nfl concussion: a frontier tort
DESCRIPTION
NFL Concussion: A frontier Tort. Team Concussed.TRANSCRIPT
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.