Concussions and Lawsuits in the CFL

[Rich]

Saw this article on TSN:

 

http://www.tsn.ca/story/?id=462146

 

 

The Canadian Football League is fighting back against veteran wide receiver Arland Bruce.

 

A former B.C. Lions player, Bruce suffered a concussion and was knocked out during a September 2012 game in Regina. He was cleared to play that November and alleged in a lawsuit filed in July that he was still suffering from the concussion when he returned to the field.

 

Two months after Bruce's lawsuit was filed, the CFL, Commissioner Mark Cohon, and Charles Tator, a renowned neurosurgeon and scientist who has consulted to the CFL, filed court documents asking that the claim be dismissed.

 

The CFL declined to comment.

 

In court documents obtained by TSN, Tator has asked that Bruce be responsible for the doctor's legal costs. Tator also asked the court to move the case to Ontario if it isn't dismissed.

 

The CFL also filed its response to Arland's claim.

 

In what Bruce's lawyer described as an expected development, the league has asked that the case be dismissed and sent to arbitration under terms of the CFL's collective bargaining agreement.

 

The CFL's tactic is the same one that the NFL employed during its own concussion litigation. Both leagues argued that individual teams are responsible for the health and safety of players. The NFL lost its argument and the case went to trial.

 

Arland's lawyer Robyn Wishart said it would be months before a court rules on the motions to dismiss or move the case to Ontario.

 

"Since Arland filed the case a number of former CFL players have contacted me saying that they have had health problems arising from concussions," she told TSN. "These are sad cases. In one instance, one former player who needs daily care is being looked after by his 80-year-old mother because he is American and doesn't have Medicare."

 

Wishart wouldn't say how many players have contacted her. She also declined to identify the players.

 

It's unclear how many former CFL players might be suffering from concussion-related symptoms.

 

After Bruce's lawsuit, the B.C. Lions told players not to speak publicly about the case, The Vancouver Sun reported.

 

Tony Proudfoot, a former CFL defensive back with the Montreal Alouettes and Lions, died in December 2010 after he was diagnosed with amyotrophic lateral sclerosis, commonly known as Lou Gehrig's disease.

 

Proudfoot said before his death that he had discovered eight of the league's 15,000 all-time players had been diagnosed with the disease.

 

In the general population, it affects two in 100,000 people.

 

Months before Proudfoot's death, doctors at Boston University released a study suggesting that some deceased National Football League players who had received a diagnosis of ALS in fact didn't have the disease.

 

Rather, they had another fatal disease caused by concussion-like trauma that damages the central nervous system.

 

The Concussion Blog, a blog run by a U.S. athletic trainer, reported last month that Toronto Argonauts running back Terry Metcalf also plans to sue the league.

 

Metcalf, 63, who lives in Seattle and teaches kindergarten, complains of chronic ringing in his ears, memory issues, and has a 50 per cent loss of feeling in his right hand, the blog reported.

 

Phil Colwell, another former Argo, is also suffering concussion-related symptoms, the Waterloo Region Record reported in March.

 

After a 1981 game when he was knocked unconscious, Colwell said the only medical advice he received was not to go to sleep that night, and was allowed to drive himself 100 kilometres home after the game.

 

Colwell returned to play a week after he was knocked out. "At the time, if I had gone on the injury list for a concussion, I would have been cut," Colwell said, according to The Waterloo Region Record.

 

Former Argo Eric "The Flea" Allen is also in the process of suing the CFL, the blog reported. Allen, who starred with the Argos from 1973-75 can hardly walk, The Concussion Blog reported, and is being cared for by his 84-year-old mother.

 

Tim Fleiszer, a former CFL player who runs the Sports Legacy Institute, a non-profit group committed to advancing the study of head trauma, told TSN that there probably are other players with health problems, but might not believe that there's a big financial upside to suing the CFL

.

"There's obviously a lot more money in the NFL to pay out on these things," Fleiszer said.

 

Bruce, 36, a self-described "unemployed football player" in his lawsuit, has asked the court to award him damages for medical expenses and loss of income.

 

The CFL Players' Association proposed during negotiations for collective bargaining a requirement that an independent neurologist be on the sidelines for every game, The Vancouver Sun reported.

 

CFL officials rejected that proposal, arguing teams already have relationships with some of Canada's top physicians. The proposal for independent neurologists was not adopted when the players agreed to a five-year CBA in June.

 

Bruce's claims have not been proven in court. None of the defendants have filed substantive statements of defence.

 

I'm definitely not a lawyer, but as I understand it, these players would have to prove negligence on the CFL's part to have knowingly allowed them to keep playing when it would do further damage to them.  Or perhaps negligence that they didn't get the needed care.  Pretty hard to do for players in the 70s, 80s, and maybe 90s before the medical science was really there.

 

It will also be interesting to see how the Canadian legal system would deal with something like this as opposed to the NFL lawsuits in the American legal system.  I wouldn't think the punitive damages in Canada would be as high as in the States, but if they are forced to pay for medical care, it could be a blow to the CFL.   Interesting that the league has tried to shrug this off to each of the teams.   Could any single team survive if they are dealt a huge loss in a lawsuit, especially a team like Toronto?

 

Either way, it is sad to see what happens to these players as they age.  

[DR. CFL]

Who are boxers going to sue then? There is a retain assumption of risk that everyone takes when they partake in any activity. Look very closely on the bottom back. Of a football helmet. Sports equipment manufacturers have made sure they have put a disclaimer on their equipment advising of inherent risks associated with the game for that very reason.

[Tracker]

American tort law is quite different than Canada. People down there (and organizations) sue each other at the drop of the hat and often win bizarre awards by the courts.

In Canada, there is the legal concept of "a reasonable person" as a determination of onus. If there is deliberate misrepresentation or knowing omission, that would be grounds for finding for the plaintiff, but that would have to be proven in a preponderance of evidence. Bruce would have to prove that the league knew or reasonably should have known by way of common knowledge that he should not have played under those circumstances. If a doctor determined from the available evidence that it was a reasonable decision to let Bruce play, then it lets the league off the hook. If the doctor made that decision in defiance of reasonable medical evidence and judgement, then the doctor may be culpable.

In short, Bruce is not likely to win even if the court agrees to hear the case. Couldn't happen to a nicer guy.

[17to85]

yeah thank god the Canadian courts have an ability to use common sense.