~ A Mediator's Musings ~

December 17, 2012 ~ The NFL and Concussions (continued)

We noted last time that the Master Complaint filed on behalf of the ex-players in the concussion litigation relies in part on the Mike Webster case.1 In that case, the Board that administered a retirement and disability plan for ex-players and composed of owner and player representatives awarded Mr. Webster benefits on the grounds that head injuries that occurred while he was a player caused him to suffer total and permanent mental disability. The ex-players have asserted in their Master Complaint that this award put the NFL on notice of the tie between playing football and suffering permanent brain damage. We suggested there that the same award should have put the players on similar notice, at least somewhat undercutting their argument that the NFL knew things that they didn’t about this subject.

The Master Complaint also points to a number of academic studies that the ex-players assert show the connection between playing football, especially where the player has suffered concussions, and long-term mental disability. The ex-players say that the NFL actively concealed the results of those studies from the players, falsely claiming that there is no connection between football and long term disability. It does appear that the NFL appointed a committee of at least dubious qualifications to investigate and opine on the connection between football and brain damage and that the committee expressed views that contradicted a number of studies cited by the ex-players. At the same time, however, virtually all the studies cited by the players were published and circulated and available to the players to the same extent as to the NFL. It’s hard to imagine that the NFL will suggest that individual football players are likely to be able to be as aware of scientific publications and studies as an organization as large as the NFL and its various teams, but the NFL will no doubt point out that there are plenty of other people who worked and work just for the players who were and are in a position to do so. That group would include their union, their agents—virtually every professional football player has an agent—and perhaps others. So the NFL will no doubt assert that while recent scientific learning may contradict the output of its committee, anything that was available to the NFL was also available to the players and their representatives. Therefore, the NFL may argue, whatever the NFL did could not have defrauded any of the players, who (or whose representatives) should have been paying attention to something as important as their long-term health. It will be interesting to see whether and how that argument plays out if the case is not dismissed on preemption grounds.

The litigation, the media and the NFL have focused primarily on the concussions that players suffer during NFL games. Indeed, the Master Complaint is headed “In Re National Football League Players’ Concussion Injury Litigation.” And the Master Complaint analogizes pro football to boxing, a sport where causing your opponent a concussion—knocking him out—is the competitor’s fundamental objective, not just a byproduct of the kinds of violent collisions that occur in football. The media has written almost endlessly on the subject of concussions. The NFL has prescribed procedures for dealing with concussions. But another aspect of the Master Complaint may be even more troubling. The ex-players allege not only that the NFL failed to advise them of the risks of concussions and failed to treat them properly after a concussion, but also that the NFL failed to warn them of the dangers from repeated blows to the head that are “sub-concussive”—that don’t produce concussions or the symptoms of concussions. The ex-players call both these kinds of blows to the head “mild traumatic brain injuries” or “MTBI.” The ex-players claim that MTBI caused them the severe neuro-cognitive impairment described in their Complaint, in particular a syndrome called “CTE”—“chronic traumatic encephalopathy”—and produced, among other things, the higher likelihood of depression, dementia, early onset of Alzheimer’s disease, reduced intellectual function, personality changes, loss of memory, and increased risk of suicide that the ex-players are citing. The science is far from conclusive. Probably because no one was collecting the data, there appears to be no evidence that the severity of the brain damage correlates with the number of concussions suffered by the ex-player, although research might prove that to be the case—or might prove the opposite.

What difference does it make if the brain damage comes from concussions or from MTBI? Possibly, quite a lot. It’s relatively easy to recognize a concussion when it occurs, at least in most cases, and do something about it—even if that something is just taking the player out of the game. But if MTBI is the prime culprit, then players are risking a long-term health hazard created by the collisions that are an integral part of the sport while neither a physician nor anyone else can detect any symptoms. And if no one can detect any symptoms, it’s pretty tough for a player or anyone else to do anything to cure the problem, other than for the player to give up football. In fact, if the science gets far enough along, we may learn that the long-term effect of a soft brain’s rattling around inside a hard skull and bumping into the skull bones every time a reasonably hard collision takes place—probably many times during a single game and exponentially more during a season or a career—dwarfs the effect of the relatively rare concussion on the brain function of a professional football player. The science probably won’t get to that point before the current litigation is resolved, but once it does, if we do learn that MTBI is the big problem, that may have a serious effect on the liabilities of the NFL. After all, it’s pretty tough to expect the NFL to do anything to treat or prevent an asymptomatic health problem that is inherent in the sport itself, and a judge or jury might well agree.

One other element of the ex-players’ case raises still more interesting questions. In order to prevail, the ex-players need to show that they relied on what the NFL told them—that is, had they been properly advised of the dangers of playing football, they would have behaved in a manner different from what they did. To most of us, it may seem rather obvious that we would do something different under these circumstances—like not play professional football at all—if we knew that we were risking permanent and total disability from resulting brain damage. And, indeed, if the case ever gets to a jury, the jury may decide that of course the ex-players would have done something to protect themselves, without much evidence that they actually would have done so; after all, it may be tough for someone mentally crippled with permanent brain damage to tell a jury what he would have done when he had his intellectual faculties if he had known what the science appears to show. But the reaction of the current players to all the publicity about the risks of brain damage from playing football has been quite striking:  there hasn’t been any. That conclusion might be an exaggeration, but the one thing that you might expect would happen—a rush of players for the exits—has been startling by its absence. Maybe you’ve heard of a player who has quit pro football because of the risk of losing his brain function in the years ahead, but we haven’t. Why not? It may not be pretty, but the reason is fairly obvious. Most professional football players make more money in a year than most of them expected to earn in a lifetime. They are entertainers, and their compensation reflects the market value of entertainment in our culture. Many of them come from impoverished backgrounds, and those that don’t generally don’t come from particularly well-off ones. It’s not likely that many would go to Wall Street or become highly paid professionals if they gave up the sport; there just aren’t many future Alan Pages 2 hanging around the NFL. For most players, football is their only opportunity to set themselves and their families up for life, especially if they have successful and long careers; many of them aren’t qualified to do much more than play football, certainly nothing remotely as lucrative. And, of course, the longer a player’s career and therefore the more money he makes, the more likely he is to suffer the kind of brain damage that the ex-players are suing about. So for many, if not most, NFL players, the level of compensation justifies, at least to them, the risk of brain damage that the science suggests playing NFL football creates, and the more money they make from a long career, the greater the risk.

It’s not clear at this point, of course, what effect the conduct of the current players will have on the ongoing litigation. It will be pretty easy for each ex-player’s lawyer to argue that whatever the current players do in response to the scientific evidence doesn’t bear on what his client would have done if he had known the truth. In that case, the conduct of the current players would be irrelevant and evidence of it might be ruled inadmissible. The NFL, we would assume, will argue that, while not conclusive, the reactions of the current players is certainly somewhat predictive of what the ex-players would have done under the same circumstances. Again, if the case proceeds, it will be interesting to see whether the parties raise these kinds of arguments and how the judges and juries respond to them.

–Your still “hoping he’s not brain damaged” mediator

1 See Master Complaint, paragraphs 132-135 if you’re interested.

2 Alan Page was an NFL defensive lineman who has been elected to the Pro Football Hall of Fame and is currently serving as a justice of the Minnesota Supreme Court.