The National Football League (NFL) appeared to have reached a settlement with a number of former players worth more than $765 million for concussion-related sports claims, however the judge has reportedly rejected this deal. The judge had to evaluate whether the proposed settlement was fair and reasonable and stated that she was concerned that not all of the retired NF players who ultimately receive a qualifying diagnosis or their families will be paid.

The players had brought an action against the NFL for long-term damage caused by playing American football. Evidence was relied upon that linked repeated blows to the head with problems in later life. It was alleged that the NFL was aware about these potential problems as early as the 1970s but took no meaningful steps to address the issue until much later. The NFL had proposed the settlement with no admission of liability. 

The case raises serious questions about the actions of sporting bodies and individuals in this country, for example sports governing bodies, event organisers, referees, coaches etc, and in particular the conduct of employers. 

It must be remembered by clubs that they have a duty of care to employees. The duty extends to circumstances where a third party who the employer has entrusted with the performance of its duty to take reasonable care is negligent. Arguably, in contrast to the employer’s duty of care is the employer’s, and often the employee’s, desire to win. We often hear of players playing after receiving pain killing injections or after receiving medical opinion that they should not participate in the game – sometimes after the player has insisted on playing and sometimes when pressure has been applied on the player to play in an important game. It will be interesting to see whether any claims are pursued against employers for injuries suffered in these situations. 

In light of the NFL case, employers and others must ensure that athletes injured in games/events receive adequate medical attention and are removed from the field of play/event in case an injury could become more severe or if the athlete is more vulnerable as a result of the initial injury. To not do so may be considered to be negligent or reckless, which could give rise to a costly liability. 

The case against the NFL was based on its failure to educate or to wilfully mislead the players regarding the long term impact of head injuries. Could liability fall on clubs for failing to educate or on sporting bodies for failing to implement regulations to reduce the risk of injury – ie, rules allowing substitutes to be made should an injury occur and the team has used its allocation.