NFL Concussion: A frontier Tort

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<ul><li> 1. NFL Concussions: A frontier Tort Team Concussed</li></ul> <p> 2. Dave Duerson 1960-20111987 NFL Man of the Year2 Super Bowls4 Straight Pro BowlsUnion Leader 3. GameplanThe state of the NFL and concussionsDefinition of concussions and other brain injuriesThe NFL from Dispositionism and SituationalismThe Master ComplaintCurrent Policy EffortsPolicy Proposals 4. What Were dealing with: The nfl$9.5 billion revenueAverage NFL team$1.1 billionLambeau Field: $282 million inoutput, 2,560 jobs, $15.2million in tax revenue54% of U.S. identifies asfootball fans21 of 46 most watched U.S.programs were Super Bowls 5. What Were Dealing With: ESpN$40 billion110 million homesJanuary 1- Nov. 119.7% of coverage2,833 minutes 6. Head Injuries2012: 141 ConcussionsWeek 1015 concussions3 starting QBs 7. What is a Concussion?According to the CDC, a type of mTBI thatoccurs from a blow, bump, or jolt to the headNo 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 EncephalopathyStructural change tothe brain fromA single traumaticbrain injuryMultiple mTBIDiagnose throughdirect brain tissueexamination 9. Long Term EffectsLife ExpectancyAverage male: 77NFL Player: 551 year on NFL roster: -3years of life expectancy1 year smoking a pack ofcigarettes a day: -2months of lifeexpectancy 10. Long Term EffectsCompared to those with noconcussions or mTBI Clinical Depression:3x more likely Dementia: 5x more likely All measures of cognitive functioning: bottom 50%Brain autopsies show correlationbetween structural changes inbrain (CTE) and recurrentconcussions 11. Disposition &amp; SituationWhich team are you on? 12. Typical Critiques of DispositionismImperfect Information 13. NFL Players on the ISSUEJets Linebacker BartScottI dont want myson to playfootball. I playfootball so hewont have to. 14. Dispositionism: A price to be Paid "Sometimes if youre buzzedor dazed ... if you get yourbell rung they consider that aconcussionI wouldnt. Ifthats considered aconcussion, Id say anyfootball player at leastrecords 50 to 100concussions a year." 15. Dispositionism: Bad ActorsJames HarrisonI try to hurtpeople."I dont want to seeanyone injured, butIm not opposed tohurting anyone. 16. Typical Critiques ofDispositionismExternalitiesOutcome Bias 17. Situationalism 18. An Internal Case for SituationalismBracketed MoralityStandards of morality depend on situationCompetitive settings: justify aggression andlegitimize injurious aggression 19. An Internal Case for SituationalismBracket morality (contd)AggressionInstrumental AggressionHostile AggressionCollegiate contact sport athletes:Hostile aggression tantamount to competition 20. An Internal Case forSituationalismBracketed Morality (contd)How is it justified?Hostile aggression as an edgeIntrinsic motivation for approvalInherent nature of contact sports 21. An Internal Case forSituationalismBracketed MoralityIsnt this dispositionist?All driven by contextCoaches, ownership, other players, fans 22. An External Argument forSituationalism Power Structure Drafted by a team they have to play for, negotiating a contract under a bargainingagreement they did not help to formShort careers require players to gain favor Decisions will be made by ownership in consideration of $9 billion in projectedrevenue for 2012Players can be traded or cut at almost any timeReported head injuries can diminish value as a free agentMacho CultureCulture discourages signs of weakness and reporting injuriesCulture of team morality and sacrificeCulture permeates to coaches and trainers 23. An Internal Case forSituationalism Kill the head and the body will die.Greg Smith 24. The Medias Trend towardsSituationism 25. Pre-2007: Dispositionism in the MediaFootball players seen as dispositionist actors, whowere aware of the consequences of theirparticipation in the sportFootball players are trained and conditioned towithstand pain and stay in the game SteveYoung, Playing Hurt is Part of the GameBut as a player, you just accept injury as part of thegame Joe Theismann, QB learned how to protecthimself 26. Pre-2007Football hits were glorified and a source ofentertainmentJacked Up was part of the Monday NightFootball countdown on ESPN from 2003 2006 27. 2007: The tides ChangeOn January 18, 2007, The New York Times printed the front-pagearticle, Expert Ties Ex-Players Suicide to Brain Damage fromFootball.Schwarz, a baseball writer, described neuropathologist Dr. BennetOmalus study of former Philadelphia Eagles football player AndreWaters 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 earlystage Alzheimers disease.Omalu concluded that the Waters brain damage was eithercaused 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 28. 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 wasclearly less emotionally invested in it than most of hispredecessors and peers, who had helped build the sportinto the de-facto national pastime with romantic coverage ofheroic sacrifice. He was not a fan. Id been pitching this toreporters for years, Nowinski told me, of the head-injuryproblem in general. People in football told me, point blank,I dont want to lose my access. It literally took a baseballwriter who did not care about losing his access, anddidntwantthe access, to football. -- Ben McGrath, Does Football Have a Future, The New Yorker(Jan. 31, 2011) 29. 