Did the CFL Really Know Nothing?: The Likelihood the Football League to the North Will Face Same Settlement Consequences as the NFL

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*By Caitlin St. Amour

Is it possible that football is as dangerous as it is popular?[1]  In 2016, the National Football League (NFL) settled a class action lawsuit with hundreds of retired NFL players, by which these players will be compensated for their numerous concussion-related injuries.[2]  The lawsuit alleged the NFL either actively concealed or knowingly ignored evidence of the risks of continuing to play football with repeated head trauma.[3]  While the NFL was attempting to settle its lawsuit, a similar suit was filed in Canada in 2015.[4]

The Canadian lawsuit has many similarities to the NFL lawsuit, including the defendants, who are the Canadian Football League (CFL) as well as its Commissioner, doctors who worked with the teams, and a neuroscience center.[5]  In addition, the allegations of the Canadian lawsuit are similar, in that retired CFL players accused the Commissioner and the league of being aware of the harmful effects of repeated head injuries, like developing CTE, and contended that the Commissioner and league kept that information from the players.[6]  While there are many factual similarities between the two cases, there are multiple differences in the laws of both countries; therefore, the CFL lawsuit could end in a much different result than the large settlement between the NFL and its retired players.[7]

An example in the difference of laws is the Canadian law requiring employees and employers in a union to submit to arbitration, not the courts.[8]  In fact, the Canadian court system already enforced this law on another suit against the CFL.[9]  Because the Canadian court already enforced this rule and sent the issue out of the court system, the court could very well repeat their decision in the class action suit.[10]  This is a major difference from the operations of the United States court system, because even though there were motivations to settle, settlement was not required and trial could have been an option.[11]

Another major difference is the attitude towards settlement amounts in the two court systems.[12]  The United States court system does not take issue with large settlements, especially from large organizations such as the NFL.[13]  The Canadian court system operates differently and is reluctant to give out or approve large settlements.[14]  In fact, Canadian courts follow a Commercial Arbitration Act which attempts to limit the amount of award plaintiffs receive in arbitration by requiring the amount be calculated only by matters of law.[15]

Another factor for considering whether or not CFL will enter into a settlement similar to the NFL is its ability to pay.[16]  The NFL’s salary is extensively larger than the CFL; for example, the NFL recently extended a television deal for $450 million dollars while the CFL just made a television deal for only thirty million dollars.[17]  It is likely that the CFL will pay some amount in arbitration; however, it is unlikely to be close to the amount the NFL is going to pay.[18]

When the CFL lawsuit continues it will likely be forced to arbitrate, as per Canada’s laws; however, it is equally likely that the similarities between the facts of both the NFL and CFL cases will affect arbitrator’s opinions of how much the retired players should be awarded.[19]  While the retired players are likely to receive some form of compensation, it is very unlikely that it will be as much as the NFL can give.[20]

* Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2018, Villanova University Charles Widger School of Law

[1] See Dr. Reginald W. Bibby, The 2015 Canam Sports Study, Reginald Bibby & Angus Reid (July 15, 2015), http://www.reginaldbibby.com/images/2015_CanAm_Sports_Interest_Survey_FINDINGS_OVERVIEW_July_15_2015.pdf (measuring data collected from approximately 4,000 Canadians and 4,000 Americans regarding their sports preferences). See also William C. Rhoden, A Quick Reminder of Football’s Violence, N.Y. Times (Sept. 14, 2015), http://www.nytimes.com/2015/09/14/sports/football/a-quick-reminder-of-footballs-violence.html?_r=1 (observing fans’ realization of the seriousness of injuries during football games and their willingness to continue to attend games).

[2] See In re Nat’l Football League Players’ Concussion Injury Litig., 307 F.R.D. 351, 366 (E.D. Pa. 2015), judgment amended, No. 2:12-md-02323, 2015 WL 12827803 (E.D. Pa. May 8, 2015), aff’d, 821 F.3d 410 (3d Cir. 2016) (listing qualifying diagnoses for increasing amount of monetary awards based on severity of illness). Qualifying diagnosis: level 1.5 Neurocognitive impairment, level 2 neurocognitive impairment, Parkinson’s disease, Alzheimer’s disease, death with CTE, ALS. Id.

[3] See In re Nat’l Football League Players Concussion Injury Litig., 821 F.3d 410, 420–22 (3d Cir. 2016) (summarizing plaintiffs’ allegations).

