1

UNRINGING THE BELL: FORMER PLAYERS SUE NFL AND HELMET

MANUFACTURERS OVER CONCUSSION RISKS IN MAXWELL V. NFL

DAVID S. CERRA*

“A lot of people think we‟re gladiators, but we‟re human beings. We get injured

and we‟ve got the rest of our lives to worry about. Playing football is like a

vapor—it‟s here and it‟s gone—and you still have the rest of your life to live.” -

New York Jets offensive lineman Damien Woody.1

“If you‟re worried about concussions, you‟re in the wrong business.” - Carolina

Panthers fullback Brad Hoover.2

I. INTRODUCTION

A. Waking Up

Concussions in sports have received a significant amount of attention in

recent years.3 Opinions are changing about the proper treatment of concussions

and in particular the amount of time an athlete should abstain from participating

in sports after receiving a concussion.4 Football is viewed as a particularly

* David S. Cerra is a student at Villanova University School of Law, J.D.

Candidate 2013, graduate of Syracuse University, and Villanova Sports and

Entertainment Law Journal Staff Member. 1 NFL Players’ Quotes About Concussions, SEATTLE TIMES (Nov. 18, 2009, 1:40

PM),

http://seattletimes.nwsource.com/html/sports/2010301635_apfbnhidingconcussion

squotebox.html. 2 Id.

3 See, e.g., Andrew B. Carrabis, Head Hunters: The Rise of Neurological

Concussions in American Football and its Legal Implications, 2 HARV. J. SPORTS

& ENT. L. 371, 372 (2011) (stating nearly four million sports-related concussions

occur each year in United States according to Center for Disease Control and

Brain Injury Research Center); Daniel J. Kain, It’s Just a Concussion: The

National Football League’s Denial of a Causal Link Between Multiple

Concussions and Later-Life Cognitive Decline, 40 RUTGERS L.J. 697, 699 (2009)

(asserting studies showing connection between multiple concussions and long-

term conditions received national exposure after New York Times featured front

page story about the suicide of ex-NFL player Andre Waters in January 2006). 4 See Lindsey Barton, More Conservative Approach to Concussions in Children,

Teens Recommended, MOMSTEAM.COM (Sept. 2, 2010),

http://www.momsteam.com/health-safety/concussion-safety/more-conservative-

approach-concussions-in-children-teens-recommended (advocating longer periods

of time off from sports for younger athletes following concussions); Carrabis,

supra note 3, at 372 (stating “New York Times has reported that since 1997, over

fifty football players high school age or younger nationwide have been killed, or

2

hazardous activity associated with frequent, violent collisions.5 As a result of the

increased attention on concussions, over the past few seasons the National

Football League (NFL) has made multiple revisions to the rules pertaining to

player safety, particularly with respect to head injuries.6 However, these changes

have been met with criticism as they threaten the continued existence of an aspect

of football essential to its tradition and appeal—hard hits.7

In a sport where savage blows are frequent, expected, and embraced, the

dangers associated with concussions are greatly amplified. Resulting from the

brain hitting the skull, concussions can change the way the brain functions for a

period of time after they occur.8 Any subsequent concussions received within this

have sustained serious brain injuries, on the football field.”); ASSOCIATED PRESS,

Trade Sending Veteran RB Brown to Lions Voided, SI.COM (Oct. 19, 2011, 8:25

PM),

http://sportsillustrated.cnn.com/2011/football/nfl/10/19/lions.trade.nixed.ap/index.

html (reporting Detroit Lions head coach Jim Schwartz‟s uncertainty as to how

long running back Jahvid Best would be out after receiving third concussion since

2009). Schwartz stated:

We‟ll have a whole protocol that he has to get through to get back

on the field. Coming back from a concussion isn't like coming

back from a sprained ankle or a bad shoulder or a pulled

hamstring. Some of those things you can tough out. You can't

tough out a concussion.

Id. 5 See Carrabis, supra note 3, at 373 (acknowledging American football has always

been violent game and asserting players at all levels are becoming “bigger, faster,

and stronger” thus increasing force of collisions and risk of injuries).

6See, e.g., ASSOCIATED PRESS, Owners Pass Four Rules in an Attempt to Make

the Game Safer, NFL.COM (2009),

http://www.nfl.com/news/story?id=09000d5d80f6c090&template=with-video-

with-comments&confirm=true (announcing new rules with focus on player

safety).

The initial force of a blindside block can‟t be delivered by a

helmet, forearm or shoulder to an opponent‟s head or neck. Initial

contact to the head of a defenseless receiver also will draw a 15-

yard penalty. „Our clear movement is to getting out of the striking

in the head area,‟ [NFL officiating director Mike] Pereira said. On

kickoffs, no blocking wedge of more than two players will be

allowed. A 15-yard penalty will go to a violating team.

Id. For a further discussion of recent changes made by the NFL, see infra notes

14-15 and accompanying text. 7 See, e.g., Kain, supra note 3, at 697 (asserting “[v]iolent collisions” are essential

aspect of NFL‟s popularity). 8 See Carrabis, supra note 3, at 373 (describing physiological effects of

concussion).

3

time, therefore, increase the risk of permanent brain damage.9 In some cases,

returning to play too soon after receiving a concussion can be fatal.10

Multiple concussions can lead to a disease called Chronic Traumatic

Encephalopathy (CTE), “a progressive neurodegenerative disease caused by

repetitive trauma to the brain which eventually leads to dementia.”11

CTE is not a

new discovery and has been observed in boxers for decades as so called punch-

drunk syndrome.12

However, CTE among football players has only recently

received significant attention.13

The brain is a soft organ, surrounded by cerebrospinal fluid and

protected by the tough, bony skull. Normally, the fluid around the

brain serves as a protective cushion for the brain, isolating it from

direct impact to the skull. When the head suffers violent impact,

the brain can hit the skull, causing the brain temporarily to stop

working normally. This is called a concussion.

Id. 9 See id. at 374. (explaining dangers of head trauma soon after concussion and

possibility of Second Impact Syndrome (SIS)).

A concussion causes brain cells to become depolarized and allows

neurotransmitters to behave in an abnormal fashion, causing such

symptoms as memory loss, nausea, and confusion. After the initial

concussion, when the brain is not fully healed, it is very fragile and

susceptible to minor accelerative forces. Thus, subsequent minor

hits may cause traumatic and permanent brain injury. This is the

heart of the problem: players returning to the football field before

allowing their initial concussion to heal fully. When the player

returns to the field too early, he is at risk for [SIS]. SIS is the event

that ensues when there is a subsequent brain impact before the

initial concussion has been given time to heal.

Id. 10

See Kain, supra note 3, at 703 (explaining SIS is potentially fatal). 11

See Carrabis, supra note 3, at 374 (discussing connection between concussions

and CTE). Playing with even a mild concussion carries the risk of fatal head

injury and brain damage. See id. at 377 (describing risks of playing with

concussion). Long term or permanent symptoms can include “confusion,

disorientation, inability to focus, and inability to maintain balance.” See id.

(discussing possibility of permanent brain damage). 12

See Kain, supra note 3, at 701 (“CTE was first described in 1928 as being

characteristic of boxers „who take considerable head punishment. . . .‟”).

Symptoms described in 1928 included confusion, slowing of muscular movement,

speech problems, hand tremors, and “mental deterioration „necessitating

commitment to an asylum.‟” See id. (listing known symptoms of punch-drunk

syndrome [CTE] as seen in boxers). 13

For a further discussion of CTE among football players coming to the public‟s

attention, see supra note 3 and infra note 32.

4

As a result of the NFL‟s new focus on head injuries helmet-to-helmet hits,

hits on defenseless receivers, and defenders launching themselves (using the head

as a weapon) have resulted in particularly heavy fines.14

The NFL has also

implemented new rules regarding when a player can return to play after receiving

a concussion.15

Consistent with the trend towards greater safety, NFL teams are

becoming more conservative with players that experience multiple concussions

within a short period of time.16

To the chagrin of some fans, the NFL has taken

actions to fundamentally change professional football into a gentler, safer sport.17

The wide-scale change in opinion regarding concussions in professional

football is largely attributable to increased publicity surrounding the suffering of

retired NFL players and research like that of Boston University School of

Medicine‟s Center for the Study of Traumatic Encephalopathy (CSTE).18

Formed

14

See, e.g., Immer Chriswell, James Harrison: Time For the NFL to Make an

Example Of Him, He’s Earned It, BLEACHERREPORT (Nov. 30, 2010),

http://bleacherreport.com/articles/530805-time-for-the-nfl-to-make-an-example-

of-james-harrison-hes-earned-it (describing NFL‟s fines on Pittsburgh Steelers

linebacker James Harrison including $75,000 for helmet-to-helmet hit on receiver

Mohamed Massaquoi resulting in concussion). 15

See, e.g., Caleb Hellerman, NFL to Require Sideline Test After Head Blows,

CNN.COM (Feb. 25, 2011 9:47 AM),

http://thechart.blogs.cnn.com/2011/02/25/new-nfl-concussion-policy-waiting-on-

approval/ (describing “NFL Sidelines Concussion Exam,” instituted for 2011

season which automatically holds player out of game based on comparison of

post-concussion test score to pre-season baseline). 16

See, e.g., Eric Goska, Green Bay Packers QB Matt Flynn has Fine 1st Road

Start, GREENBAYGAZETTE.COM (Dec. 19, 2010 11:10),

http://packersnews.greenbaypressgazette.com/article/20101219/PKR07/10121904

8/Eric-Goska-column-Flynn-turns-in-fine-1st-road-start (discussing quarterback

Aaron Rodgers who sat out two games at end of 2010 season after receiving

second concussion jeopardizing playoff spot and ending consecutive start streak

in process); Sean Leahy, Colts Place Concussed Austin Collie on Injured Reserve,

USATODAY.COM (Dec. 22, 2010, 12:29 PM),

http://content.usatoday.com/communities/thehuddle/post/2010/12/colts-place-

concussed-austin-collie-on-injured-reserve/1 (discussing Colts wide receiver

Austin Collie who sat out remainder of 2010 NFL season after receiving two

concussions in four weeks). 17

See, e.g., David Xaviel, Cult of the Quarterback: Why NFL Rules to Protect the

QB Erode the Game, BLEACHERREPORT.COM (Nov. 26, 2009),

http://bleacherreport.com/articles/297163-cult-of-the-quarterback-why-nfl-rules-

to-protect-the-qb-erode-the-game (lamenting NFL rules protecting quarterbacks). 18

