Football Concussions and Class Actions
On October 1, 2014, a sixteen-year-old boy from Long Island died after an on-field collision in his high school football game. He was the third high school football player in the United States to die from football that week.[1] Tom Cutinella, another high school football player died shortly after crashing into another player during a game.[2] Demario Harris Jr., a 17-year-old cornerback, was pronounced dead days after he collapsed after making a tackle in his high school football game.[3] Isaiah Langston, 17, collapsed during warm-ups before a recent game and died a few days later.[4] At least 50 young football players, high school or younger, in more than 20 states from 1997 to 2007 were killed or have sustained head injuries on the field.[5]
Head injuries and deaths from football are not only affecting young players. Ralph Wenzel, a former NFL player and assistant high school football coach died from complications with dementia at the age of 69. [6] When asked how many concussions he suffered he answered “More than I could probably count.” In his early 50s, Wenzel was physically fit, but was losing his memory and having sporadic mental lapses.[7] Eventually he was unable to walk, write or feed himself, and soon he was living in an assisted living center for dementia patients.[8] Former NFL player, Charles “Ray” Easterling killed himself at the age of 62, despondent about his increasing dementia and the looming prospect of institutionalized care.[9] Easterling’s suicide followed the suicide of 50-year-old Dave Duerson, also a former NFL player, who shot himself in the chest.[10] Duerson’s suicide note stated “Please, see that my brain is given to the NFL’s brain bank.”[11] Two weeks after Easterling’s suicide, another former NFL player Junior Seau killed himself at the age of 43 after exhibiting erratic behavior that may be associated with brain damage caused by concussions.[12] Concussions suffered as a result of playing high school, college, and professional sports are becoming increasingly prevalent in today’s world.
Many former NFL players consolidated their lawsuits into a class action, consisting of over 4,000 players suing the NFL.[13] The lawsuit seeks a declaration of liability, injunctive relief, medical monitoring, and financial compensation for the long-term chronic injuries, financial losses, expenses, and intangible losses suffered by the plaintiffs and plaintiffs’ spouses as a result of the NFL’s intentional tortious misconduct, including fraud, intentional misrepresentation, and negligence.[14]
Many of those involved in the NFL concussion suit claim the settlement is flawed because it does not cover the full range of physical and psychiatric disorders linked to brain trauma. [15] “The settlement neither recognizes nor compensates the majority of players suffering long-term consequences of brain trauma, but merely rewards certain small, discrete groups,” Shana De Caro and Michael Kaplen, lawyers for the Brain Injury Association of America, wrote in their brief filed with the United States Court of Appeals for the Third Circuit.[16] “The vast majority of retired football players experiencing physical, emotional and behavioral impairments following repetitive concussions remain excluded and uncompensated under settlement terms.”[17] The lawyers further contend that a larger flaw in the deal is the lack of payments to players who have symptoms—including mood swings, sleep disorders, vertigo, dizziness and headaches—that affect people who have sustained concussions.”[18]
In my opinion, sports concussions class actions requesting monetary relief for each individual player should not be certified or treated as a class. Concussions affect players, former players, and their families individually. The symptoms of brain trauma are too varied to reward the players and their families with uniform damages.
Image: Starting Quarterback Trent Edwards #5 of the Buffalo Bills suffers a concussion after getting hit by Strong Safety Adrian Wilson #24 of the Arizona Cardinals during the first half of their NFL Game on October 5, 2008 at Stadium in Glendale, Arizona. By Donald Miralle/Getty Images. H/T The Kevlar Defense, The Dish (July 16, 2012), http://dish.andrewsullivan.com/2012/07/16/the-kevlar-defense/.
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