JOHNSON et al v. NATIONAL FOOTBALL LEAGUE et al

Filing 1

COMPLAINT against All Defendants ( Filing fee $ 350 receipt number 056595.), filed by JESSICA INGOGLIA, LEE SUGGS, JR, RENE INGOGLIA, K. CORY WITHROW, KATHERINE ALBRIGHT, ALLEN JOHNSON, ROB JOHNSON, BILL FERRARIO, JON CARMEN, CASEY HULSEY, CANDICE CARMEN, COREY HULSEY, KARLA DARILEK, DANA JOHNSON, A. DOUG EASLICK, TOM NUTTEN, STEPHANIE FERRARIO, TREY DARILEK, BRANDY JOHNSON, JAMES DRUCKENMILLER, L. ETHAN ALBRIGHT.(tj, )

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROB JOHNSON, DANA JOHNSON,
L. ETHAN ALBRIGHT,
KATHERINE ALBRIGHT, A. DOUG EASLICK,
LEE SUGGS, JR., BILL FERRARIO,
STEPHANIE FERRARIO, ALLEN JOHNSON,
BRANDY JOHNSON, K. CORY WITHROW,
JON CARMEN, CANDICE CARMEN,
COREY HULSEY, CASEY HULSEY,
JAMES DRUCKENMILLER,
RENE INGOGLIA, JESSICA INGOGLIA,
TREY DARILEK, KARLA DARILEK,
AND TOM NUTTEN,
PLAINTIFFS,
v.
NATIONAL FOOTBALL LEAGUE,
NFL PROPERTIES LLC, and
JOHN DOES 1 through 100, inclusive,

DEFENDANTS.

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CIVIL ACTION NO:__________
COMPLAINT
JURY TRIAL DEMANDED

COMPLAINT
The Plaintiffs set forth above in the case caption bring this Complaint and state as
follows:
1.

This action seeks a declaration of liability, injunctive relief, and financial

compensation for the long-term chronic injuries, financial losses, expenses, and intangible losses
suffered by the Plaintiffs and their spouses as a result of the defendants’ intentional tortious
misconduct (by voluntary undertaking), negligence, fraud, and conspiracy.
2.

This action arises from the pathological and debilitating effects of head

injuries and concussions that have afflicted present and former professional football players in

the National Football League (the “NFL”). For many decades, evidence has linked repetitive
traumatic brain injury to long-term neurological problems in many sports. The NFL, as the
organizer, marketer, and face of the most popular sport in the United States, in which head
trauma is a regular occurrence, was aware of the evidence and the risks associated with
repetitive traumatic brain injuries and concussions for decades, but deliberately ignored and
actively concealed the information from the Plaintiffs and all others who participated in
organized football at all levels.
3.

Moreover, in or around 1994 and possibly earlier, the NFL voluntarily

inserted itself into the scientific research and discussion concerning the relationship between
concussions and short-term and long-term impairment of the brain. After doing so, the NFL
then intentionally and fraudulently mislead present and former players, and all people who
reasonably rely upon the NFL’s expertise about its own sport, regarding the short-term and
long-term risks posed by concussions and head trauma.
4.

Rather than warn players that they risked permanent brain injury if they

returned to play too soon after sustaining a concussion, the NFL actively deceived players, by
misrepresenting to them that concussions did not present serious, life-altering risks.
5.

The NFL, through its own initiative and voluntary undertaking, created

the Mild Traumatic Brain Injury Committee (the “MTBI Committee”) in 1994 to research and
ameliorate the impact of concussions on NFL players. Notwithstanding this purported
purpose, and despite clear medical evidence that on-field concussions led directly to brain
injuries with tragic results for players at every level of the sport, the NFL failed to inform its
current and former players of the true risks associated with such head trauma and purposefully
misrepresented and/or concealed medical evidence on that issue.

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6.

Athletes who suffered repetitive traumatic brain injuries and/or

concussion in other professional sports were restricted from playing full games or even
seasons, yet NFL players who had similar trauma were regularly returned to play.
7.

The NFL’s active and purposeful concealment and misrepresentation of

the severe neurological risks of repetitive traumatic brain injury exposed players to dangers
they could have avoided had the NFL provided them with truthful and accurate information.
Many of these players have suffered brain damage and latent neurodegenerative disorders and
diseases as a result of the NFL’s acts and/or omissions.

JURISDICTION AND VENUE
8.

This Court has original jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) and

(b) and 28 U.S.C. § 1332(d)(11). All of the plaintiffs and all of the defendants are citizens of
different states. The amount in controversy exceeds $75,000, exclusive of interest and costs, for
each Plaintiff. The amount in controversy for all Plaintiffs in this mass action exceeds five million
dollars ($5,000,000) exclusive of interest and costs. This matter can be tried jointly in that the
Plaintiffs claims involve common questions of law and fact.
9.

This Court has personal jurisdiction over the Defendants because they

conduct substantial and continuous business in the Commonwealth of Pennsylvania.
10.

Venue is proper in this district pursuant to 28 U.S.C. § 1391(a)(2) and (b)(2),

because a substantial part of the events or omissions that give rise to the claims occurred within the
Commonwealth of Pennsylvania and this district, and the Defendants conduct a substantial part of
their business within this district.

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PARTIES
11.

Plaintiff Rob Johnson is 39 years old and resides at 17 Mission Ridge in

Ladera Ranch, California. Mr. Johnson played nine seasons as a quarterback in the NFL for the
Jacksonville Jaguars, the Buffalo Bills, the Tampa Bay Buccaneers, the Washington Redskins, the
Oakland Raiders, and the New York Giants. Mr. Johnson sustained several concussions while
playing in the NFL, is at an increased risk of latent brain disease, and currently suffers from shortterm memory loss, anxiety, depression, mood swings, sleeplessness, and headaches.
12.

Plaintiff Dana Johnson is the spouse of Plaintiff Rob Johnson and resides

at the same address.
13.

Plaintiff L. Ethan Albright is 40 years old and resides in Greensboro, North

Carolina. Mr. Albright played in the NFL for sixteen seasons from 1995 to 2010. During that
time period, Mr. Albright played offensive line for the Miami Dolphins, Buffalo Bills,
Washington Redskins, and San Diego Chargers. During his time in the NFL, Mr. Albright
sustained multiple head traumas in practices and games. On multiple occasions, Mr. Albright
was hit in the head so substantially that his arms and legs would become limp. Mr. Albright is at
an increased risk of latent brain disease, and currently suffers from substantial memory loss and
sleep disturbance.
14.

Plaintiff Katherine Albright is the spouse of Plaintiff Lawrence Ethan

Albright and resides at the same address.
15.

Plaintiff A. Doug Easlick is 31 years old and resides in Marlton, New

Jersey. Mr. Easlick played as a running back in the NFL for two seasons from April 2004 to
September 2006. During that time period, Mr. Easlick played for the Miami Dolphins,
Cincinnati Bengals, San Francisco 49ers and Pittsburgh Steelers. He sustained multiple head

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traumas on a regular basis, including being knocked unconscious during a practice, as a special
teams players, fullback, and running back in NFL practices, preseason games, and regular season
games. The result of these impacts was that Mr. Easlick suffered from dizziness and tended to
see black spots and flashing lights in the normal course of his day to day life. At no time during
his time in the NFL was Mr. Easlick ever diagnosed or treated for a concussion or concussionlike symptoms. Mr. Easlick is at an increased risk of latent brain disease and currently suffers
from memory loss, persistent headaches, sleeplessness, depression, and difficulty concentrating.
16.

Plaintiff Lee Suggs, Jr. is 31 years old and resides in Olmstead Falls, Ohio.

Mr. Suggs played in the NFL for four seasons from 2003 to 2006. During that time period, Mr.
Suggs played as a running back and on special teams for the Cleveland Browns and the Miami
Dolphins. As a running back, Mr. Suggs sustained contact on 90% of the plays in which he
participated and sustained multiple head trauma and concussions during NFL games. In a game
on November 2003, Mr. Suggs was helped off the field after a kickoff he could not recall until 30
or 40 minutes later. Nevertheless, Mr. Suggs continued to play in that game. Mr. Suggs is at an
increased risk of latent brain disease and currently suffers from depression, anxiety, persistent
intense headaches, and ringing in his ears.
17.

Plaintiff Bill Ferrario is 34 years old and resides in Wausau, Wisconsin.

Mr. Ferrario played in the NFL on the offensive line and on special teams for the following time
periods: April 2001 through August 2003 for the Green Bay Packers, February 2004 through
August 2004 for the Washington Redskins, and October 2004 through August 2005 with the
Carolina Panthers. During his time in the NFL, Mr. Ferrario sustained concussions and
concussion-like symptoms on a regular basis, but was never treated, diagnosed, or removed from
practices or games because of those issues. Mr. Ferrario is at an increased risk of latent brain

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disease and currently suffers from memory loss, dizziness and difficulty with his vision, mood
swings, depression, and sensitivity to light.
18.

Plaintiff Stephanie Ferrario is the spouse of Plaintiff Bill Ferrario and

resides at the same address.
19.

Plaintiff Allen Johnson is 31 years old and resides in Brussels, Wisconsin.

Mr. Johnson played on the offensive line and as a wedge blocker on kick-off teams during the
following time periods and for the following teams: 2003 to 2006 for the Dallas Cowboys, 2007
to October 2008 for the Arizona Cardinals, November 2008 to January 2009 for the Miami
Dolphins, April 2009 through the end of the 2009 season for the New England Patriots. During
his time in the NFL, Mr. Johnson sustained head trauma and concussions on multiple occasions
that resulted in persistent headaches and dizziness in practices and games. Mr. Johnson is at an
increased risk of latent brain disease and currently suffers from persistent headaches, memory
loss, and difficulty concentrating.
20.

Plaintiff Brandy Johnson is the spouse of Plaintiff Allen Johnson and

resides at the same address.
21.

