Ex-players reply to NFL’s motion to dismiss concussion cases

Posted Oct. 31, 2012, at 5:20 p.m.

Arguing that “football has become the site of perhaps the gravest health crisis in the history of sports,” lawyers for thousands of former NFL players asked a judge to reject the league’s bid to dismiss their lawsuits about concussions.

In a brief filed Wednesday in U.S. District Court in Philadelphia, the players dispute the league’s framing of the cases as a labor issue that should be governed by the sport’s collective bargaining agreements instead of the legal system.

Among the players’ arguments: Relevant CBAs did not address long-term brain injuries, the NFL committed fraud by concealing risks of repeated head trauma, and the league has a common-law duty to protect players.

“The NFL knew that players were exposed to risks of severe neurological injuries, yet did nothing to prevent them,” the brief says, adding that the league “failed to warn players about the dangers of concussive and sub-concussive impacts,” did not advocate preventative rule changes and did not “implement equipment standards adapted for head trauma.”

The league filed its motion to dismiss the lawsuits in August and now will have the chance to respond to the players’ reply. The NFL repeatedly has stated publicly it did not intentionally mislead players and has tried to better protect their health.

More than 100 concussion lawsuits against the NFL have been brought together before U.S. District Judge Anita B. Brody. Unless Brody agrees to dismiss them, or an umbrella settlement is reached, she probably would decide what evidence can be used at trial, whether a class can be certified for medical monitoring and other pretrial issues. The cases might then return to their home districts for trial.

In its motion two months ago, the NFL argued that the CBAs cover safety and health rules — while delegating to individual teams and their doctors the decisions about players’ conditions and when they should return to play. The league also said the former players’ suits lack specific proof that medical links between concussions and brain disease were concealed.

The players’ response Wednesday says “a party cannot shirk its own duty by pointing to the duties of others” and that the “NFL deceived club doctors (as well as players) by insisting repeatedly that head trauma carried little long-term risk for football players.”

Wednesday’s brief argues that the NFL “orchestrated a disinformation campaign” and says: “On the NFL’s watch, football has become the site of perhaps the gravest health crisis in the history of sports.”

According to an Associated Press analysis, a total of more than 3,500 former players — including at least 26 members of the Pro Football Hall of Fame — have sued the NFL, saying not enough was done to inform them about the dangers of concussions in the past, and not enough is being done today to take care of them. The complete number of plaintiffs in those cases tops 5,000, counting spouses and other relatives or representatives.

The lead plaintiff in one of the earliest concussion lawsuits filed against the NFL last year, former Atlanta Falcons safety Ray Easterling, committed suicide in April at age 62. An autopsy found he had the degenerative brain disease CTE, or chronic traumatic encephalopathy. His widow remains a plaintiff.

Other players have told the AP they returned to play after hits that left them with concussions and regularly were given painkillers by team doctors before games.

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