See Carrabis, supra note 3, at 375-76 (describing NFL‟s changing stance

regarding CSTE); id. at 380-81 (describing Section 88 plan). The 2006 Collective

Bargaining Agreement (CBA) included a provision compensating retired NFL

players who suffer from brain injuries and dementia. See id. (describing CBA

provision). Section 88 is named after John Mackey the former Baltimore Colts

5

in 2008, the CSTE has been studying the brains of deceased former NFL players

with many more living players pledging their brains for research after their

deaths.19

The CSTE has found signs of “severe degradation” in the brains of ex-

NFL athletes and also that “former NFL players between the ages of thirty and

forty-nine experienced memory loss at a rate nineteen times higher than the

average population.”20

B. The NFL‟s Stance on Concussions before 2005

Until the connection between football and later cognitive decline became

more public and undeniable, the NFL maintained a far different stance on the

effects and regulation of concussions. The NFL‟s long time policy was to hold a

player out of a game only until concussion symptoms subsided.21

This meant

many players could return to a game after receiving a concussion and incur the

risk of subsequent concussions and permanent brain damage.22

Only in 1994 did the NFL create the Mild Traumatic Brain Injury

Committee (Concussion Committee) to study the effects of concussions.23

The

NFL‟s Concussion Committee was chaired by Dr. Elliot Pellman, a

rheumatologist who had no special knowledge of brain injuries or concussions.24

The NFL buttressed its position on the long term risks of multiple concussions

through the Concussion Committee‟s research.25

According to one authority—a

law firm practicing “Football Concussion Injury”—“[t]he NFL‟s efforts to protect

players from concussions and their after-effects, have been weak at best and

nonexistent at worst.”26

and Syracuse University tight end who suffered from dementia and died in 2011

at age sixty-nine. See id. (discussing John Mackey). See also Kain, supra note 3,

at 699 (asserting suicide of former player Andre Waters was widely publicized). 19

See Carrabis, supra note 3, at 375-76 (describing genesis of CSTE). More than

one hundred and fifty former athletes (including over forty NFL players) have

signed up with the CSTE‟s brain registry. See id. at 375 (discussing brain

registry). 20

See id. at 376 (discussing findings of CTSE). 21

See id. at 377 (describing less stringent NFL concussion rule). 22

See id. (“[B]ecause the full damage of a concussion could not be evaluated until

forty-eight hours after the incident and initial injury, this policy was ill-advised.”). 23

See Joseph Hanna & Daniel Kain, The NFL’s Shaky Concussion Policy Exposes

the League to Potential Liability Headaches, 21 N.Y. St. B.A. Ent. Arts & Sports

L.J. 33, 33 (2010) (discussing creation of Concussion Committee). 24

See id. (asserting neuropathologists felt Dr. Pellman was not qualified for

position). 25

See Kain, supra note 3, at 725 (asserting Concussion Committee denied

knowledge of a link between concussions and cognitive decline and claimed years

of research were required to reach definitive answer). 26

Football Concussion Injury Litigation (July 22, 2011, 1:42 PM),

http://www.gpwlaw.com/practice/nfl/ [hereinafter Concussion Litigation].

6

C. The NFL‟s Stance on Concussions 2005-2010

The NFL‟s treatment of concussions and studies through the Concussion

Committee became subject to scrutiny as a result of independent scientific

research which was in stark contrast to the NFL‟s findings.27

The Concussion

Committee published its findings in a 2006 article, concluding that:

Because a significant percentage of players returned to play in the

same game [in which they suffered a mild traumatic brain injury]

and the overwhelming majority of players with concussions were

kept out of football-related activities for less than 1 week, it can be

concluded that [mild traumatic brain injuries]‟s in professional

football are not serious injuries.28

This statement both ignored the fact that players and teams have incentive for

players to return to games despite persistent symptoms and uses the rule to prove

the logic of the rule.29

During this period, the Concussion Committee fought and discredited

independent research which asserted that concussions were more dangerous than

initially thought.30

On August 14, 2007 after being presented with face-to-face

presentations of such contrary findings, the Concussion Committee released an

informational pamphlet stating that “[c]urrent research . . . has not shown that

having more than one or two concussions leads to permanent problems” and there

is “no magic number for how many concussions is too many.”31

27

See Hanna & Kain, supra note 23, at 33 (stating that between the years 2005

and 2007, Dr. Bennet Omalu and Dr. Robert Cantu examined brain tissue of

former players and determined CTE was partial cause of their premature deaths).

In 2005, Dr. Kevin Guskiewicz found a strong correlation between multiple

concussions and Mild Cognitive Impairment through a large survey of former

NFL athletes. See id. (discussing findings). 28

Concussion Litigation, supra note 26 (quoting National Football League‟s

Committee on Mild Traumatic Brain Injury, Concussion in Professional Football:

Summary of the Research Conducted by the National Football League’s

Committee on Mild Traumatic Brain Injury, NEUROSURGICAL FOCUS, Oct. 15,

2006). 29

See Kain, supra note 3, at 711-13 (asserting NFL player contracts incentivize

players to withhold concussion symptoms). For a further discussion of the

financial incentive to hide injury, see infra notes 136-139 and accompanying text. 30

See Kain, supra note 3, at 725-26 (claiming between 1994 and 2010

Concussion Committee published articles producing contrary findings whenever it

anticipated studies or information implicating causal link between concussions

and cognitive deterioration). 31

See Hanna & Kain, supra note 23, at 34 (explaining NFL‟s reaction to contrary

information in 2007).

7

Only in 2009, when news outlets and Congressional scrutiny brought the

NFL‟s stance on concussions to the public‟s attention were significant changes

effected.32

In the wake of this publicity two of the Concussion Committee‟s co-

chairmen (who had previously combated contrary findings) resigned, the NFL

suspended the Concussion Committee‟s research before appointing well respected

neurologists to the vacated committee chairs, and partnered with the CSTE who

had been at the forefront of discrediting the NFL‟s studies.33

Independent local

doctors were put in charge of examining players and determining whether they

should return to play after sustaining a concussion and NFL spokesman Greg

Aiello made the “watershed admission” that “[i]t‟s quite obvious from the

medical research that‟s been done that concussions . . . lead to long-term

problems.”34

The disparity between the NFL and the scientific community‟s stances on

long-term concussion effects as well as the shortcomings of helmet manufacturers

is the basis for a law suit filed in the summer of 2011 by seventy-five former NFL

players against the NFL and helmet maker, Riddell.35

If successful, Maxwell v.

NFL may open the door to future litigation against the NFL by former players and

possibly anyone who has ever played football.36

This Comment argues that the

Maxwell plaintiffs may be able to prevail on negligence and fraud causes of action

against the NFL by comparison to previous football concussion suits and tobacco

litigation but face challenges in proving causation between the NFL‟s alleged

misconduct and their injuries.37

This Comment further argues that the Maxwell

plaintiffs whose careers ended before 2005 and to a greater degree those whose

careers ended before 1994 face an uphill battle in establishing the NFL had a duty

with regard to concussions.38

This Comment then argues that the plaintiffs have

weak claims against Riddell absent more proof of misrepresentation or its

equipment being far inferior to the standards at the time.39

Section II examines

32

See id. at 33 (noting that in fall of 2009 “media outlets like GQ, The New

Yorker, Forbes, and 60 Minutes [treated] NFL concussions as a novel topic” and

Congressional hearing on subject was held on October 28, 2009). 33

See id. at 34 (discussing NFL‟s subsequent remedial measures). 34

See id. (discussing implementation of new concussion procedure and

contemporaneous statement). 35

See Maxwell v. NFL, No. BC465842 (Super. Ct. Cal. July 19, 2011) [hereinafter

Maxwell]; Plaintiffs‟ Complaint for Damages and Demand for Jury Trial,

Maxwell v. NFL, No. BC465842 (Super. Ct. Cal. July 19, 2011) [hereinafter

Complaint]. 36

For a further discussion of potential lawsuits by other athletes, see infra notes

199-202 and accompanying text. 37

For a further discussion of negligence and fraud claims against the NFL, see

infra notes 106-164 and accompanying text. 38

For a further discussion of the difficulty in establishing the NFL‟s duty over

time, see infra notes 106-188 and accompanying text. 39

For a further discussion of the claims against Riddell, see infra notes 189-190

and accompanying text.

8

the relevant law and the complaint filed by the plaintiffs in Maxwell.40

Section III

analyzes Maxwell’s validity in light of the relevant law and evidence presented.41

The impact of Maxwell is discussed in Section IV, along with the possibility of

settlement.42

II. BACKGROUND

A. Relevant Law

Maxwell is not the first time a case has been brought based on the

improper treatment of concussions in professional football. Merrill Hoge (Hoge),

an NFL running back, successfully sued the Chicago Bears on a failure to warn

cause of action in Hoge v. Munsell.43

One observer noted “[t]he case was one of

first impression in that it represented the first litigation focusing on an NFL

physician‟s duty „to warn an athlete about the risks and dangers inherent in

returning to sports participation too quickly after sustaining a concussion.‟”44

Hoge received two concussions in seven weeks which resulted in permanent

injury and ended his football career.45

Hoge claimed the Chicago Bears‟ trainer

was negligent in allowing him to return to play without a follow up exam and

failing to warn him about the dangers of subsequent concussions.46

Hoge argued

this information would have changed his own decision to return to play.47

Hoge overcame an assumption of the risk defense because assumption of

the risk requires knowledge or awareness of the particular hazard that caused the

injury.48

The Chicago Bears downplayed the seriousness of the concussion and

40

For a further discussion of the background of Maxwell, see infra notes 43-87

and accompanying text. 41

For a further discussion of the validity of Maxwell, see infra notes 88-190 and

accompanying text. 42

For a further discussion of the impact Maxwell and possibility of settlement, see

infra notes 190-203 and accompanying text. 43

See Hoge v. Munsell, 835 N.E.2d 200 (Ill. App. Ct. 2002); Carrabis, supra note

3, at 377 (discussing Hoge case); Kain, supra note 3, at 713 n.99 (“Due to the fact

there is no appellate record in the case, much of Hoge‟s story is reconstructed

through anecdotal evidence, including newspaper, magazine, and internet

accounts.”). 44

Kain, supra note 3, at 713 (quoting Alexander N. Hecht, Legal and Ethical

Aspects of Sports-Related Concussions: The Merril Hoge Story, 12 SETON

HALL J. SPORT. L. 17, 30 (2002)). 45

See Carrabis, supra note 3, at 377-78 (explaining facts of Hoge). 46

See Kain, supra note 3, at 714-16 (explaining legal argument of Hoge case). 47

See id. at 715 (explaining Hoge‟s assertion contained in complaint) 48

See id. at 715-16 (discussing assumption of the risk defense in Hoge).

