Head Injury Litigation: Why No NCAA? (1 Viewer)

[superchuck500]

So isn't there some negligence in that way of thinking? Would the NFL be less liable if they left concussion management up to each team?

It gets back to what I was initially saying about the direct relationship. In the NFL, the league isn't simply a sanctioning body - but a private enterprise comprised of 32 private organizations. The league has direct control in the relationship between the teams and the players. (For instance, the league approves contracts - which are league-controlled standard agreements. The league sets and controls many aspects of the employer/employee relationship and not simply the rules of game and how the competition is conducted).

These things are never black and white. It's all about points and counterpoints that make up a particular theory or result. But I think there are many aspects of the relationship between an NFL player and the league as an enterprise that are not analogous to the relationship between the college athlete and the NCAA.

When you have some legal distance, you want to maintain it. So I think that's likely behind the NCAA's decision not to mandate specific concussion protocols. Could someone try to make the case that the relationship was already sufficiently direct that the NCAA had an obligation to mandate reasonable protocols rather than leaving them to the schools? Sure, someone could argue that.

 

[You]

I think colleges will be faced with lawsuits someday.

I also think there'll be a big collective settlement in the NFL with the players that are involved with lawsuits against the NFL. It'll be billions.

I would expect that we'll start to see the equivalent of the disclaimer on cigarette packaging in football stadiums and locker rooms across the country.

"Warning:
The state of California has determined that Playing Football is hazardous to your health and may result in longterm damage to your body. "

 

[st dude]

Good question RJ. Let us take it a step further.

As RJ and SuperChuck know, in any personal injury suit in Lousiana any defendant can decaler any third party he wants to go on verdict form. Unless the plaintiff has sued that defendant, he cannot recover for the fault of that defendant.

The studies the NFL players are citing now speak of micro traumas, that is, that even without concussions players suffer damage from repeated hits to the head and that the damage is progressive.

Why stop with the NCAA? 90% of the players in pro football started playing in the fifth grade, if not in flea-fly leagues when they were six years old. If the head injuries players claim started in the fifth grade, could the NFL put grade schools, high schoools and colleges on the verdict form as responsible parties?

I am sympathetic to players with lingering problems form head injuries. My son was a high school qb and we had to stop him from playing his senior year after receiving concussions.

I just do not buy into the suits. It is almost like a boxer suing boxing because he has lingering effects from getting beat up.

Football is a violent sport. Everyone knows playing it carries a risk, not only one of head injury, but a riask of paralysis and death. Players know that and assume the risk.

Even if there were studies that were somehow repressed, I do not think the studies would make a difference to the guys who play. Everyone knows the risk now and high school football is bigger than it has ever been. I do not believe the guys that are suing would not have played just because some study told them football was dangerous.

 

[State Of Affairs]

I don't really see how that has anything to do with it. What would be the theory that you need a collective bargaining situation to pursue a defendant with a legal obligation to provide a reasonably safe environment for the particular activity?

I suppose having a CBA with the league solidifies that direct relationship to the league itself rather than the team-employers, but I don't think that's a threshold requirement in this situation.

I took it more as communication.. You have some kind of union or organization to create a system and follow up with issues...

Otherwise, you have a bunch of people complaining but no one really knows how to act on it... Not that I'm want to encourage it but that's how it usually works.

 

[superchuck500]

I took it more as communication.. You have some kind of union or organization to create a system and follow up with issues...

Otherwise, you have a bunch of people complaining but no one really knows how to act on it... Not that I'm want to encourage it but that's how it usually works.

That's what plaintiffs lawyers do. Trust me, there are countless lawyers out there looking for any old player to sign up and file suit. I don't think the PA is spearheading this at all.

 

[superchuck500]

Good question RJ. Let us take it a step further.

As RJ and SuperChuck know, in any personal injury suit in Lousiana any defendant can decaler any third party he wants to go on verdict form. Unless the plaintiff has sued that defendant, he cannot recover for the fault of that defendant.

The studies the NFL players are citing now speak of micro traumas, that is, that even without concussions players suffer damage from repeated hits to the head and that the damage is progressive.

Why stop with the NCAA? 90% of the players in pro football started playing in the fifth grade, if not in flea-fly leagues when they were six years old. If the head injuries players claim started in the fifth grade, could the NFL put grade schools, high schoools and colleges on the verdict form as responsible parties?

I am sympathetic to players with lingering problems form head injuries. My son was a high school qb and we had to stop him from playing his senior year after receiving concussions.

I just do not buy into the suits. It is almost like a boxer suing boxing because he has lingering effects from getting beat up.

Football is a violent sport. Everyone knows playing it carries a risk, not only one of head injury, but a riask of paralysis and death. Players know that and assume the risk.

Even if there were studies that were somehow repressed, I do not think the studies would make a difference to the guys who play. Everyone knows the risk now and high school football is bigger than it has ever been. I do not believe the guys that are suing would not have played just because some study told them football was dangerous.

Maybe I'm missing something in this, but I don't know of any procedure where a defendant cast in judgment by a verdict can then name third-parties as responsible for the judgment liabilities. (I think it has to be pre-trail for sure, maybe even significantly before that).

 

[RJ in Lafayette]

Chuck, what st dude is referring to is Louisiana's pure comparative fault system.

For those who are not lawyers, the general rule in Louisiana is that a tortfeasor defendant (the negligent party who gets sued) is liable only for his percentage of fault, and can allege as an affirmative defense the fault of others and obtain a credit for the percentages of fault assigned to non-parties.

