During his playing career, Jim McMahon was celebrated both for his mischievous behavior and for his outstanding performances – most notably while quarterbacking the Chicago Bears to victory in the 1985 Super Bowl. More recently, however, McMahon may be less recognizable for his role in the Super Bowl Shuffle than for his outspoken criticism against the NFL and its prior treatment of brain related injuries. Indeed, McMahon claims to have suffered four concussions during the course of his fourteen-year NFL career and that he was never removed from competition as a result of his injuries. Perhaps as a result, McMahon now suffers from early stages of dementia and often forgets where he is and what he is doing. Numerous other former players assert similar injuries, which they blame on violence sustained during their NFL careers.

Last week, the NFL took a major step towards resolving this distracting affair, which has uncomfortably pitted the league against former NFL superstars and journeymen. The NFL agreed to a $765 million settlement in a class-action dispute with over 4,500 retired players. The deal does not preclude litigation by current or future players, and as a result the NFL did not admit to concealing information about the dangers of a football career or even to football causing brain-related injuries. However, it will provide relief to struggling former players, like McMahon, and it will devote resources to research and education. Although this represents a fraction of the league’s approximately $9 billion yearly revenue, the settlement permits recovery for plaintiffs, many of whom would be unlikely to survive a lengthy and complex proceeding.

Although the suit against the NFL has certainly been the highest-profile instance of a league coming under scrutiny for allegedly negligent treatment of brain injuries, it may in fact represent only the first in a line of cases. Indeed, the NCAA and NHL currently have analogous lawsuits pending against them. Moreover, other sports leagues – even those not traditionally associated with violent contact – expose athletes to the possibility of brain trauma. For example, since the All-Star break, more than 15% of MLB catchers have been placed on the disabled list with concussion-related symptoms. The NFL’s experience may impact litigation strategies and courtroom arguments in these and other future disputes.

The ongoing litigation against the NCAA represents the most salient comparison, since it is currently the furthest along in the litigating process. The pertinent legal issues are not identical, but each broadly relates to duty of care. Plaintiffs in the NFL lawsuit argued that the league knew or should have known about lasting neurological risks associated with professional football, and  that it failed to take appropriate steps in response. Meanwhile, the NCAA plaintiffs assert that the Association failed to establish proper guidelines for players’ return from injury. The NCAA may owe a higher duty of care to its athletes – its founding principle was “to protect young people from the dangerous and exploitative athletic practices of the time.” Regardless, the NCAA undeniably faces a larger potential exposure: with over 1,000 member institutions, the NCAA has nearly one entire athletic department for each active NFL player. This may ultimately incentivize the NCAA to follow the path of the NFL and reach a settlement. Indeed, last month, they indicated an openness to reasonable offers.

–Reed Nixon

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