Frank Sanders v. NFL

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IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA

FRANK V. SANDERS, JOHN R. LEAKE, and ERIC HIPPLE Plaintiffs, v. NATIONAL FOOTBALL LEAGUE; and NFL PROPERTIES, LLC, Defendants.

CIVIL ACTION FILE NO. ______________ JURY TRIAL DEMANDED

COMPLAINT FOR DAMAGES

The Plaintiffs hereby file this Complaint for Damages and Jury Trial

Demand against the above-named Defendants, respectfully showing this Court as

follows:

INTRODUCTION

1.

This action is brought against Defendants the National Football League and

NFL Properties, LLC (collectively, “Defendants” or “NFL”) to seek damages

related to Defendants’ negligence, fraud, and other misconduct regarding the

serious health effects of repeated head impacts, and the injuries suffered by the

Plaintiff players as a result of playing professional football in the NFL. Plaintiffs’

injuries, and the significant ongoing health consequences resulting from them,

include neurodegenerative disorders and diseases.

Case 1:12-cv-01905-CC Document 1 Filed 06/01/12 Page 1 of 66

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2.

Until very recently, Defendants actively sought to suppress and obscure the

truth about the long-term effects of concussions and head trauma suffered while

practicing and playing football for the National Football League. Defendants’

efforts to obscure the truth about the cause, treatment, and consequences of

football-related concussions and head trauma caused players who suffered

concussions or head trauma to be misdiagnosed, to not receive proper treatment,

and to continue practicing and playing with these severe injuries, and to be

fraudulently directed back on the field in spite of the severe detrimental

consequences of the same.

3.

As a result of Defendants’ misconduct as described herein, Plaintiffs

suffered substantial injury, including economic loss. Plaintiffs hereby allege as

follows:

PARTIES

4.

Plaintiff Frank Sanders resides in the State of Arizona, in Phoenix, Maricopa

County.

5.

Plaintiff John Leake resides in the State of Texas, in Plano, Collin County.


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6.

Plaintiff Eric Hipple resides in the State of Michigan, in Fenton, Livingstone

County.

7.

Defendant NFL is a nonprofit, non-incorporated entity organized and

existing under the laws of the State of New York, with its principal place of

business at 280 Park Ave., 15th Fl., New York, NY 10017. The NFL is not, and

has not been, the employer of Plaintiffs, who were employed by independent team

clubs during their career in professional football. The NFL regularly conducts

business in, and derives substantial revenues from, Georgia.

8.

Defendant NFL Properties, LLC, as the successor-in-interest to National

Football League Properties, Inc. (“NFL Properties”) is a limited liability company

organized under the laws of the State of Delaware with its principal place of

business in the State of New York. NFL Properties is engaged in, among other

activities, approving, licensing and promoting equipment by all the NFL teams.

The NFL regularly conducts business in, and derives substantial revenues from,

Georgia.


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9.

The NFL caused or contributed to the injuries alleged herein through its

voluntary undertaking, including its acts and omissions in misrepresenting the true

risks of repeated traumatic brain and head impacts, and failing to take appropriate

steps to prevent and mitigate repeated traumatic brain and head impacts and the

latent neurodegenerative disorders and diseases caused by such impacts.

JURISDICTION AND VENUE

10.

This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1332(a),

as there is diversity of citizenship and the amount in controversy exceeds

$75,000.00, exclusive of interests and costs.

11.

This Court has personal jurisdiction over Defendants as they regularly

conduct business in Georgia, have a franchise that plays in Georgia, and derive

substantial revenue from their contacts with Georgia.

12.

Venue properly lies in this district pursuant to 28 U.S.C. § 1391(a)(2) and

1391(b)(2) as a substantial part of the events and/or omissions giving rise to the

claims emanated from activities within this jurisdiction and the Defendants’

conduct substantial business in this jurisdiction.


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NATURE OF THE ACTION

13.

The NFL acts as a trade association for thirty-two franchise owners, and

consists of two conferences, the AFC and the NFC comprised of thirty-two teams.

14.

The NFL is a separate entity from each of its teams. American Needle, Inc.

v. NFL, et al., 130 S. Ct. 2201 (U.S. 2010).

15.

Each team functions as a separate business but operates under shared

revenue generated through broadcasting, merchandising and licensing.

16.

The NFL governs and promotes the game of American football, sets and

enforces rules and league policies, and regulates team ownership. It generates

revenue mostly through marketing sponsorships, licensing merchandise and by

selling national broadcasting rights to the games. The teams share a percentage of

the NFL’s overall revenue.

17.

Owing in part to its immense financial power and status, the NFL has

assumed enormous influence over the research and education of football injuries to

physicians, trainers, coaches, and amateur football players at all levels of the game.


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18.

The NFL’s website www.nflhealthandsafety.com states that USA Football,

the sport’s national governing body, “is the Official Youth Football Development

Partner of the NFL and the NFL Players Association. The independent non-profit

organization leads the development of youth, high school and international amateur

football. In addition, USA Football operates programs and builds resources to

address key health and safety issues in partnership with leading medical

organizations. The organization was endowed by the NFL and NFLPA through the

NFL Youth Football Fund in 2002. USA Football stands among the leaders in

youth sports concussion education, particularly for football.”

THE NFL AND THE CBA

19.

Until March, 2011, all NFL players were members of a union called the

National Football League Players Association (“NFLPA”). The NFLPA negotiates

the general minimum contract for all players in the NFL with the National Football

League Management Council (“NFLMC”). This contract is called the Collective

Bargaining Agreement (“CBA”) and it is the central document that governs the

negotiation of individual player contracts for all of the NFL’s players. However,

the NFL retired players have not been the subject of, or a party to, the CBA.


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20.

Plaintiffs are retirees and not signatories to the CBA, nor are they the subject

of or a party to an agreement between the NFL and the NFLPA. Plaintiffs’ claims

are not preempted by federal labor law since the CBA does not apply to their

claims.

THE NATURE OF HEAD INJURIES

SUFFERED BY NFL PLAYERS

21.

The American Association of Neurological Surgeons defines a concussion as

“a clinical syndrome characterized by an immediate and transient alteration in

brain function, including an alteration of mental status and level of consciousness,

resulting from mechanical force or trauma.” The injury generally occurs when the

head either accelerates rapidly and then is stopped, or is spun suddenly. The results

frequently include confusion, blurred vision, memory loss, nausea and, sometimes,

unconsciousness.

22.

Others have used more illustrative ways of describing a concussion. “Picture

your brain as a hunk of Jell-O floating in a bowl your cranium. When you get hit in

the head, the bowl suddenly shifts and the Jell-O bangs against the side, and then

rebounds and then bangs against the other side. At the same time, the Jell-O is

twisted and wrenched. This smashing, jiggling and torquing of the brain causes


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strains and tears, snapping blood vessels, killing brain cells (neurons) and shearing

the delicate connections (axons) that link this incredibly complex cerebral

telephone system.”

23.

However you describe it, the effects of concussions are serious. A player

does not have to be knocked unconscious in order to have suffered a concussion.

Getting your “bell rung,” suffering a “stinger,” and seeing “stars” are all signs of a

concussion. And there is no such thing as a mild concussion. A concussion is a

brain injury that can result in permanent brain damage, especially when a person

suffers more than one concussion, which is often the case because a person that

suffers one concussion is more likely to suffer additional concussions. Each

subsequent concussion causes more severe injuries. In fact, if a person suffers one

concussion and a second concussion occurs before the brain has healed from the

first, the consequences can be fatal or materially hazardous. This is known as

second-impact syndrome. Enough damage to the brain and a person can develop

chronic traumatic encephalopathy (“CTE”), which is a progressive degenerative

disease of the brain. The effects of this disease include depression, substantial

memory loss, and the early onset of dementia.


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24.