9

thus Hoge lacked the requisite awareness.49

While Hoge knew the risks of

playing football, team trainer (Dr. Munsell) and the Bears failed to warn him of

the risks associated with subsequent concussions.50

Other plaintiffs at the lower levels of football have succeeded in settling

what likely would have been negligence suits for failure to adopt proper

concussion procedures.51

In 2005, a La Salle University football player settled

with the school after being allowed to play in a game two weeks after receiving a

concussion in practice.52

The player experienced another concussion in a game

one month after his initial injury which resulted in swelling of the brain and

permanent difficulty walking and speaking.53

In 2009, a high school football player—after receiving a concussion—was

allowed to finish the game, practice, and play in the next week‟s game where a

subsequent blow to the head resulted in permanent brain damage.54

While the

case was settled, the school district appears to have conceded it lacked an

adequate concussion policy by adopting the procedures suggested at the time by

the Department of Health and Human Services Center for Disease Control and

Prevention (CDC) shortly after the lawsuit was filed.55

Fraudulent Misrepresentation Causing Harm (fraud) is an intentional tort.

“One who by a fraudulent misrepresentation or nondisclosure of a fact that it is

his duty to disclose causes physical harm to the person or to the land or chattel of

another who justifiably relies upon the misrepresentation, is subject to liability to

the other.”56

Plaintiffs have successfully sued tobacco manufacturers for putting

out information that denies or downplays the harms of using tobacco and the

addictive nature of nicotine.57

In California, the workers‟ compensation act does

49

See Carrabis, supra note 3, at 378 (asserting Bears and head coach claimed it

was “just a concussion” warranting little treatment). 50

See id. (explaining court‟s differentiation between general risks of playing

football and specific risks associated with subsequent concussions). 51

See SHAMBERG, JOHNSON & BERGMAN, Football Concussion Result in $3

Million Settlement with High School Coaches and Administrators in Brain Injury

Case, SJBLAW.COM (2009), http://www.sjblaw.com/cm/newsletters/2009-

spring.pdf (asserting standard of care was established in part by CDC‟s

publication which school district later adopted). 52

See Carrabis, supra note 3, at 381 (describing facts leading up to La Salle suit). 53

See id. (describing injuries of La Salle plaintiff). 54

See id. at 384 (describing facts leading up to high school suit). 55

See SHAMBERG, JOHNSON & BERGMAN, supra note 48 (discussing adoption of

suggested CDC standards). 56

RESTATEMENT (SECOND) OF TORTS § 557A (1977). 57

See Williams v. Phillip Morris Inc., 48 P.3d 824 (Or. Ct. App. 2002) (holding

(1) plaintiff‟s husband, as smoker, was an intended recipient of manufacturer‟s

misrepresentation that there was legitimate controversy regarding connection

between cigarette smoking and human health; (2) evidence supported jury‟s

finding that manufacturer conveyed misrepresentation over many years, and in

many ways; (3) evidence supported reasonable inference that husband purchased

10

not serve as a defense to a fraud action by an employee against an employer in

certain circumstances because fraud by an employer was not a risk of employment

contemplated by the California legislature.58

B. The Maxwell Complaint

1. Overview

On July 19, 2011 seventy-five former NFL players and many of their

spouses brought suit against the NFL, NFL Properties, and sports equipment

manufacturer Riddell in the Superior Court of California.59

The complaint

includes counts of negligence, negligence-monopolist, fraud, strict product

liability, failure to warn, and loss of consortium.60

The descriptions of the

plaintiffs are relatively similar in that they all claim to have “suffered multiple

concussions,” been “improperly diagnosed and improperly treated throughout

[their] career,” and not been “warned . . . of the risk of long-term injury due to

cigarettes in reliance on misrepresentation; (4) federally-required warning on

cigarette packages limited widow to allegations of affirmative

misrepresentations); Wright v. Brooke Group Ltd., 652 N.W.2d 159 (Iowa 2002)

(holding product manufacturer‟s failure to warn or disclose material information

will support fraud claim by customer only when disclosure is necessary to prevent

prior representation from being misleading). 58

See RESTATEMENT (SECOND) OF TORTS § 557A (1977) (discussing fraud

exception to worker‟s compensation under California law); Childress v. Church‟s

Fried Chicken, 196 Cal. Rptr. 404, 408 (Cal. Ct. App. 1983) (illustrating

treatment of workers compensation defense and fraud in California). 59

See ASSOCIATED PRESS, 75 NFL Retirees Sue League Over Concussions,

BALTIMORESUN.COM (July 20, 2011, 5:32 PM),

http://www.baltimoresun.com/sports/ravens/bal-nfl-retirees-concussions-

0720,0,6573493.story (announcing filing of suit). The plaintiffs are represented

by Thomas Girardi, an attorney famous for his association with the Erin

Brockovich case which settled for a record $333 million. See John Culhane,

Concussions and Cigarettes, SLATE.COM (July 26, 2011, 1:19 PM),

http://www.slate.com/id/2300103/ [hereinafter Concussions and Cigarettes]

(discussing Thomas Girardi); Stuart Hampton, Just What PG&E Needs—Erin

Brockovich, BIZMOLOGY.COM (Mar. 10, 2011, 9:23 AM),

http://www.bizmology.com/2011/03/10/just-what-pge-needs-erin-brockovich/

(discussing amount of damages). In the complaint‟s Prayer for Relief, the

plaintiffs request compensatory and general damages, special and incidental

damages, punitive damages, costs of proceedings. See Complaint, supra note 35,

at 81 (requesting damages). The plaintiffs claim they are able to sue the NFL

because “[t]he Supreme Court . . . ruled that the NFL is a separate entity from

each of its teams.”59

See id. at 10 (citing Am. Needle, Inc. v. NFL, 130 S. Ct.

2201 (2010)) (claiming American Needle allows Maxwell plaintiffs to sue NFL). 60

See Complaint, supra note 35, at 69-80 (stating causes of action).

11

[concussions], or that the league-mandated equipment did not protect [them] from

such injury.”61

The ailments allegedly suffered by the Maxwell plaintiffs range

from headaches and memory loss to dementia.62

The complaint begins by contrasting popular science and the research

conducted by the NFL.63

The complaint describes the non-NFL affiliated

research of Dr. Bennet Omalu who found CTE in the brains of former players in

2002 and 2007.64

Dr. Omalu stated “[w]here was the NFL when we found this

disease?”65

An independent survey also showed retired players who had received

multiple concussions were more likely to experience depression.66

The complaint

goes on to describe the NFL Concussion Committee‟s research as “completely

devoid of logic and science” and contrary to well published medical literature.67

The complaint alleges that only in 2009 did the NFL enact proper concussions

procedures and only in 2010 did the NFL acknowledge the long term risks of

concussions by warning players.68

2. Negligence Claims

The Maxwell plaintiffs claim the NFL as “an industry icon” owed a duty

to them, as well as all football leagues, players, and the public at large.69

The

duty allegedly owed to the plaintiffs was to protect them on the playing field and

educate them as well as trainers and physicians about CTE and concussion

injury.70

Additionally, the complaint claims the NFL had a duty to have in place

strict return-to-play guidelines and design rules and penalties for riskier hitting

61

See, e.g., id. at 50 (describing plaintiff Christopher Calloway). 62

See id. at 23-69 (detailing plaintiffs and their injuries). 63

See id. at 11-12 (discussing findings of Dr. Bennett Omalu not found by NFL

Concussion Committee). 64

See id. at 12 (supporting notion that Concussion Committee‟s research was

inadequate). 65

Id. at 12. 66

See id. at 11 (recounting study of depression in former NFL players).

67 See id. at 29 (criticizing work of Concussion Committee). The committee‟s

published findings in 2004 showed “no evidence of worsening injury or chronic

cumulative effects” from multiple concussions and found “many NFL players can

be safely allowed to return to play” on the day of a concussion, if they lack

symptoms and are cleared by a doctor. See id. (discussing published findings of

Concussion Committee). Commissioner Roger Goodell stated publicly that the

NFL had been studying the effects of traumatic brain injury for “close to 14

years,” in June of 2007. See id. (recounting statements of Commissioner

Goodell). 68

See id. at 12 (claiming dates when NFL enacted procedures and warned current

players). 69

See id. at 12-13 (alleging NFL‟s duty extended beyond active players). 70

See id. (alleging scope of NFL‟s duty).

12

and tackling.71

The complaint asserts the defendants “conduct rises beyond mere

negligence.”72

In the first negligence cause of action the complaint states that the NFL

had a duty to players and the public as a monopoly to protect their health and

safety. 73

This duty was allegedly breached by “failing to enact rules, policies and

regulations to best protect its players,” failing to provide “complete, current, and

competent” information, and failing to provide “reasonably safe helmets.”74

The

plaintiffs claim were it not for this breach of duty they would not have suffered

from their conditions or would have recovered more rapidly.75

In their second negligence cause of action, the Maxwell plaintiffs claim the

NFL has assumed a tort duty to invoke rules that protect the health and safety of

players and has violated Section 323 of the Restatement (Second) of Torts as

adopted by the courts of California.76

The plaintiffs claim by enacting safety rules

the NFL confirmed this historical duty but failed to create any guidelines related

71

See id. at 13 (claiming NFL‟s duty‟s included maintaining proper concussion

guidelines and protective rules). 72

See id. at 23 (explaining level of culpability). The Complaint states:

The aforementioned acts and omissions of the Defendants

demonstrate that the Defendants acted with callous indifference to

the rights and duties owed to Plaintiffs, all American Rules

Football leagues and players and the public at large. The

Defendants acted willfully, wantonly, egregiously, with reckless

abandon, and with a high degree of moral culpability.

Id. 73

See id. at 69-72 (claiming duty and breach of NFL with regard to “negligence-

monopolist” cause of action). 74

See id. (explaining NFL‟s breach of duty) 75

See id. at 74 (claiming plaintiffs‟ injuries flow from NFL‟s breach of duty). 76

See id. at 72-74 (alleging breach of duty); RESTATEMENT (SECOND) OF TORTS §

323 (1965) (explaining negligent performance of undertaking to render services).

The Restatement defines the tort thusly:

One who undertakes . . . to render services to another which he

should recognize as necessary for the protection of the other's

person or things, is subject to liability to the other for physical

harm resulting from his failure to exercise reasonable care to

perform his undertaking, if (a) his failure to exercise such care

increases the risk of such harm, or (b) the harm is suffered because

of the other's reliance upon the undertaking.

Id. See also Coffee v. McDonnell-Douglas Corp., 503 P.2d 1366, 1370 (Cal.

1972) (holding that when employer required prospective employees to undergo

physical examination it assumed duty to conduct and complete examination with

due care).

13

to mental health and safety until August 14, 2007.77

The complaint also claims

the NFL has never warned past players of the long term harms of concussions.78

3. Fraud Claim

The complaint alleges that from 2005 through June of 2010, the NFL

through its Concussion Committee made material misrepresentations that there

was no link between concussions and “later life cognitive/brain injury.”79

The

plaintiffs claim the Concussion Committee knew these misrepresentations were

false and intended to defraud the plaintiffs.80

The harm allegedly flowing from

this misrepresentation is that plaintiffs “justifiably relied on these

misrepresentations to their detriment in getting care for their injuries.”81

4. Claims Regarding Equipment

The complaint also asserts the NFL was negligent in mandating

equipment, namely Riddell helmets, which provided insufficient protection.

“NFL Properties breached its duty to ensure that the equipment it licensed and

approved were of the highest possible quality and sufficient to protect the NFL

players . . . from the risk of concussive brain injuries.”82

They claim NFL

Properties breached its duty by “knowing or having reason to know the helmets

were negligently designed and/or manufactured.”83

As a result plaintiffs claim

they suffer long term effects of concussive brain injuries.84

The plaintiffs also attack the helmet makers themselves, accusing Riddell

of strict liability for design and manufacturing defect in addition to failure to warn

77

See Complaint, supra note 35, at 72-74 (explaining NFL‟s confirmation of duty

and breach). 78

See id. at 70 (alleging NFL has not warned retired players). 79

See id. at 75 (detailing alleged material misrepresentations). 80

See id. (alleging intention of Concussion Committee to defraud plaintiffs).

81 See id (alleging plaintiffs‟ reliance on misrepresentations caused injury). See

also Ashley Hayes and Michael Martinez, Former NFL Players: League

Concealed Concussion Risks, CNN.COM (July 20, 2011, 7:16 PM),

http://www.cnn.com/2011/HEALTH/07/20/nfl.lawsuit.concussions/index.html

(reporting comments of widow of ex-NFL player Dave Duerson). The widow of

Dave Duerson who committed suicide and requested that his brain be studied

stated on the subject of the Maxwell suit stated: “[I] truly believe the NFL must

have known on some level because there were always doctors present, you know,

with these guys. . . .”). 82

See Complaint, supra note 35, at 76 (alleging negligence in providing

insufficient equipment). 83

See id. (explaining breach of duty with regard to mandated equipment). 84

See id. (alleging injuries flow from breach of duty).

14

and negligence.85

The plaintiffs‟ claim Riddell helmets were improperly tested as

well as “defective in design, unreasonably dangerous, and unsafe for their

intended purpose”86

The negligence and failure to warn claims against Riddell

stems from alleged failure to provide instructional materials and warnings of the

risks and means available to reduce concussive brain injuries.87

III. ANALYSIS

A. Rationale for Lack of Class Action Status

Maxwell is not a class action suit.88

One commentator describes Maxwell

as being more analogous to seventy five separate suits containing similar facts.89

Maxwell is not a good candidate for a class action suit because the damages

suffered by the plaintiffs vary too widely in their “nature and extent.”90

The suit

is likely brought as one complaint merely because the allegations are the same.91

B. California as Venue for Maxwell

The decision to file Maxwell in California state court has several strategic

benefits. The plaintiffs might be stymied by workers‟ compensation law which

usually provides the exclusive remedy.92

State courts conflict regarding whether

an employer‟s intentional misconduct allows employees to escape workers‟

compensation.93

In California there is an exception to workers‟ compensation in

instances of fraud which are alleged in Maxwell.94

While most states‟ workers‟

compensation laws require a claim to be filed within five years, in California the

85

See id. at 76-78 (detailing design defect and manufacturing defect causes of

action against Riddell). 86

See id. at 76 (claiming oversights of Riddell with regard to equipment safety). 87

See id. at 79-80 (detailing failure to warn and negligence causes of action

against Riddell). 88

See id. at 83 (leaving box blank on complaint cover page thereby indicating not

class action suit). 89

See Concussions and Cigarettes, supra note 59 (analogizing Maxwell to

seventy five separate suits). 90

See id. (discussing why Maxwell is not good candidate for class action suit). 91

See id. (speculating why Maxwell was brought as one complaint). 92

See id. (discussing implication of workers‟ compensation law on Maxwell. 93

See John Culhane, The NFL’s Next Big Headache, SLATE.COM (Feb. 2, 2011,

4:27 PM), http://www.slate.com/id/2283618/ [hereinafter Headache] (discussing

how states differ with regard to intentional misconduct by employers). 94

For a further discussion of the fraud exception, see supra note 58.

15

statute of limitation does not start until the employer files notice of the injury.95

This is significant as most of the Maxwell plaintiffs‟ careers ended before 2006.96

Furthermore, anyone whose employment took them into the state of

California is eligible for workers‟ compensation.97

Based on the NFL‟s matchup

scheme most players have likely played a game in California.98

All these factors

have led to California being referred to as a “haven for ex-football players.”99

Under workers compensation the plaintiffs also would not have to show the

employer is at fault.100

This is important because the Maxwell plaintiffs were not

employees of the NFL but claim their injuries are a result of their employment.101

Workers compensation also has certain drawbacks, namely, the limited remedies

it provides.102

C. Applicability of Collective Bargaining Agreement

The defendants may argue that the claims made in Maxwell should be

covered by the Collective Bargaining Agreement (CBA) in which case the

plaintiffs‟ would have to start over in federal court and likely face arbitration.103

95

See id. (discussing statute of limitations under California workers‟

compensation laws). 96

See Complaint, supra note 35, at 23-69 (detailing years in which plaintiffs

played professional football) 97

See id. (describing coverage for workers‟ whose employment brought them

even briefly into California). 98

NFL Announces 2002-2009 Schedule Rotation, FOOTBALLINJURIES.COM,

http://www.footballinjuries.com/rotation.htm (last visited Oct. 28, 2011)

(describing rotation whereby teams play every other team more often). The San

Francisco 49ers, San Diego Chargers, Oakland and Los Angeles Raiders, Los

Angeles Rams are or were California professional football franchises. NFL.COM,

http://www.nfl.com/teams (last visited Oct. 28, 2011). 99

See Headache, supra note 93 (explaining California‟s reputation as haven). 100

See id. (asserting one must show causal connection between injury and

employment but not that employer is at fault). 101

See Brown v. NFL, 219 F. Supp. 2d 372, 383 (S.D.N.Y. 2002) (At the time of

his injury, [player/plaintiff] worked not for the NFL, but for the Cleveland

Browns Football Company, a Delaware limited partnership and an entirely

separate entity which happens to be a member of the NFL.”). 102

See Concussions and Cigarettes, supra note 59 (explaining workers‟

compensation does not compensate for pain and suffering, offers fixed rate of

compensation for given injuries and reimbursement for medical care, and punitive

damages are not available). 103

See Headache, supra note 93 (explaining potential problem presented by

Collective Bargaining Agreement). The author explains:

Any potential claim expressly covered by the CBA, or that requires

interpreting it, is pre-empted by federal labor law, meaning that no

common law tort claim could proceed in state court. Players with

grievances arising under the agreement must first go through

16

At least one authority feels this is an unlikely result considering the type of

arguments being made.104

The complaint itself asserts that “plaintiffs‟ claims are

not preempted by federal labor law” because “historically, the NFL retired players

have never been the subject of or a party to Collective Bargaining” and at the time

the Collective Bargaining Agreement did not exist.105

D. Negligence

1. Overview

The plaintiff‟s basic assertion is that the NFL has breached an assumed

duty to protect its players by not enacting sufficient league-wide procedures for

handling concussions and failing to warn players of the long-term risks of

multiple concussions.106

The evidence that this duty exists according to the

plaintiffs is that the NFL has created other rules concerning safety and took it

upon themselves to study the effects of concussions.107

The complaint alleges the

NFL owed a duty to protect the safety of both players and the public.108

One difficulty for the Maxwell plaintiffs is that there is no real comparable

entity to the NFL for the sake of legal argument. The closet analogue would be

the National Collegiate Athletic Association (NCAA) or an entity like a state

board which controls asbestos regulations. The NFL is not the NFL player‟s

arbitration and would face a difficult task in getting such a decision

reversed by a federal court.

Id. For example in a suit by the widow of Minnesota Vikings offensive lineman

Korey Stringer who died of heat stroke, a claim against the NFL for providing

unsafe equipment, improper supervision, and medical care was dismissed on the

basis that the care and safety of players is the responsibility of team physicians

whose duty is governed by the CBA. See id. (discussing impact of 2001 suit by

widow of Korey Stringer on Maxwell); Erica Ryan, Judge: Korey Stringer

Lawsuit to Proceed, WASHINGTONPOST.COM (Feb. 1, 2007, 8:10 PM),

http://www.washingtonpost.com/wp-

dyn/content/article/2007/02/01/AR2007020101414.html (announcing federal

judge dismissed claim against NFL but found claims against NFL Properties and

Riddell were not preempted by CBA); Stringer v. NFL, 749 F. Supp. 2d 680, 685

(S.D. Ohio 2009) (explaining dismissal of claim against NFL). 104

See Headache, supra note 93 (explaining “it‟s hard to see how the CBA speaks

to” a suit based on the cumulative effect of concussive and sub-concussive

impacts). 105

See Complaint, supra note 35, at 11 (asserting plaintiffs‟ claims are not

preempted by federal labor law). 106

See id. at 69-74 (detailing negligence counts against NFL). 107

See id. at 12-13 (alleging scope of NFL‟s duty). 108

See id. 12, 69 (alleging duty based on monopoly over American football and

discussing negligence-monopolist cause of action).

