Editor’s Note: This is the final installment of the three-part series by Dr. Andrew Blecher on the state of football, and the all-important issue of concussion. The series is also being published in Concussion Litigation Reporter. For more details on how to subscribe, click here.
The Reclassification of Football
Part III: The Collegiate Game
by Andrew M. Blecher MD
In Part I of this series we described the NFL as bloodsport. It is an unsafe sport and profession with tremendous injury risk. Its players are adults who acknowledge and accept this risk and participate in it because they believe that their personal rewards (money, fame, love of the game, etc) outweigh their risks. In Part II we discussed how high school and youth athletes are underage and unable to adequately consent to this brutal sport. Furthermore, we are still unable to fully quantify just how dangerous this sport is to developing brains in the long term. Until we know these answers or until the sport can be made safer, it is inappropriate to subject our children to this experiment in brain trauma. Therefore, the game of football that is played at the underage level needs to rapidly evolve into a safer version of the sport.
So what will develop is two different classifications of tackle football (just like there are two different versions of boxing, martial arts, wrestling, etc). On the one hand is the dangerous NFL professional version, and on the other is the safer underage non-professional version. So now that leaves us with the collegiate game which is stuck somewhere in the middle. On the one hand the collegiate game is played by adults over age 18 who are able to consent to the risks, but on the other hand they don’t receive the level of reward that the NFL players do. So what happens to collegiate football? Does it need to undergo reclassification as well?
Let’s start with the risk side of the equation. Currently the risks of trauma (brain trauma included) are likely about the same at the NCAA Div 1 level as they are in the NFL. NFL players may have a higher overall rate of injury over the course of their careers, but their careers are longer than the 1-3 years of playing time in the NCAA. On the reward side, the NCAA Div 1 players don’t have any salaries or marketing deals but they do have scholarships and they also have a somewhat legitimate hope of obtaining fame and fortune if they can make it to the NFL. Therefore these collegiate players may also accept the risks associated with playing “NFL- style football” and make the decision that they still want to play. Since football is big business to these top schools just as it is in the NFL, the schools themselves are likely to accept the risks of continuing to offer “NFL-style” football at their institutions and afford the liability and other expenses involved in maintaining their football programs.
How will these risks be managed? We will have to wait and see the outcome of all of the NCAA concussion litigation before we can be sure, but just as with the NFL, it is safe to say that at this point both the players and the institutions should realize that PLAYING PROFESSIONAL-STYLE FOOTBALL CARRIES AN INCREASED RISK OF HEAD INJURY WHICH MAY HAVE LONG-TERM EFFECTS AND HELMETS DO NOT PREVENT THIS. Since both the Div I NCAA football players and their institutions now fully realize and accept these risks of head trauma, it is likely that “NFL-style” football will continue to exist at this level even if it is completely different than the high school version.
This may be concerning and intimidating to incoming freshman who have not been exposed to this type of football and some experts believe that this quick transition from one type of football to another puts the athletes at even greater risk since they are not familiar with this style of tackling. So how do athletes make the leap from playing the high school version as 17 year olds to the “NFL-style” as 18 year old collegiate athletes? Well that is what redshirting as a freshman in college is all about, isn’t it? They spend the entire year learning how to play this new style of tackle football with full head contact. The majority of these Div I athletes are scholarship athletes who are essentially being “paid” to learn how to play this game that is generating money for their school. They can then more safely make the transition to the new game at the Div I level without officially being exposed to it.
But what of all the other schools … the Div II and III schools and all of the junior colleges and community colleges where football is not a money maker, there are no scholarships, no chance of fame and fortune and no big budget athletic department to afford the liability? I believe that both the players and the institutions would not believe that the risks vs. reward equation benefits either of them. Therefore here too tackle football is going to evolve into the safer non-professional version that we will see at the high school level. We might find that tackle football takes on an intramural form or becomes a “club sport” at these schools much like rugby. Thus, when all is said and done I believe that we will see a two class system of tackle football in the United States (just as we do with wrestling, boxing and martial arts). On the one hand, we will see the brutal bloodsport version that will be played at the professional level as well as the NCAA Div I level (which as we all know is essentially the minor leagues of professional football anyway – but that is another discussion).
