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Lingering CTE debate launches new lawsuit against NFL

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The NFL has been unable to get certain owners to not spout off nonsense about the link between football and Chronic Traumatic Encephelopathy. The good news is that the league now has a sufficiently compelling reason for telling the members to quit putting their feet in their mouths regarding CTE.

The bad news is that the impetus is coming in the former of a new class-action lawsuit filed by former NFL defensive end Tracy Scroggins.

The lawsuit, filed in the U.S. District Court for the Southern District of Florida, draws heavily upon the recent admission by NFL executive V.P. of player health and safety Jeff Miller linking football and CTE. It also seizes upon both prongs of last week’s controversial New York Times story attacking the NFL both for shoddy concussion research from 1996 through 2001 and for various ties to the tobacco industry.

The lawsuit focuses in part on the period from the 1970s through 1990s, when players were being “coached, trained and motivated to use all portions of their helmets to block, tackle, butt, spear, ram and/or injure opposing players by hitting their helmeted heads . . . . despite the [NFL’s] awareness that this practice was causing an increased risk in repeated head trauma.”

Scroggins, through various legal claims, proposes representation of a class of all current or former players who have been “preliminary diagnosed with [CTE],” and the lawsuit contends that UCLA researchers have detected CTE, on a preliminary basis, in various living players. (This is apparently a reference to the technology that launched Taumark, a company the FDA essentially shut down.)

The lawsuit claims that the NFL illegally concealed the true risks of playing football, that the NFL illegally conspired with teams and/or independent contractors who discounted and rejected the link between head trauma and long-term health effects, that the NFL negligently failed to properly “supervise, regulate, monitor and provide reasonable and appropriate rules to minimize the risk of injury to players,” that the NFL violated the civil RICO laws by engaging in a “pattern of racketeering” as it relates to the concealment of information about the risks of head trauma, and that all players who have suffered head trauma should have lifetime medical monitoring for the cognitive consequences of those injuries.

The league will surely mount an aggressive defense, from trying to include the case in the pending concussion settlement to arguing that the labor deal between the NFL and the NFL Players Associations preempts all claims to pointing out, if the case would ever go to trial, that thousands of players would have still played pro football even if they had known all of the associated risks.

Still, the mere existence of the lawsuit is the most tangible evidence yet of the consequences of recent developments that seemingly had no impact on legal issues given the concussion settlement.