Plaintiff K. Cory Withrow is 36 years old and resides in San Diego,

California. Mr. Withrow played on the offensive line and within the wedge on kick-off teams
during the following time periods and for the following NFL teams: 1998 for the Minnesota
Vikings and Cincinnati Bengals, 1999 through 2005 for the Minnesota Vikings, 2006 through
2008 for the San Diego Chargers and St. Louis Rams, and 2009 for the Seattle Seahawks.
During every year of his NFL career, Mr. Withrow sustained multiple head traumas and showed
concussion-like symptoms, some of which were medically documented and others of which were

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not. Mr. Withrow is at an increased risk of latent brain disease and currently suffers from shortterm memory loss on a regular basis, sleeplessness, and depression.
22.

Plaintiff Jon Carmen is 36 years old and resides in Barnegat, New Jersey.

Mr. Carmen played in the NFL on the offensive line for the Buffalo Bills from 2000 through
training camp in 2002, for the Minnesota Vikings for three weeks in 2002, and in the Minnesota
Vikings training camp for 2003. During that time period, Mr. Carmen sustained concussions
and/or concussion-like symptoms on multiple occasions that included loss of memory and
persistent headaches during training camps that directly arose from traumatic head impacts. Mr.
Carmen is at an increased risk of latent brain disease and currently suffers from short-term
memory loss and anxiety.
23.

Plaintiff Candice Carmen is the spouse of Jon Carmen and resides at the

24.

Plaintiff Corey Hulsey is 34 years old and resides in Clermont, Georgia.

same address.

Mr. Hulsey played on the offensive line for the following NFL teams for the following years:
Buffalo Bills, 1999 through 2002, Oakland Raiders, 2002 through 2006, and Detroit Lions,
March 2008 through October 2008. During that time period, Mr. Hulsey sustained at least one
concussion and/or concussion-like symptoms during the 2006 season. Mr. Husley is at an
increased risk of latent brain disease and currently suffers from mood swings.
25.

Plaintiff Casey Hulsey is the spouse of Plaintiff Corey Hulsey and resides

at the same address.
26.

Plaintiff James Druckenmiller is 39 years old and resides in Cordova,

Tennessee. Mr. Druckenmiller played quarterback in the NFL for the following NFL teams
during the following years: San Francisco 49ers 1997 through 1998, Miami Dolphins 1999, and

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the Indianapolis Colts 2003. During that time period, Mr. Druckenmiller sustained at least one
concussion that was undiagnosed and untreated. Mr. Druckenmiller is at an increased risk of
latent brain disease and currently suffers from memory loss and an inability to concentrate.
27.

Plaintiff Rene Ingoglia is 39 years old and resides in Orlando. Florida.

Mr. Ingoglia played in the NFL as a running back and on special teams from 1997 through 1999
for the Buffalo Bills and the Washington Redskins. Mr. Ingoglia sustained multiple head
impacts during his playing days in the NFL, including two helmet to helmet hits in 1997 during
drills that made him see black and possibly knocked him unconscious. Mr. Ingoglia was never
treated for these impacts. Mr. Ingoglia is at an increased risk of latent brain disease and
currently suffers from short-term memory loss.
28.

Plaintiff Jessica Ingoglia is the spouse of Plaintiff Rene Ingoglia and

resides at the same address.
29.

Plaintiff Trey Darilek is 30 years old and resides in Lewisville, Texas.

Mr. Darilek played on the offensive line for the Philadelphia Eagles from March 2004 through
August 2006, for the Miami Dolphins from August 2006 through October 2006, and for the
Dallas Cowboys from March 2008 through August 2008. During that time period, Mr. Darilek
sustained concussions or concussion-like symptoms during the 2004 and 2006 seasons, none of
which were ever diagnosed or treated. Mr. Darilek is currently at an increased risk for latent
brain disease and currently suffers from mood swings, anxiety, and sleeplessness.
30.

Plaintiff Karla Darilek is the spouse of Plaintiff Trey Darilek and resides at

the same address.
31.

Plaintiff Tom Nutten is 40 years old and resides in Osprey, Florida. Mr.

Nutten played in the NFL for eight seasons as an offensive lineman as follows: Buffalo Bills 1995,

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Denver Broncos during the 1997 offseason, St. Louis Rams 1998-2002, the New York Jets for part
of 2003, and the St. Louis Rams 2004 -2006. During his years in the NFL, Mr. Nutten sustained
many concussions and other substantial head impacts on a regular basis that resulted in concussion
and concussion-like symptoms. After at least one impact, Mr. Nutten received medical treatment.
Mr. Nutten is at an increased risk for latent brain disease and currently suffers from headaches,
depression, anxiety, and an occasional inability to focus.
32.

The names and capacities of Defendants DOES 1 through 100, inclusive

whether individual, corporate, associate or otherwise, are unknown to Plaintiffs at the present
time. When Plaintiffs ascertain the names and capacities of those Defendants, they will seek
leave of court to amend this complaint.
33.

All Defendants, and each of them, were in some fashion legally

responsible for the injuries and damages complained of herein.
34.

At all times herein mentioned, Defendants, and each of them, were the

agents, servants, and employees each of the other, acting within the course and scope of said
agency and employment.
35.

Defendant NFL, which maintains its offices at 280 Park Avenue, New

York, New York, is an unincorporated association consisting of the 32 separately owned and
independently-operated professional football teams listed below. The NFL is engaged in
interstate commerce in the business of, among other things, promoting, operating, organizing,
and regulating the major professional football league in the United States. The NFL is not, and
has not, been the employer of the Plaintiffs, who were employed during their respective careers
in professional football by the independent clubs (hereinafter “Teams” or “Clubs”) set forth
below. The United States Supreme Court held in American Needle, Inc. v. NFL, 130 S. Ct. 2201,

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2212-13 (2010) that each team that is a member of the NFL is a legally distinct and separate
entity from both the other teams and the NFL itself.
36.

The 32 separately owned and independently-operated teams are:

NFL Team Owner

State of Organization

Team Name (City)

Arizona Cardinals, Inc.

Arizona

Arizona Cardinals

Atlanta Falcons Football Club LLC

Georgia

Atlanta Falcons

Baltimore Ravens Limited Partnership

Maryland

Baltimore Ravens

Buffalo Bills, Inc.

New York

Buffalo Bills

Panthers Football LLC

North Carolina

Carolina Panthers

Chicago Bears Football Club, Inc.

Delaware

Chicago Bears

Cincinnati Bengals, Inc.

Ohio

Cincinnati Bengals

Cleveland Browns, Inc.

Delaware

Cleveland Browns

Dallas Cowboys Football Club, Ltd.

Texas

Dallas Cowboys

Denver Broncos Football Club

Colorado

Denver Broncos

Detroit Lions, Inc.

Michigan

Detroit Lions

Green Bay Packers, Inc.

Wisconsin

Green Bay Packers

Houston NFL Holdings LP

Delaware

Houston Texans

Indianapolis Colts, Inc.

Delaware

Indianapolis Colts

Jacksonville Jaguars, Ltd.

Florida

Jacksonville Jaguars

Kansas City Chief Football Club, Inc.

Texas

Kansas City Chiefs

Miami Dolphins, Ltd.

Florida

Miami Dolphins

Minnesota Vikings Football Club LLC

Minnesota

Minnesota Vikings

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New England Patriots, LP

Delaware

New England Patriots

New Orleans Louisiana Saints LLC

Texas

New Orleans Saints

New York Football Giants, Inc.

New York

New York Giants

New York Jets Football Club, Inc.

Delaware

New York Jets

Oakland Raiders LP

California

Oakland Raiders

Philadelphia Eagles Football Club, Inc.

Delaware

Philadelphia Eagles

Pittsburgh Steelers Sports, Inc.

Pennsylvania

Pittsburgh Steelers

San Diego Chargers Football Co.

California

San Diego Chargers

San Francisco Forty Niners Ltd.

California

San Francisco 49ers

Football Northwest LLC

Washington

Seattle Seahawks

The Rams Football Company LLC

Delaware

St. Louis Rams

Buccaneers Limited Partners

Delaware

Tampa Bay Buccaneers

Tennessee Football, Inc.

Delaware

Tennessee Titans

Washington Football Inc.

Maryland

Washington Redskins

37.

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

Football League Properties, Inc. (“NFL Properties”) and a limited liability company organized
and existing under the laws of the State of Delaware with its headquarters in the State of New
York. NFL Properties is engaged in, among other activities, approving, licensing, and promoting
equipment used by all the NFL teams. NFL Properties regularly conducts business in
Pennsylvania.
38.

The Defendants National Football League and NFL Properties shall be

referred to collectively herein as the “NFL”.
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39.

The NFL caused or contributed to the injuries and increased risks to

Plaintiffs through its acts and omissions (a) by failing to disclose the true risks of repeated
traumatic brain and head impacts in NFL football; (b) by failing to take appropriate steps to
prevent, minimize, and/or mitigate repeated traumatic brain and head impacts in NFL football;
and (c) by deliberately creating false scientific studies and spreading misinformation concerning
the cause and effect relation between brain trauma in NFL games and practices and latent
neurodegenerative disorders and diseases.
40.

On information and belief, NFL policies and decisions relevant to the conduct

alleged herein occurred primarily in the NFL corporate offices in New York City.
41.

On information and belief, those policies and decisions were part of a

conspiracy whose objectives were to prevent players from having accurate and correct scientific
information regarding the cause and effect relationship between (a) concussions and brain trauma
during NFL games and practices and (b) long-term neurological brain damage, including the early
onset of dementia, memory loss, and Chronic Traumatic Encephalopathy (“CTE”).
42.

Another objective of the conspiracy was to prevent persons bargaining on

behalf of players to have sufficient knowledge to demand that policies, procedures, and conditions be
included in the Collective Bargaining Agreements and other contracts that were sufficient for the
protection of players in connection with brain trauma and concussions.
43.

The NFL conspiracy also included a third objective, which was to deprive

players of their right to seek damages for concussion-related injuries in court by using the Collective
Bargaining Agreements as a bar to any civil court action by players.
44.

However, since the public and widely promoted position of the NFL was that

concussions in NFL games and practices were not a long-term risk to players and unconnected to

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brain degeneration and the brain disorders of early dementia and CTE, the Collective Bargaining
Agreements cannot be the source of the duties of the NFL as to concussions.
45.

Moreover, the voluntary insertion of the NFL into concussion research and

public discussion meant that the NFL had a duty (a) to make truthful statements; (b) not to
wrongfully advance improper, biased, and falsified industry-generated studies; and (c) not to
discredit well-researched and credible studies that came to a conclusion that did not comport with the
NFL’s financial and political interests.
46.