On the other hand will be another “non-professional” version of tackle football that will be played throughout the remainder of collegiate, intramural, interscholastic and youth leagues. This version will still be tackle football but will carry less risk of trauma, specifically head trauma. In these leagues, the head trauma will be reduced to an “acceptable level” by eliminating all purposeful head contact from the game. Determining what that “acceptable level” actually is, will be our greatest challenge in the field of sports medicine head trauma research. But until we know those answers, I believe we need to err on the side of caution and protect the brains of our children.
In summary, American tackle football is being reclassified. It is not just a collision sport. It is a brutal sport. With the high injury rates and the long term risks of head trauma we can no longer consider it safe. With every passing year more of the players themselves begin to acknowledge this and refuse to let their own sons play the very game they love. In spite of this, I have no doubt that football will continue to persist as a brutal sport at both the NFL and NCAA Div 1 levels. It is too much engrained into American culture. It is too big to fail. But the NFL and Div I NCAA is such a small percentage of football that is being played in America and at all other levels it must evolve into a safer sport. As described in Part II, this evolution into a non-brutal sport can only occur by eliminating all purposeful head contact by changing the rules, changing the equipment and most importantly, changing the culture. It is a lot to ask for and it won’t be easy, but now that football has been reclassified, this country has an ethical, social, moral and possibly even legal obligation to do so. Keeping our heads in the sand is no longer an option.
Editor’s Note: This is the second installment of the three-part series by Dr. Andrew Blecher on the state of football, and the all-important issue of concussion. The series is also being published in Concussion Litigation Reporter. For more details on how to subscribe, click here.
The High School and Youth Game of Football
by Andrew M. Blecher MD
In Part I we recognized that professional tackle football is a truly unsafe sport. Even though we enjoy it, in our hearts and minds we know that the NFL is just as brutal as boxing and MMA. It’s bloodsport. But if grown men want to risk bodily harm for money, fame, the love of the game or whatever other reason they choose, then so be it. Adults choose lots of risky or unhealthy behavior all of the time. But these are adults. Now let’s talk about kids. I remember trying tackle football for the first time when I was eight years old and I remember trying it again when I was eighteen. What a tremendous difference. The eight year old thinks that the game is fun and occasionally you might get hurt. The eight year old also has no clue what the words “possibility of permanent long-term cognitive dysfunction” even mean. The eighteen year old on the other hand knows that the game is fun and also knows that you are likely to get hurt. The eighteen year old does know the terms “permanent long-term cognitive dysfunction”, but he also thinks he is invincible so it won’t happen to him. But in the end, the eighteen year old is making a choice to play football. Is the eight year old also making a choice?
In the medical world a child cannot consent to being a participant in a research study. Why? According to the National Institutes of Health Protecting Human Research Participants:
“Children may not have full capacity to make decisions in their own best interests; and therefore: “Persons who have not attained the legal age for consent to treatments or procedures involved in the research, under the applicable law of the jurisdiction in which the research will be conducted.”
- Children are considered a vulnerable population, and
- Children are unable to provide “legally effective informed consent”
A legally-effective, voluntary agreement that is given by a prospective research participant following comprehension and consideration of all relevant information pertinent to the decision to participate in a study.
Because children cannot provide informed consent, children provide assent to participate in research, to the extent that they are able, and parents/guardians give permission for a child to participate in research.”
So can a child consent to playing tackle football? Well maybe they can in their backyard but not in any sanctioned league. A parent or legal guardian must sign a release form to allow them to play. But this is true of any interscholastic or organized youth sport. So why am I making a big deal out of this? Because parents can feel confident that participating in interscholastic or youth sports are likely to be beneficial for their children and have an extremely low likelihood of posing any long-term health risks to their child. But is this true about tackle football as well? Honestly, I believe the medical and scientific community is starting to question it. We hear about the unfortunate second impact syndromes in high school football players that result in death or permanent disability. This year already there have been five fatalities of high school football players due to trauma and the season has just barely begun. We also worry that all of the concussions and repetitive sub-concussive blows at such an early age may contribute to developing CTE later in life. So the truth is that we really can’t yet quantify how tackle football poses health risks to our children and we are still doing research to figure it out. So essentially, playing youth tackle football is research.
