Head injuries are a serious matter. Our personal injury attorneys deal with these kinds of injuries and effects on our clients’ lives. It is tragic when these injuries happen to innocent people, like those riding a motorcycle or car.
Football, however, is a diffent story. There, the players assume certain risks because football is a dangerous sport, and that’s OK, just like boxing is OK. In boxing, victory means striking the opponent’s head so violently that he is knocked out and physically unable to stand during a count to ten.
But that’s the very nature of the game.
NFL fans, especially here in Pittsburgh (home to the Steel Curtain defense of the 70s) are increasingly disenchanted with (and outright angered by) the NFL’s commitment to change the rules of the game to make it more “safe.”
One thing is certain: football can never be made “safe.” Even sports where contact is non-essential to the game (baseball and basketball) lose players to the occasional concussion from incidental contact with another player or the ground. Hence, the NFL’s mission to make the sport more “safe” has no end-game scenario in sight so long as football remains a contact sport.
The NFL has a problem so long as it aspires for player “safety.”
The tipping point may come from claims in cout from former players seeking significant compensation for head injuries and memory loss in particular. These often involve lost wages and earning capacity claims, long term therapy, medical intervention, and loss of enjoyment of company of friends and loved ones.
As Mike Jones wrote in the Washington Post (March 27th):
Washington Redskins quarterback Mark Rypien is the lead plaintiff in a class-action lawsuit that seeks compensation and medical care from the NFL for “repeated traumatic injuries to his head” that he incurred during his playing career.
In the suit, which was filed March 23 in the U.S. District Court of the Eastern District of Pennsylvania, Rypien — along with 126 other former professional football players — allege that the NFL was aware of the dangers and risks of “repetitive traumatic brain injuries and concussions for decades, but deliberately ignored and actively concealed” the information, court documents say. …
They, along with the other plaintiffs, seek “medical monitoring, as well as compensation and financial recovery” for what the lawsuit describes as long-term and chronic “injuries, financial losses, expenses and intangible losses.”
NFL Commissioner Roger Goddell has said repeatedly that his goal is to lower the risk of head injuries in the league. He has handed out hefty fines and suspended players for helmet-to-helmet hits over the last several seasons.
There are two concepts fundamentally at odds. The first is player responsibility: players have a responsibility to understand the risks of the sport, educate themselves, and make financial plans (especially when negotiating NFL contracts) to account for the risk of a permanent head injury.
The other concept is owner responsibility. What responsibility do team owners and doctors have to inform players of risks, especially when NFL (which has hundreds of millions of dollars invested in star players) actively studies the mechanics of brain injuries and the medical consequences?
If the NFL assumes a duty to “warn” players about all medical consequences of the sport, the NFL is assuming major liability. This is because the NFL trainers and team doctors will always possess more information than the players about the mechanics of injuries and the medical consequences. At any given time, there will be some medical professional in the NFL who is aware of some recent study to which the payers are not privy.
So then, where should the line be drawn between player and owner responsibility? Let’s look at both ends of the spectrum.
One possibilitiy is, the entire burden of injuries should fall on the players, alone. The NFL could make it clear that, if you play in the NFL, you assume certain risks (if this is not already clear). This will allow players to plan for a rainy day (if they’re not doing it already). Young NFL recruits who chose football over pro-golf should know what they’re getting into, anyway. The military doesn’t pay multi-million dollar contracts or even pick up the tab for prosective lost wages for those injured in combat. Why should the NFL pay for poor player decisions on or off the field?
In this line of thinking, arguably, the NFL could go on the attack and allege that former players currently seeking money for injuries now engaged in fraud or bad faith when they had negotiated their playing contracts. Back then, the players (and/or their agents) negotiated for and received multi-million dollar contracts based in part on the risk of future head injuries. How then can those same players come back to the owners and ask for more money after sustaining a foreseeable head injury? Arguably, it was the players’ intent all along to accept money from the NFL with no intention to budget for injuries.
The NFL, however, may want to avoid injecting a dose of cold “reality” into this debate. What’s wrong with reality? Nothing. However, focusing on harsh “realities” could diminish the lure of the sport. The lure of playing in the NFL is what sells jerseys and tickets to games for youngsters who have virtually no chance of actually playing in the NFL. Any talk of “reality” jeopardizes the fantasy that makes so much money for the NFL and its owners.
The other end of the spectrum is: place the burden on the NFL owners. Make the NFL an insurer of claims for certain injuries. There again, it must be clear what types of claims are covered. If future medical treatment is covered, can a player obtain a recovery for lost wages? How are those measured?
One could argue, but for his head injury, he could have invented (and profited from) a car battery that could power a Prius for 2,000 miles on one charge, based on his undergrad in engineering. Or, more realistically, a head injury in the NFL could cost the player a chance to return to school and get a degree in medicine. Who pays for those prospective lost wages, which could dward the average NFL contract?
In litigation, we look for ways to “split the baby.” Here, one option is: make both the players and owner contribute to a fund to compensate future injuries. They could agree to make contributions to the fund count against the salary cap, nor not. Either way, the players and owners would share in responsibility for maintaining adequate reserves for potential injuries. Players could also seek additional sources of insurance outside of the NFL to serve as secondary payors (and secondary liability could entice more insurance companies to offer such coverage).
But there needs to be a comprehensive plan in place. Otherwise, the NFL will continue to morph into a non-contact sport or some version of flag football. (FFL? Flag Football League?)
The NFL’s current “strategy” is difficult to understand. Evidently, the NFL has committed to continually change its rules and adjust the amount of fines for penalties (to make certain types of hits increasingly more costly for the offending player) in lieu of defining exactly what risks players assume.
With each change of the game, the NFL is not only becoming a different sport, it loses a little bit of credibility. By constantly changing the rules and amount of fines for hits, the NFL is admitting that game was seriously “flawed” from the outset, and yet most fans (who make the sport and its future possible) would strongly disagree.