This duty extended not merely to NFL players, but also to all persons who

play the game of football nationwide at every level; that is, millions of children, high school students,
and college students.
47.

In light of the NFL conspiracy, Plaintiffs seek a declaration that no

Collective Bargaining Agreements are a bar to this lawsuit, because they were induced by fraud.
48.

Third parties that conspired with the NFL in the conspiracy and other

tortious conduct alleged herein include, but are not limited to, the Teams, physicians and health
care providers who contracted with the Teams and NFL, NFL Properties, LLC, and various
persons in leadership positions in the NFL, the Teams, and NFL Properties, LLC.
MASS ACTION AND JOINDER ALLEGATIONS
49.

Joinder is permissible under Fed. R. Civ. P. 20(a) in that the claims

alleged herein arise out of the same occurrences, and questions of law and/or fact common to all
Plaintiffs arise in this action.
50.

Common questions of law and fact will arise in this action, including but

not limited to the following:

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(a)

Whether the NFL, through its own voluntary undertaking, was
negligent in its response to the health effects of repetitive traumatic
brain injuries and/or concussions sustained by the Plaintiffs during
NFL games, practices and other activities;

(b)

Whether the NFL conspired to defraud the Plaintiffs by ignoring
and/or misrepresenting the risks of repetitive traumatic brain
injuries and/or concussions sustained by the Plaintiffs during NFL
games, practices and other activities; and

(c)

Whether the repetitive traumatic brain injuries and/or concussions
sustained by the Plaintiffs during NFL games, practices and other
activities cause, among other things, latent neurodegenerative brain
disorders, memory loss, and brain disease.

FACTUAL ALLEGATIONS APPLICABLE TO ALL COUNTS
The National Football League
51.

The NFL oversees America’s most popular spectator sport, football, and

acts as a trade association for the benefit of the 32 independently-operated Teams. The NFL’s
average attendance per game in 2009 was 67,509.
52.

The NFL is engaged in assisting and guiding the operations of the Teams,

and the sale of tickets and telecast rights to the public for the exhibition of the individual and
collective talents of players such as the Plaintiffs-Players.
53.

The NFL as a business collects annual receipts in excess of $9.3 billion.

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54.

The NFL earns billions of dollars from its telecasting deals with, inter alia,

ESPN ($1.1 billion), DirecTV ($1 billion), NBC ($650 million), Fox ($712.5 million), and CBS
($622.5 million).
55.

Annually, the NFL redistributes approximately $4 billion in radio,

television and digital earnings to the Teams or approximately $125 million per Team. Those
revenue numbers show no sign of declining and have increased since 2009.
56.

The NFL receives additional sources of revenue through companies that

seek to associate their brands with the NFL. The NFL has contracts with companies, such as
Pepsi ($560 million over eight years, starting in 2004) and Gatorade ($45 million a year, plus
marketing costs and free Gatorade for teams). Verizon is paying $720 million over four years to
be the league’s wireless service provider. Nike paid $1.1 billion to acquire the NFL’s apparel
sponsorship. Previous partner Reebok had been selling $350 million annually in NFL-themed
gear.
57.

On September 7, 2011, it was announced that the NFL signed a new 10-

year $2.3 billion contract with Pepsi, which is one of the largest sponsorship deals in sports
history. It encompasses a number of Pepsi brands (Pepsi, Frito-Lay, Tropicana, Quaker Oats,
and Gatorade). This contract, combined with a number of other new sponsorships, ticket sales
projections and TV ratings, means that the NFL is projecting record revenues of over $9.5 billion
the 2011-2012 season.
58.

The Teams often collect $25-$30 million for stadium naming rights, such

as MetLife Stadium in New Jersey and Lincoln Financial Field in Philadelphia, usually on 10year naming right contracts. Reliant Energy has a $10 million per year contract with the

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Houston Texans for naming rights. In Los Angeles, Farmers Insurance has promised $700
million over 30 years to name a stadium for a team that does not exist yet.
59.

The League has a $1.2 billion, six-year contract with beer sponsor

Anheuser-Busch.
60.

Many Teams that are part of the NFL own in whole or in part the stadiums

in which they play, which can be a source of major commercial value, as reflected in the
following chart:
STADIUM TEAM

OPENED

PRICE
(2010 DOLLARS)

% PRIVATE

New Meadowlands, NY

2010

$1.6B

100

Cowboys Stadium, DAL

2009

$1.15B

56

Lucas Oil Field, IND

2008

$780M

13

U. of Phoenix Stadium, ARI

2006

$493M

32

Lincoln Financial, PHI

2003

$588M

65

Ford Field, DET

2002

$504M

49

Gillette Stadium, NE

2002

$373M

100

Reliant Stadium, HOU

2002

$526M

39

Qwest Field, SEA

2002

$422M

29

Invesco Field, DEN

2001

$683M

39

Heinz Field, PIT

2001

$312M

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61.

In 2010, more than 17 million fans passed through turnstiles operated by

Teams and paid between $54.51 (Cleveland Browns) to $117.84 (New England Patriots) for the
average game ticket. Although the NFL will not allow others to see its financial records,
financial results for the publicly-held Green Bay Packers (“Packers”) offer some insight into
the revenues Teams receive at the ticket office and concession stands. In 2010, the Packers
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received $60,059,646 in revenue from home and away game tickets plus private boxes.
Projected over 32 teams, the revenue was nearly $2 billion annually. The Packers received $13
million from concessions, parking and local media in 2010, which translates to $416 million on
a league-wide basis.
62.

The NFL enjoys partial monopoly power through an anti-trust exemption

granted via the federal Sports Broadcasting Act that allows the NFL to sell television rights for all
32 teams as a single unit.
63.

A Forbes magazine article recently stated that 19 NFL franchises are

worth $1 billion or more. Even the lowest-valued NFL Teams are worth approximately $800
million. Over the last 15 years, the values of the franchises (i.e. Teams) in the NFL has risen 500
percent.
The NFL’s Influence
64.

In part because of its financial power and monopoly status in American

football, the NFL has enormous influence over physicians, trainers, coaches, professional
players, and amateur players at all levels of the game regarding many issues. Those issues
include research and education regarding the diagnosis, treatment, and effects of injuries that
arise in both professional and amateur football practices, scrimmages, and games.
65.

The 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 (NFLPA”).
66.

USA Football 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

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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 Scientific Evidence on Concussions and Head Injuries
67.

The American Association of Neurological Surgeons (“AANS”) 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 AANS defines traumatic brain injury (“TBI”) as follows:
as a blow or jolt to the head, or a penetrating head injury that
disrupts the normal function of the brain. TBI can result when the
head suddenly and violently hits an object, or when an object
pierces the skull and enters brain tissue. Symptoms of a TBI can be
mild, moderate or severe, depending on the extent of damage to the
brain. Mild cases may result in a brief change in mental state or
consciousness, while severe cases may result in extended periods
of unconsciousness, coma or even death.
68.

The injury generally occurs when the head either accelerates rapidly and

then is stopped, or is spun rapidly. The results frequently include confusion, blurred vision,
memory loss, nausea and, sometimes, unconsciousness.
69.

Medical evidence has shown that symptoms of a traumatic brain injury or

concussion can reappear hours or days after the injury, showing that the injured party had not
healed from the initial blow.
70.

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

much as four times more likely to sustain a second one. Additionally, after several concussions,
a lesser blow may cause the injury, and the injured player requires more time to recover.

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71.

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

experts demonstrate that multiple concussions sustained during an NFL player’s career cause
severe cognitive problems such as depression and early-onset dementia.
72.

Chronic Traumatic Encephalopathy (that is, 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.
73.

Repetitive traumatic brain injury, including concussions, triggers the

progressive degeneration of the brain tissue seen in CTE. The symptoms associated with these
degenerative changes can begin months, years, or even decades after the last concussion or end
of the athlete’s active involvement in the sport. The progressive degeneration results in memory
loss, confusion, impaired judgment, paranoia, impulse control problems, aggression, depression,
and, eventually, progressive dementia.
74.

The risks of repeated head impacts in certain sports and the onset of brain

disease have been understood by medical professionals for decades. In 1928, New Jersey
pathologist, Harrison Martland, described the clinical spectrum of abnormalities found in “nearly
one half of the fighters [boxers] who stayed in the game long enough.” Follow-up studies on
encephalopathy and repeated head impacts in sport were published in 1952. The risk of second
impacts (Second Impact Syndrome) in sport was identified in 1973. It was also clear by the
1970’s that the patterns of neurodegeneration associated with head impacts in boxing also
occurred in other sports.

-19-

75.

From 1931 to 2006, the National Center for Catastrophic Sport Injury

Research has reported 1,006 direct and 683 indirect fatalities resulting from participation in all
organized football in the United States; the annual number of indirect fatalities has remained near
9.0 per year.
76.

A 1994 Ball State University survey found that “players in the 1980s

suffered serious injuries and underwent operations at twice the rate of those who played in the
1950s or earlier.”
77.

A study presented at the American Academy of Neurology’s 52nd Annual

Meeting in 2000 and authored principally by Dr. Barry Jordan, Director of the Brain Injury
Program at Burke Rehabilitation Hospital in White Plains, New York, surveyed 1,094 former
NFL players between the ages of 27 and 86 and found that: (a) more than 61% had suffered at
least one concussion in their careers with 30 % of the players having three or more and 15%
having five or more; (b) 51% had been knocked unconscious more than once; (c) 73% of those
injured said they were not required to sit on the sidelines after their head trauma; (d) 49% of
the former players had numbness or tingling; 28% had neck or cervical spine arthritis; 31% had
difficulty with memory; 16% were unable to dress themselves; and 11% were unable to feed
themselves; and (e) eight suffered from Alzheimer’s disease.
84.

In 1999, former Pittsburgh Steeler and Hall of Fame inductee Mike

Webster had filed with NFL’s Retirement Plan (“NFL Plan”) a request that he receive complete
disability benefits based on the fact that he had sustained repeated and disabling head impacts
while a player for the Steelers. In 1999, Webster had submitted to the NFL Plan extensive
medical reports and testimony that stated, among other things, that Webster suffered from

-20-

“traumatic or punch drunk encephalopathy [brain disease]” sustained from playing football that
left Webster totally and permanently disabled as of 1991.
85.

