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Is a football player’s concussion an intentional injury? Arena Football says no, moves for dismissal of player’s concussion lawsuit

American football player in tackle

3 February 2017

Lorenzo Breland, a former player for Arena Football One LLC’s Tulsa Talons and New Orleans Voodoo, sued Arena Football for concussion-related injuries that he sustained during his time in the league. Throughout his four years playing for Arena Football, Breland suffered two alleged concussions, the first one in 2011 and the second one in 2014 — ending his career. Breland sued the league for fraud, fraudulent misrepresentation, negligence, and negligent misrepresentation. In response, Arena Football filed a motion for quick judgment, maintaining that Breland’s recovery was limited to the remedies available under the Louisiana Workers’ Compensation Act.

Breland argued that Louisiana’s Workers’ Compensation Act did not limit his recovery because the league’s intentional acts contributed to his injuries. As support, Breland alleged that Arena Football failed to provide him with adequate medical attention and care, and pressured him to return to the field. Breland introduced scientific literature explaining the risks associated with multiple traumatic impacts to the head, which included both short and long-term brain injury. Notably, Breland maintained that Arena Football knew or should have known that the sport produced a significant risk of brain injury.

On January 30, 2017 Arena Football fought back, arguing that Breland failed to provide any evidence that the League had any intent to injure him. In support of Arena Football’s motion, the league contended that Breland’s complaint failed to state an intentional tort cause of action, and therefore, he was “barred by the exclusivity provision contained within the LWCA, and this action should be dismissed.” Also, the league argued that it was unaware of any scientific publication concluding that brain injuries are substantially certain to follow from engaging in football, and that Breland’s allegation that the league’s general knowledge of the potential risks associated with football was insufficient to impose liability on them. Therefore, Arena Football concluded that Louisiana’s law barring separate tort allegations apart from workers’ compensation claims applied, as Breland failed to present any evidence that Arena Football engaged in any intentional conduct towards him.

After commencing suit in 2015, Breland added Arena Football’s insurer, National Casualty Co., as a defendant in the case. National Casualty also filed suit seeking a declaration that Breland’s claims were not covered under the League’s commercial general liability policy. National Casualty claimed that Breland was barred from recovering under the policy, since the policy excluded bodily injuries claims filed by league employees, and because the policy specifically excluded claims tied to workers’ compensation claims. However, the court denied National Casualty’s motion, holding that “[w]hile the exclusions and policy provisions of the CGL Policy may ultimately preclude [Breland’s] recovery, they do not do so unambiguously, but instead present genuine issues of material fact as to their interpretation.

If Arena Football’s motion is granted, football players who sustain traumatic brain injuries on the field will be severely limited in their recovery to the remedies specified under Louisiana’s Workers’ Compensation statute. However, if their motion is denied, the league will be exposed to a plurality of lawsuits by football players injured during their employment, even if the league had no intention to cause the injury, and no control to prevent the injury from occurring.

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