nfl concussion: a frontier tort

NFL Concussions:A frontier Tort

Team Concussed

Dave Duerson

1987 NFL Man of the Year

2 Super Bowls

4 Straight Pro Bowls

Union Leader

1960-2011

Gameplan

The state of the NFL and concussions

Definition of concussions and other brain injuries

The NFL from Dispositionism and Situationalism

The Master Complaint

Current Policy Efforts

Policy Proposals

What We’re dealing with:The nfl

$9.5 billion revenue

Average NFL team

$1.1 billion

Lambeau Field: $282 million in output, 2,560 jobs, $15.2 million in tax revenue

54% of U.S. identifies as football fans

21 of 46 most watched U.S. programs were Super Bowls

What We’re Dealing With: ESpN

$40 billion

110 million homes

January 1- Nov. 1

19.7% of coverage

2,833 minutes

Head Injuries

2012: 141 Concussions

Week 10

15 concussions

3 starting QBs

What is a Concussion?

According to the CDC, a type of mTBI that occurs from a blow, bump, or jolt to the head

No standard definition

Impaired consciousness

Amnesia

Loss of consciousness for 30 minutes or less

Headaches

Dizziness

Irritability

Fatigue

Poor concentration

Altered sleep patterns

What is a Concussion?Chronic Traumatic Encephalopathy

Structural change to the brain from

A single traumatic brain injury

Multiple mTBI

Diagnose through direct brain tissue examination

Long Term Effects

Life Expectancy

Average male: 77

NFL Player: 55

1 year on NFL roster: -3 years of life expectancy

1 year smoking a pack of cigarettes a day: -2 months of life expectancy

Long Term Effects

Compared to those with no concussions or mTBI

Clinical Depression: 3x more likely

Dementia: 5x more likely

All measures of cognitive functioning: bottom 50%

Brain autopsies show correlation between structural changes in brain (CTE) and recurrent concussions

Disposition & SituationWhich team are you on?

Typical Critiques of Dispositionism

Imperfect Information

NFL Players on the ISSUE

Jets Linebacker Bart Scott

“I don’t want my son to play football. I play football so he won’t have to.”

Dispositionism:A price to be Paid

• "Sometimes if you're buzzed or dazed ... if you get your bell rung they consider that a concussion—I wouldn't. If that's considered a concussion, I'd say any football player at least records 50 to 100 concussions a year."

Dispositionism:Bad Actors

James Harrison

“I try to hurt people.”

"I don't want to see anyone injured, but I'm not opposed to hurting anyone.

Typical Critiques of Dispositionism

Externalities

Outcome Bias

Situationalism

An Internal Case for Situationalism

Bracketed Morality

Standards of morality depend on situation

Competitive settings: justify aggression and legitimize injurious aggression

An Internal Case for Situationalism

Bracket morality (cont’d)

Aggression

Instrumental Aggression

Hostile Aggression

Collegiate contact sport athletes:

Hostile aggression “tantamount” to competition

An Internal Case for Situationalism

Bracketed Morality (cont’d)

How is it justified?

Hostile aggression as an “edge”

Intrinsic motivation for approval

Inherent nature of contact sports

An Internal Case for Situationalism

Bracketed Morality

Isn’t this dispositionist?

All driven by context

Coaches, ownership, other players, fans

An External Argument for Situationalism

• Power Structure

Drafted by a team they have to play for, negotiating a contract under a bargaining agreement they did not help to form

Short careers require players to gain favor

Decisions will be made by ownership in consideration of $9 billion in projected revenue for 2012

Players can be traded or cut at almost any time

Reported head injuries can diminish value as a free agent

•Macho Culture

Culture discourages signs of weakness and reporting injuries

Culture of team morality and sacrifice

Culture permeates to coaches and trainers

An Internal Case for Situationalism

• “Kill the head and the body will die.” Greg Smith

The Media’s Trend towards Situationism

Pre-2007: Dispositionism in the Media

Football players seen as dispositionist actors, who were aware of the consequences of their participation in the sport

“Football players are trained and conditioned to withstand pain and stay in the game…” – Steve Young, Playing Hurt is Part of the Game

“But as a player, you just accept injury as part of the game…” – Joe Theismann, QB learned how to protect himself

Pre-2007

Football hits were glorified and a source of entertainment

Jacked Up was part of the Monday Night Football countdown on ESPN from 2003 – 2006

2007: The tides Change

On January 18, 2007, The New York Times printed the front-page article, “Expert Ties Ex-Player’s Suicide to Brain Damage from Football.”

