On June 7th, the NFL concussion suit got just that much bigger, according to FindLaw's Courtside Blog. According to the new complaint filed in the federal court located in Philadelphia, the concussion suit now covers all 80 other suits filed by over 2,000 retired NFL Players, reports the Philadelphia Inquirer.
To remind readers, the suit is based on the allegation that the NFL wrongly concealed the fact that brain injury would occur after multiple head injuries, writes the Inquirer. The suit follows the suicides of a handful of prominent retired players, such as Junior Seau, and seeks to establish medical monitoring funded by the NFL for retired players.
To succeed, the players will have to prove that there was an intentional misrepresentation that led directly to the harm they suffered. They can do this under the theory of negligence by showing that the NFL owed the players a duty to disclose the possible dangers to their health. This duty could be similar to the duty that an employer has to keep the workplace safe.
Here, the NFL is alleged to know the dangers of multiple concussions and failed to act to protect its players from this danger. It is likely that the NFL can be shown to owe a duty to its players to have the game played as safely as possible, and that this duty was breached because of the failure to warn players of this risk.
However, there may be a causation issue with this case. While the players have obviously been harmed, to say that they would not have severe brain injury if the NFL had informed them of the dangers is more difficult to prove. It would certainly be speculative to say that the game would have been played differently if the information was known by all players.
The other difficulty that the Players must overcome is the defense of "assumption of the risk." This means that they knew that there were risks in playing football and knew they could be injured. However, many states no longer recognize this defense. Also, if the risk is not known, then the defense fails. So, if it can be proved that the NFL withheld information, this defense would likely fail.
All in all, it looks like the NFL is in for some work in the NFL concussion suit, hoping to knock it out with a motion to dismiss in the next few months. We'll have to wait and see how this play ends.