Imagining an MLB Concussion Lawsuit

You may have heard that football is in the midst of a bit of a concussion crisis. Not only is the National Football League facing a number of concussion-related lawsuits, but suits have been filed at the collegiate, high school, and Pop Warner levels as well. Meanwhile, both professional hockey and soccer are also facing their own concussion litigation.

Like football, hockey, and soccer, baseball is also – at times – a contact sport, and baseball players occasionally suffer concussions. In 2013, for instance, former outfielder Ryan Freel became the first professional baseball player to be diagnosed with chronic traumatic encephalopathy (CTE) – the brain disease often associated with professional football players – following a career during which he reportedly suffered nine or ten concussions.

So it is reasonable to ask whether Major League Baseball could be the next league to face a concussion-related lawsuit, and if so, how such a case would compare to those in the other sports?

First, a bit of legal background. The pending lawsuits against the NFL and National Hockey League are based on the idea that both leagues voluntarily assumed the role of “guardian of player safety,” and therefore owed their players a legal duty of care. This duty of care, the lawsuits assert, required the leagues to not only take reasonable precautions to protect their players from injury, but also required them to inform their players of any known dangers related to their sport.

Because the medical literature had warned of the dangers of sports-related concussions and other so-called Mild Traumatic Brain Injuries (MTBI) as far back as 1928, the NFL and NHL plaintiffs allege that those league knew – or, at least, should have known – of the potentially disastrous long-term effects concussions could have on their players. The suits contend that had football and hockey players been fully informed of the potential dangers of their sports, players may have taken steps to avoid further concussions and MTBI, improving their long-term prognosis. However, because the leagues instead failed to pass this information along to players – and in some cases allegedly tried to intentionally conceal it from them – the NFL and NHL lawsuits seek to hold the leagues legally responsible for their players’ injuries.

A concussion lawsuit against MLB would likely proceed along similar lines. The plaintiff(s) would likely argue that MLB has voluntarily taken on the role of player safety watchdog, citing the series of player-safety rules that MLB has implemented over the years, dating back to the elimination of the spitball in 1920 following the death of Ray Chapman all the way up to the banning of home plate collisions in 2014 (the NFL and NHL cases recite a similar history of player-safety rule changes in their sports).

And while MLB has laudably been quite proactive in dealing with concussions in recent years, a concussion lawsuit against the league would likely contend that MLB should have acted sooner and done more to protect players from the dangers of brain injuries. For instance, such a suit might point out that even though the medical literature had been warning of the risks of concussions for decades, MLB failed to adopt a league-wide concussion policy until 2007. The league also waited until 2011 to require that all teams conduct baseline neuropsychological testing of their players, even though several teams had implemented this recommended practice years earlier. And despite the fact that medical research suggested as far back as 1950 that athletes experiencing a concussion should immediately be removed from play, there are countless examples of concussed MLB players being allowed to remain in games throughout the 1980s, 1990s, and 2000s.

So a would-be plaintiff could assert a plausible concussion lawsuit against MLB. Still, such a case would likely prove weaker than those filed against the NFL and NHL, for several reasons. Most notably, concussions are much less frequent in MLB than in professional football or hockey. For example, while there were 152 reported cases of NFL players being concussed during the 2013 season alone, MLB players reportedly endured 175 concussions total from 2001-2013. Adding minor league players into this equation would undoubtedly increase the number of baseball concussions, but the overall totals would likely still pale in comparison to the carnage inflicted by professional football.

And unlike in the NFL or NHL, where physical contact is often an intentional part of the game, most concussions in MLB occur on fluke plays – collisions, line drives, foul tips – that would be difficult to prevent via rule change.   Nor is there any reason to believe that MLB has intentionally concealed any health information from its players, like the NFL has been accused of doing.

All that having been said, the one group of players who could assert the strongest case against MLB would be current and former catchers. As Ben Lindbergh has noted, catchers experience concussions approximately three times more often than players at any other position.

While MLB’s new home plate collision rule should help protect catchers from one potential source of brain injury, a plaintiff could argue that MLB should be doing more to protect catchers from a more common cause of concussions: foul tips. Although recent independent studies have concluded that some styles of catcher’s masks (hockey style vs. traditional, steel construction vs. titanium) may offer better protection from head injuries, to date MLB has not undertaken its own comprehensive testing of the various styles of masks currently in use. (While MLB is not currently testing masks, the league informed me that it is studying the issue with the MLBPA, and that MLB’s medical director has been tracking the types of catcher’s masks involved in known concussion cases for several years.) A plaintiff could argue that the league should be testing and regulating this equipment in order to ensure that players receive maximum head protection.

This equipment-related argument also adds an interesting wrinkle to MLB’s potential concussion-related liability: unlike most of the other sports, baseball could also potentially face a concussion lawsuit by its umpires. Because umpires stationed behind home plate are also hit by foul tips, and themselves occasionally suffer from concussions, they could also theoretically file a case along the lines of that outlined above.

If one or more former players or umpires were to file a concussion lawsuit against MLB, the league could rely on many of the same defenses that have been asserted by the NFL and the NHL in their cases. Several of these arguments could prove to be quite effective in a baseball suit.

Initially, the league would likely defend itself on two grounds. First, it would argue that any concussion-related claims are preempted by MLB’s collective bargaining agreements with both the players’ and umpires’ unions. Because the CBAs generally govern the relationship between the league and its players and umpires, the league would contend that any concussion-related disputes must be resolved through the CBA’s grievance procedures, rather than in litigation, and therefore that the concussion lawsuit should be dismissed. The NHL recently made this same argument in its concussion litigation, although the NFL only experienced mixed success with the defense in its own lawsuits. Meanwhile, the plaintiffs would likely respond to this argument by contending that the league’s legal duty to protect its players and umpires arose separately from the CBA, meaning that the concussion claims should not be subject to the CBA’s grievance procedures.

Second, depending on which players or umpires filed suit – and, more importantly, when they retired – MLB could also assert that the plaintiffs waited too long to file their case, meaning that their concussion claims are barred by the applicable statute of limitations (the rules that specify how long you can delay before filing a lawsuit). In some states, this time period can be as short as two years. However, because statutes of limitations typically only begin to run once a plaintiff knew – or reasonably should have known – of his or her injury, even those players or umpires who have been retired for several decades could argue that they have only recently become aware of the extent of their brain injuries, and as a result contend that they are in fact suing on a timely basis.

If MLB is unable to get the suit dismissed on a preliminary basis on either preemption or statute of limitations grounds, it could assert several other defenses as the case unfolded. For example, the league could argue that because players knew they were at risk of being concussed while playing baseball, they assumed the risk of their injuries, absolving MLB of any legal liability.

Similarly, the league would likely contend that it did meet its duty of care by exercising reasonable caution for its players’ and umpires’ safety. Along these lines, MLB would argue that it was unaware of the long-term effects of concussions until relatively recently, but that once it learned of the potential dangers it took sufficient precautions to protect its employees from brain injuries.

Finally, the league could also argue that some players or umpires likely suffered concussions before entering professional baseball, and as a result that the plaintiffs cannot prove that their injuries specifically resulted from MLB’s negligence. This defense was one of the major hurdles confronting former NFL players, for instance, before the league agreed to settle its concussion lawsuits.

So while a plausible concussion case could be asserted against MLB, it would face uncertain odds of success. On the merits, such a case would not appear to be as strong as those filed against the NFL or NHL, and MLB could rely on several potentially strong defenses on its behalf. Nevertheless, given the stakes involved, it is probably only a matter of time before MLB eventually faces its own concussion litigation.