Schwarz, a baseball writer, described neuropathologist Dr. Bennet Omalu’s study of former Philadelphia Eagles football player Andre Waters’ brain, who had committed suicide in 2006.

Omalu found that Waters’ brain tissues looked like those of an 85-year-old man and had similar characteristics to those with early stage Alzheimer’s disease.

Omalu concluded that the Waters’ brain damage was “either caused or drastically expedited by successive concussions Mr. Waters, 44, had sustained playing football.” Id.

The following day, ESPN published a similar story. Pathologist says Waters’ brain tissue had deteriorated

Alan SchwarzBy 2011, Schwarz alone had published more than one

hundred twenty-one stories about the effects of football concussions

• "Schwarz may not have been out to get football, but he was clearly less emotionally invested in it than most of his predecessors and peers, who had helped build the sport into the de-facto national pastime with romantic coverage of heroic sacrifice. He was not a fan. “I’d been pitching this to reporters for years,” Nowinski told me, of the head-injury problem in general. “People in football told me, point blank, ‘I don’t want to lose my access.’ It literally took a baseball writer who did not care about losing his access, and didn’t want the access, to football.””

• -- Ben McGrath, Does Football Have a Future, The New Yorker (Jan. 31, 2011)

Dark Days Follow Hard-Hitting Career in N.F.L. (Feb. 2, 2007)

N.F.L. Culture Makes Issue Of Head Injuries Even Murkier (Feb. 3, 2007)

2 Former N.F.L. Players Sue Over Sharing of Fees (Feb. 15, 2007)

N.F.L. Doctor Quits Amid Research Doubt (March 1, 2007)

Concussion Panel Has Shakeup As Data Is Questioned (March 1, 2007)

Wives United by Husbands’ Post-N.F.L. Trauma (March 14, 2007)

Study of Ex-N.F.L. Players Ties Concussion to Depression Risk (March 31, 2007)

Two Authors Of N.F.L. Study On Concussions Dispute Finding (June 10, 2007)

Lineman, Dead at 36, Sheds Light on Brain Injuries (June 15, 2007)

Hearing in Congress Puts N.F.L. on Notice (June 28, 2007)

Increase in Articles

A search of the term “concussion” on ESPN.com’s NFL page yielded 1,155 results in the five years between January 19, 2007 and January 19, 2012

nearly eight times the 146 articles ESPN published in the five years prior to Schwarz’s first article. ESPN.com search, Oct. 23, 2012.

In addition, ESPN now has a “topics” page on its website, wholly dedicated to tracking the issue of concussions.

Move towards Situationism

• “I didn't know the long-term ramifications. You can say that my coach didn't know the long-term, or else he wouldn't have done it. It is going to be hard for me to believe that my trainer didn't know the long-term ramifications, but I am doing this to protect the players from themselves”

• – Ted Johnson in Alan Schwarz, Dark Days Follow Hard-Hitting Career in NFL, N.Y. Times (Feb. 2, 2007)

Situationism

Policy discussions on helmets, change of rules

Football compared to dog fighting- Malcolm Gladwell, Offensive Play: How Different Are Dogfighting and Football?

Idea that football is inherently dangerous becomes more pervasive

Move from out-group to in-group

Football players move from people’s out-group to in-group as part of the shift from dispositionism to situationism

Football players no longer seen as overpaid athletes who are aware of the risk

Focus on long-term effects, effects on players’ families

ESPN Coverage

Direct ties to NFL through Monday night football

Raising doubt between the link between concussions and football

“Michele Steele and Mike Fish discuss the rush to judgment among the media, public and medical field about former football players and concussions”

http://espn.go.com/video/clip?id=8300782

ESPN vs. NY Times

ESPN vs. NY Times

Interest Groups & Public Choice

ESPN coverage (PR)Doubt factor American institution & freedom of choice (players chose to play) Lack of media regulation

