Almost exactly a year ago, I wrote “Brain Injuries, Not Lawyers, May Spell The End Of Football,” contesting the absurd claim by two economist-bloggers that “The most plausible route to the death of football starts with liability suits.” As I wrote then:
“[L]iability suits” do not arise from the imaginations of personal injury lawyers, they arise from tragic stories and negligent acts. Trial lawyers did not wake up one day and say to themselves, “let’s sue football,” and then spin the wheel of horrible injuries and land on brain damage. Players, their unions, their families, and their doctors noticed a trend among football players to suffer brain injuries and be diagnosed with chronic mental diseases like chronic traumatic encephalopathy at a rate far higher than the rest of the population. …
If football is abandoned by the parents of the next generation of potential players, it will not be the result of “liability suits” — it will be because the sport is increasingly being perceived, as Cowen and Grier tellingly analogize, as being as risky as “smoking or driving without seatbelts.” If, as they claim, “modern parents keep their kids out of playing football,” it will not be because of “our litigious society” but rather because parents are trying to protect their children from brain damage.
A year later, not much has changed in the NFL litigation, in which thousands of former players allege the NFL failed to take reasonable actions to protect Players from the chronic risks created by concussive and sub-concussive head injuries and fraudulently concealed those risks from Players. That’s not surprising given its scope; earlier this week, U.S. District Judge Anita Brody, who is overseeing the NFL Concussion MDL here in Philadelphia, set oral arguments on the League’s motion dismiss for April 9. (The League has argued that, regardless of the merits of the allegations against them, the cases are “a labor dispute the resolution of which depends upon an interpretation of the terms of the applicable [collective bargaining agreements],” and thus the claims are “pre-empted by § 301 of the Labor Management Relations Act” and subject to individual arbitration, rather than civil litigation in the courts. For more on the details of the case, to call Paul Anderson’s blog “comprehensive” would be an understatement.)
Yesterday, Bloomberg BusinessWeek published a thorough, even-handed article about the CTE litigation, putting the litigation as a whole into the proper context, including by identifying the real stakes in the litigation: