NFL concussion lawsuit could have wide impact on other athletes, says UB expert on class action litigation

BUFFALO, N.Y. – The $765 million class action settlement of concussion claims for retired NFL players that won preliminary approval in the U.S. Court of Appeals is a “potential template” for other professional athletes, says University at Buffalo Law School faculty member Christine P. Bartholomew, who is an expert on class action and antitrust litigation.

“This is a settlement to watch,” says Bartholomew, who was a class action attorney specializing in antitrust and consumer class actions before joining the Law School faculty in 2006.

“It has potential implications far beyond the NFL retirees involved,” she says. “This case demonstrates how collective action can be a successful avenue for highlighting the dangers facing professional athletes.”

The $765 million lawsuit brought by retired NFL players won approval from a Philadelphia federal judge, the first hurdle before the settlement is finalized. The players appealed the pending settlement to the Third Circuit, asking the court to expand benefits.

The Third Circuit rejected the challenge.  Earlier this week, the Brain Injury Association of America filed a brief questioning the eligibility definitions in the proposed settlement. Both challenges will be decided as part of the final approval process, Bartholomew says.

Players have until Oct. 12 to decide whether to participate in the settlement. Final approval for the settlement is scheduled for Nov. 19.

More than 5,000 football players have sued the league for damages for head injuries. The retirees accuse the NFL of failing to inform players of the link between repeated traumatic head impact and long-term brain injuries.

Bartholomew says the settlement does provide “very real, significant compensation,” even though it is hard putting a dollar amount on future potential health problems.

“It is hard not to see this case—and its potential settlement—as a potential template for other professional athletes,” she says. “This is particularly true for the pending NHL concussion case.  I wouldn’t be surprised to see similar claims brought by, say, professional basketball or baseball players in the near future.”

Bartholomew says the significance of this case goes beyond professional athletes.

“Class action practitioners and scholars are also closely monitoring this settlement,” she says. “My guess is the players who challenged the settlement plan to appeal the settlement all the way to the Supreme Court.  This court, in particular, has been pretty hostile to class actions.  Whether even a settlement that is well-structured and significant, like this one, would survive Supreme Court review is anyone’s guess these days.”

After spending 10 years as a class action attorney, Bartholomew’s academic scholarship builds on her extensive real-world experience. Her research now focuses on civil procedure and, in particular, class actions and antitrust.  Her most current scholarship explores the tension between class actions' enforcement potential and heightened procedural and evidentiary rules.

“I am currently examining the procedural and evidentiary rules governing class actions and how new interpretations of these rules limit plaintiffs’ abilities to bring aggregate claims,” she says.

Bartholomew’s scholarship has been published in leading law reviews, including Cardozo Law Review, Brooklyn Law Review and Fordham Law Review.

Bartholomew can be reached at cpb6@buffalo.ed, by phone at 716-645-7399 or by contacting Charles Anzalone in the University at Buffalo’s Office of Communications at anzalon@buffalo.edu or 716-645-4600.