The NFL Plan’s own physician independently examined Webster and

concluded that Webster was mentally “completely and totally disabled as of the date of his
retirement and was certainly disabled when he stopped playing football sometime in 1990.”
86.

Although the NFL Plan gave Webster less than all of the benefits

available, it did set the date of his onset of total disability at 1996, six years after Webster was no
longer an active player.
87.

Webster died in 2002 at the age of fifty. In December 2006, the Estate of

Webster received an unpublished opinion from the United States Court of Appeals for the Fourth
Circuit that affirmed the decision of the District Court that the administrator had wrongly denied
him benefits. In its unpublished opinion, the Fourth Circuit stated that the NFL Plan had
acknowledged that the multiple head injuries Webster sustained during his playing career (1974
to 1990) “…had caused Webster eventually to suffer total and permanent mental disability…”
78.

Thus, as early as 1999, the NFL, through expert medical testimony

presented by Webster and the NFL Plan itself, knew and accepted that repetitive traumatic brain
injuries sustained by an NFL offensive lineman led to long-term encephalopathy and permanent
mental disability.
79.

A 2001 report by Dr. Frederick Mueller that was published in the Journal

of Athlete Training reported that a football-related fatality has occurred every year from 1945
through 1999, except for 1990. Head-related deaths accounted for 69 % of football fatalities,
cervical spinal injuries for 16.3%, and other injuries for 14.7%. High school football produced

-21-

the greatest number of football head-related deaths. From 1984 through 1999, 69 football headrelated injuries resulted in permanent disability.
80.

The University of North Carolina’s Center for the Study of Retired

Athletes published survey-based papers in 2005 through 2007 that found a clear correlation
between NFL football and depression, dementia and other cognitive impairment.
88.

The chart on the following page, which was excerpted from an article in

the 2010 New England Journal of Medicine entitled Traumatic Brain Injury—Football, Warfare,
and Long-Term Effects, shows that even mild “traumatic brain injury” (stated in the chart as
“TBI”) can have lasting consequences that are manifest later in the football player’s life.

-22-

-23-

89.

To date, neuro-anatomists have performed autopsies on thirteen deceased

NFL players who after their playing careers had exhibited signs of degenerative brain disease.
Twelve of those players were found to have suffered from CTE.
The NFL’S Response to the Concussion Issue
90.

The NFL’s repetitive traumatic brain injury and concussion problem is not

new. In 1994, following the well-publicized retirements of NFL players Al Toon and Merrill
Hoge, both of whom had sustained serious head injuries while playing and developed post
concussion syndrome, then-NFL Commissioner Paul Tagliabue established the MTBI
Committee to study, among other things, post concussion syndrome in NFL players.
91.

At that time, the current NFL Commissioner, Roger Goodell, was the

NFL’s Vice President and Chief Operating Officer.
92.

Thus, with the MTBI Committee, the NFL voluntarily inserted itself into

the private and public discussion and research on an issue that goes to the core safety risk for
players who participate at every level of the game. In doing so, the NFL assumed a duty to use
reasonable care in:
a)

the study of post-concussion syndrome;

b)

the study of any kind of brain trauma relevant to the sport of

c)

the use of information developed; and

d)

the publication of data and/or pronouncements from the MTBI

football;

Committee.
93.

Rather than exercising reasonable care in these duties, the NFL engaged in

fraud, which included a campaign of disinformation designed to (a) dispute accepted and valid

-24-

neuroscience regarding the connection between repetitive traumatic brain injury (concussions)
and degenerative brain disease such as CTE, and (b) to create a falsified body of research which
the NFL could cite as proof that truthful and accepted neuroscience on the subject was
inconclusive and subject to doubt.
94.

The NFL’s response to the issue of brain injuries and degenerative brain

disease in retired NFL players caused by concussions and repetitive brain trauma received during
their years as professional football players has been, until very recently, a conspiracy of
deception and denial. The NFL actively tried to conceal the extent of the concussion and brain
trauma problem, the risk to the Plaintiffs, and the risks to anyone else who played football.
95.

Instead of naming a noted neurologist to chair the newly formed MTBI

Committee, or at least a physician with extensive training and experience treating head injuries,
Tagliabue appointed Elliot Pellman, a rheumatologist, who was a paid physician and trainer for
the New York Jets. Pellman’s training was in the treatment of joints and muscles, not head
injuries.
96.

The fact that Pellman was a paid physician for an NFL Team was an

obvious conflict of interest. At no time was Pellman independent of the NFL, because he was
paid on an ongoing basis by an NFL Team.
97.

Pellman chaired the MTBI Committee from 1994 to 2007.

98.

Under Pellman, the MTBI Committee spearheaded a disinformation

99.

Pellman and two other scientists, Ira Casson (“Casson), a neurologist and

campaign.

David Viano (“Viano”), a biomedical engineer, worked to discredit scientific studies that linked
head impacts and concussions received by NFL players to brain injuries.

-25-

100.

By 1994, when the NFL formed the MTBI Committee, scientists and

neurologists alike were convinced that all concussions--even seemingly mild ones—were serious
injuries that permanently damage the brain, impair thinking ability and memory, and hasten the
onset of mental decay and senility, especially when they are inflicted frequently.
101.

In 1994, the MTBI Committee began a purported study to determine the

effect of concussions on the long-term health of retired NFL players.
102.

Thirteen years later, in a November 2007 report to Congress, NFL

Commissioner Roger Goodell (“Goodell”) characterized the study as an “initial” data collection
phase and stated that “[w]e do not know when this study will be completed, although it is likely
that a comprehensive study will require at least several years of research and analysis.”
103.

In October of 2006, Pellman and Viano (both of whom were unqualified)

published in Neurological Focus an interim report on the MTBI Committee’s efforts that
surveyed 12 years of data collection. Pellman and Viano claimed to have analyzed “data on mild
TBIs sustained between 1996 and 2001” and concluded that “…mild TBIs in professional
football are not serious injuries”.
104.

Their conclusion was against the weight of the scientific evidence and

based on biased data collection techniques. This was exposed in February 2007 by ESPN The
Magazine, which reported that Pellman was selective in his use of injury reports, omitted large
numbers of players from the concussion study, and presented findings that contradicted other
scientific studies into the effects of concussions.
105.

Pellman 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.”
However, a 2003 NCAA study of 2,905 college football players found the opposite: that those

-26-

who have suffered concussions are more susceptible to further head trauma for seven to 10 days
after the injury.
106.

Pellman and his group stated repeatedly that the NFL study showed “no

evidence of worsening injury or chronic cumulative effects of multiple [mild traumatic brain
injury] in NFL players.” However, the 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 professional players with histories of concussions. A 2005 follow-up
study by the Center showed a connection between concussions and both brain impairment and
Alzheimer’s disease among retired NFL players. (Emphases added).
107.

Moreover, the conclusions of the MTBI Committee completely

contradicted the medical testimony regarding Mike Webster submitted to the NFL Plan in 1999,
including testimony submitted by the NFL Plan’s own paid expert.
108.

As the allegations in the foregoing paragraphs of this Complaint

demonstrate, the research and medical conclusions concerning head injuries associated with the
playing of football have a long history that contradicts the conclusions and pronouncements of
the MTBI Committee.
109.

On Monday, February 1, 2010, Dr. Bennet Omalu (“Omalu”), Co-Director

of the Brain Injury Institute at West Virginia University, spoke before members of the House
Judiciary Committee at a forum in Houston, Texas with regard to “Head and Other Injuries in
Youth, High School, College, and Professional Football.” In his prepared testimony, Omalu
stated (a) that the medical community has known about concussions and the effects of
concussions in football for over a century, b) that every blow to the head is dangerous, and (c)

-27-

that repeated concussions and traumatic brain injury have the capacity to cause permanent brain
damage.
110.

A 2000 University of North Carolina study by Kevin Guskiewicz, Ph.D.,

found that from 1977 to 1998, an annual average of 13 athletes suffered catastrophic 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. The results of the study suggested that
regarding concussions, the brain is more susceptible to injury when it has not had enough time to
recover from a first injury. The finding is important, according to the study, because concussions
can lead to, inter alia, permanent brain damage, memory loss, vision impairment or even death if
not managed properly.
111.

According to Guskiewicz, recurrent brain injuries are more likely because

injured players are returning to practice and to games too quickly after blows to the head.
Guskiewicz observed that many Team health providers were not following medical guidelines
that players should be symptom-free for several days before returning.
112.

A 2003 study partially authored by Guskiewicz 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 a nearly threefold risk.
113.

The NFL’s MTBI Committee attacked these studies.

114.

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

“Inside the NFL” to discuss his research. Pellman called Guskiewicz in advance and questioned
whether it was in the best interest of Guskiewicz to appear on the program. On the program,

-28-

Pellman (a rheumatologist unqualified in the study of traumatic brain injury) stated
unequivocally that he did not believe the results of the study led by Guskiewicz.
115.

In a 2005 follow-up study, Guskiewicz found that retired NFL players

who sustained three or more concussions had a fivefold greater likelihood of suffering 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.
116.

Later, in 2011, Guskiewicz received an award and was named a fellow by

the John D. and Catherine T. McArthur Foundation, in part, because of his research and
publications on mild traumatic brain injuries and concussions.
117.

Dr. Mark Lovell (“Lovell”) of the MTBI Committee criticized the

Guskiewicz study as lacking “scientific rigor.” The MTBI Committee also responded by
presenting biased research derived from its ongoing survey of retired NFL players. Pellman and
other MTBI Committee members published a series of studies in Neurosurgery, a scholarly
journal edited by Mike Apuzzo, the New York Giants’ neurosurgical consultant.
118.

The results reported by Pellman and the MTBI Committee selectively

excluded 850 baseline tests in their data, yet included only 655 baseline tests. In a paper
published in Neurosurgery in December 2004, Pellman and other MTBI Committee members
reported on the baseline data for 655 players and the results for 95 players who had undergone
both baseline testing and post-concussion testing. They concluded that NFL players did not
show a decline in brain function after suffering concussions. Their further analysis purportedly
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 did not explain where the players in the study

-29-

groups came from specifically or why certain player data was included and that of hundreds of
others was not.
119.