Conflict within NFLPA (alum, pre-NFL not represented) Comparison of PR w/ tobacco

Lobbying/capture (of legislators AND public) Almost political ads

Tom Brady/Ray Lewis Commercial(Prominent Commercial on ESPN) 

NFL Commissioner, Roger Goodell Testimony

Big Tobacco in Historical 1994 Congressional Hearing

The Master Complaint

The Master Complaint

Players v. NFL

aggregation of 85 individual lawsuits

over 2,000 individual players

Claims against the NFL

Negligence

Fraudulent Concealment

Claim against Riddell

Products liability

(NFL) Negligence

Pre-1968 allegations:

failing to properly study the issue

failure to properly alter game rules and equipment to minimize possible harm to the players

Post-1968 allegations:

negligently promoted the sport as violent

• failing to properly study the issue

• NFL committee staffed it with unqualified and biased researchers, not in a position to properly study the issue.

(NFL) Fraudelent Concealment

• NFL’s MTBI Committee distributed “concussion pamphlet”

• concealed and minimized the risks of repetitive brain impacts

• Pamphlet worded to create reliance:

• assured the players that they were receiving comprehensive and up-to-date information about the effects of concussions

(Riddell) Products Liability

• Strict liability for design defects and manufacturing defects

• Breach of warranty (contracts claim)

• General negligence claim

• Failure to warn

Comparisons to Big Tobacco

Big Tobacco Concussions

hiding the risks(1920s)

hiding the risks(early 1950s to

1994)

willful deception(doctors who

smoke)

knew and tried to deceive the

players(concussion pamphlets)

switch from deception to “safety”

(filters, safe brands, etc.)

MTBI Committee, better equipment

Did NFL Players Assume the Risk?

• Even if the NFL didn’t try to deceive, the NFL tried to create doubt

• Locker room culture

• discussions of risk would be mitigated

• unable to act on risk aversion

• similar to sexual harassment -- “she kept consenting,” but unable to get out of the situation

Current Policies and Dynamics

Current Policy &Implied Policy

• NFL Policy • Two-pronged policy approach aimed at preventing

concussions and avoiding court cases:• Rule Changes

• Uniform sideline concussion exam for all teams• “Madden Rule” – when a player is diagnosed with a

concussion he must leave the field and not return to the game

• Medical staffs are advised to err on the side of caution in diagnosing concussions

• Medical Research Investments• Donated $30 million to the National Institute of Health to

research concussion and sports-related injuries• Partnership with the U.S. Army to research traumatic brain

injuries  

• In legislative attempts, Congress has focused on youth concussions and has not proposed legislation targeting the NFL specifically

Current Policy &Implied Policy

• Collective Bargaining Agreement (CBA) • Between the NFL and NFLPA (the players’ union)

• Governed by federal labor law – will likely pre-empt state tort law claims

Current Policy &Implied Policy

• Insurance and Benefits• Workers' compensation

• Compensate and provide medical expenses for employees who suffer work-related injuries and diseases

• Professional athletes are covered in many states

• May interact with tort litigation in a variety of ways

• CBA provides for various disability and retirement benefit programs

Current Policy &Implied Policy

Policy Recommendations

Policy Proposal #1Equipment Improvements

• G-Force Helmets (similar to those used in NFL)

• G-Force monitors on helmets

Policy Proposal #2Education

• Concussion-counter during broadcasts

• Concussions listed with player stats

• Educate the public:

• Realities of life as NFL player

• Power dynamic between owners and players

• NFL contracts

Policy Proposal #3Diagnosis and reporting

• Employ independent doctors and trainers

• Mandatory concussion testing (Using instant reply to diagnose potentially injurious hits)

• Alter contracts

• Guarantee player contracts regardless of injury

• Contract bonuses for diagnosed concussion

Policy Proposal #4Liability structures

• Strict liability:

• Player who causes injury, includes suspension

• Team of player who causes injury, includes cap hit

• Trust fund

• All fines from concussion-related fines go to fund

Policy proposal #5NFL Rule Changes

• Eliminate contact practices

• Decrease total minutes

• Shorten Season

• Shorten games

• Cap number of quarters

• Radical rule changes

• No helmets or pads

Policy Proposal #6The nuclear option

• End football.