[4] See Rick Westhead, Former Players File $200M Lawsuit Against CFL, TSN (June 5, 2015) http://www.tsn.ca/former-players-file-200m-lawsuit-against-cfl-1.300462 (detailing plaintiffs of civil claims suit as well as basis for lawsuit)

[5] See id. (stating defendants as Mark Cohon, Canadian Football League, Dr. Charles Tator, and Krembil Neuroscience Centre).

[6] See id. (describing allegations Commissioner knew of harmful effects of head injuries and knowingly withheld them from CFL players). See generally Robert A. Stern et.al., Clinical Presentation of Chronic Traumatic Encephalopathy, 81 Neurology 1122, 1124 (2013) (describing CTE and its symptoms). See also Steven Fainaru & Mark Fainaru-Wada, Study: New Cases of CTE in Players, ESPN (Dec. 3, 2012), http://www.espn.com/espn/otl/story/_/id/8697286/boston-university-researchers-discover-28-new-cases-chronic-brain-damage-deceased-football-players (reporting connection between violent sports and CTE due to repeated head injuries). The study was conducted on football, boxers, and hockey players who all suffered from repeated head injuries. The study showed that sixty-eight out of eighty-five people in the study had CTE. Id.

[7] See Paul Wiecek, NFL Takes Hit to Wallet, CFL Winces, Winnipeg Free Press (Apr. 19, 2016), http://www.winnipegfreepress.com/sports/nfl-takes-hit-to-wallet-cfl-winces-376271131.html (observing small likelihood that Canadian courts would give out large settlements to plaintiffs, especially for actions with “inherent risk[s]”).

[8] See Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 (S.C.C.) (interpreting Labor Relations Act which gives deference to arbitrator during labor issues).

[9] See David Ebner, CFL Fighting Concussion Lawsuit on ‘Technicality,’ Lawyer Contends, Globe and Mail (June 14, 2016), http://www.theglobeandmail.com/sports/football/cfl-fighting-concussion-lawsuit-on-technicality-lawyer-contends/article30459297/ (describing Arland Bruce’s concussion lawsuit against the CFL).

[10] See id. (detailing correct analysis of the Weber v. Ontario Hydro case in regards to initial CFL case).

[11] See NFL, Retired Players Resolve Concussion Litigation; Court-Appointed Mediator Hails “Historic” Agreement, Irell & Manella LLP: Alt. Dispute Resolution Ctr. (2013), https://nfllabor.files.wordpress.com/2013/08/press-release-2.pdf (describing motivations of Judge, arbitrator, and NFL when deciding on settlement amount).

[12] See Andrew Bucholtz, NFL Settlement with Players Would Seem to Make CFL Concussion Litigation Even Less Likely, Yahoo! Sports (Aug. 29, 2013, 5:51 PM), https://ca.sports.yahoo.com/blogs/cfl-55-yard-line/nfl-settlement-players-seem-cfl-concussion-litigation-even-215130011.html (discussing how settlement amount similar to NFL settlement would affect CFL and likelihood of similar amount in Canadian court).

[13] See In re Nat’l Football League Players Concussion Injury Litig, 821 F.3d 410, 420– 22 (3d Cir. 2016) (summarizing NFL large settlement amount).

[14] See Wiecek, supra note 7 (observing small likelihood that Canadian courts would give out large settlements to plaintiffs, especially for actions with “inherent risk[s]”).

[15] See Commercial Arbitration Act, R.S.C., 1985, c. 17 (2d Supp.) (detailing process of arbitration in Canada). See also Stapley v. Hejslet, [2006] BCCA 34 (describing factors used to determine pecuniary damages including age, severity of injury, and duration of pain).

[16] See Wiecek, supra note 7 (analyzing connection between NFL and CFL cases and determining large likelihood CFL will accept a large settlement amount).

[17] See Bucholtz, supra note 12 (discussing how settlement amount similar to NFL settlement would affect CFL and likelihood of similar amount in Canadian court). See also Frank Pallotta & Brian Stelter, NFL Makes Enormous ‘Thursday Night Football’ Deal with NBC and CBS, CNN (Feb. 1, 2016, 4:46 PM), http://money.cnn.com/2016/02/01/media/thursday-night-football-nbc-cbs-deal/ (detailing enormity of new contract between NFL and CBS and NBC).

[18] See Wiecek, supra note 7 (“It’s worth noting Canadian courts are much more reluctant to hand out big-money settlements than those in the United States.”)

[19] See id. (discussing probability NFL concussion suit settlement will affect CFL civil action suit settlement).

[20] See id. (analyzing similarities between CFL and NFL settlement cases).