A November 2006 ESPN The Magazine article reported on how the MTBI

Committee failed to include hundreds of neuropsychological tests done on NFL players when
studying the effects of concussion.
120.

Neuropsychologist William Barr (a consultant to the New York Jets and

the MTBI Committee from New York University) voiced concern that Pellman might be
selecting data that would downplay the effects of concussions.
121.

Later, Barr gave a lecture to the Brain Injury Association in New York and

reported on a study of concussions in 3,000 college athletes. In the lecture, Barr stated that the
research showed that the best time to do neuropsychological testing was after the concussion
symptoms had completely cleared, which was contrary to NFL practice.
122.

According to Barr, Pellman called him and ordered him not to make

recommendations about the treatment about sports concussions without first discussing it with
Pellman. Pellman added that if Barr ever published his NFL data, Barr would hear from the
NFL’s lawyers.
123.

Barr protested, and Pellman fired him as a consultant to the Jets and MTBI

Committee. Barr later memorialized the conversation in a letter to the Dean of the NYU Medical
School, Richard Levin.
124.

Robert Cantú, Chief of Neurosurgery and Director of Sports Medicine at

Emerson Hospital in Concord, Massachusetts, and a Senior Editor at Neurosurgery, observed
that the extremely small sample size and voluntary participation in the NFL’s study suggested

-30-

there was bias in choosing the sample. According to Cantú, no conclusions should be drawn
from the NFL study.
125.

Cantú also stated that the NFL appeared to be primarily preparing a

defense for when injured players eventually sued and seemed to be promoting a flawed scientific
study to justify its conclusion that concussions do not have adverse effects on players.
126.

Guskiewicz observed that the studies were “questionable industry-funded

127.

Between 2005 and 2007, Omalu and Cantú, who is also the Co-Director

research.”

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 of the Pittsburgh Steelers, who died of heart failure at
the age of 50;
(b) Terry Long of the Pittsburgh Steelers, who died at 45 after drinking
antifreeze; and
(c) Andre Waters of the Philadelphia Eagles and Arizona Cardinals, who
committed suicide at the age of 44.
128.

All three of these individuals suffered multiple concussions during their

respective NFL careers. All three exhibited symptoms of sharply deteriorated cognitive
functions, paranoia, panic attacks, and depression.
129.

In articles published in Neurosurgery in 2005 and 2006, Omalu found that

Webster’s and Long’s respective deaths were partially caused by CTE and were related to
multiple concussions suffered during their professional playing years in the NFL.

-31-

130.

Cantú reached a similar conclusion as to Waters in an article published in

Neurosurgery in 2007.
131.

In response to Omalu’s article on Webster, Casson wrote a letter in July of

2005 to the editor of Neurosurgery asking that Omalu’s article be retracted.

Pellman’s Removal From the MTBI Committee
132.

Pellman stepped down as the head of the MTBI Committee in February

133.

Guskiewicz, who is research director of UNC’s Center for the Study of

2007.

Retired Athletes, said at the time that Pellman was “the wrong person to chair the committee
from a scientific perspective and the right person from the league’s perspective.”
134.

Regarding the work of Pellman, Guskiewicz stated, “[w]e found this 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 for future concussions;” but “[Pellman] continued to say on the
record that’s not what they find and there’s no truth to it.”
135.

Pellman was replaced as chair of the MTBI Committee by Casson and

Viano, who continued to dismiss outside studies and overwhelming evidence linking dementia
and other cognitive decline to brain injuries sustained by NFL players during their playing days.
When asked in 2007 whether concussions could lead to brain damage, dementia or depression,
Casson denied the linkage six separate times.
136.

In June 2007, the NFL convened a Concussion Summit for team doctors

and trainers. Independent scientists, including Omalu, Cantu, and Guskewicz, presented their
research to the NFL.

-32-

137.

At the summit, Casson told team doctors and trainers that CTE has never

been scientifically documented in football players. After reviewing five years of data of on-field
concussions, the NFL concluded that there was no evidence for an increase in secondary brain
injuries after a concussion. Two months later, the NFL issued a concussion pamphlet to players
that claimed:
[C]urrent research with professional athletes has not shown that
having more than one or two concussions leads to permanent
problems if each injury is managed properly. It is important to
understand that there is no magic number for how many
concussions is too many.” (Emphasis added).
138.

The Plaintiffs relied on the pamphlet and all the other prior disinformation

provided by the NFL, all of which was contrary to the findings of the independent scientists
Guskiewicz, Cantú, Omalu and Bailes regarding the causal link between multiple concussions
and cognitive decline.
139.

The NFL’s conflict of interest and motive to suppress information

regarding the risks of repetitive traumatic brain injuries and concussions was vividly
demonstrated by Pellman’s treatment of a concussion sustained by former star New York Jets
player Wayne Chrebet. This occurred in 2003, the same time period when Pellman chaired the
MBTI Committee.
140.

In November 2003, Chrebet sustained a concussion from another player’s

knee to the back of his head. The impact left him face down on the field in an unconscious state
for several minutes. Once Chrebet was on the sideline and conscious, Pellman administered
tests. Pellman knew that Chrebet has sustained a concussion, but reportedly Chrebet performed
adequately on standard memory tests. According to news reports, Pellman asked Chrebet some
questions, including whether he was “okay”. Chrebet responded that he was. Reportedly,

-33-

Pellman told Chrebet that “This is very important for your career” and sent Chrebet back into the
game. Shortly thereafter, Chrebet was diagnosed with post-concussion syndrome and kept out of
games for the remainder of the 2003 season.
141.

Today, Chrebet at 34 years old and reportedly suffers from depression and

memory problems.
142.

The incident shows that the culture of football and the economic

incentives within the NFL encourage NFL employees to return players to the field in the same
game even after being knocked unconscious and sustaining significant concussions. The absence
of star players like Chrebet for any significant length of time can and will adversely affect the
competitiveness of the NFL Team for which the player plays, the Team’s ticket and merchandise
sales, and its overall revenue.
143.

Moreover, the majority of NFL player contracts do not guarantee any

payment and require the player to pass physical and medical examinations at the beginning of
every season. Further, college teams supply the NFL every year with hundreds of new players,
all of whom seek to replace existing players. As a result, players are encouraged to under report
repetitive traumatic brain injury and concussions and return to the field despite such injuries to
maintain their positions on the field and maintain their contracts.
144.

In 2008, the University of Michigan’s Institute for Social Research

conducted a study on the health of retired players, with over 1,000 former NFL players taking
part. The results of the study, which were released in 2009, 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.”

-34-

145.

The NFL, which had commissioned the study, responded to its results by

claiming that the study was incomplete. NFL spokesperson Greg Aiello stated that the study was
subject to shortcomings and did not formally diagnose dementia. Casson, the new co-chair of
the MTBI Committee, implied that the Michigan study was inconclusive and stated that further
work was required.
146.

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 Torn 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’s and McHale’s brain tissue exhibited
indications of CTE and stated, “the easiest way to decrease the incidence of CTE [in contact
sport athletes] is to decrease the number of concussions.” McKee further noted that “[t]here is
overwhelming evidence that [CTE] is the result of repeated sublethal brain trauma.”
147.

In response, Casson criticized McKee’s studies by characterizing each

result 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 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.”
148.

Dr. Julian Bailes, a neurosurgeon from West Virginia University, briefed

the MTBI Committee on the findings of Omalu and other independent studies linking multiple
NFL head injuries with cognitive decline. Bailes recalled that the MTBI Committee’s reaction to
his presentation was adversarial: “The Committee got mad…we got into it. And I’m thinking,

-35-

‘This is a…disease in America’s most popular sport and how are its leaders responding?
Alienate the scientist who found it? Refuse to accept the science coming from him?’”
The Congressional Inquiry
149.

Shortly after the Michigan study was released, Representative John

Conyers, Jr., Chairman of the House Judiciary Committee, called for hearings on the impact of
head injuries sustained by NFL players.
150.

Cantú and McKee testified before the House of Representatives,

Committee on the Judiciary, to discuss the long term impact of football-related head injuries.
151.

In the first hearing, in October 2009, Rep. Maxine Waters stated, “I

believe you are an $8 billion organization that has failed in your responsibility to the players.
We all know it's a dangerous sport. Players are always going to get injured. The only question
is, are you going to pay for it? I know that you dearly want to hold on to your profits. I think it’s
the responsibility of Congress to look at your antitrust exemption and take it away.”
152.

NFL Commissioner Roger Goodell admitted to the extraordinary power

and influence of the NFL. He testified at the hearing that the NFL is “fortunate to be the most
popular spectator sport in America. In addition to our millions of fans, more than three million
youngsters aged 6-14 play tackle football each year; more than one million high school players
also do so and nearly seventy five thousand collegiate players as well. We must act in their best
interests even if these young men never play professional football.”
153.

Goodell also testified regarding the work of the MTBI Committee and

stated that “[i]n the past 15 years, the N.F.L. has made significant investments in medical and
biomechanical research. All of that information has been made public, subjected to thorough and
on-going peer review, published in leading journals, and distributed to the N.F.L.P.A. and their

-36-

medical consultants. We have been open and transparent, and have invited dialogue throughout
the medical community.”
154.

When Representative Sanchez questioned Goodell about the limited nature

of the NFL’s purported studies on repetitive traumatic brain injuries and concussions, the
conflicts of interest of those directing the studies, and the potential for bias, Goodell evaded
answering the questions.
155.

At the same hearing, NFLPA Executive Director DeMaurice Smith took a

very different view from Goodell and testified:
While this is the first N.F.L.-accepted study that demonstrated a
connection between on-field injury and post career mental illness,
there have been studies over the last decade highlighting that fact.
Unfortunately, the N.F.L. has diminished those studies, urged the
suppression of the findings and for years, moved slowly in an area
where speed should have been the impetus.
156.

After the Congressional hearings, the NFLPA called for the removal of

Casson as MTBI Committee co-chair and stated, “Our view is that he’s a polarizing figure on
this issue, and the players certainly don't feel like he can be an impartial party on this subject.”
157.