In addition to repetitive concussive trauma, players also deal with “repetitive

subconcussive trauma. It’s not just the handful of big hits that matter. It’s lots of

little hits, too.” A NFL player “could well have been hit in the head eighteen

thousand times: that’s thousands of jarring blows that shake the brain from front to

back and side to side, stretching and weakening and tearing the connections among

nerve cells, and making the brain increasingly vulnerable to long-term damage.”

During these hits, the brain is slammed into the bony protrusions of the skull. The

cumulative effect of these hits is often permanent brain damage.

25.

Medical evidence has shown that symptoms of a concussion can reappear

hours or days after the injury, indicating that the injured party had not healed from

the injury.

26.

According to neurologists, once a person suffers a concussion, he is as much

as four times more likely to sustain a second concussion. Additionally, after

several concussions, a lesser impact may cause the injury, and the injured player

requires more time to recover.


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27.

Clinical and neuropathological studies by some of the nation’s foremost

experts show that multiple concussions sustained during an NFL player’s career

can cause severe cognitive problems such as depression and early onset dementia.

28.

CTE is a progressive degenerative disease of the brain found in athletes (and

others) with a history of repetitive concussions. Conclusive studies have shown

this condition to be prevalent in retired professional football players who have a

history of head injury.

29.

Head trauma, which includes multiple concussions, triggers progressive

degeneration of the brain tissue. These changes in the brain can begin months,

years, or even decades after the last concussion or end of active athletic

involvement. The brain degeneration is associated with memory loss, confusion,

impaired judgment, paranoia, impulse control problems, aggression, depression,

and eventually, progressive dementia.

30.

To date, neuroanatomists have performed autopsies on 13 former NFL

players who died after exhibiting signs of degenerative brain disease. Twelve of

these players were found to have suffered from CTE.


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31.

Until very recently, CTE could only be diagnosed by autopsy.

BRIEF BACKGROUND OF CONCUSSION RESEARCH

32.

From as early as the 1920s, medical research in the world’s most preeminent

medical journals discussed the serious problem of concussions.

33.

In October 1928, Dr. Harrison Martland published an article in The Journal

of the American Medical Association, in which he coined the term “punch drunk.”

His findings were based on autopsies of more than 300 people who had died of

head injuries. He issued an unequivocal warning regarding concussions: “There is

a very definite brain injury due to single or repeated blows on the head or jaw

which cause multiple concussion hemorrhages. . . . The condition can no longer be

ignored by the medical profession or the public.”

34.

In 1937, at the 17th Annual Meeting of the American Football Coaches

Association, the Association has been quoted as concluding that, “[d]uring the past

7 years the practice has been too prevalent of allowing players to continue playing

after a concussion.”


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35.

In October 1952, Dr. Augustus Thorndike published an article in the New

England Journal of Medicine. The title of the article is “Serious Recurrent Injuries

of Athletes,” and it recommended a three strike rule for concussions: three

concussions and a player should retire from football. A number of other articles

around this time period discussed the serious concerns associated with head

injuries in boxing, including discussion of dementia pugilistica.

36.

In November 1975, Dr. Dorothy Gronwall and Dr. Philip Wrightson

published an article in The Lancet. The title of the article is “Cumulative Effect of

Concussion,” and, based on a study of young adults following second concussions,

the authors conclude that “[t]he effects of concussion seem to be cumulative, and

this has important implications for sports where concussion injury is common.” In

recognition of the serious problem of concussions, the National Collegiate Athletic

Association (“NCAA”) and National High School Football Federations

(“NHSFF”) adopted rules in the late 1970s requiring that all helmets comply with

certain national standards. The NCAA and NHSFF also prohibited initial contact

of the head in blocking and tackling.


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37.

In 1997, the American Academy of Neurology published a special article in

Neurology. The title of the article is “Practice Parameter: The Management of

Concussion in Sports.” In the article, the American Academy of Neurology

concluded that “[r]epeated concussions can cause cumulative brain injury in an

individual injured over months or years.” This conclusion was not based on any

new research, but instead was based on a review of seventy-one articles published

from 1966 to 1996.

NFL’S DUTY TO PLAYERS AND THE PUBLIC

38.

The NFL undertook a duty to study concussions on behalf of NFL players.

39.

The NFL owed the following duties to players, including Plaintiffs:

(a) It owed a duty of reasonable care to protect Plaintiffs on the playing

field;

(b) It owed a duty of reasonable care to Plaintiffs to educate them and

other players in the NFL about CTE and/or concussion injury;

(c) It owed a duty of reasonable care to Plaintiffs to educate trainers,

physicians, and coaches about CTE and/or concussion injury;


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(d) It owed a duty of reasonable care to Plaintiffs to enact policies and

guidelines and provide other guidance that would protect players,

rather than cause them injury or harm;

(e) It owed a duty of reasonable care to Plaintiffs to have in place strict

return-to-play guidelines to prevent CTE and/or concussion injury;

(f) It owed a duty of reasonable care to Plaintiffs to promote a

“whistleblower” system where teammates would bring to the attention

of a trainer, physician, or coach that another player had sustained

concussion injury;

(g) It owed a duty of reasonable care to Plaintiffs to design rules and

penalties for players who use their head or upper body to hit or tackle;

(h) It owed a duty of reasonable care to Plaintiffs to design rules to

eliminate the risk of concussion during games and/or practices and

implement a program where independent medical evaluations were

conducted before players were released to play;

(i) It owed a duty of reasonable care to Plaintiffs to promote research into

a cure for CTE and the effects of concussion injury over a period of

time; and

(j) It owed a duty of reasonable care to State governments, local sports

organizations, all American Rules Football leagues and players, and


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the public at large to protect against the long-term effects of CTE

and/or concussion injury.

40.

The NFL knew as early as the 1920’s of the potential harmful effects on

player’s who suffer concussions; however, until June of 2010, they concealed these

facts from coaches, trainers, players, and the public.

41.

Plaintiffs did not know, nor did they have reason to know, the long-term

effects of concussions and relied on the Defendants to provide reasonable

warnings, rules, regulations and studies.

NFL’S KNOWLEDGE OF THE RISK OF CONCUSSIONS

42.

For decades, Defendants have known that multiple blows to the head can

lead to long-term brain injury, including memory loss, dementia, depression, and

CTE and its related symptoms.

43.

This action arises from Defendants’ failure to warn and protect NFL players,

such as Plaintiffs, against long-term brain injury risks associated with football-

related concussions.


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44.

While Defendants undertook to investigate, research, and promulgate

multiple safety rules, Defendants were negligent and fraudulent in failing to act

reasonably and exercise their duty to enact reasonable league-wide guidelines and

mandatory rules regulating post-concussion medical treatment and return-to-play

standards for players who had suffered a concussion and/or multiple concussions.

45.

Defendants affirmatively assumed a duty to use reasonable care in the study

of post-concussion syndrome, and to use reasonable care in the publication of data

from the MTBI Committee’s work.

46.

Rather than exercising reasonable care in these duties, Defendants

immediately engaged in a long-running course of negligent conduct.

47.

By failing to exercise their duty to enact reasonable and prudent rules to

better protect players against the risks associated with repeated brain trauma,

Defendants’ failure to exercise their independent duty has led to the deaths of

some, and brain injuries of many other former players, including Plaintiffs.


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48.

