The suicide of Junior Seau was a trigger that has captured the seemingly omnipotent National Football League in a vise from which it may not be able to free itself.
There are now several class action lawsuits filed by former NFL Players against the National Football League and the Riddell Company which makes the helmets for the players.
The essence of these lawsuits is that the League did not fulfill its obligation to the players by protecting them with reasonable policies to avoid the serious injury of a concussion to the head.
There are those who would argue that the League did not have an obligation to do more for the protection of the players since they knew or should have known of the danger of playing a violent sport such as football.
That, of course, begs the question. The League had an affirmative obligation to respond to the harm done to players by concussion once they became aware of that harm.
The key legal question will be:
What did the National Football league know and when did it know it?
There is little doubt that League officials were aware early on of the potential harm from concussion to the players.
What did they do as a result? Frankly, not much.
That is, not until Commissioner Roger Goodell began issuing severe fines and penalties for play that was over the line.
And that action is fairly recent in the context of decades of harm to players.
This situation is similar to the issues involved in the lawsuits against the tobacco companies for knowingly manufacturing and distributing cigarettes with the knowledge of the harm they could do.
In those cases, juries would not find the tobacco companies liable without proof of knowledge on the part of the tobacco companies was demonstrated. The later cases found in pre-trial discovery, memos that had been written in the 1950’s, demonstrating that the tobacco industry knew of the addictive nature of nicotine and continued using it intentionally in cigarettes anyway, precisely because it would keep the smoker “hooked” on cigarettes. They considered alternatives to nicotine but rejected them as a result of this addictive quality of nicotine. These memos also demonstrated that the tobacco companies knew of the harm of cigarettes, and in spite of this, continued the decades- long marketing campaign to get as many people smoking cigarettes as they could.
In the NFL cases, the knowledge on the part of the League about the harm to players from concussions, if proven by a preponderance of the evidence, will lead to massive monetary settlements for the nearly 2000 players involved in these class actions. A key element of that proof will be how far back that knowledge on the part of the League goes.
Could the most powerful sports league in our history be brought to its collective financial knees?
That answer will be a curiosity for us all.
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