Casson and Viano resigned as co-committee chairmen after the 2009

congressional hearings. During the hearings, Casson was criticized for his “continued denials of
any link among retired players between injuries sustained in professional football and heightened
rates of dementia.”
158.

Shortly after the Congressional hearings, the NFL announced that it would

impose rules that required players who exhibit concussion symptoms to be removed from a game
or practice and be barred from returning the same day. In a change of policy, the NFL decided
that “independent experts” would decide who returns to play and who has to sit out so their brain
can heal.
-37-

159.

The change contradicted past statements by the MTBI Committee, which

had recommended as safe the league’s practice of returning players after a concussion. In the
journal Neurosurgery in 2005, for example, the MTBI Committee had stated that “[p]layers who
are concussed and return to the same game have fewer initial signs and symptoms than those
removed from play. Return to play does not involve a significant risk of a second injury either in
the same game or during the season.”
160.

In December 2009, NFL spokesman Aiello, who had vigorously denied

the link between concussions and brain injury in September 2009, contradicted the NFL’s
previous pronouncements and stated that it was “quite obvious from the medical research that’s
been done that concussions can lead to long-term problems.”
161.

Though “quite obvious” to sophisticated professionals involved in the

study of concussions, the NFL, its MTBI Committee, and its so called “experts” deliberately
obfuscated, denied, and attempted to repudiate accepted science for the previous fifteen years.
162.

On December 17, 2009, Cincinnati Bengals wide receiver Chris Henry,

26, who played in the NFL from 2004 to 2009, died after falling from the back of a pickup truck.
Omalu and Bailes performed a postmortem study on Henry’s brain and diagnosed Henry with
CTE.
163.

Two months early, in November 2009, the Associated Press surveyed one-

hundred and sixty NFL players. Thirty stated that they did not report or under-reported
concussions and returned to play, even though suffering from blurred vision and other
concussion symptoms.

-38-

164.

In January 2010, the House Judiciary Committee held further hearings on

Football Player Head Injuries. Chairman Conyers noted that “until recently, the NFL had
minimized and disputed evidence linking head injuries to mental impairment in the future.”
165.

The problem, however, continued. Casson provided oral and written

testimony at the January 2010 hearings and continued to deny the validity of other studies,
stating that “[t]here is not enough valid, reliable or objective scientific evidence at present to
determine whether or not repeat head impacts in professional football result in long term brain
damage.”
166.

Rep. Linda Sanchez soundly criticized the NFL at the hearings and stated:

I find it really ridiculous that he’s saying that concussions don’t
cause long-term cognitive problems. I think most people you ask
on the street would figure that repeated blows to the head aren’t
good for you.
167.

Rep. Sanchez further commented that:

It seems to me that the N.F.L. has literally been dragging its feet on
this issue until the past few years. Why did it take 15 years?
The NFL’s New Medical Committee
168.

In 2010, the NFL re-named the MTBI Committee the “Head, Neck, and

Spine Medical Committee” (hereinafter the “Medical Committee”) and announced that Pellman
would no longer be a member of the panel. Drs. H. Hunt Batjer and Richard G. Ellenbogen were
selected to replace Casson and Viano. The two new co-chairmen selected Dr. Mitchel S. Berger
to serve on the new committee.

-39-

169.

Under its new leadership, the Medical Committee admitted that data

collected by the NFL’s former brain-injury leadership was “infected,” and said that their
Committee should be assembled anew. The Medical Committee formally requested that Pellman
not speak at one of the Medical Committee’s initial conferences.
170.

During a May 2010 hearing, the Congressional Committee made it plain to

Batjer and Ellenbogen that the NFL: “[had] years of an infected system here, and your job is...to
mop [it] up.”
171.

Shortly after the May 2010 hearing, Batjer was quoted as saying, “[w]e all

had issues with some of the methodologies described, the inherent conflict of interest that was
there in many areas, that was not acceptable by any modern standards or not acceptable to us. I
wouldn’t put up with that, our universities wouldn’t put up with that, and we don’t want our
professional reputations damaged by conflicts that were put upon us.”
172.

The NFL continued its deficient response to head injuries as the 2010

season began, and the league’s concussion problems continued. In the first game of the 2010
season, Philadelphia Eagles Middle Linebacker Stewart Bradley sustained a head injury,
staggered when he attempted to walk, and collapsed.
173.

Former Dallas Cowboys Quarterback Troy Aikman, who had suffered

multiple concussions as a player, was analyzing the game on television and commented that
“[i]t’s hard to imagine [Bradley] coming back into this game in light of what we just saw.” Four
minutes later, however, Bradley was back in the game.
174.

In the same game, Eagles Quarterback Kevin Kolb was also sidelined by a

concussion. He, too, reentered the game.

-40-

175.

Recently, former New York Giants linebacker Harry Carson was asked

about the concussion issue and was quoted as saying:
Physically, I have aches and pains, but that comes with playing the
game. But if somebody tells you neurologically you could sustain
some kind of brain damage that will go with you the rest of your
life. If somebody had told me that a long time ago, I don’t frankly
think I would have [played].
The NFL’s New Player Safety Rules
176.

After decades of ignoring the issue and sixteen (16) years of a fraudulent

campaign of disinformation, in October of 2010, the NFL finally addressed the concussion issue
in a meaningful way. On October 20, 2010, in the wake of a series of dangerous and flagrant hits
resulting in concussions, the NFL levied fines totaling $175,000 on three players, James
Harrison, Brandon Meriweather and Duanta Robinson.
177.

In discussing Meriweather’s helmet to helmet hit on Baltimore Ravens

Tight End Todd Heap, NFL Executive Vice President of Football Operations Ray Anderson
stated:
[I]n our view, the hit was flagrant and egregious. Effective
immediately, that’s going to be looked at at a very aggressive level,
which would include suspension without pay...What I would tell
you is that if there are flagrant and egregious violations of our
current rules, we will be enforcing, effective immediately,
discipline at a higher level. (Emphasis added).
178.

That same day, NFL Commissioner Roger Goodell forwarded a

memorandum to all 32 NFL teams with a message that was to be read to all players and coaches.
Also forwarded to each team was a video showing the types of hits that are against the NFL
rules.

-41-

179.

The NFL memorandum provided, in part, that:

Violations of the playing rules that unreasonably put the safety of
another player in jeopardy have no place in the game, and that is
especially true in the case of hits to the head and neck.
Accordingly, from this point forward, you should be clear on the
following points: (1) Players are expected to play within the rules.
Those who do not will face increased discipline, including
suspensions, starting with the first offense; (2) Coaches are
expected to teach playing within the rules. Failure to do so will
subject both the coach and the employing club to discipline; (3)
Game officials have been directed to emphasize protecting players
from illegal and dangerous hits, and particularly from hits to the
head and neck. In appropriate cases, they have the authority to
eject players from a game.
180.

Two days later, the NFL sent a second memorandum to all teams

providing each coach with the names of the team’s players who have multiple infractions of the
new NFL safety rules. NFL Spokesman Aiello stated regarding the second memorandum, “the
purpose was to provide an opportunity for the coach to give extra caution to those players to
abide by the safety rules.”
181.

On February 17, 2011, former Chicago Bears and New York Giants player

Dave Duerson committed suicide. Only 50 at the time, Duerson had suffered months of
headaches, blurred vision, and faltering memory. After his death, Cantu determined that
Duerson was suffering from CTE.
182.

Before his death, Duerson wrote a final note that asked that his brain be

given to the NFL brain bank for evaluation.
183.

In connection with Duerson’s death, the Duerson family made a public

statement that it was their hope that through research questions would be answered that would
lead to a safer game of football, from professional to Pop Warner.

-42-

184.

When this information was reported, NFLPA Executive Director

DeMaurice Smith stated that the fact that Duerson was suffering from CTE “makes it abundantly
clear what the cost of football is for the men who played and the families. It seems to me that
any decision or course of action that doesn’t recognize that as the truth is not only perpetuating a
lie, but doing a disservice to what Dave feared and what he wanted to result from the donation of
his brain to science.”
185.

Another example is provided by the case of John Mackey (“Mackey”), the

former tight end of the Baltimore Colts, who died in July of 2011 and for whom the 88 Plan
described below was named. Mackey was diagnosed with front temporal lobe dementia in 2007,
forcing him to live full-time in an assisted living facility.
186.

The NFLPA refused to pay a disability income to him because it claimed

that there was no proven direct link between brain injury and NFL game participation. When the
88 Plan came into being, Mackey received payments, but far less than his family’s costs. Mackey
made less than a total of $500,000 during his decade-long NFL career.
187.

In October 2011, Dr. Berger of the NFL’s Medical Committee announced

that a new study was in the planning process and disassociated himself and the Medical
Committee from the previous work of the MTBI Committee. Addressing problems with the
previous NFL long-range study, a New York Times article reported that Dr. Berger said “There
was no science in that.” Dr. Berger further stated that data from the previous NFL study would
not be used. “We’re really moving on from that data. There’s really nothing we can do with that
data in terms of how it was collected and assessed.”
188.

In November 2011, the NFL’s injury and safety panel issued a directive

telling its game officials to watch closely for concussion symptoms in players. The directive

-43-

came 10 days after San Diego Guard Kris Dielman sustained a head injury during a game on Oct.
23, finished playing in the game, and was not assessed until afterward. On the team’s flight
home, Dielman suffered a grand mal seizure.
The NFL’s Power and Influence
189.

The NFL possesses monopoly power over American Football. As such, it

also possesses overwhelming influence over the research and education relating to football
injuries, and that influence reaches every person who plays football or who has a family member
who plays football.
190.