Defendants’ ongoing undertaking to protect the health and safety of the

players is evidenced by the NFL’s enactment of at least the following non-

exhaustive list of rules pertaining to players’ health and safety:

(a) In 1956, the NFL enacted a rule that prohibited the grabbing of any

player’s facemask, other than the ball carrier;

(b) In 1962, the NFL enacted a rule that prohibited players from grabbing

any player’s facemask;

(c) In 1976, the NFL enacted a rule that prohibited players from grabbing

the facemask of an opponent. The penalty for an incidental grasp of

the facemask was 5 yards. The penalty for twisting, turning, or pulling

the facemask was 15 yards. A player could be ejected from the game

if the foul is judged to be vicious and/or flagrant;

(d) In 1977, the NFL enacted a rule that prohibited players from slapping

the head of another player during play. This rule was referred to as the

“Deacon Jones Rule,” named after the Rams’ defensive end who

frequently used this technique;

(e) In 1977, the NFL enacted a rule that prohibited Offensive Lineman

from thrusting their hands into a defender’s neck, face, or head;


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(f) In 1979, the NFL enacted a rule that prohibited players from using

their helmets to butt, spear, or ram an opponent. Pursuant to this rule,

any player who used the crown or top of his helmet unnecessarily will

be called for unnecessary roughness;

(g) In 1980, the NFL enacted rule changes that provided greater

restrictions on contact in the area of the head, neck, and face;

(h) In 1980, the NFL enacted rule changes that prohibited players from

directly striking, swinging, or clubbing the head, neck, or face

(“personal foul”). Beginning in 1980, such contact was penalized

whether or not the initial contact was made below the neck area;

(i) In 1982, the NFL enacted a rule change by which the penalty for

incidental grabbing of a facemask by a defensive team was changed

from 5 yards to an automatic first down plus a 5 yard penalty;

(j) In 1983, the NFL enacted a rule that prohibited players from using a

helmet as a weapon to strike or hit an opponent;

(k) In 1988, the NFL enacted a rule that prohibited defensive players from

hitting quarterbacks below the waist while they are still in the pocket.

(The rule was unofficially called the “Andre Waters Rule” based upon

a hit that Waters placed on Los Angeles Rams quarterback Jim

Everett in 1988); and


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(l) Following the 2004-2005 season, the NFL’s Competition Committee

reviewed video of the entire season and concluded that the horse-

collar tackle resulted in six serious injuries. On May 23, 2005, the

NFL owners voted 27-5 to ban such tackles. The ban states that a

horse-collar tackle is an open-field tackle in which a defender uses the

shoulder pads to immediately bring a ball carrier down.

49.

However, despite their knowledge of the harmful effects of concussions and

other brain trauma, Defendants failed to enact reasonable rules and regulations for

the prevention of traumatic brain injuries.

NFL FRAUDULENTLY CONCEALED

THE LONG-TERM EFFECTS OF CONCUSSIONS

50.

Despite the mounting scientific evidence on concussion and subsequent

brain disease, the NFL’s response to the issue of brain injuries suffered by retired

NFL players as a result of concussions or head impacts received during their

playing in the NFL has been one of deception and denial. Indeed, the NFL and

several of the scientists it employed actively tried to conceal the extent of the

problem until recently. Since finally acknowledging the issue, the NFL’s response

has been inadequate.


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51.

Instead of taking measures to actually protect its players from suffering brain

injuries, the NFL created the MTBI Committee in 1994 to ostensibly study the

effects of concussions on NFL players.

52.

The MTBI Committee was chaired by Dr. Elliot Pellman, the New York Jets

team trainer. Dr. Pellman is not certified as a brain injury and/or concussion

specialist. Instead, he was a rheumatologist with training in the treatment of joints

and muscles. The brain is unique. It cannot be understood by analogy to any other

part of the body. As a neurosurgeon described it, “I would hear [Dr. Pellman] say

things in speeches like, ‘I don’t know much about concussions, I learn from my

players,’ and ‘[w]e as a field don’t know much about concussions,’ and it used to

bother me.” “We knew what to do about concussions, but he was acting like it was

new ground.”

53.

Dr. Pellman has also been accused of fraudulently exaggerating his

credentials. Dr. Pellman has identified himself as an Associate Clinical Professor at

Albert Einstein College of Medicine. But he was actually an Assistant Clinical

Professor, which is a lower-ranking and honorary position that involves no

teaching duties. Six years after he lost his title of Fellow of the American College


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of Physicians, Dr. Pellman continued to list that title on his resume. Dr. Pellman

has also stated that he has a medical degree from the State University of New York

at Stony Brook. But he actually attended medical school in Guadalajara, Mexico,

and he only completed a one-year residency at SUNY-Stony Brook. Although Dr.

Pellman has described these as minor discrepancies, others disagree. As Dr. Dan

Brock, director of Harvard Medical School’s Division of Medical Ethics, has

explained, “[i]f I told you I graduated from medical school in the United States,

and I went to Guadalajara, then I think I would have deliberately misled you, so I

would say that was unethical.”

54.

During the same time period that he served on the MTBI Committee, Dr.

Pellman was also a team doctor for the New York Jets. One incident from his

tenure as a Jets team doctor illustrates Dr. Pellman’s views on concussions. On

November 2, 2003, Jets wide receiver Wayne Chrebet suffered a concussion after

receiving a knee to the back of his head. He was knocked unconscious by the hit.

Only one quarter later, Dr. Pellman cleared him to return to play. It was reported

that Dr. Pellman told Chrebet that “this is very important for you, this is very

important for your career.”


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55.

Two years later, Wayne Chrebet was forced to retire because of brain

damage. The effects of brain damage have changed Chrebet’s life. As Chrebet has

explained, “I have good days and bad days. A bad day is when you can’t get out of

bed and there’s this dark cloud hanging over your head. A good day is anything

else.” Chrebet would “like to meditate or read, but he can’t concentrate enough.”

“He can’t make the drive from his home in Colts Neck, N.J., to Hempstead [where

he owns a restaurant] or anywhere, without a navigational system. He remembers

the time, after one of his final games, when he drove from the stadium to a house

where he no longer lived. His wife directed him home.”

56.

Dr. Pellman worked with two other scientists on the MTBI Committee - Dr.

Ira Casson (“Casson”), a neurologist, and Dr. David Viano (“Viano”), a

biomechanical engineer - to attempt to discredit many scientific studies that linked

head impacts and concussions received by NFL players to brain injuries.

57.

On November 30, 1994, Steve Jacobson published a column in Newsday

titled “Concussion Issue Must Be Tackled.” In that article, which discussed the

growing concern over concussions, Dr. Pellman was quoted as saying “[p]ost-

concussion syndrome in football is the rare exception.”


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58.

In May 2000, Dr. Barry Jordan, who is now the Chief Medical Officer for

the New York State Athletic Commission, presented findings from a survey of

over 1,000 former NFL players to the American Academy of Neurology. The title

of the presentation is “Concussions Come Back to Haunt Football Players.” The

findings of the survey included the following: (a) more than 61% had suffered at

least one concussion, with 30% having three or more and 15% having five or more;

(b) 51% had been knocked unconscious more than once; (c) 73% were not required

to sit out any plays after the head trauma; (d) 49% experience current numbness or

tingling; (e) 28% had neck or cervical spine arthritis; (f) 31% had difficulty with

memory; (g) 16% were unable to dress themselves; and (h)11% were unable to

feed themselves. Dr. Jordan concluded that there was a “[a] statistically significant

association . . . between a self-reported history of concussion and complaint of

memory changes, confusion, speech difficulties, problems remembering short lists,

and difficulty recalling recent events.” Over the next few years, a number of other

studies supported the link between concussions and cognitive problems such as

memory loss, depression, and early on-set of dementia.

59.

A 2000 University of North Carolina (“UNC”) study found that in the period

between 1977 and 1998, an annual average of 13 athletes had suffered catastrophic


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injuries (primarily permanent paralysis) as the direct result of participation in

football. The study also found that “between 1977 and 1998, 200 football players

received a permanent cervical cord injury, and 66 sustained a permanent cerebral

injury.” As reported in Science Daily:

The study, published in the September-October issue of the American Journal of Sports Medicine, suggests that the brain is more susceptible to injury when it has not had enough time to recover from a first injury. Researchers say the finding is important because concussions can lead to permanent brain

damage, vision impairment or even death if not managed

properly.

“We believe recurrences are more likely because injured

players are returning to practice and to games too quickly

after blows to the head,” said Dr. Kevin M. Guskiewicz,

assistant professor of exercise and sport science at UNC-CH

and study leader. “Many clinicians are not following the

medical guidelines that players should be symptom-free for

several days before returning.” (Emphases added).

