The NFL and Traumatic Brain Injuries
While the boys of Fall are being whipped back into shape by those relentless coaches in pursuit of a winning season, NFL players and their families have gained enormous media attention from allegations that traumatic brain injuries have been caused by playing football.
For many, August signals the long-awaited start of another NFL season. For us avid fans, it seems like an eternity since that last football game was played, but we are now on the heels of the beginning of a new season.
While the boys of Fall are being whipped back into shape by those relentless coaches in pursuit of a winning season, NFL players and their families have gained enormous media attention and headlines by alleging that traumatic brain injuries have been caused while playing football.
Lawsuits became front and center news in the sports world with the death of Junior Seau, a former NFL standout for the San Diego Chargers who committed suicide on May 2, 2012. His death has been linked to the alleged correlation between continued head trauma and brain injury, which is now gaining attention far beyond the football and sports communities.
Seau’s death comes long after Dave Duerson, a former Chicago Bears player who committed suicide after battling health issues. Before dying, Duerson texted his family and asked that his brain be examined after his death.
All together, these allegations allege that the NFL hid information about head injuries and their link to, but not limited to, brain trauma and permanent brain damage, resulting in dementia and Alzheimer’s disease.
On June 7, 2012, in the biggest sports lawsuit ever filed, players alleged that the NFL “exacerbated the health risk by promoting the game’s violence,” and “deliberately and fraudulently” misled players about the link between concussions and long-term brain injuries. These allegations have been brewing for some time and have finally now surfaced due in large part to the growing number of popular football standouts choosing to take a stand and speak out.
A traumatic brain injury (TBI) is defined as a blow, jolt, or external force to the head that disrupts normal brain function. The Consumer Product Safety Commission tracks these injuries through a system known as the National Electronic Injury Surveillance System. According to the American Association of Neurosurgeons, which compiles and utilizes this information, there were 446,788 sports-related TBIs in 2009, an increase of 95,000 from the previous year.
The ramifications of this problem reach far beyond the NFL. It is an issue of serious nature and is beyond the scope of this article. However, let’s examine some of those who may be found potentially liable.
Under what is known as “common law,” an employer owes the duty of care to provide for an employee’s health, safety, and welfare while on the job. The NFL is beholden to the same standards as other employers and owes the same duty of care.
If that duty is breached and the breach of that duty results in damages, liability may be assessed on the part of the NFL. However, there are many other pieces that will come into play in this assessment. One of those questions that remains is this: Was the NFL aware of the injuries and the implications of the results of such injuries would be?
Some have even compared this to the tobacco litigation because intent becomes an issue. Is the NFL such a big-money business that the cost of this anticipated litigation is less than the impact of addressing the occurrence of TBIs and the lasting implications and related long-term neurological risks? After all, those who sued the tobacco industry for damages when the risks of smoking were lesser known were more likely to recover damages from those who were not forthcoming in disclosing the harmful effects of smoking.
The NFL is feeling the pressure to take some measures to deter violent hits that could possibly result in a TBI, stiffened game penalties last year, and, in December, instituted a policy that requires an independent trainer to attend each game to assist in identifying concussions.
NFL Hall of Fame Quarterback Terry Bradshaw said in a recent appearance on Jay Leno that if he had a son, he would not let him play football. “It is too dangerous and the risk of head injury is too high,” he said.
Also named in the lawsuits is manufacturer Riddell, which produces the official helmet of the NFL. On May 24, 2012, Riddell President Dan Arment announced in a press release that the company would include a new hangtag that “contains valuable information from the CDC and is the latest example of how Riddell will address concussion awareness with athletes and parents.” This press release can be found on their website.
Although helmets have gone through significant changes and transformations since the 1940s, there are still many allegations regarding their defects. There are numerous lawsuits pending and athletes both young and old alike have attributed some if not all of the cause of their injuries to the alleged defective design. These numerous plaintiffs have now been permanently sidelined from the game—not on the bench, but in a wheelchair and with various other significant injuries and damage.
It is also alleged in lawsuits filed that the manufacturers of the equipment intentionally concealed information about the dangers of head trauma. It is of the opinion of some in the legal community that these suits will be settled to avoid the ramifications of having all of the data and information made public, which could potentially damage the sport even more.
Media attention often is viewed with a focus on the negative aspects. However, in this case, it would seem that this has been a subject that has needed to be addressed and “tackled head on” in order to prevent such trauma and far-reaching damages that impact families and the livelihood of many. It is, and continues to be with such sorrow, that a tragic incident occurs and “fault” must be determined before we strive to make the situation better and avoid such occurrences in the future. There are duties and a degree of care owed to those who participate and when those duties are breached and result in damages, our legal system will ultimately determine who is at fault and who is liable.
Mary Anne Medina is an instructor and course developer for Vale Training Solutions. She has extensive experience in claims process redesign and claims handling training, with an emphasis on liability loss adjusting. She has been a CLM Fellow since 2010 and can be reached at MMedina@vale-ts.com.