The NFL voluntarily and purposefully asserted this influence over

physicians, trainers, coaches, individuals with brain damage such as the Plaintiffs, children and
teenagers who play the game, and parents and families of football players. Those persons
reasonably relied on the NFL to act with prudence and care, not to ignore a serious health
problem, and not to propagate false and misleading information about that problem. The NFL
owed a duty to everyone of the foregoing persons, including the Plaintiffs, in the following
respects:
a)

The NFL owed a duty of reasonable care to protect Plaintiffs-

Players on the playing field;
b)

The NFL owed a duty of reasonable care to Plaintiffs-Players to

educate them and other players in the NFL about CTE and/or concussion injury;
c)

The NFL owed a duty of reasonable care to Plaintiffs-Players to

educate trainers, physicians, and coaches about CTE and/or concussion injury;
d)

The NFL owed a duty of reasonable care to Plaintiffs-Players to

have in place strict return-to-play guidelines to prevent CTE and/or concussion injury;

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e)

The NFL owed a duty of reasonable care to Plaintiffs-Players 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;
f)

The NFL owed a duty of reasonable care to Plaintiffs-Players to

design rules to eliminate the risk of concussion during games and/or practices;
g)

The NFL owed a duty of reasonable care to Plaintiffs-Players to

minimize the risk of concussion during games and/or practices;
h)

The NFL owed a duty of reasonable care to and their respective

families to promote valid research into and cure for CTE and the effects of concussion injury
over a period of time; and
i)

The NFL owed a duty of reasonable care to local sports

organizations, all American Rules Football leagues, players at all levels of the game, and the
public at large to protect against the long-term effects of repetitive traumatic brain injury,
concussions.
The NFL’s Knowledge of the Risks
191.

For decades, the NFL has 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.
192.

Throughout the past century and through the present, medical literature in

the United States and other industrialized countries has included case reports, studies, reviews,
and peer-reviewed articles relating to and discussing the harmful effect on humans, and
particularly players of American football, of repeated blows to the head. These publications
were all available and easily accessible to all Defendants.

-45-

193.

The NFL, in fact, had acknowledged in its dispute with Mike Webster

over disability benefits that the multiple head injuries Webster sustained during his playing
career (1974 to 1990) “…had caused Webster eventually to suffer total and permanent mental
disability…” However, until June of 2010, the NFL concealed these facts from other
players, coaches, trainers, and the public and actively spread disinformation to prevent the
true facts from coming to light.
194.

The NFL knew of the risks, but undertook measures that did not

sufficiently or adequately protect against the risks:
a)

In 1977, the NFL enacted an inadequate 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;
b)

In 1977, the NFL enacted an inadequate rule that prohibited

Offensive Linemen from thrusting their hands into a defender’s neck, face, or head;
c)

In 1980, the NFL enacted an inadequate rule that prohibited

players from using their helmets to butt, spear, or ram an opponent;
d)

In 1980, the NFL enacted inadequate rule changes that prohibited

players from directly striking, swinging, or clubbing the head, neck, or face (“personal foul”);
e)

In 1983, the NFL enacted an inadequate rule that prohibited

players from using a helmet as a weapon to strike or hit an opponent;
f)

In 1988, the NFL enacted an inadequate 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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g)

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.
195.

None of the foregoing measures adequately addressed repetitive

traumatic brain injuries and concussions.
196.

On August 14, 2007, while the MTBI Committee was still spreading

misinformation, the NFL issued inadequate and insufficient concussion guidelines, many of
which stemmed from an NFL conference in June of 2007 involving team trainers and doctors.
Those inadequate guidelines were sent to all current players and team personnel.
197.

The insufficient and inadequate guidelines included an informational

pamphlet provided to all current NFL players to aid in identifying symptoms of a concussion.
This information was later withdrawn by one of the outside counsel of the NFL in a separate
letter to its disability plan. The NFL’s August 14, 2007 press release denied that "more than
one or two concussions” leads to permanent problems.
198.

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

Commissioner Goodell, 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 of the most up-to-date information and resources as we continue to study the longterm impact of concussions.”
199.

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

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

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outstanding medical personnel in a way that clearly emphasizes player safety over competitive
concerns.”
200.

The NFL, however, later acknowledged that the 2007 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 on
managing concussions requiring players who exhibit any significant concussion signs to be
removed from a game or practice and be barred from returning the same day.
201.

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 other symptoms.
202.

The NFL’s conduct stands in sharp contrast to what has been done or

promulgated by other sports or medical bodies.
203.

For example, Rule 4.2.14 of the World Boxing Council’s Rules and

Regulations states: “[b]oxers that suffered concussion by KO, should not participate in sparring
sessions for 45 days and no less than 30 days after concussive trauma, including not limited to
KO’s, and should not compete in a boxing match in less than 75 days.”
204.

The Second International Conference on Concussion in Sport met in

Prague in 2004 and released the following statement: “[w]hen a player shows ANY symptoms or
signs of a concussion ... the player should not be allowed to return to play in the current game or
practice ... When in doubt, sit them out!” (Emphasis added). This directive echoed the position
taken by the First International Conference on Concussion in Sport, held in Vienna in 2001.

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205.

As ESPN reported in 2006, “[a]ll standard U.S. guidelines, such as those

first set by the American Academy of Neurology and the Colorado Medical Society, agree that
athletes who lose consciousness should never return to play in the same game.”
206.

Another example is provided by the National Collegiate Athletic

Association (“NCAA”), which also recognized inexcusably late the link between head impacts
and brain injuries, and which did not taking affirmative action on this until 2010. The NCAA is
the subject of at least two class actions suit for this tardiness. Nevertheless, once it did act, it did
so in a manner that was more decisive than the NFL.
207.

The NCAA’s webpage on concussion-related resources (see

<http://www.ncaa.org/wps/portal/ncaahome?WCM_GLOBAL_CONTEXT=/
ncaa/NCAA/Academics+and+Athletes/Personal+Welfare/Health+and+Safety/Concussion>)
indicates that in an educational partnership with the Centers for Disease Control and Prevention,
the NCAA has supplied each member college campus with two posters and two sets of fact
sheets addressing concussion awareness, prevention, and management. It has issued the “NCAA
Sports Medicine Handbook – Guideline on Concussions in the Athlete,” which recommends best
practices. The NCAA also requires each member college to develop a “Concussion Management
Plan.” One exemplar plan offered on the NCAA’s website is the University of Georgia Athletic
Association’s (“UGAA”) “Concussion Management Guidelines,” which requires, among other
things, a concussion management plan baseline assessments of all student-athletes in any sport,
whether or not they have a history of concussions or concussion-like symptoms.

-49-

The NFL’s Conduct Rises Beyond Mere Negligence
208.

The aforementioned acts and omissions of the NFL shows that the NFL

acted with callous indifference to the duty it voluntarily assumed to the Plaintiffs and players at
every level of the game.
209.

The NFL acted willfully, wantonly, egregiously, with reckless abandon,

and with a high degree of moral culpability. The NFL knew that a substantial risk of permanent
and debilitating physical and mental harm to the Plaintiffs existed in connection with repeated
concussive blows to the head; that is, the danger of irreversible brain-damage and/or dementia.
The NFL willfully and deliberately disregarded the safety of the Plaintiffs and players at every
level of the game by (a) failing to address or disclose this substantial short-term and long-term
risk associated with concussions; (b) by actively engaging in a campaign of misinformation on
the risks and dangers of repetitive traumatic brain injuries and concussions; and (c) by
promulgating rules within in the NFL Teams that permitted injured players to return to the
playing fields immediately or soon after they had sustained a traumatic brain injury and/or a
concussion.
COUNT I
ACTION FOR DECLARATORY RELIEF -- LIABILITY
210.

Plaintiffs repeat and re-allege each of the allegations contained in the

foregoing paragraphs.
211.

There is a case and controversy among Plaintiffs on the one hand and the

NFL on the other.
212.

Pursuant to 28 U.S.C. § 2201, Plaintiffs seek a declaration as to the

following:

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a)

that the Defendant NFL knew or reasonably should have known

that the repeated traumatic brain and head impacts, as well as concussions, suffered by the
Plaintiffs-Players while playing NFL football were likely to put them at excess risk to
neurodegenerative disorders and diseases, including but not limited to CTE, Alzheimer’s disease
or similar cognitive-impairing conditions;
b)

that the Defendant NFL had a duty to advise Plaintiffs-Players of

c)

that Defendant NFL willfully and intentionally concealed from and

these medical risks;

misled the Plaintiffs-Players concerning these medical risks; and
d)

that Defendant NFL recklessly endangered Plaintiffs-Players.
COUNT II
CONSPIRACY TO DEFRAUD

213.

Plaintiffs incorporate by reference all prior paragraphs of this Complaint

as if fully set forth herein.
214.

The Defendant NFL actively and deliberately agreed and conspired with

its Team members, independent contractors, and/or agents to minimize, discount, and reject the
casual connection between multiple concussions suffered by present and former NFL players and
neurodegenerative disease and other mental health symptoms.
215.

The common goal of the co-conspirators was to discourage talented players

from retiring and to persuade all players to return to football games regardless of the concussions and
brain trauma they sustained. Rather than implementing a rational science-based protocol that would
force players to not play in games (or possibly retire), the NFL conspired with members of the MTBI
Committee to conceal and/or misrepresent scientific research and the truth of the risks to players.

-51-

216.

The MTBI Committee was an instrumentality of the conspiracy. Upon its

creation, the MTBI Committee was highly publicized as the NFL’s purported good faith effort to
search for the truth and report its findings to the general public, players, and NFLPA.
217.

The MTBI Committee, however, acted to refute and criticize the proof

showing the causal link between multiple traumatic brain injuries and permanent cognitive decline
and to create competing studies that were biased, against the weight of scientific knowledge and
opinion, and purposefully designed to justify the NFL’s publicly stated opinion that there was no
causal link between multiple traumatic brain injuries and permanent cognitive decline.
218.

The MTBI Committee was created and authorized by the executive

leadership of the NFL. Its members included trainers and physicians employed by NFL Teams.
219.

Instead of hiring unbiased scientists of unimpeachable integrity and national

reputations, the NFL leadership, based in New York, selected Pellman to Chair of the MTBI
Committee.
220.

Pellman was and is a Team trainer paid by the New York Jets.

221.

Under the leadership of Pellman (and even after Pellman resigned), the MTBI

Committee purposefully misrepresented to players and the public the true risks associated with
repetitive traumatic brain injuries.
222.

Other third parties who conspired with the NFL include, but are not

limited to, the Teams, NFL Properties, LLC, and various as yet un-named persons in leadership
positions in the NFL, the Teams, and NFL Properties, LLC.
223.