60.

On April 22, 2001, Jonathan Rand of Knight Ridder Newspapers published

an article titled “No Brainers After Several Concussions,” which discussed the

retirement of Hall of Fame quarterback Troy Aikman due to concussions. Dr.

Pellman downplayed the significance of Troy Aikman’s retirement. He was quoted

as saying “[t]he vast majority of athletes quickly recover from concussions.” He

suggested that Troy Aikman’s case was an anomaly that did not affect the rest of

the league: “You say to yourself: ‘Hey, other guys are getting that all the time and


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they’re OK.’ Why are these individuals more susceptible to post-concussion

syndrome?” Dr. Pellman indicated that other players did not need to worry about

the long-term problems of concussions. “You can look at them and there is no

long-term damage. There’s no scientific evidence that can tell you they shouldn’t

go back and play.” He referred to concerns about concussions as relying on

“intuit[ion]” as opposed to “scientific evidence.”

THE NFL ENGAGES IN A DISINFORMATION CAMPAIGN AND

WORKS TO DISCREDIT EXTERNAL SCIENTIFIC WORK

61.

A series of clinical and neuropathological studies performed by independent

scientists and physicians demonstrated that multiple NFL-induced concussions

cause cognitive problems such as depression, early on-set dementia and CTE.

62.

In response to these studies, Defendants, to further a scheme of fraud and

deceit, had members of the NFL’s MTBI Committee deny knowledge of a link

between concussion and cognitive decline. When the NFL’s MTBI Committee

anticipated studies that would show causal links between concussion and cognitive

degeneration, the Committee promptly published articles producing contrary

findings, as part of Defendants’ scheme to deceive Congress, the players, and the

public at large. On top of publishing research that was not supported by the

medical literature and that was not based on adequate data, the MTBI Committee


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went after anyone who disagreed with them.

63.

A 2003 study partially authored by Dr. Kevin Guskiewicz (“Guskiewicz”) of

UNC analyzed data from almost 2,500 retired NFL players and found that 263 of

the retired players suffered from depression. The study found that having three or

four concussions meant twice the risk of depression as never-concussed players,

and five or more concussions meant nearly a threefold risk. Dr. Mark Lovell

(“Lovell”) of the NFL’s MTBI Committee promptly attacked the article.

64.

In November 2003, Guskiewicz was scheduled to appear on HBO’s “Inside

the NFL” to discuss his research. Pellman, who was also going to be on the show,

called Guskiewicz. “I had never spoken with him before, and he attacked me from

the get-go,” Guskiewicz said. “He questioned whether it was in my best interest to

do the show. He was a bull in a china shop.” On the program, Pellman said

unequivocally, “[w]hen I look at that study [by Guskiewicz], I don’t believe it.”

65.

In October 2004, members of the MTBI Committee published an article in

Neurosurgery that concluded that there was no risk of repeat concussions in

players with previous concussions and that there was no “7- to 10-day window of

increased susceptibility to sustaining another concussion.”


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66.

In January 2005, members of the MTBI Committee published another article

in Neurosurgery that concluded that returning to play after a concussion “does not

involve significant risk of a second injury either in the same game or during the

season.” The article also concluded that there was “no evidence of worsening

injury or chronic cumulative effects of multiple MTBIs in NFL players.”

67.

In response to those conclusions, Dr. Kevin Guskiewicz stated that “[w]e

found th[at] at the high school level, the college level and the professional level,

that once you had a concussion or two you are at increased risk of future

concussions,” but the MTBI Committee “continued to say on the record that’s not

what they find and there’s no truth to it.”

68.

In 2005, Guskiewicz did a follow-up to his 2003 study and found that retired

NFL players who sustained three or more concussions were five times as likely to

suffer Mild Cognitive Impairment (“MCI”) than retired NFL players who had no

history of concussions. Guskiewicz based his conclusions on a survey of over

2,550 former NFL players. Lovell asserted that Guskiewicz’s study lacked

“scientific rigor” and that one could not tell anything from a survey.


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69.

Between 2005 and 2007, Dr. Bennet Omalu and Dr. Robert Cantu (“Cantu”),

Co-Director for the Center for the Study of Traumatic Encephalopathy (“CSTE”)

at the Boston University School of Medicine (“BUSM”), examined the brain tissue

of three deceased NFL players: (a) Mike Webster (“Webster”) of the Pittsburgh

Steelers, who died of heart failure at the age of 50; (b) Terry Long (“Long”) of the

Pittsburgh Steelers, who died at 45 after drinking antifreeze; and (c) Andre Waters

(“Waters”) of the Philadelphia Eagles and Arizona Cardinals, who committed

suicide at the age of 44. All three of these individuals suffered multiple

concussions during their respective NFL careers and exhibited symptoms of

sharply deteriorated cognitive functions, paranoia, panic attacks and depression. In

articles published in Neurosurgery in 2005 and 2006, Omalu found that Webster’s

and Long’s respective deaths were partially caused by CTE, related to multiple

NFL concussions suffered during their professional playing years. Cantu reached a

similar conclusion as to Waters in an article published in Neurosurgery in 2007.

70.

In response to Omalu’s article on Webster, Casson of the NFL’s MTBI

Committee wrote a letter to the editor of Neurosurgery in July 2005, asking that

Omalu’s article be retracted.


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71.

In 2006, Dr. William Barr gave a lecture at a Brain Injury Association of

New York conference. Dr. Barr was a neuropsychologist who was doing some

work for the New York Jets. At the conference, Dr. Barr discussed the risks

associated with concussions and how the best time to test players with concussions

was after their symptoms had completely cleared, which was contrary to the MTBI

Committee’s policy. Dr. Barr says that a week or so later, Dr. Pellman called Dr.

Barr and said “I understand you’re badmouthing the league.” “In the future, if you

have anything to present or publish about sports concussions, you will have to put

it through me.” When Dr. Barr protested, Dr. Pellman said “your time with the Jets

is over.”

72.

The NFL’s MTBI Committee decided to respond to these studies by

presenting biased research derived from its ongoing survey of retired NFL players.

ESPN The Magazine described the circumstances under which the MTBI

Committee issued its response:

In October 2003, Pellman and members of his committee published the first of a long-running series on concussions in Neurosurgery, a scholarly journal edited by Mike Apuzzo, the New York Giants’ neurosurgical consultant. The committee’s earliest studies used crash test dummies to reenact helmet blows. Later, the group decided to explore the ill effects of multiple concussions, and Pellman charged one of its members, Mark Lovell, head of the University of Pittsburgh Medical


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Center’s Sports Medicine Concussion Program, to oversee the collection and analysis of league wide data. Pellman chose Lovell because he had conducted neuropsychological tests for the Steelers as early as 1993. And in 1995, Lovell began to run the NFL’s neuropsychology program, which encouraged teams to gather data to help decide when to return players to games. Using the information they would obtain, Pellman, Lovell and the committee planned to look at baseline results and identify a normal range of scores for uninjured NFL players. Then, comparing post injury scores to baseline data would show the effects of concussions. Comparing data from players with multiple concussions to that of all injured players would show whether concussive effects changed as injuries accumulated. A lot was riding on the analysis. The committee had never

imposed recommendations on team medical staffs. But this

was the first study ever to analyze the brain function of

NFL athletes. If it showed that concussions were

significantly impairing players, the league might be forced

to institute new rules for evaluating and treating head

injuries. Pellman and Lovell both say they invited all teams to participate in the research (Lovell says 11 teams elected to join the study) and tried to collect as many results as they could. As Lovell puts it, “More data is always better.” Several of the doctors involved, however, tell a different story. [William]

Barr [a neuropsychologist at Long Island Jewish Hospital],

for example, conducted 217 baseline tests from 1996 to

2001. Periodically, he forwarded results to the league, but at

the time Barr learned the committee was planning to

publish its results, he had sent only 149. Barr remembers

finding Pellman in the Jets’ training room in 2003 and

saying, “Elliot, I haven’t sent data for a year.” According to

Barr, Pellman didn’t want the additional tests. “I don’t

want the data to be biased because I’m with the Jets,” Barr

recalls him saying, suggesting that additional results would

skew the data because the Jets would be overrepresented in

the sample. That made no sense to Barr. A scientific study

should include, or at least address, all available data.


