How Litigation Threatens Professional Football

Professional football is the most popular spectator sport in
America, which is one reason yesterday’s Super Bowl was expected to
draw 110 million viewers. With its famous athletes, storied
franchises, and lucrative TV contracts, it’s an industry whose
future appears limitless.But football has a problem: the specter of mass brain damage
among current and former players. So far, the steady trickle of
disturbing revelations has had no apparent effect on ticket sales
or TV ratings. What it has done, though, is more ominous: It has
invited lawsuits.If football falls into decline, it may not be the result of fans
turning away, athletes avoiding it, or parents forbidding it. It
may be from lawyers representing players who sustained chronic
traumatic encephalopathy and expect to be compensated for the
damage.Already, more than 4,000 former players are suing the NFL,
claiming it failed to warn them of the hazards. The family of San
Diego Chargers great Junior Seau, whose autopsy revealed CTE after
his suicide last year, has filed a wrongful death suit against the
league. The Seaus are also accusing Riddell Inc. of making unsafe
helmets.Walter Olson, a Cato Institute fellow, blogger
(, and author of several books on liability, knows
well how a tide of litigation can transform a landscape. And he has
a bold prediction: “If we were to apply the same legal principles
to football as we do to other industries, it would have to become
extremely different, if not go out of business.””Seriously?” you may ask. A guy who made a good living engaging
in high-speed collisions with 300-lb. blocks of granite can say he
didn’t understand the risks involved? It may seem that case will be
laughed out of court.But Olson thinks not. “Courts have not been very friendly to
this argument, particularly when something as grave as permanent
brain damage is involved,” he told me. And it’s become apparent
that while players were aware of the possibility of mangled knees,
broken bones, and concussions, they didn’t grasp that repeated
blows to the head could produce debilitating and irreversible
mental harms.Exposure to asbestos was long known to be unhealthy, but that
didn’t stop sick workers from succeeding in court. More than
730,000 people have sued some 8,000 companies, and dozens of firms
connected to asbestos in some way have been driven into
bankruptcy.The NFL has a weak hand in other ways as well. Professional
football players, notes Olson, make particularly appealing
litigants, since they tend to be well-known and widely liked. Their
cases will get a lot of sympathetic publicity.These athletes are handsomely paid, which means that brain
trauma may deprive them of years of high earnings while requiring
them to get expensive care for decades—all of which the league and
other parties (stadium owners, equipments makers, and so on) may be
forced to pay for.On the other side are owners, many of whom are resented for
charging high prices, fielding losing teams year after year or
simply being insufferable. (Jerry Jones, I’m looking at you.)Next in the line of fire are the soulless corporations that make
or sell helmets, facemasks, and other gear that failed to prevent
these injuries—and may even have contributed to them. Doctors and
trainers who cleared players to return to action after a
fog-inducing tackle will get close scrutiny to determine whether
they put the team’s needs above the patient’s.The NFL and other defendants can argue that they too were
surprised to find out how much brain damage can result from the
game and therefore should not be blamed for it. But as Olson notes,
the game is still being played in pretty much the same way as it
was before. Lawyers for the plaintiffs, he says, can ask: “How much
difference would that knowledge have made if you’re still letting
this happen?”It’s always possible, of course, for lawmakers to pass
legislation exempting organized football from the usual liability
standards. But if one state or 10 states do so, attorneys can find
excuses to file the lawsuits in states that don’t—since the NFL is
an interstate business.A federal law might take the issue out of state courts. But how
many senators will want to vote to deprive ravaged gridiron legends
of their day in court?The NFL has a lot of experience with blitzes. But it’s never
seen anything like the one that’s coming.

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How Litigation Threatens Professional Football

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