NFL Concussion: A frontier Tort. Team Concussed.

1. NFL Concussions:
A frontier Tort
Team Concussed

2. Dave Duerson
1960-2011
1987 NFL Man of the Year
2 Super Bowls
4 Straight Pro Bowls
Union Leader

3. 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

4. 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

5. What We’re Dealing With: ESpN
$40 billion
110 million homes
January 1- Nov. 1
19.7% of coverage
2,833 minutes

6. Head Injuries
2012: 141 Concussions
Week 10
15 concussions
3 starting QBs

7. 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

8. 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

9. 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

10. 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

11. Disposition & Situation
Which team are you on?

12. Typical Critiques of
Dispositionism
Imperfect Information

13. 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.”

14. 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."

15. 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.

16. Typical Critiques of
Dispositionism
Externalities
Outcome Bias

17. Situationalism

18. An Internal Case for
Situationalism
Bracketed Morality
Standards of morality depend on situation
Competitive settings: justify aggression and
legitimize injurious aggression

19. An Internal Case for
Situationalism
Bracket morality (cont’d)
Aggression
Instrumental Aggression
Hostile Aggression
Collegiate contact sport athletes:
Hostile aggression “tantamount” to competition

20. 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

21. An Internal Case for
Situationalism
Bracketed Morality
Isn’t this dispositionist?
All driven by context
Coaches, ownership, other players, fans

22. 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

23. An Internal Case for
Situationalism
• “Kill the head and the body will die.”
Greg Smith

24. The Media’s Trend towards
Situationism

25. 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

26. 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

27. 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

29. Alan Schwarz
By 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)

30. Study of Ex-N.F.L. Players Ties Concussion to Depression Risk (March 31, 2007)
Concussion Panel Has Shakeup As Data Is Questioned (March 1, 2007)
N.F.L. Culture Makes Issue Of Head Injuries Even Murkier (Feb. 3, 2007)
Lineman, Dead at 36, Sheds Light on Brain Injuries (June 15, 2007)
Wives United by Husbands’ Post-N.F.L. Trauma (March 14, 2007)
Dark Days Follow Hard-Hitting Career in N.F.L. (Feb. 2, 2007)
Two Authors Of N.F.L. Study On Concussions Dispute Finding (June 10, 2007)
Hearing in Congress Puts N.F.L. on Notice (June 28, 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)

31. 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.

32. 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)

33. 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

34. 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

35. ESPN Coverage
Direct ties to NFL through Monday night
football
Raising doubt between the link between
concussions and football

36. “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

37. ESPN vs. NY Times

38. ESPN vs. NY Times

39. 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

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

41. NFL Commissioner, Roger Goodell Testimony

42. Big Tobacco in Historical 1994 Congressional
Hearing

43. The Master Complaint

44. 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

45. (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.

46. (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

47. (Riddell)
Products Liability
• Strict liability for design defects and manufacturing
defects
• Breach of warranty (contracts claim)
• General negligence claim
• Failure to warn

48. Comparisons to
Big Tobacco
Big Tobacco Concussions
hiding the risks hiding the risks
(1920s) (early 1950s to 1994)
knew and tried to
willful deception
deceive the players
(doctors who smoke)
(concussion pamphlets)
switch from deception
to “safety” MTBI Committee,
(filters, safe brands, better equipment
etc.)

49. 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

50. Current Policies and Dynamics

52. 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

53. Current Policy &
Implied Policy
•
In legislative attempts, Congress has focused on
youth concussions and has not proposed legislation
targeting the NFL specifically

54. 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

55. 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

56. Policy Recommendations

57. Policy Proposal #1
Equipment Improvements
• G-Force Helmets (similar to those used in NFL)
• G-Force monitors on helmets

58. Policy Proposal #2
Education
• 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

59. Policy Proposal #3
Diagnosis 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

60. Policy Proposal #4
Liability 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

61. Policy proposal #5
NFL Rule Changes
• Eliminate contact practices
• Decrease total minutes
• Shorten Season
• Shorten games
• Cap number of quarters
• Radical rule changes
• No helmets or pads

62. Policy Proposal #6
The nuclear option
• End football.