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Pellman denies this conversation ever took place. “Bill Barr was a consultant for the Jets who tested individual players to help us make decisions,” he says. “I did not discuss the committee’s research with him.” Whoever is right, the fact is

the group didn’t have all of Barr’s data for its paper.

Barr’s wasn’t the only research that didn’t make the cut. Over the period covered by the committee’s research,

Christopher Randolph, a Chicago neuropsychologist,

collected baselines for 287 Bears players. He says Lovell

never asked for his data, either.

Nor did the committee seek complete data from John

Woodard, neuropsychologist for the [Atlanta] Falcons and

associate psychology professor at the Rosalind Franklin

University of Medicine and Science in North Chicago. According to Woodard, in December 2003, Lovell said the league was pressuring him to compile team results. “I was asked to provide data on only concussed players,” Woodard

says. “I had data for slightly more than 200 baseline

evaluations. I don’t know why I was not asked for them.” In 2004, Lovell also asked Richard Naugle, consultant to the Browns and head neuropsychologist at the Cleveland Clinic, for data on just the players who had already suffered concussions, according to an e-mail Naugle wrote to a colleague in March 2005. Naugle declined to comment for this story, citing a confidentiality deal between his medical group and the NFL, but The Magazine has obtained a copy of that message. “I don’t have that sorted out from the results of other testing,” Naugle wrote of the request. “I explained that and added that if he could name players, I could send data on those individuals. I recall sending him data on two or three players . . . I have a few hundred baselines.” This means Pellman, Lovell and their colleagues didn’t

include at least 850 baseline test results in their research -

more than the 655 that ultimately made it into their 2004

Neurosurgery paper. At best, their numbers were

incomplete. At worst, they were biased.


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. . . . Pellman, Lovell and their colleagues published their sixth paper in Neurosurgery in December 2004. It examined baseline data on 655 players and results for 95 players who had undergone both baseline testing and post-concussion testing. It concluded that NFL players did not show a decline in brain function after suffering concussions. Further analysis found no ill effects among those who had three or more concussions or who took hits to the head that kept them out for a week or more. The paper didn’t explain where the players in the groups came from specifically or why certain players were included and hundreds of others were not. Neither Pellman nor Lovell has provided those details since. (Emphases added).

73.

Guskiewicz was also quoted as saying, “[t]he data that hasn’t shown up

makes their work questionable industry-funded research.”

74.

Scientists concurred with this assessment. As an article in ESPN The

Magazine noted:

The decision to publish the paper was controversial. “I highly doubt this study would have seen the light of day at this journal were it not for the subject matter of NFL players,” says Robert Cantu, chief of neurosurgery and director of sports medicine at Emerson Hospital in Concord, Mass., and a senior editor at Neurosurgery. “The extremely small sample size and voluntary participation suggest there was bias in choosing

the sample. The findings are extremely preliminary at best,

and no conclusions should be drawn from them at this

time.”


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One of the scientists who reviewed the committee’s work is equally blunt. “They’re basically trying to prepare a defense for when one of these players sues,” he says. “They are trying to say that what’s done in the NFL is okay because in their studies, it doesn’t look like bad things are happening from concussions. But the studies are flawed beyond belief.” (Emphases added).

75.

Thus, in October 2006 members of the MTBI Committee published an

article in Neurosurgical Focus that reported over 12 years of data collection by the

NFL. The article concluded that “[b]ecause a significant percentage of players

returned to play in the same game [after suffering a mild traumatic brain injury]

and the overwhelming majority of players with concussions were kept out of

football-related activities for less than 1 week, it can be concluded that mild TBI’s

in professional football are not serious injuries.” See “Concussion in professional

football: Summary of the research conducted by the National Football League’s

Committee on Mild Traumatic Brain Injury.” Neurosurg Focus 21 (4): E12; 2006,

RI. Pellman and D.C. Viano.

76.

According to Defendants’ own “studies,” the speedy return to play after

suffering a concussion demonstrates that such players were at no greater risk of

suffering long-term brain injury.


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77.

In response, one scientist asserted that, “They’re basically trying to prepare a

defense for when one of these players sues. They are trying to say what’s done in

the NFL is okay because in their studies, it doesn’t look like bad things are

happening from concussions. But the studies are flawed beyond belief.”

78.

The NFL-funded study is completely devoid of logic and science. More

importantly, it is contrary to their Health and Safety Rules as well as years of

published medical literature on concussions, a fact that the members of the MTBI

Committee well knew.

79.

The NFL’s conclusion was also based on biased data collection techniques.

As ESPN reported in February 2007 (Emphasis added):

Last fall, ESPN The Magazine reported that Pellman was selective

in his use of injury reports in reaching his conclusions and

omitted large numbers of players from the league’s concussion

study. His findings also contradicted other scientific studies into the effects of concussions: • In January 2005, Pellman and his colleagues wrote that returning to play after a concussion “does not involve significant risk of a second injury either in the same game or during the season.” But a 2003 NCAA study of 2,905 college football players found just the opposite: Those who have suffered concussions are more susceptible to further head trauma for seven to 10 days after the injury.


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• Pellman, a rheumatologist, and his group have also stated repeatedly that their work shows “no evidence of worsening injury or chronic cumulative effects of multiple [mild traumatic brain injury] in NFL players.” But a 2003 report by the Center for the Study of Retired

Athletes at the University of North Carolina found a link between

multiple concussions and depression among former pro players

with histories of concussions. And a 2005 follow-up study at the

Center showed a connection between concussions and both brain

impairment and Alzheimer’s disease among retired NFL players.

80.

In June 2007, Dr. Pellman resigned as chair of the MTBI Committee amid

reports questioning his qualifications. Dr. Pellman was replaced by co-chairs Dr.

Ira Casson and Dr. David Viano. Both continued Dr. Pellman’s denial of the risks

associated with concussions and suppression of the truth. Dr. Pellman also

continued to remain a member of the MTBI Committee.

81.

In 2008, Dr. David Weir of the University of Michigan’s Institute for Social

Research conducted a study of over 1,000 former NFL players, which the NFL

commissioned and funded. Released in 2009, the study reported that “Alzheimer’s

disease or similar memory-related diseases appear to have been diagnosed in the

league’s former players vastly more often than in the national population –

including a rate of 19 times the normal rate for men ages 30 through 49.”


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82.

The increasing controversy surrounding this issue drew the attention of

Congress. On June 23, 2007, the Commercial and Administrative Law

Subcommittee of the Judiciary Committee of the U.S. House of Representatives

(“C&A Subcommittee”) held hearings on the NFL’s compensation of retired

players. NFL Commissioner Goodell testified. In follow-up responses that Goodell

submitted to the C&A Committee in November 2007, he continued to rely on the

discredited survey research being undertaken by the NFL’s MTBI Committee.

83.

In response to these hearings and associated media reports, the NFL

scheduled a Concussion Summit in June 2007. Independent scientists, including

Omalu, Cantu and Guskiewicz, presented their research to the NFL and to

representatives of the National Football League Players Association (“NFLPA”).

As one contemporaneous news article reported:

“I’m not even sure we athletes know what a concussion is,” said safety Troy Vincent, who also is president of the NFL Players Association. “Outside of being knocked out, I stayed in the game.” After a player suffers a concussion, his team’s medical staff determines when he is fit to return to play. Studies vary on whether a quick return puts the player at risk of more severe injury.