Quick example for those who are not lawyers: A and B equally cause X's accident. X has $100,000 in damages. X sues only A (perhaps B has immunity under a statute or goes bankrupt). A alleges as an affirmative defense the fault of B. At trial, A and B are each found 50 percent at fault in the accident. X can recover from A only 50 percent of damages ($50,000).

 

[FatiusJeebs]

Why not high schools? Pop warner? They've been taking hits since they were kids right? Just sayin...

 

[superchuck500]

Chuck, what st dude is referring to is Louisiana's pure comparative fault system.

For those who are not lawyers, the general rule in Louisiana is that a tortfeasor defendant (the negligent party who gets sued) is liable only for his percentage of fault, and can allege as an affirmative defense the fault of others and obtain a credit for the percentages of fault assigned to non-parties.

Quick example for those who are not lawyers: A and B equally cause X's accident. X has $100,000 in damages. X sues only A (perhaps B has immunity under a statute or goes bankrupt). A alleges as an affirmative defense the fault of B. At trial, A and B are each found 50 percent at fault in the accident. X can recover from A only 50 percent of damages ($50,000).

That's not what I thought he was taking about. He said that a judgment defendant can designate responsible third parties on verdict forms - and suggested that this can be done arbitrarily be the defendant in judgment. My litigation these days is in federal fora in Washington but I don't know of such a procedure in LA. I know that Texas does have a procedure to designate responsible third parties but it must be done at least 60 days before trial.

I don't think he was simply referring to comparative negligence or joinder. Comparative fault is determined by the fact-finder based on the evidence, not simply something a defendant can arbitrarily designate.

EDIT - re-reading his post, perhaps he was referring to the defendant's ability to allege that other parties were comparatively negligent - but that's not something that any competent plaintiffs attorney would get caught by IMO.

I thought he was getting more at the responsible third party concept that Texas has and I wasnt sur if LA had.

 

[guidomerkinsrules]

Why stop with the NCAA? 90% of the players in pro football started playing in the fifth grade, if not in flea-fly leagues when they were six years old. If the head injuries players claim started in the fifth grade, could the NFL put grade schools, high schoools and colleges on the verdict form as responsible parties?
.

as we were discussing this last year, it seemed that the only ones who were going to win were nfl players (suppression of evidence) who could also prove that their particular team's trainers/coaching staff ignored symptoms

 

[atceagle]

as we were discussing this last year, it seemed that the only ones who were going to win were nfl players (suppression of evidence) who could also prove that their particular team's trainers/coaching staff ignored symptoms

I don't think there is a question of medical staff ignoring symptoms. Symptoms are things that must be told to us. Signs are things I can see. Therefore, if the player doesn't tell you they are having symtoms or lies and says they aren't having symptoms and you see no signs, then you let them play. This was the old way of concussion diagnosis prior to the neurocognitive tests like ImPACT, that are used now. With ImPACT, a player can say they have no symptoms but any neurocognitive deficiencies will reveal themselves with the test.

 

[Broad St. Saint]

The NCAA is a nonprofit association of member colleges and universities. Not sure what assets that the NCAA itself has.

Some members, e.g., LSU, Alabama, Georgia, TX A&M, probably have substantial assets. Not sure whether they'd benefit from sovereign immunity, being state universities (though of course there are many private NCAA members).

 

[st dude]

That's not what I thought he was taking about. He said that a judgment defendant can designate responsible third parties on verdict forms - and suggested that this can be done arbitrarily be the defendant in judgment. My litigation these days is in federal fora in Washington but I don't know of such a procedure in LA. I know that Texas does have a procedure to designate responsible third parties but it must be done at least 60 days before trial.

I don't think he was simply referring to comparative negligence or joinder. Comparative fault is determined by the fact-finder based on the evidence, not simply something a defendant can arbitrarily designate.

EDIT - re-reading his post, perhaps he was referring to the defendant's ability to allege that other parties were comparatively negligent - but that's not something that any competent plaintiffs attorney would get caught by IMO.

I thought he was getting more at the responsible third party concept that Texas has and I wasnt sur if LA had.

RJ is right and it is not something competent plaintiff lawyers can avoid. All I do mostly is plaintiffs personal injury. If I sue the defendants can and often do try to get everyone they can on verdict forms to reduce their fault.

La law even allows them to put immune and/or insolvent defendants on verdict form.

So as it relates to this case if a player sued the Saints and said they caused him to have head injury from repeated trauma the defendants could put anyone they want who ever caused his head injury on verdict form. That would arguably include his college and high school. If the theory is repetitive trauma how do you exclude hits player took in college and high school?

 

[krushing]

I think the argument is that the NFL had head injury information that they refused to acknowledge. Also the NFL is private and probably much easier to go after.

 

[QSTA]

Interesting tidbit from a recent article concerning the lawsuit...

If the case survives, Feldman said, “we have a whole host of other obstacles the players have to deal with. You have physical causation issues – proving the injuries they suffered were caused by collisions or hits they suffered while playing in the NFL, as opposed to playing college or youth football,” he said.

“It’s still very difficult. We’re talking in almost all these cases cumulative trauma,” Feldman said. “That’s just part of the battle, because no one’s going to contest the fact NFL players get injured playing football. That doesn’t mean the NFL is on the hook for those injuries.”
Super Bowl 2013: Players' lawsuit over brain injuries looms in background of big game | NOLA.com