What Comes Next?
The concussion class action litigations against the National Football League and NCAA resulted in highly publicized settlements, so what are the chances that the high school football and youth soccer class actions will go that route? Two things to note:
First, the NFL and NCAA cases were settled on terms that most observers feel were highly favorable to the defendants. In fact, the NCAA's initial concussion settlement in Arrington v. NCAA was rejected by a US District judge because it didn't sufficiently address the needs of the class of plaintiffs, as was the case in the NFL concussion lawsuit as well.
Second, that a professional sports league and the governing body for college sports settled don't necessarily provide a template for suits involving high school or youth athletes. Unfortunately, they probably led some attorneys to think that, if they filed lawsuits, the governing bodies for sports at those levels would be quick to settle as well. That hasn't happened. Clearly, Mehr and Pierscionek are more a product of wishful thinking by the plaintiffs' attorneys than sound cases on the actual merits.
Besides, youth sports and high school leagues don't have the deep pockets possessed by the N.F.L. and the NCAA (which is undoubtedly one of the reasons the plaintiffs in Mehr sued FIFA, which does have deep pockets), so they are much less likely to see a monetary settlement involving expensive medical monitoring programs, as sought by the plaintiffs in Mehr and Pierscionek, as something they could afford.
Undoubtedly, the plaintiff personal injury bar (what we lawyers call tort lawyers) will learn from their mistakes in Mehr and Pierscionek. They'll stop trying to bring big cases to challenge and change sports' governing bodies' rules, and instead target individual schools, school districts and leagues for not enforcing the rules that do exist and for egregious departures from best safety practices. A number of schools and districts may even settle for some of the remedies that the sports governing bodies found objectionable in Mehr and Pierscionek.
Finally,it should be noted that the NCAA and NFL concussion settlements are not going to be the end of concussion litigation involving pro and college sports. A suit against the NHL is ongoing, a significant number of former NFL players have opted out of the settllement reached between the NFL and some are opting out of the NCAA settlement as well.
If those plaintiffs, through the discovery process, obtain documents showing that the NCAA or a professional sports league had actual knowledge of the long-term risks of concussions, then we could very well see juries return huge verdicts which could change the face of sports in the way the huge punitive damage awards against Ford Motor Company (Pinto) and General Motors (Corvair) in the 60's and 70's did for car safety by showing that athletes may assume the inherent risks of play, but the law may find that they do not assume risks that won't manifest for decades where a sports governing body knew about those risks and hid them. (although not out of the realm of possibility, the likelihood that organizations overseeing sports at the youth and high school level possess those kind of documents is remote)
The bottom line: the NFL, NCAA, NHL cases and Mehr and Pierscionek aren't the beginning of the end for concussion litigation, they are likely just the end of the beginning.
Donald C. Collins, JD, is an attorney, long-time basketball referee, Commissioner of Athletics for the California Interscholastic Federation, San Francisco Section, and author of numerous articles on sports administration, sports officiating, legal issues affecting sports officials, and sportsmanship. Mr Collins is on the MomsTeam Institute Board of Directors.
Lindsey Barton Straus is a a practicing attorney, Senior Editor of MomsTEAM.com, and Director of Research/Senior Editor for MomsTEAM Institute. She has written extensively about the subject of sports-related concussions for the past fifteen years.
Posted August 21, 2015
