them can avoid liability for the injuries that do occur.  What, then, could motivate a multibillion dollar enterprise to alienate its fans and jeopardize its position as America’s most beloved sport?

I think the answer lies in the future of the game.  Players like Houston’s Arian Foster, who in my humble opinion is among the most thoughtful in the league, seem willing to accept any risks the NFL discloses.  However, current stars like Foster would be doing so in exchange for millions of dollars.  Minimum-contract players and unpaid players at lower levels, when faced with the same newly-discovered risks, may instead decide to abandon football in favor of other sports.  In order to remain atop the sports world, the NFL needs to ensure itself a steady supply of the nation’s best athletes.

Though the NFL’s motivation here is not purely altruistic, I think it’s best characterized as a desire to change the way the game is played at all levels out of concern for the well-being of its future athletes.  To characterize it as a desire to avoid impending hits to their bottom line is simply a way we justify our resentment for any changes to the game we love.

— Jeremy Winter is a 1L at Harvard Law School.

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