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Concussions and sub-concussive brain injuries in collegiate and other amateur sports are making headlines in the legal world.  As knowledge of the potential long-term effects of traumatic brain injuries (TBIs) continues to develop, former athletes' recent would-be class actions against the National Football League (NFL), National Hockey League (NHL), Fédération Internationale de Football (FIFA), and National Collegiate Athletic Association (NCAA) may be signaling a new kind of mass tort.  Both the potential severity of the alleged injuries and the large population of potential plaintiffs – men and women alike – may make TBIs a litigation magnet.

Crowell & Moring's cross-disciplinary Mass Tort, Product, and Consumer Litigation and Education practices have decades of experience counseling clients on managing litigation risk and, where necessary, defending and trying mass tort personal injury cases involving everything from athletic equipment to chemicals to medical devices.  As a founding member of the Sports and Fitness Industry Association's Legal Task Force, we are now using this experience to support educational institutions and help them address the problem of alleged TBIs associated with their athletic programs.

We recently have undertaken a comprehensive review of the current legal landscape in this area, analyzing the risks presented by present and future TBI litigation and identifying risk mitigation strategies that educational institutions might pursue.  To that end, institutions operating athletic programs may want to:

  • Stay abreast of the latest developments regarding TBI prevention and treatment, including new policies and programs being introduced around the country.
  • Implement strategies to address the emerging body of federal, state, local, and athletic association regulations and guidelines addressing TBIs, including proposed "return-to-play" and "return-to-classroom" protocols.
  • Develop common-sense plans to both protect student athletes and reduce the institution's legal exposure.

Our team can work with institutions to help manage these risks in the following ways:

  • Engage scientific and medical experts—working alongside the institution's own professional staff and other advisors—to help develop appropriate internal policies to both prevent TBIs and respond appropriately when they take place.
  • Work with institutions to customize trainings, workshops, and/or audits that facilitate efforts to identify, assess, and mitigate risk—and ensure that all personnel are aware of their potential legal duties.
  • Prepare for potential tort litigation, from single and multi-plaintiff cases to would-be class actions.

Some of the largest plaintiffs' firms in the country are actively recruiting plaintiffs for existing and potential future multi-plaintiff and purported class action filings in "favorable" jurisdictions.  We already have seen plaintiffs' counsel in the existing cases assert the same legal theories and demand the same types of monetary relief and medical monitoring remedies that have been sought in other recent high-profile mass torts.  In the wake of the recent proposed NFL and NCAA settlements, and the objections to both, the plaintiffs' bar may well continue to pursue TBI litigation against a wide range of potential defendants.  A comprehensive approach to risk management, including thoughtful implementation of policies at the athletic program level, will be essential to navigating this new legal playing field.

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Crowell & Moring LLP is an international law firm with approximately 550 lawyers representing clients in litigation and arbitration, regulatory and policy, and transactional matters. The firm is internationally recognized for its representation of Fortune 500 companies in high-stakes litigation, as well as its ongoing commitment to pro bono service and diversity, equity and inclusion. The firm has offices in Brussels, Doha, London, Los Angeles, New York, Orange County, San Francisco, Shanghai, and Washington, D.C.

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