17

employer but makes rules which impact the safety of employees.109

As a result,

the Maxwell plaintiffs may find it difficult to find persuasive case law and the

NFL and Riddell will have ample opportunities to distinguish themselves from the

defendants in any cases which are produced.

2. Failure of NFL to Adopt Proper Concussion Procedures

There is support for the claim that the NFL breached a duty by not

adopting the safest available guidelines by comparison to a suit involving a high

school law football player which was settled.110

In that case according to one

observer, “the school‟s lack of a concussion guideline policy increased [the

player]‟s chance of permanent injury.”111

Similar to that school district which

paid for having out of date procedures, the plaintiffs in Maxwell claim the NFL

has harmed players by failing to update its own procedures in light of readily

available information.

The plaintiffs‟ strongest point is that the National Hockey League (NHL)

and World Boxing Association (WBA) adopted much stricter concussion

guidelines long before the NFL.112

While many school districts may have an

argument that they lack the resources to give the best care or use the most modern

equipment, the NFL which controls a multi-billion dollar industry appears to be

much more culpable. If a school district can be liable for not adopting the CDC‟s

suggested guidelines the NFL might also be liable for not adopting guidelines up

to par with those used by the NHL and WBA.

3. Failure to Warn

Success by the plaintiffs on their failure to warn claims may be achieved

by an extension of the Hoge decision.113

Hoge successfully argued that his team‟s

doctor breached a duty to exercise the skill and care of a team physician who

makes the decision of when a player may return to play after a concussion.114

Hoge argued that had he been properly warned of his condition he would have

109

For a further discussion of why NFL is not players‟ employer, see supra note

101. 110

See Carrabis, supra note 3, at 384 (stating school district settled suit with high

school football player who suffered permanent brain damage). For a further

discussion of this suit, see supra notes 54-55 and accompanying text. 111

See Carrabis, supra note 3, at 384 (asserting lack of concussion policy was

factor in player‟s injuries). 112

See Complaint, supra note 35, at 74 (asserting concussion procedures of NHL

and World Boxing Association were ahead of NFL). 113

See Kain, supra note 3, at 717 (discussing implications of Hoge verdict

combined with evidentiary link between multiple concussions and cognitive

decline). For further discussion of the Hoge case see infra notes 40-45 and

accompanying text. 114

See id. at 714-15 (recounting the duty Hoge claimed team doctor owed him).

18

waited until he had completely recovered from his initial concussion before

returning to play.115

The Maxwell plaintiffs claim that only in June of 2010 did

the NFL warn active players and the NFL has never warned past players or the

public.116

One key question for both the failure to warn and failure to adopt proper

concussion guidelines aspects of Maxwell will be when the NFL had notice of the

long term risks associated with multiple concussions. One key date is 2005 when

independent studies found a connection between concussions and cognitive

problems like depression and dementia.117

The death of Andre Waters publicized

research contrary to the Concussion Committee and prompted the NFL to hold a

league-wide concussion summit in June 2007 which along with Congressional

scrutiny resulted in an August 2007 pamphlet on the proper treatment of

concussions.118

The complaint claims that before August of 2007 the NFL failed to

establish adequate guidelines and procedures and did not acknowledge the long-

term risks until June of 2010.119

The majority of the Maxwell plaintiffs played

before 2005.120

It is easier to argue that the NFL undertook a duty with regard to

the players when it formed the Concussion Committee in 1994. However the

Maxwell plaintiffs that played before that year have a more difficult task in

arguing that the NFL knew of more obscure sources dating back to the 1890‟s and

undertook a duty with regard to concussion injury simply by enacting various

general safety rules.121

One factor which favors the plaintiffs is that before 2010 there was no

requirement that an independent neurologist assess players who received

concussions during games.122

One legal authority points out that the relationship

between medical providers, trainers, and teams inherently presents a conflict in

115

See id. at 715 (explaining failure to warn aspect of Hoge case). 116

See Complaint, supra note 35, at 70 (alleging when NFL acknowledged and

warned players) 117

See Kain, supra note 3, at 698 (explaining research of Dr. Bennet Omalu, M.D.

and Dr. Kevin Guskiewicz). 118

See id. at 699 (discussing article about Waters); Hanna & Kain, supra note 23

at 33 (discussing origin of pamphlet). 119

See Complaint, supra note 35, at 70 (alleging when NFL established protective

guidelines and acknowledged long-term risks despite other sports organizations

earlier adoption of concussion management rules.) 120

See id. at 23-69 (listing plaintiffs). Two plaintiffs, Brett Romberg and Todd

Johnson, played between 2003 and 2010. See id. at 41, 59 (discussing careers of

Romberg and Johnson). 121

See id. at 14-18 (listing sources beginning with life story of football player

Admiral “Bull” Reeves in the 1890‟s up to medical journal articles published in

the 1990‟s); id. (listing variety of safety rules enacted between 1956 and 2005

including facemask, spearing, and horse-collar tackle). 122

See Carrabis, supra note 3, at 379 (detailing implementation of stricter

guidelines by NFL including use of independent neurologist).

19

that there is incentive to keep star players on the field.123

The NFL likely should

have been aware of this fact considering the Hoge decision turned on the team and

the team‟s doctor minimizing concussion risks.124

4. Assumption of the Risk Defense

A potential flaw in the plaintiffs‟ case is that it relies on showing the risks

of concussions were obvious in light of the information readily available.125

This

begs the question that if this information was so obvious to the NFL and helmet

manufacturers then it should have been equally obvious to players and the

players‟ union.126

The NFL will also likely assert that football players assumed

the risk of brain injuries as lifelong players of the sport who have first-hand

experience of, and often revel in its violence.127

However, players having put

themselves in highly dangerous situations by playing football may not be fatal to

a negligence claim against the NFL. One legal commentator makes the

comparison that “[s]kiing is inherently risky . . . [b]ut if the owners of the ski

slope increase the risk, say by leaving a snow-making machine on the slope,

skiers should be able to sue for the unnecessary increase in that inherent risk.”128

The general notion is that participants in an athletic event “assume the

risks of injury associated with the sport.”129

However injuries which “result from

conduct not reasonably foreseeable are of a different nature.”130

The conduct by

123

See Kain, supra note 3, at 708-09 (asserting that being official healthcare

provider of team brings advertising privileges and team trainers are under

pressure from coaches and management to “return most talented athletes to the

field as soon as possible”). 124

For a further discussion of Hoge, see supra notes 43-50 and accompanying

text. 125

See Concussions and Cigarettes, supra note 59 (explaining plaintiffs set forth

“dozens” of reputable sources that indicate effects of concussions were well

known as far back as a century ago); Complaint, supra note 35, at 14-18 (listing

sources which plaintiffs claim should have been apparent to NFL and Concussion

Committee ). 126

See Concussions and Cigarettes, supra note 59 (asserting science establishing

long-term risks of concussions is not new and players or their union should have

been aware of it). 127

See Headache, supra note 93 (asserting football players all knows of risks and

quoting oft-fined Pittsburgh Steelers linebacker, James Harrison: “I try to hurt

people.”). 128

See id. (illustrating by example that suit for negligence is possibility even

when engaged in risky behavior). 129

See Hanna & Kain, supra note 23, at 35 (discussing assumption of the risk in

sports context). 130

See Kain, supra note 3, at 715-16 (discussing exception to assumption of risk

in sports context); Darryll M. Halcomb Lewis, An Analysis of Brown v. National

Football League, 9 VILL. SPORTS & ENT. L.J. 263, 286-87 (2002) (asserting

20

the NFL “may amount to such careless disregard for the safety of others as to

create risks not fairly assumed.”131

The plaintiff in Hoge, a longtime football player, was also able to

overcome an assumption of the risk defense because he was not apprised of the

specific risk of playing soon after sustaining a concussion.132

The Maxwell

plaintiffs however need to prove the NFL had a duty which was much clearer in

Hoge where the tortfeasor was the player‟s doctor.133

The Maxwell plaintiffs on

the other hand claim the NFL took on a duty merely through its monopoly power,

its history of enacting general safety rules, and organizing a research group to

study the effects of concussions.

Another difficulty for the Maxwell plaintiffs who retired before 1994 will

be arguing that before the creation of the Concussion Committee, the NFL had

information which the plaintiffs did not. The team trainer in Hoge was in a

superior position with respect to access to information because he was licensed

doctor.134

Before the Concussion Committee was created in 1994, the players and

NFL had the same access to the sources named by the Maxwell plaintiffs—

medical literature and knowledge of former football players and boxers who

experienced brain maladies later in life.135

Even for those plaintiffs who played

after the creation of the Concussion Committee, the NFL can still assert its

decisions regarding an uncertain area of science were made in good faith. It is

only once the Concussion Committee‟s findings became contrary to multiple

reasonable foreseeability in sports is determined by rules and regulations of game,

and customs and practices which are generally accepted); Hanson v. Kynast, 526

N.E.2d 327, 333 (Ohio 1987) (finding athlete is not necessarily immune from

liability for tort when demonstrated intent to cause injury separate from heat of

contest); Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979)

(crucial question is what professional football player would reasonably expect to

encounter in professional contest). 131

See Kain, supra note 3, at 715-16 (discussing exception to assumption of risk

in sports context); Hanna & Kain, supra note 23 at 35 (asserting Restatement and

Prosser, Law of Torts maintain plaintiff must have “actual knowledge of the risk

at issue in order to invoke the assumption of risk doctrine”) 132

See Carrabis, supra note 3, at 378 (explaining Hoge argued he lacked

particular and adequate information of the risks of the particular hazard, playing

with subsequent concussions). For a further discussion of Hoge, see supra notes

43-50 and accompanying text 133

See Kain, supra note 3, at 715 (describing Hoge‟s claim that doctor breached

to exercise skill and care of a physician for football team). 134

See Cobbs v. Grant, 502 P.2d 1, 10 (holding integral part of physician‟s

obligation to patient is duty of reasonable disclosure of available choices with

respect to proposed therapy and dangers inherently and potentially involved in

each). 135

See Complaint, supra note 35, at 14-18 (listing sources indicating concussion

risks available to defendants since 1890‟s).

21

independent studies which were highly publicized by mainstream news sources

that it looks more like the NFL had information which players did not.