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The NFL commission, after reviewing five years of on-field concussions, found no evidence for an increase in secondary brain injuries after a concussion, a conclusion that has met with skepticism. “Science is very clear that returning guys to play in the

same game, or quickly within a few days, contributes to

neuron loss and long-term problems,” said former pro

wrestler Christopher Nowinski, who retired after repeated

concussions and has written a book on the controversy.

“With the NFL being both the only and most prominent

voice to say it doesn’t exist, it slows down acceptance and

adoption of policies to reduce risk.”

While the NFL commission has focused on short-term

effects of concussions, recent findings suggest players may

suffer depression, dementia and other symptoms later in

life. (Emphases added). 84.

The NFL’s Concussion Summit resulted in a complete whitewash of the

problem by the NFL. On August 14, 2007, the NFL issued a press release and

pamphlet to players, stating that:

Current research with professional athletes has not shown

that having more than one or two concussions leads to

permanent problems. . . . It is important to understand that

there is no magic number for how many concussions is too

many. (Emphases added).

85.

Sometime in 2007, Dr. Casson appeared on HBO’s “Real Sports” and denied

the link between concussions and long-term injuries:


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Interviewer: Is there any evidence, as far as you’re concerned, that links multiple head injuries among pro football players with depression?

Casson: No.

Interviewer: With dementia?

Casson: No.

Interviewer: With early onset of Alzheimer’s?

Casson: No.

Interviewer: Is there any evidence as of today that links multiple head injuries with any long-term problem like that?

Casson: In NFL players?

Interviewer: Yeah.

Casson: No.

86.

This act of continued denial and deception by the NFL was consistent with

the positions taken by Pellman, Casson, Lovell, and Viano as described above.

87.

In November 2008, Greg Aiello (“Aiello”), an NFL spokesman, sounded a

similar theme, saying to the press that “[h]undreds of thousands of people have

played football and other sports without experiencing any problem of this type and

there continues to be considerable debate within the medical community on the

precise long-term effects of concussions and how they relate to other risk factors.”

Aiello neglected to mention that the debate was principally between the scientists

paid by the NFL and scientists operating independently of the NFL.


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88.

In 2008, Dr. Ann McKee (“McKee”) of the CSTE at BUSM examined the

brain tissue of two other deceased NFL players: (a) John Grimsley (“Grimsley”) of

the Houston Oilers, who died of a gunshot wound at the age of 45; and (b) and

Tom McHale (“McHale”) of the Tampa Bay Buccaneers, Philadelphia Eagles and

Miami Dolphins, who died of a drug overdose at the age of 45. McKee found that

Grimsley and McHale’s brain tissue exhibited indications of CTE. As she stated,

“the easiest way to decrease the incidence of CTE [in contact sport athletes] is to

decrease the number of concussions.” She further noted that “[t]here is

overwhelming evidence that [CTE] is the result of repeated sublethal brain

trauma.” An article in the Washington Post, published in early 2009, reported the

following comments by McKee with respect to her analysis of McHale’s brain:

“Is this something that happened by chance?” asked Ann McKee, a neuropathologist at Boston University pointing to pictures of McHale’s brain that she said resembled that of a 72-year-old boxer. “I can tell you I’ve been looking at brains for 22 years, and this is not a normal part of aging. This is not a normal part of the brain.”

89.

In response to McKee’s studies, Casson continued his campaign of NFL-

sponsored disinformation by characterizing each injury as an isolated incident from

which no conclusion could be drawn and said he would wait to comment further

until McKee’s research was published in a peer-reviewed journal. When McKee’s


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research was published in 2009, Casson asserted that “there is not enough valid,

reliable or objective scientific evidence at present to determine whether . . . repeat

head impacts in professional football result in long[-]term brain damage.”

90.

The NFL MTBI Committee has been on direct notice of multiple NFL head

injuries contributing to cognitive decline in later life, yet it has never amended the

2007 NFL’s MTBI Committee statement: “Current research with professional

athletes has not shown that having more than one or two concussions leads to

permanent problems. . . . It is important to understand that there is no magic

number for how many concussions is too many.”

91.

Defendants have yet to amend these inaccurate and misleading statements.

DEFENDANTS ACKNOWLEDGE THEIR DUTY TO

PROTECT AGAINST THE LONG-TERM RISK OF CONCUSSIONS

92.

On August 14, 2007, Defendants acknowledged their duty to players by

enacting rules to protect them against the risk of repeated brain trauma.

93.

The NFL’s 2007 concussion guidelines, many of which stemmed from an

NFL conference in June of 2007 involving team trainers and doctors, were sent to

all current players and other team personnel.


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94.

The NFL’s 2007 guidelines on concussion management include a whistle-

blower provision for individuals to report concussions with the NFL so that a

player with a head injury is not forced to practice or play against medical advice.

95.

The NFL’s 2007 concussion guidelines also include an informational

pamphlet provided to all current NFL players to aid in identifying symptoms of a

concussion. This information was later withdrawn by outside counsel of the NFL

in a separate letter to its disability plan, as well as the NFL’s August 14, 2007 press

release denying that “more than one or two concussion leads to permanent

problems.”

96.

In a statement issued by the NFL on August 14, 2007, Roger Goodell, the

Commissioner of the NFL, introduced the NFL’s 2007 concussion guidelines by

saying, “We want to make sure all NFL players, coaches and staff members are

fully informed and take advantage for the most up-to-date information and

resources as we continue to study the long-term impact of concussions.”

97.

The NFL’s Commissioner also stated, “[b]ecause of the unique and complex

nature of the brain, our goal is to continue to have concussions managed


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conservatively by outstanding medical personnel in a way that clearly emphasized

player safety over competitive concerns.”

98.

The NFL’s 2007 concussion guidelines indicate when a player with a

concussion can return to a game or practice.

99.

The NFL’s 2007 concussion guidelines specifically mandate that a player

should have normal neurological test results and no concussion symptoms before

returning to play.

100.

Defendants acknowledged that said guidelines were inadequate and

insufficient. As a result, the NFL enacted more strict regulations to handle

concussions starting in the 2009 season. Specifically, the NFL announced new

rules requiring players who exhibit any significant signs of concussion to be

removed from a game or practice and be barred from returning the same day.

101.

Nevertheless, it was not until June of 2010 that the NFL warned any player

of the long-term risks associated with multiple concussions, including dementia,

memory loss, CTE and its related symptoms.


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102.

As of today, Defendants have not warned retired players of the long-term

health effects of concussions.

DEFENDANTS’ CONDUCT

WAS DELIBERATE, WILLFUL AND WANTON

103.

The aforementioned acts and omissions of Defendants demonstrate that they

acted deliberately, willfully, and wantonly with indifference to the rights and duties

owed and consequences to Plaintiffs.

104.

Defendants knew that a substantial risk of physical and mental harm to the

NFL players existed in connection with repeated concussive blows to the head, to

wit: the danger of irreversible brain-damage and/or dementia. Defendants willfully

and deliberately disregarded the safety of others in continually undertaking to

establish and promulgate safety rules for the NFL that failed to reasonably address

or disclose substantial risk of head injury.

PLAINTIFF FRANK SANDERS

105.

Plaintiff Frank Sanders played nine NFL seasons from 1995 through 2003

for the Arizona Cardinals and the Baltimore Ravens.


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106.

Throughout his career as a professional football player, Plaintiff Sanders

suffered multiple concussive hits and blows to the head in multiple venues.

107.

Notwithstanding the seriousness of his head injury status, Plaintiff Sanders

was cleared by team staff on various occasions and directed to return to play even

though he was clearly medically ineligible and continuous participation in contact

exposed him to significant risk of further and more serious injury.

108.

Plaintiff Sanders was not warned by Defendants of the risk of long-term

injury due to football-related concussions or that the League-managed equipment

did not protect him from such injury. This was a substantial factor in causing his

current injuries.

109.

Plaintiff Sanders suffers from multiple past traumatic brain injuries with

symptoms including but not limited to, memory loss, headaches, difficulty

concentrating, and sleeplessness.


