NFL faces new concussion-related lawsuit
Former Detroit Lions defensive Tracy Scroggins was one of about 5,000 players to file concussion-related lawsuits against the NFL.
Now, Scroggins is the first to file in what could potentially become a new wave of litigation against the league. The lawsuit filed in federal court in Ft. Lauderdale, Fla., on Friday cites two recent developments as grounds for the litigation: an NFL executive’s comments on Capitol Hill and allegations an NFL study underreported incidences of concussions.
"The complaint is barred by the concussion litigation settlement and we expect it to be dismissed," NFL spokesperson Brian McCarthy told USA TODAY Sports in an email. "Mr. Scroggins is a member of the settlement class and did not choose to opt out. He is eligible to pursue the benefits provided under the settlement agreement, but may not pursue any action in court, either on his own behalf or on behalf of other former players, more than 99 percent of whom have accepted the settlement."
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One of the six counts listed in the 27-page filing – which seeks class action status - is for relief under the civil Racketeer Influenced and Corrupt Organizations (RICO) Act.
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“This was a double-barreled hit over the last two weeks, first with the admission before Congress of the link between football and CTE, and then news that the NFL potentially withheld information from players,” sports attorney Daniel Wallach told USA TODAY Sports. “Those two events occurring within days of one another could have a ripple effect. We could see more litigation."
Tim Howard, the lawyer representing Scoggins, wrote his clients is suffering from symptoms consistent with CTE, which can only be validated currently via postmortem examination of the brain.
"He can't remember where he is or where he's going," Howard told USA TODAY Sports. "He hasn't been able to hold a job over the last six years. Beyond memory issues, he suffers from depression and has angry outbursts."
Howard wrote in the lawsuit “the NFL’s concealment of known facts showing the high incidence of repeated head trauma which ultimately lead to CTE among NFL players.” Under federal RICO law, damages can be tripled the actual amount awarded.
That alleged “concealment” ended, according to the lawsuit, when Jeff Miller, the league’s senior vice president for health and safety, spoke during a roundtable discussion in Washington on traumatic brain injury research, including chronic traumatic encephalopathy (CTE).
"You asked the question whether I thought there was a link and I think certainly based on Dr. (Ann) McKee’s research that there’s a link because she’s found CTE in a number of retired football players," Miller said.
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It was the first time an NFL executive publicly acknowledged a link between football and CTE, although Miller was only speaking about one study conducted by McKee, a Boston University neuropathologist.
The lawsuit also mentions Thursday’s New York Times story that reported at least 100 concussions weren’t reported in a league study that ran from 1996-2001.
More than 200 players opted out of the settlement before last year's deadline. Howard said he plans to amend Friday's lawsuit to include more players.
About 70 former players who were part of the $1 billion concussion settlement between with the league that covers about 20,000 former players have appealed the deal. Lawyers for those former players appealing the settlement ague the deal does not provide adequate compensation for all neurological disorders.
The U.S. Court of Appeals for the Third Circuit is expected to rule on the appeal by the end of May.
Lawyers for the NFL wrote in a filing on Friday that Miller’s comments have no bearing on the settlement approved last April.
“The settlement compensates the ‘serious, objectively verifiable neurocognitive and neuromuscular impairment’ in living players allegedly associated with CTE,” Paul Clement, a partner at the firm Bancroft PLLC, wrote. ”Accordingly, there is no need to supplement the record with additional information about any purported ‘link’ between football and CTE — the settlement already provides compensation for the serious verifiable neurocognitive impairments allegedly associated with CTE.”
Wallach, a partner at the firm Becker & Poliakoff, said the three-judge panel could be influenced by the recent developments.
“You are talking about two incredibly important pieces of the information that weren’t known to the retired players when they were negotiating the agreement,” Wallach said.