5. Contributory Negligence Defense

The NFL will likely assert that NFL players have financial incentive to

hide concussions and return to games thereby increasing their own likelihood of

developing CTE or other serious brain injuries.136

To an NFL player, sitting out

an extended time means having one‟s role filled by another player who may be

younger, cheaper, or is the heir-apparent as a high draft pick.137

Additionally, the

nature of NFL contracts makes it easy to cut players in the middle of multi-year

deal.138

Many players also have escalator provisions in their contracts providing

bonuses based on the amount of games or snaps played. Further escalators for

reaching the Pro Bowl or for receiving individual accolades such as defensive

player of the year or rookie of the year are unlikely to be reached if a player

misses significant time due to injury. The NFL may also assert that many players

are aware of the risks of concussions and are simply willing to accept sacrificing

their quality of life in old age in return for short term wealth.139

California‟s adoption of a system of comparative fault is significant to the

Maxwell plaintiffs in that it abrogates the use of a contributory negligence

defense. Even if players purposely misled team physicians and lied about their

136

See Carrabis, supra note 3, at 377 (explaining financial incentive for players to

hide concussion symptoms and return to game).

137 LZ Granderson, Kurt Warner, W. Chrebet, Concussions, ESPN.COM (Sept. 24,

2010, 4:52 PM),

http://sports.espn.go.com/espn/commentary/news/story?id=5611512 (describing

motivation of ex-N.Y. Jets wide receiver Wayne Chrebet who suffered nine

recorded concussions and currently suffers from headaches and sensitivity to

light). Chrebet stated:

[E]very year I see them bringing in younger and bigger guys from

big-time schools, so if you ask me if I'm OK during the game what

do you think I'm going to say? For a guy like me, I felt every

game I was a free agent and that I had to make the team, so if you

ask me if I'm OK, my response is on autopilot: 'yes.'

Id.

138 See Kain, supra note 3, at 710-713 (asserting non-guarantee nature of NFL

player contracts often allows teams to cut injured players after season and creates

incentive to hide symptoms of concussions). 139

See Granderson, supra note 133 (discussing ex-quarterback Kurt Warner‟s

opinion that it would be difficult to ban players for achieving set limit of

concussions because doing so deprives them of livelihood).

22

symptoms they could still recover to some extent from the NFL and Riddell under

the comparative negligence theory of apportioning damages.140

California is one

only thirteen states which has a “pure comparative negligence system,” meaning

plaintiffs could still recover one percent of damages if they were found to be

ninety-nine percent to blame.141

The NFL and Riddell may try to remove the case to federal court and

change venue in order to negate some of the advantages to the plaintiffs of

litigating in California state court. The defendants will likely want to get into a

more defendant friendly forum as California is traditionally known as plaintiff

and employee friendly.142

Moving to a venue which ascribes to contributory

negligence would allow the NFL and Riddell to escape liability by showing the

players in part contributed to their injuries. A more likely possibility is that the

NFL will attempt to move to a modified comparative fault forum and argue as

much liability as possible should be apportioned among Riddell, the plaintiffs,

and other plausible sources of the plaintiffs‟ past concussions such as the NCAA

and the plaintiffs‟ college or high school teams.

E. Fraud

The plaintiffs‟ may succeed in their fraud cause of action through

comparison to past lawsuits by tobacco users against tobacco companies.143

Early

tobacco cases initially failed.144

The connections between tobacco use and

140

See Hanna & Kain, supra note 23 at 35 (discussing comparative and

contributory negligence effect on a potential suit like Maxwell). 141

See Li v. Yellow Cab Co. of Cal., 532 P.2d 1226 (Cal. 1975) (adopting

comparative negligence); PERSONALINJURYLAWYERDIRECTORY, http://www.the-

injury-lawyer-directory.com/negligence.html (explaining comparative

negligence). 142

J. Stanton Hill, Towards Global Convenience, Fairness, and Judicial

Economy: An Argument in Support of Conditional Forum Non Conveniens

Dismissals Before Determining Jurisdiction in United States Federal Courts

41 VAND. J. TRANSNAT‟L L. 1177, 1185 (2008) (asserting substantive tort law of

California is plaintiff-friendly). 143

See Kain, supra note 3, at 717-29 (asserting tobacco litigation provides

potential template for suit against NFL); Concussions and Cigarettes, supra note

59 (asserting connection between Maxwell and tobacco litigation).

144 See Kathleen Michon, J.D., Tobacco Litigation: History & Recent

Developments, NOLO.COM (2011), http://www.nolo.com/legal-

encyclopedia/tobacco-litigation-history-and-development-32202.html (explaining

failure of early tobacco litigants). From 1950‟s to 1990‟s plaintiffs mostly failed

on negligent manufacture, product liability, and fraud legal theories. See id.

(explaining early plaintiffs‟ legal theories). Tobacco companies refused to settle

and relied on assumption of the risk defenses or claimed diseases like cancer were

23

diseases like lung cancer and emphysema were already well acknowledged as was

the addictive nature of nicotine.145

However the tobacco companies maintained a

contrary stance on the negative effects of tobacco and nicotine for years.146

The

tobacco companies even attempted to counter these studies by organizing and

presenting contrary information through its own scientific organization, the

Tobacco Industry Research Committee.147

Tobacco executives claimed as late as

1994 that nicotine was not addictive.148

This misdirection amounted to fraud and

gave plaintiffs a legal ground to stand on against the tobacco companies.149

Smokers became victims of a misinformation campaign perpetrated by Big

Tobacco.150

The plaintiffs in Maxwell will likely make a similar argument concerning

the NFL and its Concussion Committee which apparently downplayed the risks

multiple concussions and combated contrary studies.151

The Maxwell complaint

in fact seems to explicitly make this connection which indicates it is already a part

of the plaintiffs‟ trial strategy. The plaintiffs cite comments made by California

Representative Linda Sanchez who compared the actions of the NFL and its

caused by other factors. See id. (describing defenses employed by tobacco

companies).

145 See Concussions and Cigarettes, supra note 59 (explaining scientific

community already accepted risks of tobacco use and addictive nature of nicotine

at time of tobacco litigation); History of the Surgeon General’s Reports on

Smoking and Health, CDC.GOV (Oct. 29, 2011),

http://www.cdc.gov/tobacco/data_statistics/sgr/history/index.htm (detailing

surgeon general‟s warnings concerning tobacco as early as 1964). 146

See Concussions and Cigarettes, supra note 59 (explaining “misdirection” of

tobacco companies). 147

See id. (explaining use of committee to legitimize contrary stance on tobacco). 148

See id. (explaining tobacco companies maintained contrary position on

nicotine). On April 14, 1994 high ranking executives from seven tobacco

companies declared under oath that nicotine was not addictive in front of

Congress at the Hearing on the Regulation of Tobacco Products House

Committee on Energy and Commerce Subcommittee on Health and the

Environment. See Nicotine is Not Addictive News Clip, UCSF.EDU,

http://senate.ucsf.edu/tobacco/executives1994congress.html (last visited

September 11, 2011) (showing executives declare position under oath). 149

See Concussions and Cigarettes, supra note 59 (stating misinformation by

tobacco companies influenced outcomes of tobacco lawsuits). “Once the cover-

up and misdirection were laid bare, a legal switch was flipped. No longer were

smokers seen as putting themselves in harm‟s way. Rather, they were dupes of

the industry‟s long suppression of evidence.” Id. 150

See id. (asserting misrepresentation made smokers appear to be victims). 151

See id. (claiming attorney for plaintiffs is “mounting similar strategy” to

tobacco litigants regarding misinformation by NFL‟s Committee on Mild

Traumatic Brain Injury.)

24

experts to the tobacco industry‟s own acts of “muddying the waters” through

private studies.152

The allegations of a fraudulent cover up are important because

they open up the possibility of punitive damages.153

The complaint alleges the NFL controls the research and education of

injuries for all football programs, physicians, trainers, coaches and individuals as

a result of its “monopoly power over American football.”154

There is evidence

that the NFL is the trend-setter in that its actions trickle down to the lower levels

of football and to other sports. For instance, the NCAA has added some safety

precautions that the NFL recently enacted and the NHL has adopted new

concussion protocols following the NFL‟s own move towards greater head

safety.155

The NFL could simply counter that this is a response to the same

emerging scientific trend the NFL has recently discovered or fear of lawsuits like

the one La Salle University settled in 2009.156

In fact, the NCAA‟s stricter

concussion rules came only one month after the La Salle case was settled.157

Regardless, it appears both the NFL and NCAA are taking the stance of full

disclosure by giving clear warning of concussion related risks and erring on the

side of caution with regard to strict return-to-play policies. It is less clear whether

they are doing so with an eye towards potential litigation.

152

See id. (highlighting that Maxwell plaintiffs explicitly make connection

through use of quote). 153

For a further discussion of potential for punitive damages in Maxwell, see infra

note 176 and accompanying text. 154

See Complaint, supra note 35, at 12 (claiming NFL influences football at all

levels). 155

See Bruce Klopfleisch, Football Players and Concussions: Players Suffer

Long-Term Effects from Multiple Head Injuries, SUITE101.COM (Dec. 18, 2009),

http://bruce-klopfleisch.suite101.com/football-players-and-concussions-a181232

(“Following the NFL‟s lead, an NCAA panel is recommending a new rule that

would keep an athlete out for the rest of the day if he or she suffers a concussion-

related injury like a loss of consciousness, amnesia or persistent confusion.”); Dan

Rosen, New Concussion Protocol Goes into Effect Tonight, NHL.COM (Mar. 16,

2011), http://www.nhl.com/ice/news.htm?id=556289 (stating players suspected of

having concussion will now be removed from game and sent to quiet place free

from distraction to be examined using “Sports Concussion Assessment Tool test”

as opposed to examination on bench). 156

See Sam Wood, La Salle to Pay Brain Injured Footballer $7.5 million,

PHILLY.COM (Nov. 30, 2009), http://articles.philly.com/2009-11-

30/news/24988280_1_second-impact-syndrome-brain-injuries-concussion

(announcing settlement of case between La Salle and football player). 157

Compare id. (showing La Salle case settled in November of 2009); with

Carrabis, supra note 3, at 382-83 (discussing December 16, 2009 addition of new

concussion rules concerning concussion treatment by NCAA Committee on

Competitive Safeguard and Medical Aspects of Sports).

