This Season’s Concussion Lessons

By Contributor Stuart Dean

Although the football season is not yet over there are already three important lessons to be learned from it regarding concussion litigation:

First, quite apart from how it ultimately affects plaintiffs and defendants, litigation has consequences even before there is any settlement or judgment.  There should not be any doubt that the changes in the threshold for drawing a flag for a potentially concussion inducing hit as well as the protocol the NFL has adopted for when a concussion is suspected are a direct consequence of the growing number of claims against the NFL for MTBI related injuries by former players.  That is startling when you consider none of the lawsuits have been settled or adjudicated and the resolution of most of the litigation is years away.  The benefit of these changes for the NFL is to minimize, if not eliminate, the accrual of additional liability.  The downside, though, is that the changes make practically every game an advertisement for the effectiveness of litigation.  To be sure, such changes provide no benefit to existing plaintiffs and could not even be used as the basis for an argument about the validity of past claims.  But in litigation, perception is often as important as reality.  And the perception now has to be that the plaintiffs are winning and winning big.

Second, both the number and severity of concussions should be considered shocking.  It appears that in every game at least one player on each team suffers a concussion.  Because of the realities of playing times and position assignments it is difficult to avoid concluding that with a 16 game season for many players the question is not whether they will suffer a concussion but when.  But as troubling as the number of concussions should be, the severity should be even more so.  This season’s concussed players often miss several games and in some cases questions have been raised about careers being in jeopardy.  Yet, many of these concussions do not appear to relate to rule violating hits, but rather from ordinary play.  What this shows is that the NFL’s attempt to limit concussion liability by tweaking the rules simply does not work.  Having first denied concussions were an issue at all, the NFL is attempting to define away the problem rather than confront fundamental facts.  Consider, for example, the weight of players.  In many respects nothing is more fundamental than weight.  For example, the very reason weight classes exist in boxing is predicated on the well recognized fact that weight is not just a factor in fighting, but all other factors being equal, the decisive one.  No one would think of organizing fights between boxers with the sorts weight differentials you see on every play of every game in football.  Furthermore, no boxing match lasts 2 or 3 hours and boxers generally do not run at each other at full speed.  The tale of the tape–in this case the videotape–is that as currently played football is frighteningly more dangerous than boxing.

The third lesson comes from thinking through the implications of the first two.  For with the combination of (1) an increasing awareness not just of the existence of concussion litigation but the perception of its effectiveness and (2) a still growing awareness of the extent and nature of football induced concussions you have the ingredients for what could be a substantial increase, indeed an explosion, in litigation.  Put simply, not only are more and more people becoming aware that they or someone they know may have suffered concussions from what at the time seemed to be ordinary football plays, but at the same time they are learning that legal liability for such injuries may attach to those who promote football: a growing pool of plaintiffs on the prowl for defendants.  The pleadings of the plaintiffs in the current cases suggest the direction this could go.  Some contain claims for the spouses of veteran players–loss of consortium.  Dementia from MTBI is not, after all, something that affects only the player.  Many claims characterize the NFL not just with respect to professional football, but more generally, as being in a unique position of having been able to glorify and mythologize American football.  To the extent that constitutes the basis for a claim of liability it is hard to see why it should be confined to professional players; practically anyone who plays football could claim to have been affected by NFL hype.  Some claims are based on the doctrine of civil conspiracy.  I will not belabor the point here other than to say that depending on the state law implicated, such a doctrine can be flexible for plaintiffs but mischievous for defendants.  It might only be something to scribble in a blue book answering a law exam question, but it is the sort of doctrine that could draw the NFL, the broadcasters of all its games and their respective sponsors into litigation as defendants to a concussion claim by a high school student.

The basic takeaway is that there is much more litigation to come with many more people involved.