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PLAINTIFF JOHN LEAKE

110.

Plaintiff Leake played two NFL seasons from 2005 through 2006 for the

Atlanta Falcons and Green Bay Packers.

111.

Throughout his career as a professional football player, Plaintiff Leake


112.





113.

Plaintiff Leake was not warned by Defendants of the risk of long-term injury

due to football-related concussions or that the League-managed equipment did not

protect him from such injury. This was a substantial factor in causing his current

injuries.

114.

Plaintiff Leake suffers from multiple past traumatic brain injuries with

symptoms including but not limited to, memory loss, difficulty concentrating,


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headaches, and difficulty sleeping.

PLAINTIFF ERIC HIPPLE

115.

Plaintiff Eric Hipple played nine NFL seasons from 1980 through 1989 for

the Detroit Lions.

116.

Throughout his career as a professional football player, Plaintiff Hipple


117.





118.

Plaintiff Hipple was not warned by Defendants of the risk of long-term

injury due to football-related concussions or that the League-managed equipment

did not protect him from such injury. This was a substantial factor in causing his

current injuries.


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119.

Plaintiff Hipple suffers from multiple past traumatic brain injuries with

symptoms including but not limited to, memory loss, headaches, depression, and

sleeplessness.

COUNT I

NEGLIGENCE

120.

Plaintiffs incorporate by reference all facts set forth in the preceding

paragraphs and further allege on information and belief as follows.

121.

Defendants, as purveyors of safety rules for the NFL, owed Plaintiffs a duty

to use reasonable care in researching, studying and/or examining the dangers and

risks of head injuries and/or concussions to NFL players; to inform and warn them

of such risks and to effectuate reasonable league policies; and/or take other

reasonable action to minimize the risks of head injuries.

122.

At all times relevant hereto, Defendants negligently performed such duties

by failing to adequately study, warn and/or implement reasonable rules and

regulations to minimize traumatic brain injuries to its players, including Plaintiffs

herein.


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123.

Defendants knew or should have known that its policies, rules and

regulations in place were not reasonably sufficient to minimize traumatic brain

injuries and that Plaintiffs’ injuries were foreseeable.

124.

Defendants affirmatively and voluntarily established the MTBI Committee,

ostensibly to examine the dangers and consequences of head injuries to NFL

players, to report on its findings, to provide information and guidance from its

research and studies concerning concussions to teams and players, and to make

recommendations to lessen the risks of concussions. Defendants are responsible for

the staffing and conduct of the MTBI Committee.

125.

Defendants failed to use reasonable care when creating the MTBI

Committee and failed to appoint qualified physicians to head the Committee.

126.

Defendants, failed to use reasonable care in researching, studying and/or

examining the risks of head injuries and/or concussions in professional football.

Defendants downplayed and in many cases denied both the severity of head

injuries and the clear link between concussions and brain damage, thereby

breaching its duty to its players, including Plaintiffs herein.


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127.

Defendants failed to inform, warn and/or advise its players, and/or

misinformed them of the risks and complications inherent in sustaining

concussions, thereby breaching its duty to its players, including Plaintiffs herein.

128.

Defendants were further negligent in the following respects:

• In failing to use reasonable care in overseeing, controlling and/or

regulating policies and procedures of the NFL so as to minimize the

risk of head injuries and/or concussions;

• In failing to use reasonable care in the research and/or investigation of

the concussion issue;

• In failing to appoint a qualified physician or panel of physicians to

head Defendants’ MTBI committee;

• In placing a physician in charge of the committee whose primary

motive was to appease the NFL rather than to report accurately;

• In disregarding independent scientific studies which showed the risks

of head injuries and/or concussions to NFL players’ health;

• In failing to acknowledge, either publicly or to their players, the clear

link between concussions and brain injuries;


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• In failing to acknowledge, either publically or to their players, the

linkage between playing football and long-term brain injuries;

• In failing to make and/or timely make necessary NFL policy changes

as it pertains to intentional hits to the head, hits to the head of a

defenseless player, helmet to helmet hits, and concussions in general;

• In publishing misleading and erroneous findings regarding hits to the

head and NFL head injuries;

• In failing to issue a timely warning, through a concussion pamphlet or

other means, to the players concerning the causal link between

concussions and later life cognitive decline;

• In issuing misinformation and purposefully attempting to mislead

their players through the concussion pamphlet issued in August 2007;

• In collecting and reporting upon data that was “infected” and/or not

reliable;

• In causing, by and through their negligent conduct and omissions, an

increased risk of harm to their players;

• In breaching their duty to ensure that the equipment it licensed and

approved was of the highest possible quality and sufficient to protect

the NFL players, including Plaintiffs, from the risk of concussive

brain injuries;


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• In failing to provide competent information to its teams, players,

coaches, trainers and medical personnel with respect to the

significance of head injuries and/or concussions, their symptoms and

necessary and/or proper treatment of same; and

• In creating a “culture” within the NFL in which concussions and their

devastating effects would run rampant.

129.




130.

As a direct and proximate result of the Defendants negligent acts and

omissions as previously mentioned, Plaintiffs suffered serious injury, including but

not limited to brain damage, with a resultant loss therefrom.

131.

That by reason of the foregoing negligence on the part of Defendants,

Plaintiffs believe that their aforesaid injuries are permanent and that he will

continue to suffer from the effects of their aforesaid injuries, including but not

limited to continuous pain and suffering and severe emotional distress.


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132.

That by reason of the foregoing, Plaintiffs have and will be required in the

future to obtain medical aid and attention, with a resultant cost therefrom.

133.

That by reason of the foregoing, Plaintiffs may suffer a loss of employment

opportunity in the future with a resultant loss therefrom.

134.

As a direct and proximate result of Defendants’ negligent acts and

omissions, Plaintiffs suffered and will continue to suffer substantial injuries, and

economic and non-economic damages.

COUNT II

FRAUD

135.



136.





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137.

The NFL materially misrepresented the risks faced by Plaintiffs related to

head injuries. Defendants’ MTBI Committee, through misleading public

statements, published articles and the concussion pamphlet issued to the players,

downplayed known long-term risks of concussions to NFL players.

138.

Material misrepresentations were made by members of Defendants’

Committee on multiple occasions, including but not limited to testimony given at

congressional hearings and the “informational” pamphlet which they issued to

players.

139.

The material misrepresentations include the NFL’s remarks that Plaintiffs

and other players were not at an increased risk of head injury if they returned too

soon to an NFL game or training session after suffering a head injury.

140.

Defendants’ material misrepresentations also included the NFL’s criticism

of legitimate scientific studies which illustrated the dangers and risks of head

injuries and the long term effects of concussions.


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141.

Defendants’ material misrepresentations, through its MTBI Committee,

denied a link between concussions and CTE.

142.

Defendants had actual knowledge of the misleading nature of these

statements when they were made.

143.

Defendants had actual knowledge that Plaintiffs and others would rely on

these misrepresentations.

144.

Plaintiffs relied on these misrepresentations when playing in the NFL and

when returning to play per the medical clearance of the team physician and team

management notwithstanding the fact that participation in such contact or physical

activity would expose Plaintiffs to serious consequences including additional head

injuries, ongoing symptoms, and health conditions.

145.

Had Plaintiffs known the risks to their health, they would not have agreed to

jeopardize their health.


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146.

As a direct and proximate result of Defendants’ fraudulent conduct,

Plaintiffs have suffered physical injury, including, but not limited to, memory and

cognitive problems, and economic losses.

147.

As a direct and proximate result of the Defendants’ fraudulent conduct,

Plaintiffs have suffered and will continue to suffer substantial injuries, and


COUNT III

FRAUDULENT CONCEALMENT

148.



149.




150.

Defendants’ MTBI Committee knowingly and fraudulently concealed the

risks of head injuries to Plaintiffs, and the risk to them if they returned to the

playing field before making a proper recovery from their head injuries.


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151.