Let’s design a research study that recruits adult males to undergo baseline testing to evaluate their cognitive brain function. Let’s divide them into two groups. One group will have to go out into their driveway naked and run full speed into their garage doors. They will have to lower their heads just before impact so that they hit the door head first at full speed. We won’t re-evaluate them after the impact. Instead we will give them about 24 seconds to recover but then they will have to run into their garage door again. They will have to repeat this about one hundred times before they can call it a day. We won’t re-evaluate them at the end of the day either, but we will have them repeat this once a week for 16 weeks. Then they will have to repeat this every year for about 10 years. Then the subjects will be re-evaluated. Their scores will be compared to the other group that never had to run into their garage doors. The study will be designed to see if repetitive running into your garage door causes any long term brain damage. How many volunteers are we going to get for this study? It sounds ridiculous, right? We could never perform a study like this. It would never pass a review board. Well now let’s repeat the study but give them pads and a helmet. Does that change anything? We already know that the helmet doesn’t protect the brain inside. This would still never pass a review board. But instead of a study let’s call it a game and pay the volunteers a lot of money. Ok I admit I might sound a little cynical here but is it really that far off? Football is research. We don’t have the answers. As unethical as the above study might sound, it’s even worse if it were conducted in children. Not only are they a vulnerable population that cannot provide informed consent to a study, but they may even be more at risk in the study itself. We know that the human brain continues to develop until at least age 18 so a child’s developing brain may be more susceptible to trauma than an adult’s. Perhaps that is why second impact syndrome almost always occurs in teenagers. Perhaps that is also why the incidence of concussion is almost twice as high in high school as it is in college. Whether we blame the smaller relative neck sizes or the poor tackling technique or whatever other reason you choose, it certainly seems that children are not only a vulnerable population by study standards, but their brains are more vulnerable by any standard.
So if children are by definition a vulnerable population that are unable to consent to a sport that has a higher incidence of brain injury and a potentially worse outcome than their adult counterparts, should they really be participating in it? Is the risk vs. reward balance still in their favor especially since there is no fame and fortune to be had in youth football? Should they be playing tackle football at all? Some say no. Some say tackle football should be eliminated for kids under the age of 14 or maybe even age 18. I don’t know that it necessarily needs to be eliminated, but it does certainly need to evolve. Let’s look at boxing and martial arts again. These sports do exist on the youth level, but the youth versions are far safer than the adult professional versions of the sport. We don’t see the professional versions in our schools because there is too much liability and it is generally considered unsafe. Every parent knows this at a gut level. So why can’t we see a safer and more diluted version of tackle football in our schools? The NFL talks about evolution but it is evolving at a glacier’s pace. Youth football on the other hand needs a major evolution. It needs to separate itself from the professional game. After all, we have reclassified professional football as a brutal sport. We cannot let our children play a brutal sport. The youth and high school version of football also needs to be “reclassified” and become significantly different from that of the NFL. Of course the NFL will resist this change because they don’t want to lose their “feeder system”. But one of the NFL’s defenses in the lawsuit against them is that any causal link between football and CTE might be due to the thousands of hits and head trauma that occurred in youth, high school and collegiate football while the brain was still developing. Therefore how can the NFL be held responsible if the damage was already done even before the players entered the NFL. Well, NFL, you can’t have it both ways. If the NFL is not to be blamed and youth football is, then it is youth football that must be changed. Now that doesn’t mean that I’m in favor of reducing the game to two-hand touch or flag football. It does however, mean that youth football can evolve into a less brutal contact or even collision sport. It must be a sport that has absolutely no repetitive or purposeful head contact at all. Sure we can’t completely eliminate head injury from any contact sport but we can significantly reduce it. Tackling and collisions can continue to exist, but any head contact or leading with the head on any play, be it tackling or blocking, offense or defense, must be completely eliminated from the game. We will need to have major changes in football rules, equipment, education and culture in order to get this done. The way the game is played, coached and taught will need to evolve. Intentional head contact of any kind must lead to immediate ejection. Tackling and blocking techniques must be completely changed to eliminate all head contact. The helmet must be redesigned so that it cannot be used as a weapon. The helmet’s sole purpose is to prevent skull fractures. Unfortunately its design has developed such that it is now the players hardest shell on his body and thus his best tool to tackle or block another player. It is used as a weapon because of its design. This is simple instinct. This must be eliminated. It cannot be simply “coached away” with a heads up tackling campaign. Helmet redesign must go along with the rule and coaching changes. The facemask must also be redesigned so as not to encourage leading or blocking with the face. The athlete must have absolutely no incentive to use the head to initiate contact. In fact, the helmet /facemask unit must be redesigned to create a disincentive to use it to initiate contact. Instead of making helmets that are “more comfortable to hit with”, we need to do the opposite. These changes may be costly and they may be unpopular but this evolution needs to happen until such time that we can prove that tackle football is safe and is no longer a research study on long term head trauma.