25

The complaint anticipates the counter argument by the NFL and Riddell

that the players and union should have known the long term risks of concussions

by stating that the NFL has a responsibility to protect them through its concussion

policy because it controls the research and education of NFL players.158

The

plaintiffs claim the NFL had information the players did not, stating: “[p]laintiffs

did not know of the long-term effects of concussions and relied on the NFL and

the [helmet manufacturers] to protect them.”159

Furthermore, safety in the

workplace is generally the employer rather than the employee‟s responsibility in

tort law although the NFL was not the Maxwell plaintiffs‟ employer.160

To succeed in a fraud claim the plaintiffs will have to show it was

reasonable for players and their union to rely on the NFL‟s allegedly

misrepresented facts.161

It looks more reasonable for players who were active

between 1994 and 2005 to have accepted the opinions of the apparently reliable

Concussion Committee because until 2005 contrary studies were not nearly as

prevalent. Again, those players whose careers ended prior to 1994 have the

tougher task of proving the NFL misrepresented information before it even began

studying concussions or made any statements or rules related to concussion risks.

The Maxwell plaintiffs claim the NFL knew of the true dangers of

concussions and actively attempted to mislead players.162

There is no evidence,

however, that anything this sinister actually occurred. The tobacco plaintiffs were

able to rely on a smoking gun memo which indicated tobacco executives knew

and were trying to hide the risks of tobacco and true nature of nicotine.163

There

is evidence that the Concussion Committee engaged in a campaign to combat

contrary studies but absent any documents emerging in discovery which indicate

the NFL had ulterior motives, they should be able to rely on the defense that they

assembled an independent research group which just happened to arrive at

different results in an emerging and unclear area of scientific study.164

158

See Complaint, supra note 35, at 12 (alleging NFL‟s monopoly power over

football); Concussions and Cigarettes, supra note 59 (asserting Maxwell plaintiffs

attack possible counterargument by NFL in complaint). 159

See Complaint, supra note 35, at 12 (stating explicitly that NFL had

information which players did not). 160

See Concussions and Cigarettes, supra note 59 (explaining attorney for

Maxwell plaintiff stated in interview that player would be ridiculed for asking to

wear a safer helmet and as basic principle of tort law employer cannot claim

injury is employee‟s fault for injury if employer did not provide equipment

needed to prevent injury). 161

For a further discussion of the requirements for fraud claim, see supra note 56-

60 and accompanying text. 162

See Complaint, supra note 35, at 75 (claiming NFL knowingly made

misrepresentations with intent to defraud plaintiffs and others). 163

See Michon, supra note 140 (stating leak of internal document changed fortune

of tobacco litigants in 1990‟s). 164

See Hanna & Kain, supra note 23 at 33-34 (discussing shortcomings of NFL

concussion committee from 1994-2009 and subsequent remedial measures).

26

F. Proving Causation

The most difficult argument for the Maxwell plaintiffs may be proving that

their claimed injuries which often have unclear origins are legitimate and are the

result of these specific defendants‟ misconduct. Many NFL players have played

football for most of their lives and it will be nearly impossible to prove their

injuries are the result of concussions specifically suffered while playing in the

NFL as opposed to college, high school, or pee-wee football. While the

connection between head impact and brain damage may seem obvious, the

plaintiffs will all have to prove causation between the NFL and Riddell‟s

misconduct and their harm.165

Merril Hoge successfully overcame the hurdle of proving the origin of his

injuries.166

Hoge successfully sued one specific team, the Chicago Bears, in

relation to two concussions received in a seven week period even though he

played in the NFL for eight seasons and was a four year starter in college.167

However, Hoge is distinguishable from Maxwell in that there was a clear event

which ended the plaintiff‟s career.168

The Maxwell plaintiffs are attempting to

place the liability on two defendants for symptoms that are the cumulative result

of a lifetime of injuries.

As a result of the cumulative nature of the Maxwell plaintiffs‟ injuries, the

allegations that the NFL owed a duty to the public and influences all levels of

football through its monopolistic power over the sport becomes significant to the

causation issue.169

The NFL will likely claim that it is impossible to distinguish

the damage incurred from professional football concussions from concussions

experienced at lower levels. The Maxwell plaintiffs will likely respond back that

because the NFL sets the standards in football with regard to treatment of

concussions, safety rules, and what equipment is used, that the head injuries

which the Maxwell plaintiffs incurred while playing football at the lower levels is

still partially the NFL‟s fault. This will then allow the Maxwell plaintiffs to

further shift the amount of liability likely to be apportioned among the plaintiffs,

the NFL, and Riddell under California‟s comparative fault regime to the most

lucrative defendant—the NFL.170

165

For a further discussion of the requirement of proving causation in fraud claim,

see supra notes 56-60 and accompanying text. 166

See Carrabis, supra note 3, at 379 (stating Hoge was awarded lost earnings and

monies needed for future care after claiming permanent post concussion

symptoms ) 167

See id. (discussing facts of Hoge case) 168

See Kain, supra note 3, at 714 (explaining Hoge received concussion short

time after receiving concussion described as an “earthquake”). 169

See Complaint, supra note 35, at 12 (claiming NFL influences football at all

levels). 170

For a further discussion of comparative fault in California, see supra notes

140-142 and accompanying text.

27

While the claim that the NFL has harmed athletes at all levels may set the

stage for future suits by football players who never made it to the NFL, it appears

the accusation is made more out of strategy for the Maxwell plaintiffs than out of

concern for the public.171

Some players and legal critics have argued that the

NFL has already conceded the causation issue by agreeing to the “Section 88

Plan” which provides compensation for retired players suffering from brain

injuries and dementia.172

In theory, by contributing money to ex-players who

currently suffer from concussion related diseases, the NFL is paying for injuries

that occurred long before these players ever entered the NFL.

Lastly, the Maxwell plaintiffs will have to convince the finder of fact that

their claimed injuries are legitimate and overcome being less than sympathetic

plaintiffs. Claims of headaches, dizziness, and memory loss may appear easily

faked. The defendants can cast significant doubt on the seriousness of these

injuries if any of the plaintiffs are in bad financial situations as thousands of other

players have been exposed to concussions and have not sued in the past.

There is a perception that all professional athletes are overcompensated

and undeserving of the pampering they receive for playing a game. News outlets

love to publicize athletes who squander their fortunes through frivolous spending

and ill-advised business deals.173

The Maxwell plaintiffs will have to come off

less like they are looking for an opportune pay day and more like legitimate

victims. Working against the plaintiffs is that they are the first to sue on this

possibly valid legal argument while every other generation of NFL iron-men has

lived with the consequences of playing for better or worse.

The plaintiffs in Maxwell do have the advantage of being lesser known

players. The public is likely not as aware of the numerous players who come into

the NFL as low draft picks or go undrafted and are washed out of the league

without ever receiving a lucrative contract. These types of players often spend

much of their careers playing on special teams which brings higher risk of

concussions and other injuries while covering kickoffs and punts.174

The

171

For a further discussion of potential lawsuits by other football players, see

notes 199-202. 172

See Carrabis, supra note 3, at 380 (discussing legal implication of NFL

agreeing to Section 88 plan in 2006 Collective Bargaining Agreement); Kain,

supra note 3, at 726 (“Players might argue that “Section 88” of the 2006 NFL

CBA serves as the NFL‟s constructive admission that multiple concussions do, in

fact, cause later-life dementia.”). 173

See e.g., Michael Martinez & Stan Wilson, Lenny Dykstra, Former MLB All-

Star, Indicted for Bankruptcy Fraud, CNN.COM (May 06, 2011),

http://articles.cnn.com/2011-05-

06/justice/california.dykstra.indictment_1_bankruptcy-fraud-indictment-

mansion?_s=PM:CRIME (detailing downfall of ex-Philadelphia Phillies center

fielder). 174

For a further discussion of the risks associated with kickoffs, see infra note

203.

28

plaintiffs in Maxwell have an opportunity to tell a more favorable story than a

group of high profile former stars would.

G. Quantifying Damages

Potential damages are difficult to predict and will depend on which causes

of action are successful and the extent of injuries that are proven.175

Success on a

negligence claim without the accompanying fraud will likely not result in more

lucrative punitive damages.176

As the plaintiffs strategically placed at the

beginning of their complaint: “[t]he NFL is a nine billion dollar-a-year

business.177

It is likely that the league could absorb the cost of losing or settling

this suit even in light of cases which have resulted in the payment of significant

damages.178

Previous football suits may give an indication as to the amount of damages

a player could recover. Merril Hoge was awarded $1.45 million for the two

remaining years on his NFL contract and $100,000 for pain and suffering.179

Hoge originally requested $2.2 million as an estimate of lost earning and cost of

future care.180

The La Salle University suit settled for $7.5 million.181

The case

involving a high school player was settled for $3 million.182

However these cases

involved specific traumatic instances which caused easily identified, permanent

injuries and ended the football careers of the plaintiffs.183

Most of the injuries

claimed by the Maxwell plaintiffs revolve around memory loss, headaches and

175

See Concussions and Cigarettes, supra note 59 (claiming damages are difficult

to predict). 176

See Headache, supra note 93 (discussing possible causes of action before

Maxwell was filed). “Successful ex-players in [a negligence] case could recover

for economic loss and for their pain and suffering but would not be good

candidates for punitive damages.” Id. See also Concussions and Cigarettes,

supra note 59 (“By alleging a pervasive, fraudulent cover-up, the plaintiffs‟

attorneys have made the case a candidate for punitive damages, which are

available only when the defendant‟s actions are worse than “merely” negligent.”). 177

Complaint, supra note 35, at 11. 178

See Concussions and Cigarettes, supra note 59 (discussing NFL‟s ability to

absorb damages). “It would take a lot more than [$333 million settlement against

Pacific Gas and Electric in the Erin Brockovich case]—perhaps a separate set of

wrongful death suits—to dent the NFL‟s financial armor.” Id. 179

See Kain, supra note 3, at 716-17 (discussing damages awarded in Hoge). 180

See id. (discussing damages requested in Hoge). 181

See Carrabis, supra note 3, at 381 (stating amount of settlement paid by La

Salle University). 182

See SHAMBERG, JOHNSON & BERGMAN, supra note 45 (stating amount of

damages paid to high school football player). 183

For a further discussion of the facts of previous football concussion suits, see

infra notes 43-55 and accompanying text.

29

other ailments that typically develop later in life.184

It will be much more difficult

to argue that the Maxwell plaintiffs could have had longer careers if they had

taken more time off following a concussion or had the aid of better helmet design.