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) 30. Increase in ArticlesA search of the term concussion on ESPN.comsNFL page yielded 1,155 results in the five yearsbetween January 19, 2007 and January 19, 2012 nearly eight times the 146 articles ESPN published in the five years prior to Schwarzs first article. search, Oct. 23, 2012.In addition, ESPN now has a topics page on itswebsite, wholly dedicated to tracking the issue ofconcussions. 31. Move towards Situationism I didnt know the long-term ramifications.You can saythat my coach didnt know the long-term, or else hewouldnt have done it. It is going to be hard for me tobelieve that my trainer didnt know the long-termramifications, but I am doing this to protect theplayers from themselves Ted Johnson in Alan Schwarz, Dark Days Follow Hard-Hitting Career in NFL, N.Y. Times (Feb. 2, 2007) 32. SituationismPolicy discussions on helmets, change ofrulesFootball compared to dog fighting- Malcolm Gladwell, Offensive Play: HowDifferent Are Dogfighting and Football?Idea that football is inherently dangerousbecomes more pervasive 33. Move from out-group to in- groupFootball players move from peoples out-groupto in-group as part of the shift fromdispositionism to situationismFootball players no longer seen as overpaidathletes who are aware of the riskFocus on long-term effects, effects on playersfamilies 34. ESPN CoverageDirect ties to NFL through Monday nightfootballRaising doubt between the link betweenconcussions and football 35. Michele Steele and Mike Fishdiscuss the rush to judgmentamong the media, public andmedical field about former footballplayers and concussions 36. ESPN vs. NY Times 37. ESPN vs. NY Times 38. Interest Groups &amp; Public ChoiceESPN coverage (PR)Doubt factorAmerican institution &amp; freedom of choice (playerschose to play)Lack of media regulationConflict within NFLPA (alum, pre-NFL notrepresented)Comparison of PR w/ tobaccoLobbying/capture (of legislators AND public)Almost political ads 39. Tom Brady/Ray Lewis Commercial(Prominent Commercial on ESPN) 40. NFL Commissioner, Roger Goodell Testimony 41. Big Tobacco in Historical 1994 CongressionalHearing 42. The Master Complaint 43. The Master ComplaintPlayers v. NFLaggregation of 85 individual lawsuitsover 2,000 individual playersClaims against the NFLNegligenceFraudulent ConcealmentClaim against RiddellProducts liability 44. (NFL) NegligencePre-1968 allegations:failing to properly study the issuefailure to properly alter game rules and equipmentto minimize possible harm to the playersPost-1968 allegations:negligently promoted the sport as violent failing to properly study the issue NFL committee staffed it with unqualified and biasedresearchers, not in a position to properly study theissue. 45. (NFL) Fraudelent Concealment NFLs MTBI Committee distributed concussionpamphlet concealed and minimized the risks of repetitive brainimpacts Pamphlet worded to create reliance: assured the players that they were receivingcomprehensive and up-to-date information about theeffects of concussions 46. (Riddell) Products Liability Strict liability for design defects and manufacturingdefects Breach of warranty (contracts claim) General negligence claim Failure to warn 47. Comparisons to Big Tobacco Big TobaccoConcussions hiding the riskshiding the risks (1920s)(early 1950s to 1994) knew and tried towillful deceptiondeceive the players(doctors who smoke)(concussion pamphlets)switch from deception to safety MTBI Committee, (filters, safe brands,better equipment etc.) 48. Did NFL Players Assume the Risk? Even if the NFL didnt try to deceive, the NFL triedto create doubt Locker room culture discussions of risk would be mitigated unable to act on risk aversion similar to sexual harassment -- she keptconsenting, but unable to get out of the situation 49. Current Policies and Dynamics 50. Current Policy &amp; Implied PolicyNFL PolicyTwo-pronged policy approach aimed at preventing concussions andavoiding court cases:Rule ChangesUniform sideline concussion exam for all teamsMadden Rule when a player is diagnosed with a concussion he mustleave the field and not return to the gameMedical staffs are advised to err on the side of caution in diagnosingconcussionsMedical Research InvestmentsDonated $30 million to the National Institute of Health to researchconcussion and sports-related injuriesPartnership with the U.S. Army to research traumatic brain injuries 51. Current Policy &amp;Implied PolicyIn legislative attempts, Congress has focused onyouth concussions and has not proposed legislationtargeting the NFL specifically 52. Current Policy &amp;Implied Policy Collective Bargaining Agreement (CBA) Between the NFL and NFLPA (the playersunion) Governed by federal labor law will likely pre-empt state tort law claims 53. Current Policy &amp; Implied Policy Insurance and Benefits Workers compensation Compensate and provide medical expenses foremployees who suffer work-related injuries anddiseases Professional athletes are covered in many states May interact with tort litigation in a variety of ways CBA provides for various disability and retirementbenefit programs 54. Policy Recommendations 55. Policy Proposal #1Equipment Improvements G-Force Helmets (similar to those used in NFL) G-Force monitors on helmets 56. 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 57. Policy Proposal #3 Diagnosis and reporting Employ independent doctors and trainers Mandatory concussion testing (Using instant reply todiagnose potentially injurious hits) Alter contracts Guarantee player contracts regardless of injury Contract bonuses for diagnosed concussion 58. 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 59. 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 60. Policy Proposal #6The nuclear option End football. </p>