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The Globe and Mail

Concussion lawsuits question NFL's safety priorities

NFL commissioner Roger Goodell smiles during a new conference after the NFL owners meeting in Irving, Texas, Wednesday, Dec. 14, 2011 .(AP Photo/LM Otero)

LM Otero/AP

The long debate over the NFL's handling of concussions is reaching the courts in a flurry of lawsuits, raising the spectre of dozens of former players going before juries to outline the league's medical practices and describe the long-term cognitive problems they say were caused by the sport.

More than a dozen suits, filed since July on behalf of more than 120 retired players and their wives, say that the NFL, and in some cases helmet manufacturers, deliberately concealed information about the neurological effects of repeated hits to the head. Several suits also say that even if the league did not know about the potential impact of brain trauma sustained on the field, it should have known.

Taken together, the suits filed in courts across the country amount to a multi-front legal challenge to the league and to the game itself. While the retired players, including stars like Jim McMahon and Jamal Lewis, face a time-consuming and difficult battle, the NFL will have to spend heavily on lawyers to fend off the chance that juries might award the retired players millions of dollars in damages.

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The league also must grapple with the unflattering publicity that comes from former players hobbled by injuries and, in some cases, financial problems, suing their former employer, the stewards of the United States' most popular sport. The stakes would only get higher if any of the cases go to trial, where details may emerge about what the NFL knew about concussions and when, how it handled that information and whether it pushed manufacturers to make the safest helmets possible.

"I don't think the NFL can consider these cases nuisances," said Mark Conrad, who teaches sports law at Fordham University. "They will take them seriously because if it goes the wrong way, it could be a bombshell."

The NFL is no stranger to the courts. In the last few years, it has tangled over merchandising, drug testing and antitrust exemptions. But those issues were largely alien to the average fan and barely slowed the league's primary mission to put on games.

The notion of retired players telling a jury that the league is at least partly liable for their dementia and other cognitive disabilities is an entirely different matter, legal experts say, because the players' testimonies are bound to get a sympathetic audience and cast a shadow over the league.

"We believe that the long-term medical complications that have been associated with multiple concussions – such as memory loss, impulse anger-control problems, disorientation, dementia – were well documented, and that factually the NFL knew or should have known of these potentially devastating neurological problems and yet it didn't take any active role in addressing the issue for players," said Larry Coben, who is representing seven retirees including McMahon, the quarterback for the Chicago Bears team that won the Super Bowl after the 1985 season.

Brad Karp, an outside counsel for the league, said, "The NFL has long made player safety a priority and continues to take steps to protect players and to advance the science and medical understanding of the management and treatment of concussions. The NFL has never misled players with respect to the risks associated with playing football. Any suggestion to the contrary has no merit."

A trial is not imminent, however, and may never occur, legal experts said. The league will be compelled to settle the cases out of court, they said, and the former players must hope a judge will allow the cases to proceed.

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In a sign of the high hurdles facing the retired players, the league has successfully convinced at least one federal judge that any claims by the players should be handled under the collective bargaining agreements that they signed during their NFL careers.

The New York Times Service

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