Because these changes will be unpopular, they will certainly be resisted by players, coaches, parents and fans. So how can we enforce these unpopular changes? As suggested in part I, if one were so inclined, we could force the changes in the NOCSAE standards so that their football helmet certification matches what the helmets are truly being tested for. Football helmets would therefore only be certified for a single day of use. Without any certified helmets for repetitive use beyond one day, tackle football would only be able to continue if new helmets were issued for every single day of practice and for every single game. This would become so cost prohibitive that schools and youth programs would be forced to make a choice to either abandon tackle football, or to accept a change in the rules and a change in the equipment. In addition, if a sport is going to be played with such a high risk of head injury, then it should be mandated that a representative with experience in diagnosing and managing head injuries (such as a certified athletic trainer) would need to be in attendance for every practice and every game, just like the coaching staff. This needs to be the case not only for varsity football, but for every single level of tackle football in every single school and every single youth program. In order to play organized tackle football there must be equipment, coaches AND an athletic trainer. If the program cannot afford an athletic trainer, then it cannot afford tackle football. Period. This may mean that due to economic constraints, not every child may have an opportunity to participate in tackle football. Some may argue that it will not be fair to inner city children. Well not every child has the opportunity to participate in boxing or karate either. Not every child has the opportunity to participate in skiing, or skating, or fencing, or horseback riding or many other sports for that matter. But either we need to make every effort for our children to participate in these sports safely, or they should not be participating in them at all. I think tackle football is a great sport and I have decided that I want my child to be able to participate in it. But I also don’t want to regret that decision forty years from now. Only time will tell just how dangerous tackle football really is to the developing human brain. But when it comes to a generation of our children, can we really afford to be on the wrong side of history on this one? The only solution is that tackle football for minors must evolve and it must evolve now. There is no time to wait.
Stay tuned for the most complicated part of the story with Part III of: “The Reclassification of Football: The Collegiate Game”
I recently watched Sean Pamphilon’s documentary, The United States of Football. It was hard-hitting, emotional and, quite frankly, disturbing.
The part that stood out most to me was the story of Sean Morey. Morey played 9 years in the NFL. His primary role was to serve as a wedge buster – a concussion kamikaze.
Like so many of his brothers, Morey is fighting the demons and living with the emotional toll of post-concussion syndrome.
What distinguishes Morey from most players is that he experienced the apparent corruption of the NFL and the NFLPA first hand.
You see, Morey was like Dave Duerson. A former player handpicked by the higher ups, charged with the role of “player advocacy.”
In 2006, Duerson was appointed to serve as a Trustee of the Bert Bell/Pete Rozelle NFL Player Retirement Plan – jointly administered by the NFL and NFLPA.
He was fed lies, repeatedly, over a four-year period that rejected the link between repetitive head trauma and neurological disorders.
Some players argue that Duerson was a “robot member” for the Plan – if he went against the grain he’d be fired.
Duerson put his trust in the NFL and NFLPA – they allegedly deceived him.
He did as he was told and denied multiple meritorious claims for disability. Duerson told Congress, presumably at the coaching of the NFL and NFLPA, that the link is too remote; anyone can have, you know, neurological disorders.
And also, in regards to the issue of Alzheimer’s, my father’s 84, and, as I had mentioned earlier, Senator, spent 30 years with General Motors. He also has—he has Alzheimer’s and brain damage, but never played a professional sport. So, the challenge, you know, in terms of where the damage comes from, is a fair question, and one that—you know, that has been addressed, and that—and is one that we, in fact, ask. – Dave Duerson, 2007 Congressional Testimony
Duerson killed himself before he could deliver the truth. Instead, it was revealed post-mortem that the damage sustained from football led to his early demise.
Similar to Duerson, the Ivy-League educated Morey was chosen to be a voice for the former players. He was picked to Co-Chair the NFLPA’s Mackey-White Traumatic Brain Injury Committee.
Morey tried to place the players’ health and safety first, and he succeeded to a certain extent. But, he was also shut down at nearly every corner and mocked by De Smith for giving him more “data” than the CBA consumes on a jump drive.
He was further silenced by the NFLPA – told explicitly not to talk about concussions and CTE during the NFLPA’s 2011 Super Bowl press conference.
