As we near the impending release of the Will Smith Concussion movie in theaters, 2015 has certainly felt like a particularly injurious season all around the NFL. It seems as though every team has suffered losses of key players on their teams at one point or another as we lead into week 13. Many of these have involved some sort of Traumatic Brain Injury (TBI), the most common of which has been concussions. Two of those instances were some of the most talked about injuries and happened to involve two different Seahawks: the violent knockout of Ricardo Lockette when he lowered his head while returning a punt during the team’s win against Dallas (for which he underwent neck surgery) and last week’s helmet-to-helmet hit by Michael Bennett on Pittsburgh QB Ben Roethlisberger during that win. Roethlisberger continued to play several more snaps until he took himself off the field, reporting migraine-like pains, much to the morning-after delight of doctors and commentators everywhere.
Former Carolina Panthers fullback Brad Hoover once said, “If you’re worried about concussions, you’re in the wrong business.”[1] While that may be the attitude may still exist in some players, the truth is that the pending NFL concussion settlement has caused many professional athletes to rethink their risk assessment on the field. Experts in sports science acknowledge current helmets, no matter how well designed, cannot prevent the movement of the brain inside the cranial cavity during an impact. Though current models prevent countless head injuries such as brain bleeds, hematomas and skull fractures, concussions are an inevitable. According to Jason Mihalik, an assistant professor of sports law at University of North Carolina, a crash test dummy “traveling at 35 miles per hour absorbs 80 times the force of gravity when it hits a windshield during a crash.”[2] Athletes in football and hockey are often subjected to “twice that and more when tackled or checked.”[3] A total of 87 out of 91 former NFL players tested positive for the brain disease Chronic Traumatic Encephalopathy (CTE – the basis for the plot behind the Concussion movie), a “progressive degenerative disease of the brain found in athletes with a history of repetitive brain trauma…”[4] Researchers at Boston University, home to the largest brain brank and researches with the Department of Veterans Affairs (which is also coping with issues of brain trauma in the military), believe that CTE is directly linked to conditions such as memory loss, depression and dementia.[5]
On November 19th 2015, a three-judge panel heard arguments in the matter of the concussion settlement approved in late April 2015 that stemmed from the 2011 class-action lawsuit to the tune of $1 billion to provide payments to any former player with a medical condition linked to football-related brain trauma (including ALS, Alzheimer’s, Parkinson’s, and dementia).[6] Currently at odds are former players and their families who desperately need the money immediately and those 94 players appealing the settlement because it fails to compensate players with CTE (which can only be diagnosed after death)[7], providing a Catch-22 for those players that need it the most. The two-tiered settlement system would cover over 20,000 NFL retirees for the next 65 years, each of whom would receive an average of $190,000 depending on medical afflictions.[8] (Inserted will be the tentative structural payout for retired NFL players).
Not to diminish the importance of Roethlisberger’s self-reporting; this is vital in reduction of stigma against players as being viewed as “weak,” thereby causing them to return to the field early only to suffer a potentially career and life-altering injury, but there is far more to be done on this issue. The settlement, no matter how large, is not the end of the discussion on TBIs in the NFL (or other sports leagues, for that matter). There are outstanding questions about concussions in amateur athletes even before they join the NFL; who bears liability for their medical costs? Will addendums be made to the NFL Collective Bargaining Agreement (CBA) on better access to second-opinion physicians, Injured Reserve (IR) status, or rulemaking on punt coverage? Even to the tune of $1 Billion, the multi-billion dollar business that is the NFL is getting off pretty easy, especially in that the settlement does not require them to admit any liability. The players are entitled to better benefits laid out in the CBA, and I look forward to those changes made, even if it takes a Will Smith movie to get this issue the better attention it deserves.
[1] Associated Press, NFL players’ quotes about concussions, (Nov. 18, 2009), available at: old.seattletimes.com/html/sports/2010301635_apfbnhidingconcussionsquotebox.html.
[2] Associated Press, Helmet safety has improved, but risk can’t be eliminated, (Jun. 20, 2011), available at: http://www.nfl.com/news/story/09000d5d82068495/article/helmet-safety-has-improved-but-risk-cant-be-eliminated.
[3] Id.
[4] What is CTE? Boston University CTE Center, www.bu.edu/cte/about/what-is-cte.
[5] PBS, 87 Deceased NFL Players Test Positive for Brain Disease, NHL Concussion Litigation Hub, available at: www.nhlconcussionlitigation.com/updates-87-deceased-nfl-test-positive.html.
[6] Tom Goldman, Judges to Hear Appeal Over NFL’s Concussion Lawsuit Settlement, (Nov. 19, 2015), available at http://www.npr.org/2015/11/19/456600349/judges-to-hear-appeal-over-nfl-s-concussion-lawsuit-settlement.
[7] Id.
[8] MaryClaire Dale, Lawyers: NFL Concussion Deal Excludes Central Brain Injury, (Nov. 19, 2015), available at http://abcnews.go.com/Sports/wireStory/nfl-set-defend-1b-concussion-settlement-amid-appeals-35296647.
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