Seventy-five former NFL players and some of their spouses have filed a lawsuit in Los Angeles Superior Court against the NFL and a long-time supplier of protective helmets, alleging that the League knew as early as the 1920s of the harmful effects that concussions may have on a player’s brain, but concealed that information from players until 2010.  In order to escape preemption by federal law, the plaintiffs strategically filed the lawsuit during the time the NFLPA had decertified itself as the players’ representative for bargaining.  In addition, the plaintiffs allege the Collective Bargaining Agreement is inapplicable to their claims.

The plaintiffs allege nine causes of action in the July 19 lawsuit: (1) Negligence – Monopolist against the NFL; (2) Negligence against the NFL; (3) Fraud against the NFL; (4) Negligence against NFL Properties; (5) Strict Liability for Design Defect against Riddell; (6) Strict Liability for Manufacturing Defect against Riddell; (7) Failure to Warn against Riddell; (8) Negligence against Riddell; and (9) Loss of Consortium against all Defendants.

The California Workers’ Compensation Act subjects employers to strict liability for industrial accidents while making workers’ compensation benefits the exclusive remedy for employees and their dependents’ against the employer for injuries “arising out of and in the course of employment.” See Shoemaker v. Meyers (1990) 53 C3d 1, 16-18.  Furthermore, this rule applies if the employee’s injury resulted in the egregious or intentional conduct of the employer, even if it is unlawful. Id. at 15; Vuillemainroy v. American Rock & Asphalt, Inc. (1999) 70 Cal.App.4th 1280, 1281.

Here, the plaintiffs’ negligence claims against the NFL (1, 2, and 4 above) heavily rely on their claims that it failed to provide a safe workplace, maintained outdated return to play requirements, and failed to take the necessary steps to “oversee and protect” the health and safety of its players.  However, workplace safety is an issue exclusively covered by the California’s Workers’ Compensation Law.  Spratley v. Winchell Donut House, Inc. (1987) 188 Cal.App.3d 1408, 1412-14. 

In order to maintain its civil action, the plaintiffs likely will argue that one of the exceptions to the Workers’ Compensation Exclusivity Rule is applicable here.  Specifically, courts have permitted fraud claims against an employer when the employer concealed the existence of an employee’s workplace injury, which is not considered a normal action by an employer.  Charles Vacanti, M.D., Inv. V State Comp. Ins. Fund (2001) 24 Cal.4th 800, 822.  The plaintiffs likely will allege the NFL concealed the risks of concussive brain injuries and the subsequent damaging effects. 

The plaintiffs may pursue other avenues to avoid preemption of the negligence claims.  Regardless, the NFL likely will seek a dismissal of the negligence claims and the claim for loss of consortium in its responsive pleading; which, as of August 30, 2011, the NFL has yet to file. 

The Jackson Lewis Collegiate and Professional Sports Industry practice will continue to monitor this litigation as it proceeds.