As Patrick Hruby reported, Morey proposed the implementation of the Players Health Trust, and although funds had been allocated, the Trust was apparently “scuttled” for reasons unknown.
Pamphilon asked Morey why he resigned from the NFLPA. What Morey said was shocking:
Because it became abundantly clear that I had been betrayed. Every player that played the game, every player that plays the game today is being betrayed by their union. Because they are dismissing this issue, because they don’t want to incur additional liability, and they are trying to protect themselves. – Sean Morey, The United States of Football
Kyle Turley shared similar sentiments with Pamphilon, “For us to have a union that is supposed to fight for us, they have failed miserably.”
The NFLPA, although arguably equally culpable for misleading its players, has remained out of the concussion courtroom. Perhaps that needs to change.
According to congressional testimony, Morey didn’t learn about the risks of chronic brain damage from his union – the organization charged with protecting the players. Nope, it wasn’t until 2008 when Chris Nowinski told Morey about “some disturbing new research about concussions and the potential long term cumulative effect of repetitive brain trauma.”
If that’s not a testament to the NFLPA’s failure, I’m not sure what is.
Not until 2008. Really? Meanwhile, there had been more than eight decades of science identifying this disturbing link, and no one from the union apparently informed the players.
The players were left in the dark.
What about that 1994 National Institute for Occupational Safety and Health study commissioned by the NFLPA that found that former players were 1.5-2.3 times more likely to die from brain and nervous system disorders than the general population?
The NFLPA spun the study and proclaimed it as confirmation that players don’t die early.
The 1994 study also recommended more research should be performed. I guess the NFLPA delegated this task to Elliot Pellman and his cohorts.
So, yeah, the NFLPA may now be concerned about concussions, but where were they 25, 15, 10, even 5 years ago?
The NFL has agreed to dish out $765 million to make (some of) the former players go away.
What has the NFLPA done?
Marijuana’s Purported Ability to Speed Brain Recovery May Leave Colleges and Universities Vulnerable
By: Holt Hackney
The following is a piece that was published in the September edition of the Concussion Litigation Reporter. Concussion Litigation Reporter is published monthly by Hackney Publications. Each issue provides timely reporting on developments and strategies in the emerging legal practice area of sports concussions. To learn how to subscribe, click here
Collegiate athletics has a pot problem.
Those in the athletic department that are closest to the student athletes know this. And yet leadership really isn’t sure how to address it. Should they take a hard line and suspend players indefinitely for one failed test, or should they give the athletes several strikes (failed drug tests) before suspending them for a cupcake game for “a violation of team rules?”
Interestingly, this quandary may become a moot point in a matter of years.
Society’s growing acceptance of the medical applications of marijuana and a tidal wave of funding into the research on how to prevent sports concussions and lessen their tragic consequences, may lead to an inevitable conclusion, according to sources interviewed by Concussion Litigation Reporter – marijuana may be more beneficial to athletes, than harmful.
So what happens when marijuana is prescribed in one of the 20 states that allow for the medical use of the drug and a school in that state has rules on the books that call for the punishment of those student athletes that fail a test for the drug?
“This will be a whole new area of liability for the schools,” a sports law attorney involved in collegiate athletics told us.
For nearly a century, researchers have been encouraged and given mandates to explore the harmful effects of marijuana. Only recently has that focus started to shift.
First, there was the recognition that THC, the ingredient associated with “getting high,” can help those with glaucoma, loss of appetite from chemotherapy, or needing pain relief.
More recently, the focus has shifted to another ingredient in marijuana. “(Cannabidiol) appears to have profound nerve-protective and brain-enhancing properties,” Chris Kilhan, a FoxNews medical correspondent, said in a 2012 interview, summarizing a growing body of research. Among the many articles that support this conclusion are:
Clint Werner, a researcher and unabashed advocate for the medical applications of marijuana, recently wrote: “Severe head injuries automatically trigger the production of an excessive amount of neurotransmitters called glutamates. When there are too many of these chemicals in the brain, they can initiate a chain reaction of cell degradation and impairment. The cannabinoids, which we find in marijuana, work as effective antioxidants, potentially neutralizing the glutamate activity and stopping the cascade of neuronal damage that can follow.”
The Developing Case Law
Last spring, a state appeals court in Colorado, where medicinal marijuana is legal, ruled that Dish Network Corp. and subsidiary Dish Network LLC was within its rights to fire an employee after the man, a quadriplegic who was prescribed marijuana, tested positive for the drug.
