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Monday, December 16, 2013
 
Concussion-Related Injuries (and Litigation?) Come to Major League Baseball

Media outlets reported yesterday that doctors have confirmed that former Major League Baseball player Ryan Freel was suffering from chronic traumatic encephalopathy (CTE) at the time he committed suicide last December.  Freel is the first MLB player to be diagnosed with the concussion-related disease. Prior to his death, Freel, who was known for his aggressive brand of play, estimated that he had suffered as many as 10 concussions throughout his playing career, resulting from various plays such as colliding with a teammate in the outfield and getting hit in the head by an errant pick-off throw.

Freel's diagnosis shows that football and hockey players are not the only professional athletes exposed to potential concussion-related injuries.  Indeed, as CNN reports, concussions are more common in MLB than one might at first suspect:
This season, 18 baseball players were placed on the disabled list after concussions -- 10 of them were catchers. In 2012, 13 players were placed on the DL after a concussion, and in 2011, the number was 11, according to MLB data.
Therefore, Freel's diagnosis raises the question of whether MLB will be the next professional sports league to face a wave of concussion-related lawsuits.  It would not be surprising if some affected former baseball players (or their families) file suit against MLB.  However, because concussions do not appear to be as widespread in baseball as in football, class action litigation may be less likely.  Indeed, with baseball concussions arising from a variety of different causes (collisions on the field, players getting hit with thrown balls, catchers getting hit by foul tips), the injuries alleged by former baseball players will likely prove to be more dissimilar than those involving contact sports such as football or hockey, arguably making class action treatment less appropriate. 

Nevertheless, it might be possible for a group of similarly situated players, such as former catchers, to jointly sue MLB for failing to take greater precautions to prevent their injuries.  Should such a class action be filed, MLB would be able to assert many of the same defenses that were available to the NFL in its own concussion-related lawsuits.  However, MLB might decide -- as did the NFL -- that despite these potential defenses such a case carries sufficient negative publicity and litigation risk to warrant a settlement of the claims.

For its part, MLB has already been relatively proactive in dealing with concussions over the last several years.  Back in 2011, MLB implemented a series of protocols to deal with head injuries, including the creation of a new 7-day disabled list for concussed players.  And then last week, the league announced that it intends to ban home plate collisions beginning in 2014.  While such steps will not completely eliminate MLB's risk of potential legal liability, they do reflect a concerted effort on behalf of the league to lessen the chance that future players experience a significant head injury.





2 Comments:

What separates baseball from football is that, with the exception of (now-banned) home plate collisions, none of the other purported sources of concussions are an intentional part of the game. Foul tips are an incidental and uncontrollable part of the game. Same with most on-field collisions. Other than implementing protocols to keep concussed players off the field (which, of course, does nothing for the initial concussion) there is nothing MLB can do to prevent these injuries.

Blogger Howard Wasserman -- 12/16/2013 11:46 PM  


I agree that the intentional nature of the contact differentiates the NFL from MLB. But I'm not sure I agree that there is nothing MLB can do to further prevent such incidental accidents. For instance, mandating that players wear protective helmets on defense would presumably help reduce the rate of concussions resulting from on-field collisions. Moreover, to the extent the league isn't doing so already, MLB could work with helmet manufacturers to conduct thorough testing of existing head gear and produce better catching equipment, potentially helping to reduce the number of concussions arising from foul tips. For instance, there may be some reason to believe that newer titanium masks are less effective at preventing concussions than the traditional steel masks:

http://www.twincities.com/news/ci_24000260

Similarly, MLB could track the number of concussions individual players sustain over the course of their careers (again, assuming it doesn't already).

In any event, one question in a hypothetical concussion suit against MLB would be the extent to which the league was aware of the dangers of concussions, but failed to share that information with the players. This is one of the central claims in the NFL concussion litigation. I have no reason to believe that MLB was concealing any relevant information from its players, but if it did then it would face potential liability regardless of the fact that most of the injuries were caused by unintentional conduct.

Blogger Nathaniel Grow -- 12/17/2013 10:31 AM  


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