On information and belief, the agreements among the co-conspirators

occurred primarily in the NFL corporate offices in New York City.

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224.

On information and belief, the agreements among the co-conspirators lead to

policies and decisions by the NFL whose objectives were to prevent players from having accurate
and correct scientific information regarding the cause and effect relationship between (a) concussions
and brain trauma during NFL games and practices and (b) long-term neurological brain damage,
including the early onset of dementia and Chronic Traumatic Encephalopathy (“CTE”).
225.

Another objective of the conspiracy was to prevent persons bargaining on

behalf of players to have sufficient knowledge to demand that policies, procedures, and conditions be
included in the Collective Bargaining Agreements and other contracts that were sufficient for the
protection of players in connection with brain trauma and concussions.
226.

The conspiracy also included a third objective, which was to deprive players

of their right to seek damages for concussion-related injuries in court by using the Collective
Bargaining Agreements as a purported future bar to any civil court action by players.
227.

Since, however, the public and widely promoted position of the NFL was that

concussions in NFL games and practices were not a long-term risk to players and unconnected to
degenerative brain disease and disorders, the Collective Bargaining Agreements cannot be the source
of the duties of the NFL as to repetitive traumatic brain injuries and concussions.
228.

As a result, the NFL conspiracy to defraud caused or contributed to the

injuries and increased risks to Plaintiffs-Players through the NFL’s acts and omissions (a) by
failing to disclose the true risks of repeated traumatic brain and head impacts in NFL football; (b)
by failing to take appropriate steps to minimize and mitigate repetitive traumatic brain injuries
and concussions in NFL football games and practices; and (c) by deliberately creating
misleading scientific studies and spreading misinformation concerning the cause and effect

-53-

relation between brain trauma in NFL games and practices and latent neurodegenerative
disorders and diseases.
229.

The misconduct by the Defendants was a proximate cause of the chronic

injuries and damages suffered by the Plaintiffs.
230.

As a result of the Defendants’ misconduct, Defendants are jointly and

severally liable to Plaintiffs.
COUNT III
FRAUDULENT CONCEALMENT
231.

Plaintiffs incorporate by reference all prior paragraphs of this Complaint

as if fully set forth herein.
232.

Defendant NFL concealed facts and information which caused all the

Plaintiffs-Players to become exposed to the harm referenced above.
233.

As a result of the Defendants’ misconduct as alleged herein, Defendants

are liable to Plaintiffs.
234.

As a proximate cause of the concealment of the Defendant NFL, each

Plaintiff Player suffered harm described above and each has suffered damages that are
continuing in nature and as yet have not been fully ascertained.
235.

Wherefore, the Plaintiffs-Players hereby demand compensatory damages

from Defendant NFL in an amount to be determined at trial, plus interest and costs.
COUNT IV
FRAUD
236.

Plaintiffs incorporate by reference all prior paragraphs of this Complaint

as if fully set forth herein.

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237.

From 1994 through June of 2010, the NFL made material

misrepresentations to its players, former players, the Congress, and the public at large that there
was no link between concussions and later life cognitive/brain injury, including CTE and its
related symptoms.
238.

Agents of the NFL and the NFL itself intended to defraud, among others,

the Plaintiffs-Players in this action.
239.

The Plaintiffs-Players justifiably and reasonably relied on these

misrepresentations to their detriment.
240.

As a result of the Defendants’ misconduct as alleged herein, Defendants

are liable to Plaintiffs-Players.
241.

The Plaintiffs were damaged by the misrepresentations and now require,

among other things, home care, loss of consortium, loss of employment, medical costs, and pain
and suffering.
242.

As a result of the injuries Plaintiffs have suffered and will suffer, they are

entitled to damages from the NFL in an amount reasonably anticipated to exceed the
jurisdictional minimum of $75,000 for each Plaintiff Player and Plaintiff Spouse.
COUNT V
NEGLIGENT MISREPRESENTATION
243.

Plaintiffs incorporate by reference all prior paragraphs of this Complaint

as if fully set forth herein.
244.

Defendant NFL misrepresented the dangers that the Plaintiffs-Players

faced in returning to action too quickly after sustaining a head injury. The Defendant’s MTBI
Committee made public statements, published articles, and issued the concussion pamphlet to its

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layers, which the NFL knew or should have known were misleading, downplaying and
obfuscating the true risks of concussions to NFL players.
245.

The MTBI Committee made material misrepresentations on multiple

occasions, including but not limited to testimony at congressional hearings and information
issued to Plaintiffs-Players.
246.

The Defendant’s misrepresentations included statements that present and

former NFL players were not at an increased risk of head injury if they returned too soon to an
NFL game or training session after suffering head trauma.
247.

The Defendants’ misrepresentations also included ongoing and baseless

criticism of legitimate scientific studies that set forth the dangers and risks of concussions and
head injuries sustained regularly by NFL players.
248.

The Defendants made these misrepresentations and actively concealed true

information at a time when it knew, or should have known, because of its superior position of
knowledge, that the Plaintiffs faced health problems if they returned to a game too soon.
249.

The Defendants knew or should have known the misleading nature of the

statements when they were made.
250.

The Defendants made the misrepresentations and actively concealed

information with the intention that the Plaintiffs-Players would rely on the misrepresentations or
omissions in selecting a course of action.
251.

As a result of the Defendants’ misconduct as alleged herein, Defendants

are liable to Plaintiffs.
252.

As a direct and proximate result of the Defendant’s negligence, careless

and negligent conduct, and omissions described herein, each of the individually named Plaintiffs-

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Players have suffered serious personal injury, including neuro-cognitive brain disease and
associated damages including mental disability, loss of income, pain and suffering, emotional
distress, and loss of consortium.
COUNT VI
NEGLIGENCE
253.

Plaintiffs incorporate by reference all prior paragraphs of this Complaint

as if fully set forth herein at length.
254.

The NFL has historically assumed an independent and voluntary duty to

invoke rules that protect the health and safety of its players,
255.

Throughout its history, the NFL has consistently adopted and exercised a

duty to protect the health and safety of its players by implementing rules, policies, and
regulations.
256.

By enacting such rules, policies, and regulations, the NFL has repeatedly

confirmed its duty to take reasonable and prudent action to protect the health and safety of its
players in the face of a known and foreseeable risk.
257.

The NFL breached its duty to its players, including the Plaintiffs-Players,

by failing to implement mandatory rules that would prevent a player who suffered a traumatic
brain injury and/or concussion from re-entering a football game or practice.
258.

Not until 2007 did the NFL implement league-wide guidelines concerning

the treatment and monitoring of players who suffer a concussive brain injury during a game.
Those the NFL did implement were insufficient and inadequate.
259.

The NFL breached the duty it voluntarily assumed by the following

failures:

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a)

Failure to institute acclimation requirements or procedures to ensure

proper acclimation of the NFL players before they participate in practices or
games;
b)

Failure to regulate and monitor practices, games, equipment, and medical

care so as to minimize the long-term risks associated with concussive brain
injuries suffered by the NFL players, including Plaintiffs-Players;
c)

Failure to require that an adequate concussive brain injury history be taken

of all NFL players;
d)

Failure to accurately diagnose and record concussive brain injuries so the

condition can be treated adequately and timely;
e)

Failure to establish league-wide guidelines, policies, and procedures

regarding the identification and treatment of concussive brain injury;
f)

Failure to establish protective, responsible, and medically-based return-to

play criteria for players who have suffered concussive brain injury;
g)

Failure to license and approve the best equipment available that will

reduce the risk of concussive brain injury; and
h)

Failure to provide complete, current, and competent information and

directions to NFL athletic trainers, physicians, and coaches regarding concussive
brain injuries and its prevention, symptoms, and treatment.
260.

As a result of the Defendants’ misconduct as alleged herein, Defendants

are liable to Plaintiffs.

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261.

Had the NFL taken the necessary steps to oversee and protect the NFL

players, including the Plaintiffs-Players, by developing and implementing necessary guidelines,
policies and procedures, providing reasonably safe helmets, and educating and training all
persons involved with the NFL Teams in the recognition, prevention, and treatment of
concussive brain injuries, the Plaintiffs-Players would not have suffered from their current and
progressive conditions, which include, but are not limited to, long-term brain damage, memory
loss, early on-set of dementia, and depression.
262.

Under all of the above circumstances, it was foreseeable that the NFL’s

violations of its duties would cause or substantially contribute to the personal injuries suffered by
the Plaintiffs-Players and the Plaintiff-Spouses.
263.

The NFL committed acts of omission and commission, which collectively

and severally, constituted negligence. The NFL’s negligence was a proximate and producing
cause of the injuries and other damages suffered by the Plaintiffs.
264.

As a result of the injuries, the Plaintiffs are entitled to damages, as alleged

herein or allowed by law, from the NFL in an amount reasonably anticipated to exceed the
jurisdictional minimum of $75,000 for each Plaintiff Player.

COUNT VII
LOSS OF CONSORTIUM
265.

Plaintiffs incorporate by reference all prior paragraphs of this Complaint

as if fully set forth herein.
266.

As a result of the Defendants’ misconduct as alleged herein, Defendants

are liable to the Plaintiffs-Spouses.

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267.

As a direct and proximate result of the carelessness, negligence, and

recklessness of Defendant NFL and of the aforesaid injuries to their husbands, the PlaintiffsSpouses have been damaged as follows:
a)

They have been and will continue to be deprived of the services, society

and companionship of their husbands;
b)

They will have been and will continue to be required to spend money for

medical care and household care for the treatment of their husbands; and
c)

They have been and will continue to be deprived of the earnings of their

husbands.
268.

As a result of the injuries to Plaintiffs-Players, the Plaintiffs-Spouses are

entitled to damages from the Defendants in an amount reasonably anticipated to exceed the
jurisdictional minimum of $75,000 for each Plaintiff-Spouse.

PRAYER FOR RELIEF
WHEREFORE, the Plaintiffs pray for judgment as follows:
A.

With respect to Count I, granting the declaratory relief requested pursuant to 28

USC § 2201;
B.

With respect to Count II through VII, granting an award of compensatory and

punitive damages where applicable;
C.

With respect to all counts, awarding Plaintiffs such other and further relief as may

be appropriate, including prejudgment interest, costs and attorneys fees.

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