But the landscape is already shifting under such decisions. Last week, the U.S. Department of Justice announced it would not block laws legalizing marijuana in 20 states and the District of Columbia.http://www.nytimes.com/2013/08/30/us/politics/us-says-it-wont-sue-to-undo-state-marijuana-laws.html?_r=0
“The ball is rolling downhill … it is gaining momentum,” Seth Brickman, product manager for management liability at Business Risk Partners, told the Wall Street Journal in an article last month. “There is certainly the potential for the number of lawsuits to increase considerably.”
In addition, new state laws that legalize marijuana typically protect medical marijuana users from employment discrimination.
This and other factors will produce “conflicting decisions from the courts,” according to our source, who then made the connection to concussions and collegiate athletics.
“While there would be some room for judicial deference, all other things being equal, to a workplace rule that was related to workplace safety, or in some cases simply employer prerogative, I think all bets are off when the workplace rule places the worker at an increased risk of injury.
“Think of this as any other workplace safety issue. Any time the nature of the employment or job assignment places a worker at an increased risk of injury, such as operating a band saw, an employer is required to give an employee the necessary training to operate the equipment safely, AND the necessary personal protective equipment. So you can have judicial deference to a workplace rule against wearing earplugs if all things are equal. But if the employee works in a power plant where the sound levels subject a worker to a risk of hearing loss, you cannot prohibit ear plugs, and in fact, you may be required to provide them.”
‘Prohibiting a Player from Using Marijuana Is the Same as Prohibiting a Player from Using a Helmet’
“In the case of football, the player is subjected to an increased risk of concussion and associated complications. All things are NOT equal. Arguably, an employer would have to demonstrate a compelling reason for prohibiting access to personal protective medication. It would be like prohibiting a nuclear plant worker from using potassium iodide or prohibiting a Peace Corps worker from being vaccinated against dengue fever or some other exotic disease. My god, I’m pretty sure the British Foreign Service drank Gin and Quinine to prevent malaria.
“Unless there is science documenting that the dosage of THC subjects the player to an increased risk of injury, which there is not to my understanding, then the Colorado case has no application to the concussion issue for a football player. I realize, in college, the players are not employees. But the principles of safety are not that different. The point here is that prohibiting a player from using marijuana is the same as prohibiting a player from using a helmet. Finally, the Colorado court relied heavily upon the fact that it was illegal under Federal Law. The Justice Department just announced that in states that permit medical marijuana, it will NOT enforce federal law against individuals who use medical marijuana. So, if the (aforementioned) case below were decided today, to the extent that the court relies upon Federal Law, I would expect the case below would be decided differently.”
In essence, the “emerging, new frontier of liability for colleges and universities” in the case of medical marijuana usage is tied to three powerful trends – societal acceptance around the medical use of marijuana, growing recognition of the dangers of sports concussions and provocative research that indicates marijuana can mitigate the risk on concussion as well as speed the recovery from concussion.
By: Daniel S. Goldberg, J.D., Ph.D.
There has been a lot of discussion over the perceived fairness of the NFL concussion litigation settlement. But of course fairness is something of a loaded term: Fair to whom? In what context? And what are the criteria for fairness? “Fair” in terms of a litigation outcome is obviously something altogether different from Plato’s conception of justice, of which fairness is the central criterion.
I have suggested that the NFL concussion litigation is best seen as something called social impact litigation. This means that the fact of the litigation itself, the discovery process, possible settlements, and ultimate outcome has the potential to have a significant social impact far beyond the impact the litigation would be expected to have on the private parties. The distinction between the interests of the private parties and the potential public interest matters a great deal because a particular outcome could conceivably be in the best interests of the private parties but not remotely so for the public at large.
And my initial opinion in the days following the news of the settlement is that we may have just such a situation here. One of the very basic lessons one learns quickly in my fields of interest – law/policy, history of medicine, and bioethics – is how easily the voices of the sick, injured, and disabled get overridden or drowned out, lost in the more dehumanizing aspects of sickness and the health care non-system. Indeed, without getting too academic, it is generally accepted that the fact of illness itself has a tendency to alienate, isolate, and silence people. So it seems generally risky to ride in to a situation one may know nothing about and subsume the voices of those dealing with sickness, injury, and/or illness.
