With the release of Will Smith’s latest movie “Concussion” being a little over a week away, it has already managed to cause a stir in the world of sports. It has not only “rattled the cage” of the NFL, but it has also caused other sports, such as youth soccer, to implement stricter guidelines to avoid head injuries. As the movie will portray, the risk of serious injury can be seen time and time again with NFL players. However, can the NFL defend itself against the movie by making a defamation claim?
In order for a defamation claim to prevail, or have standing, there must be a false and defamatory (harmful) communication. This is where the NFL will most likely run into an issue. While the world has yet to see any potential defamatory statements in the movie, the chances of the NFL being able to prove the falsity of what is being portrayed in the movie will be slim. Also, to establish a defamation claim the creators of the movie must have acted with intentional, reckless or negligent disregard. While the creators of the movie may intentionally want to send a message to the NFL, it will be difficult to say that the creators were reckless or had the intent to harm the reputation of the NFL.
Nonetheless, the NFL has several defenses to individual claims that may arise once the movie releases. The NFL would contend that, per collective bargaining agreements signed by the NFL and NFLPA, grievances over player health issues must be brought through arbitration, not litigation. This is likely true even for players who played between 1987 and 1992, a period when there was no official collective bargaining agreement in place. Courts are usually unwilling to alter grievance procedures found in collective bargaining agreements, and sports leagues enjoy a high rate of success when employing the preemption defense. Aside from all the legal issues and strategies that may be used on either end, hopefully the movie will help shed light on what is going on, and help bring a solution for those suffering from the effects of their injuries.