Korey Banks and Eric Allen sue over CFL concussions, seek class action status

Montreal Alouettes slotback Bruce Arland catches a pass for the first down as BC Lions linebacker Korey Banks (L) moves in behind during the first half of their CFL football game in Vancouver, British Columbia September 15, 2013. REUTERS/Andy Clark (CANADA - Tags: SPORT FOOTBALL)

The next CFL concussion lawsuit has finally dropped, and it's a big one. When Arland Bruce III filed the first concussion lawsuit against the league (the CFL's motion to dismiss that suit was argued this week, with a judge's ruling still to come), there were numerous credible reports that many more would follow, and that's finally now happened. TSN's Rick Westhead reports that Eric "The Flea" Allen (who has been rumoured to be preparing a lawsuit since last July) and Korey Banks (who hasn't been mentioned in the lists of potential plaintiffs before) filed a $200 million lawsuit against the CFL, former commissioner Mark Cohon,  Dr. Charles Tator and the Toronto-based Krembil Neuroscience Centre. The lawsuit was filed May 29 in Ontario Superior Court, and the plaintiffs are seeking class action status on behalf of all retired CFL players since 1952. From Westhead's piece, here's the crux of this new lawsuit: 

According to court papers obtained by TSN, the lawsuit seeks class action status and has been filed on behalf of all retired CFL players since 1952.

“The defendants and their agents knew or ought to have known that multiple sub-concussive and concussive blows to the head lead to long-term brain injury,” the lawsuit says. “The defendants knew that football players should stop playing football after receiving their third concussion.”

Besides demanding $200 million worth of aggravated and punitive damages, lawyers are asking a judge to award general and special damages in trust for expenses for family members of former players.

The 30-page statement of claim alleges CFL officials have refused to allow independent medical personnel to monitor and assess player safety and claims teams have routinely cut medical benefits to injured players.

“If a non-veteran CFL player was terminated or injured and could not return to play, the player’s medical benefits were terminated immediately, subject to a brief extension in the event of a medical emergency,” the lawsuit says.

CFL players are excluded from filing for workers’ compensation benefits and those who do not live in Canada are not eligible for provincial health benefits, Banks and Allen allege.

Having both Allen and Banks as plaintiffs is notable, as they represent the wide variety of CFL players impacted by concussions over the years. Allen was a star running back at Michigan State and was drafted by the Baltimore Colts in the fourth round of the 1972 NFL draft, but turned them down to head to Canada, where he played for the Argonauts from 1972-75. Banks' career is much more recent; he played for Mississippi State, went undrafted by the NFL in 2003, had brief NFL stints with Washington and Miami and then came to Canada in 2004 with the Edmonton Eskimos. He went on to play for the Ottawa Renegades from 2004 to 2005 and the B.C. Lions from 2006-13, then signed with Winnipeg last year but was cut in the preseason. Allen's career comes long before the level of concussion awareness we've seen recently, but Banks' career took place during a time when the CFL was talking up its efforts on concussions. It's notable that the lawsuit specifically accuses Cohon of downplaying the risks of head injuries, saying "In spite of that knowledge, Commissioner Cohon actively concealed and/or systemically failed to disseminate those facts to the plaintiffs and the other class members."

What makes this lawsuit particularly interesting is its bid to be certified as a class action. Class-action lawsuits can be very powerful (see the $5 billion residential school settlement in 2005, and the $15 billion awarded by a Quebec judge to smokers this week), and it makes sense to try and unify CFL plaintiffs in a class rather than have players all sue individually (this also happened with the NFL concussion lawsuits, which eventually led to a settlement of up to $5 million per player). If this does become a class action, it becomes an even bigger deal for the CFL than just an individual lawsuit like Bruce's (which itself was extremely significant).

Consider the potential financial implications here for a moment. The players suing for $200 million doesn't mean they'll get that much, but if this does become a class action that attracts a lot of plaintiffs (and we know there are plenty of former CFLers out there who have publicly talked about pursuing legal action over concussions), that isn't an inconceivable figure given both the NFL settlement and how many former CFL players there are. It's a figure this league might have an awfully difficult time coming up with, though. The Saskatchewan Roughriders, widely believed to generally be the CFL's wealthiest team, made a record profit of $10.4 million in 2013 (including Grey Cup profits). If every one of the league's nine teams made that much every year (which is far from the case; they can't all host the Grey Cup, and they don't all have Saskatchewan's regular revenues), that's just a $93.6 million annual profit across the CFL, less than half of what the plaintiffs here are asking for.

How much is the league actually making? We don't know for sure, as six of the nine teams don't release their financials to the public, but Winnipeg, Edmonton and Saskatchewan do. The Bombers made a $3.9 million operating profit (before their $4.5 million stadium payment) in 2014, while the Eskimos made $3.6 million and the Roughriders made $2.2 million. Averaging those three figures would give us $3.2 million, and that's probably high for an average club's profit (these three are widely believed to be the CFL's wealthiest teams, this doesn't factor in Winnipeg's stadium costs, and there are teams like Toronto with much worse finances). Even if we use an assumption like that which is favourable to the CFL, though, we would get just $29.1 million in league-wide profits pre-Grey Cup, with likely about another $9 million or so (possibly less; the 2013 Grey Cup's merchandise sales aren't necessarily repeatable) in Grey Cup profits. That's just $38 million annually, about 19 per cent of the $200 million being asked for here. Thus, the league needs to make addressing this lawsuit its top priority; this is a huge deal, and something that could impact the CFL's entire future.

Whether this lawsuit gets anywhere may depend on the forthcoming ruling in the Bruce case. If that judge (B.C. Supreme Court justice Brian Joyce) grants the league's motion for dismissal and agrees with their contention that this should be settled through arbitration, that may not entirely doom lawsuits against the CFL (Bruce could still appeal, and a B.C. judge's ruling won't necessarily apply to a separate case before an Ontario court), but it would be a significant setback. If Joyce allows Bruce's lawsuit to proceed, though, that would be a good indication that these are matters Canadian law doesn't consider to be covered by the CFL's collective bargaining agreement (which, remember, specifically says it doesn't cover negligence, which Bruce and the other players are alleging is what happened here). If the Bruce case isn't dismissed, that will draw even more attention to the Ontario case. We could be in for a long legal battle here, and one that's highly significant for the future of the CFL.