I am less interested in whether the settlement is in the best interests of the private parties to the NFL concussion litigation, which is not to say it is unimportant. But what of the public interest? The notion that the American public – let alone other publics that have reason to be interested in contact sports and mTBI – has an interest in the outcome of the litigation is indisputable. As I and others have pointed out, the settlement hardly disposes of a host of urgent questions, including but not limited to:
- Should children play American football?
- At what age is it safe to begin play?
- When is it safe to return to play after experiencing mTBI?
- How many mTBI events are too many? When should a football season end due to mTBI? A career?
In fairness, these are difficult epidemiologic questions that the NFL concussion litigation would not have answered. But there is a fallacy lurking here – the belief that better science can resolve all of our moral and policy questions regarding mTBI and American football. Two physicians put it very well recently:
[s]cientific evidence can only help us describe the continuum of benefit versus harm. The assessment of whether the benefit is great enough to warrant the risk of harm — i.e., the decision of where the threshold . . . should lie — is necessarily a value judgment.
The question of what levels of risk are acceptable to expose to which age groups are unavoidably moral and political questions, and they cannot be resolved by the application of even excellent epidemiology.
Of course, such epidemiology is absolutely critical to calibrating the risk, and therein to informing the difficult moral and political questions with which families, communities, and institutions must grapple. But it will not answer these kinds of questions by itself.
This observation takes us back to the social impact of the NFL concussion litigation. The NFL’s privately held information had the potential to contribute much to a robust public discourse on these complicated questions of risk and benefit. But the settlement vitiates that, since the public will never see the information compiled over the last few decades by the NFL.
And so public reason on mTBI and American football will be all the less rich for its absence.
(A more detailed version of this argument can be found here).
Editor’s Note: What follows is a two-part series by Dr. Andrew Blecher on the state of football, and the all-important issue of concussion. The series is also being published in Concussion Litigation Reporter. For more details on how to subscribe, click here.
Part 1: The NFL
by Andrew M. Blecher MD
Collision sports are full-contact sports with a greater than average risk of injury. They include sports such as football, rugby, ice-hockey, mixed-martial arts and boxing. But there is something different about the last two. In the professional sports of MMA and boxing the intent is to hurt your opponent. In fact the best outcome would be to knock-out your opponent. Since a knockout is a concussion, the intent of the sport is therefore to cause brain injury to your opponent. How can this be right? In fact, for decades the American Medical Association has called for banning professional boxing for this very reason. From the Summaries and Recommendations of Council on Scientific Affairs Reports 1999 AMA Annual Meeting:
“Until such time as boxing is banned in this country, the following preventive strategies should be pursued to reduce brain and eye injuries in boxers: (a) Ideally, head blows should be prohibited…The World Boxing Council, World Boxing Association, and other regulatory bodies should develop and enforce objective brain injury risk assessment tools to exclude individual boxers from sparring or fighting including APOE e4 screening, neuroimaging, clinical neurological assessment, neurophysiological assessment, and indices of cumulative brain injury… [They] should develop and enforce standard criteria for referees, ringside officials, and ringside physicians to halt sparring or boxing bouts when a boxer has experienced concussive or subconcussive blows that place him or her at imminent risk of more serious injury…The AMA will: Promote the concept that the professional responsibility of the physician who serves in a medical capacity at a boxing contest is to protect the health and safety of the contestants. The desire of spectators, promoters of the event, or even injured athletes that they not be removed from the contest should not be controlling. The physician’s judgment should be governed only by medical considerations.”
Now wait a second. This sounds very familiar. This was over a decade ago, but if you re-read this and replace “boxing” with “football” and replace “World Boxing Council” with “NFL”…. suddenly it perfectly describes today’s current events. Football is an inherently dangerous sport. We know this. It has an injury rate of over 100%. With an injury rate that high, there must be something within the sport that includes intent to cause harm. Do 100% of NFL players get injured and they are all just “work-related accidents”? Or does the “Bounty” scandal illustrate that there may be something else going on? NFL players have a higher rate of injury than any other profession according to the National Worker’s Compensation Board. But just being a dangerous sport isn’t the problem. It is specifically the specter of traumatic brain injury and its long term affects that defines football’s current crisis.