Defendants’ MTBI Committee published articles and the concussion

pamphlet issued to players, therein affirmatively concealed and downplaying

known long-term risks of concussions to NFL players.

152.

The concussion pamphlet created player reliance. The NFL stated that “[w]e

want to make sure all N.F.L. players . . . are fully informed and take advantage of

the most up to date information and resources as we continue to study the long-

term impact on concussions.”

153.

Further concealment of material information occurred in January 2010. Dr.

Casson provided oral and written testimony at the January 2010 congressional

hearings. He continued to deny the validity of other studies.

154.

Defendants failed to acknowledge, either publicly or to its players, the clear

link between concussions and brain injuries being suffered by NFL players.

155.

Defendants failed to acknowledge, either publicly or to its players, the

linkage between playing football and long-term brain injuries.


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156.

Defendants willfully concealed this information from Plaintiffs in order to

prevent negative publicity and increased scrutiny of their medical practices.

157.

Defendants knew that Plaintiffs and other NFL players would rely on the

inaccurate information provided by the NFL.

158.

Plaintiffs relied on this inaccurate information during their NFL career when

playing in the NFL and when returning to play per the medical clearance of the

team physician and team management notwithstanding the fact that participation in

such contact or physical activity would expose Plaintiffs to serious consequences

including additional head injuries, ongoing symptoms, and health conditions.

159.

As a direct and proximate result of Defendants’ fraudulent conduct,



160.

As a direct and proximate result of the Defendants’ willful concealment,




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COUNT IV

NEGLIGENT MISREPRESENTATION

161.



162.




163.

The NFL misrepresented the dangers that NFL players faced in returning to

play too quickly after sustaining a head injury. Defendants’ MTBI Committee,

through public statements which it knew or should have known were misleading,

published articles and issued the concussion pamphlet to its players, and

downplayed the long-term risks of concussions to NFL players.

164.

Material misrepresentations were made by members of the NFL’s committee

on multiple occasions, including but not limited to testimony at congressional

hearings and the “informational” pamphlet issued to players.


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165.

The misrepresentations included the NFL’s remarks that Plaintiffs and other

NFL players were not at an increased risk of head injury if they returned too soon

to play or training session after suffering a head injury.

166.

Defendants’ material misrepresentations also include the NFL’s criticism of

legitimate scientific studies that illustrated the dangers and risks of head injuries.

167.

Defendants made these misrepresentations and actively concealed adverse

information at a time when they knew, or should have known, because of their

superior position of knowledge, that Plaintiffs faced health problems if he were to

return to a game too soon after suffering brain trauma.

168.

Defendants knew or should have known the misleading nature of these

statements when they were made.

169.

Defendants made misrepresentations and actively concealed information

with the intention that Plaintiffs and other NFL players would rely on the

misrepresentations or omissions in selecting their course of action.


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170.

As a direct and proximate result of the Defendants’ fraudulent conduct,



171.

As a direct and proximate result of the Defendants’ willful concealment,



COUNT V

NEGLIGENT HIRING, RETENTION, AND SUPERVISION

172.



173.

The NFL negligently hired, retained, and supervised members of the MTBI

Committee from 1994 to 2010.

174.

The NFL had a duty to exercise reasonable care in hiring, retaining, and

supervising members of the MTBI Committee.


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175.

As set forth in the first three claims for relief, members of the MTBI

Committee engaged in tortious conduct towards the Plaintiffs.

176.

The NFL knew or should have known that Drs. Pellman, Casson, Viano, and

other members of the MTBI Committee were not suited to serve on the MTBI

Committee or otherwise influence the NFL’s concussion policy. Many members of

the MTBI Committee were not medically qualified to evaluate the risks of

concussions, publish articles about concussions, and make recommendations to the

NFL and its players regarding treatment of concussions. The NFL also permitted

members of the MTBI Committee to serve even though doing so presented

material conflicts of interest. Therefore, the NFL breached its duty of reasonable

care in hiring, retaining, and supervising members of the MTBI Committee.

177.

The NFL knew or should have known of the tendency of members of the

MTBI Committee to make fraudulent or negligent misrepresentations about the

nature of concussions and the long-term health problems associated with

concussions. The NFL also knew or should have known of the failure of members

of the MTBI Committee to use reasonable care in their research of concussions and

recommendations to the NFL.


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178.

As a result of the NFL’s failure to use reasonable care in hiring, retaining,

and supervising members of the MTBI Committee and the tortious conduct of

those members, the Plaintiffs suffer from physical and mental injuries, including

severe headaches, dizziness, memory loss, emotional lability, depression, loss of

executive functioning, and economic harm.

179.

Because of their injuries, the Plaintiffs are entitled to compensatory damages

in an amount to be proven at trial.

180.

Because of the NFL’s willful misconduct or conscious indifference to the

consequences of its actions, the Plaintiffs are also entitled to punitive damages in

an amount to be proven at trial.

COUNT VI

MEDICAL MONITORING

181.

The NFL’s tortious conduct has increased the risk that the Plaintiffs will

develop neurodegenerative disorders and diseases later in life, if they have not

done so already.


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182.

As a result of the NFL’s tortious conduct, the Plaintiffs suffered traumatic

brain injuries while playing in the NFL. The Plaintiffs continue to suffer harm

from those injuries, including severe headaches, dizziness, memory loss, emotional

lability, depression, loss of executive functioning, and economic harm.

183.

Because they suffered traumatic brain injuries, the Plaintiffs have an

increased risk of developing neurodegenerative disorders and diseases, including

CTE, Alzheimer’s disease, dementia, or similar conditions affecting executive

functioning.

184.

There are monitoring procedures that (a) are supported by contemporary

scientific principles, (b) are not routinely used by the general public, and (c) make

early detection of cognitive impairment possible. These monitoring procedures will

help detect, prevent, or mitigate the symptoms of neurodegenerative diseases and

disorders.

185.

Therefore, the Plaintiffs ask the Court to order and supervise an NFL-funded

medical monitoring regime for the Plaintiffs. The objectives of the medical

monitoring regime include the following:


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A. Monitoring, detection, and diagnosis of brain damage or other

related conditions that have arisen from the traumatic brain injuries

suffered by the Plaintiffs while playing in the NFL; and

B. Provision of adequate treatment in the event a neurodegenerative

disorder or disease is diagnosed.

186.

The Plaintiffs ask the Court to create a regime that will allow for the

detection of currently latent injuries and the treatment of such injuries. The

Plaintiffs do not seek compensation for the increased risk of harm or for the

increased apprehension of such harm.

187.

The Plaintiffs do not have an adequate remedy at law for their increased risk

of developing additional neurodegenerative disorders and diseases. Without a

medical monitoring regime, the Plaintiffs will continue to face an unreasonable

risk of suffering further injury and disability caused by the NFL’s tortious conduct.

PRAYER FOR RELIEF

188.

Plaintiffs ask the Court for the following relief:

A. A jury trial on all issues so triable;


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B. That the Court enter judgment against the Defendant for all general

and compensatory damages allowable to Plaintiffs, in an amount to

be proven at trial together with interest and costs;

C. That the Court enter judgment against the Defendant for all special

damages allowable to Plaintiffs;

D. Punitive damages in an amount to be proven at trial;

E. That the Court award Plaintiffs pre-judgment interest on all

damages;

F. Any other relief the Court deems is appropriate.


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DEMAND FOR JURY TRIAL

Plaintiffs hereby request a trial by jury of all issues triable by jury.

Respectfully submitted this 1st day of June, 2012.

CRUSER & MITCHELL, LLP

Meridian II, Suite 2000 275 Scientific Drive /s William T. Mitchell Norcross, Georgia 30092 William T. Mitchell (404) 881-2622 Georgia Bar No. 513810 Michael D. Hoffer

Georgia Bar No. 359493 Andrew S. Ashby

Georgia Bar No. 455020 Chris Conway Georgia Bar No. 823011


Documents

Frank Sanders v. NFL