A more feasible option would be to use the cost of future care as estimated

by an expert witness. This amount may be more quantifiable and it is possible to

analyze the demise of players like John Mackey and the costs they incurred. It is

also feasible that the plaintiffs could claim their lives will be shortened as a result

of receiving multiple successive concussions.185

If the Maxwell plaintiffs have been unable to continue as sexual partners

or their injuries have had an emotional or physical impact on their personal lives

or those of their spouses then damages for loss of consortium are plausible.186

However, these losses are only compensable if the underlying claims of personal

injuries are successful.187

The loss of consortium damages could be significant

considering statements such as those made by the widow of John Mackey which

describe the horrific deterioration process caused by dementia and the associated

financial devastation it causes.188

H. Counts Against Helmet Manufacturer

Football helmet manufacturers have been criticized for their lack of

attention to concussions in helmet design:

It wasn‟t until 2002 that Riddell (makers of the official NFL

helmets) introduced their „Revolution‟ helmet, the first helmet

designed to reduce concussions. They claimed wearers would be

30% less susceptible to concussion. Popular Mechanics noted that

„even with its innovations, the Revolution sticks to the standard

184

See Complaint, supra note 35, at 23-69 (detailing plaintiffs and their injuries). 185

People with Dementia have Shortened Life Expectancies, ALZINFO.ORG (Feb.

20, 2008),

http://alzheimers.org.uk/site/scripts/documents_info.php?documentID=101

(describing result of study finding average person diagnosed with Alzheimer‟s

lives another four and a half years). 186

See Headache, supra note 93 (explaining requirements to recover loss of

consortium damages); Complaint, supra note 35, at 80 (alleging loss of

consortium). 187

See Headache, supra note 93 (explaining requirement of proving underlying

injuries). 188

See Kain, supra note 3, at 727-28 (explaining widow of John Mackey wrote

three page letter to former NFL commissioner Paul Tagliabue which described

dementia as “slow, deteriorating, ugly, caregiver-killing, degenerative, brain-

destroying tragic horror” and asking for help).

30

football-helmet format of a polycarbonate shell with internal foam

padding that Riddell first introduced 70 years ago.‟189

However, it will be extremely difficult for the plaintiffs to show helmet

manufacturers were negligent. Absent a showing that Riddell football helmets

were drastically behind hockey or other sports equipment with regard to

concussion prevention, this cause of action should fail. The plaintiffs have not

alleged any specific facts that indicate Riddell could have provided safer helmets

let alone that they purposely minimized concussion protection. It is possible the

claims against Riddell were included in hopes of revealing some internal

documents which indicate knowledge that helmets provided inferior protection

against concussions. At the very least the allegations bolster the claims against

the NFL which in part rely on the NFL having failed to provide adequate

equipment to players.

IV. CONCLUSION

The NFL‟s decision to settle Maxwell will likely depend on its tolerance

for bad publicity.190

The NFL would like to keep its status as America‟s most

popular sport.191

The NFL‟s image has already been dealt a blow by the very

public labor dispute which occurred during the summer of 2011.192

Those

negotiations revealed the uglier business side of professional football and forced

fans to watch both sides fight over billions of their entertainment dollars during a

period of economic hardship for many Americans.

A potential “smoking gun” type document such as one found in tobacco

litigation which shows the NFL or Riddell knew about the risks of concussions

189

See Concussion Litigation, supra note 26 (citing Joe P. Hasler, Head Games:

How Helmet Tech Works in 7 Different Sports, POPULARMECHANICS.COM,

http://www.popularmechanics.com/outdoors/sports/technology/4339919 (last

visited Oct. 28, 2011) (alleging past safety deficiencies in Riddell helmets). 190

See Concussions and Cigarettes, supra note 59 (predicting suit will create

negative publicity for NFL and asserting settlement is better option). 191

Cork Gaines, The NFL is Still King Among American Sports Fans,

BUSINESSINSIDER.COM (Oct. 21, 2011), http://articles.businessinsider.com/2011-

10-21/sports/30305278_1_high-school-sports-popular-sports-american-adults

(presenting results of survey which found NFL is sport in which most American

adults have some interest, outpacing Major League Baseball by a wide margin). 192

B. Klein, NFL Labor Dispute: The Fans Are the Real Victim and Greed is the

Motive, BLEACHERREPORT (Feb. 5, 2011),

http://bleacherreport.com/articles/598438-nfl-labor-dispute-the-fans-are-the-real-

victim-and-greed-is-the-motive (criticizing perceived greed of NFL with regard to

labor dispute).

31

might make avoiding discovery imperative and thus settlement more appealing.193

However, the NFL may be hesitant to settle Maxwell based on the possibility of

opening the door to similar law suits by nearly any former player seeking

settlement. Two similar suits have already been filed.194

It is possible the Maxwell plaintiffs have filed this suit at least in part with

a fishing expedition in mind. The plaintiffs claim agents of the NFL “knew

[material representations] were false” and “intended to defraud [players]” but

present no evidence to back up their assertion. 195

Similarly the claims against

Riddell might require evidence found in discovery to show their conduct was

actionable.196

As a result it is possible this complaint will be dismissed under rule

12(b)(6) for not reaching the “plausibility” standard required in light of Iqbald

and Twombly.197

If Maxwell goes to trial the NFL may be most vulnerable to players who

experienced concussions between the 2005 widespread publication of the risks of

concussions and the NFL‟s adoption of stricter guidelines and issuance of

warnings in 2010. During this period, the NFL appears most culpable by first

contesting the findings of scientists and ultimately reversing course in its

treatment of concussions.198

193

See Concussions and Cigarettes, supra note 59 (proposing possibility of

embarrassing documents or testimony); Michon, supra note 140 (stating leak of

internal document changed fortune of tobacco litigants in 1990‟s).

194 See ASSOCIATED PRESS, Thomas, Six Ex-NFL Players Sue over League’s

Handling of Concussions, SI.COM (Aug. 18, 2011, 10:35 PM),

http://sportsillustrated.cnn.com/2011/football/nfl/08/18/concussions.lawsuit.ap/in

dex.html#ixzz1VQSXjbkThttp://sportsillustrated.cnn.com/2011/football/nfl/08/18

/concussions.lawsuit.ap/index.html?sct=hp_t2_a3&eref=sihp (stating six former

players and one current player filed class action suit in federal court);

ASSOCIATED PRESS, Eighteen Retired Players Sue NFL for Head Injuries, SI.COM

(Aug. 29, 2011, 9:41 PM),

http://sportsillustrated.cnn.com/2011/football/nfl/08/29/nfl.players.concussion.ap/

index.html#ixzz1WWWehKeM (stating eighteen former players filed suit in Los

Angeles Superior Court claiming NFL and Riddell knew long-term effects head

trauma and purposefully hid it from them). 195

See Maxwell, supra note 28, at 75 (detailing fraud count against the NFL). 196

For a further discussion of validity of claims against Riddell, see supra notes

189-190 and accompanying text. 197

Rakesh Kilaru, The New Rule 12(B)(6): Twombly, Iqbal, and the Paradox of

Pleading, 62 Stan. L. Rev. 905, 909 (2010) (asserting higher standard is now

required to survive 12(b)(6) motion). 198

See Hanna & Kain, supra note 23 at 33-34 (discussing shortcomings of NFL

concussion committee from 1994-2009 and subsequent remedial measures).

32

Maxwell may set the stage for future suits against the NFL by college,

high school, and youth football players.199

The plaintiffs in Maxwell claim that

the NFL, as an “industry icon” and having a “monopoly on American football”

acts as a template on which all other football in America models itself.200

As a

result it is possible to allege injuries suffered at the lower levels are a result of the

NFL‟s misinformation and negligence with regard to its own players.201

Similarly, if Riddell was negligent in its helmet design and manufacture then any

football player who used these helmets could sue on a similar basis. One observer

feels Maxwell may result in a suit by former professional wrestlers against their

former or current employers.202

It is likely former NHL players and even college

and high school players will be closely watching the development of Maxwell.

They may consider a similar suit against the NHL, NCAA, or even the NFL on

the basis that the NFL is indirectly responsible for their own injuries.

Maxwell may also impact the level of entertainment for fans of the NFL.

The 2011 rule change to kicking off from the thirty yard line was likely aimed at

eliminating the kick return—an exciting aspect of the game—because of the risk

of high speed collisions it entails.203

While this rule has been met with criticism,

reversing the rule might make it appear as though the NFL was favoring

entertainment over safety. In light of the negative publicity and lawsuits being

initiated, the league‟s image was likely a factor in the NFL‟s decision to keep the

unpopular rule. Fans may see a trickle down effect to college and youth high

199

See Concussions and Cigarettes, supra note 59 (claiming plaintiffs‟ argument

that NFL is “industry icon” may serve as a template for suits by college, high

school, and youth football players). 200

See Maxwell, supra note 28, at 12-13 (claiming NFL has “monopoly power”

and is “industry icon”). For a further discussion of incidences where other sports

organizations followed the NFL‟s lead, see supra notes 154-155 and

accompanying text. 201

For a further discussion of the argument that the NFL is responsible for

injuries suffered while playing football at the lower levels, see infra notes 169-

172 and accompanying text. 202

See Keith Harris, Should WWE Be Fearful of the NFL Concussion Lawsuit?,

CAGESIDESEATS.COM (July 24, 2011, 3:29 PM),

http://www.cagesideseats.com/2011/7/24/2290470/should-wwe-be-fearful-of-the-

nfl-concussion-lawsuit (proposing former wrestlers could sue on similar grounds

as Maxwell and stating family of Chris Benoit whose murder suicide may have

been related to concussions has several years remaining to sue World Wrestling

Entertainment for wrongful death). 203

See Albert Breer, Early Returns: How Kickoff Rule Changes Could Impact

Game, NFL.COM (Aug. 16, 2011, 01:29 PM),

http://www.nfl.com/news/story/09000d5d82180e4f/article/early-returns-how-

kickoff-rule-changes-could-impact-game (predicting changes resulting from new

rule); Dustin Fink, NFL Kickoff Change, THECONCUSSIONBLOG.COM (Mar. 23,

2011), http://theconcussionblog.com/2011/03/23/nfl-kickoff-change/ (detailing

risks inherent in special teams play).

33

school sports as these organizations increasingly fear litigation. The result may

be a weaker product for fans of sports in their traditional form.