The problem with boxing is that the cumulative concussive and subconcussive blows (especially those that are not medically managed correctly) are risks for developing long term brain injury. That brain injury has a name. It’s called Dementia Pugilistica, also known as chronic boxer’s encephalopathy, traumatic boxer’s encephalopathy, boxer’s dementia, chronic traumatic brain injury associated with boxing (CTBI-B), and punch-drunk syndrome. This is not something new. It was first described in the 1920′s. But the injury that is new is CTE or Chronic Traumatic Encephalopathy. What’s the difference? Well nothing really, other than the fact that it’s what we use to describe the exact same condition but in non-boxers… namely, Football Players.
The evidence might not yet be as clear-cut in football as it is in boxing and some will say that we shouldn’t jump to conclusions, but we are starting to connect the dots and medical research is catching up. As the brain bank full of ex-football players with CTE continues to grow we must acknowledge that although the object of football might not be to cause brain injury, as it is in boxing, there does seem to be a growing preponderance of evidence that the game of football is not good for brains. But what about the helmets, you ask? There are no helmets in boxing but we have the best helmets that money can buy in the NFL. Surely that must make a difference. Unfortunately it doesn’t. There has never been a single medical study to show that helmets reduce the incidence of concussion or long term brain injury. Do they reduce the incidence of skull fracture and death due to acute brain trauma? Absolutely. But that’s not what we are discussing here. We are concerned with long-term cumulative brain injury.
Let’s take a quick look at how helmets are tested. The majority of helmets that are used for recreational activities such as biking and skiing and skateboarding are designed to withstand a single impact. This means that the helmet absorbs impact by deforming and is therefore intended to be replaced after a single impact. However, in contact sports, helmets are certified by the National Operating Committee on Standards for Athletic Equipment (NOCSAE) to withstand multiple impacts. How does NOCSAE test these helmets? Approximately 27 different impacts are created at different locations on the helmet with different velocities and under different temperature conditions. “A passing helmet model is able to withstand all impacts.” This means that the helmet survived the impacts. It says nothing about the forces that occurred inside of the helmet and whether the accelerating/decelerating brain inside of the skull that is inside of the helmet can survive those impacts. Furthermore, 27 impacts occur in 1 single days worth of a football game or practice. So these tests do not measure whether the helmet can survive an entire season of impacts.
So the majority of helmets are indicated for single use only. But some, such as football are indicated for repetitive use. Does this mean that they prevent the effects of repetitive or cumulative brain injury? No. It just means that with repetitive use the helmet (or your skull for that matter) won’t break down. But even still, the helmet needs to be refurbished or replaced after a certain amount of use. But what about your brain? Does it get to be refurbished or replaced after a certain amount of use? Isn’t it time that the helmet companies and NOCSAE start calling the football helmet what it really is? It’s a device that will protect your skull up to a certain amount of wear and tear but has no claims whatsoever for protecting your brain against long term brain damage. In fact, it’s really a device that is only certified to withstand 27 impacts. So therefore it should only be used for one day of playing football. So either NOCSAE has to develop more rigorous testing, or the certification should only be good for one day of use and football players should only be allowed to wear a helmet for one day until it needs to be replaced. Otherwise it violates NOCSAE standards. Since the NFL, NCAA and National Federation of State High School Associations all require the use of NOCSAE approved helmets, one could therefore say that in order to be in compliance, each of these organizations would need to supply its players with new football helmets for every single day of use. While the NFL might be able to afford this, surely most colleges and high schools could not. So if someone were so inclined to “legislate the banning of football” all they would have to do would be to deny government funding (high school and collegiate) to schools that weren’t following these standards. I am not going so far as to say that this is what needs to be done, however, it is important that we all understand what is currently occurring with football helmet use and certification. I can guarantee that these are facts that the majority of past and present football players are unaware of. Once we have all completely digested and understood these facts, can we then make well-educated decisions about whether or not we want to play football. And if we as a society (or the AMA as a medical society) decide that playing this dangerous game of football should not be allowed to continue in its current form until a helmet can be designed to prevent the long term brain damage… Well, then we may in fact be seeing the beginning of the end of football as we know it.
Ultimately isn’t that what today’s crisis is all about? We already know what the potential effects of football related concussions and head injuries are. The cat is out of the bag. The question is whether or not the NFL has understood this and made sure that its players were fully informed about the risks. How the NFL chooses to handle its past is up to them. But going forward let’s make no mistake… EVERY NFL PLAYER SHOULD BE FULLY INFORMED THAT PLAYING PROFESSIONAL FOOTBALL CARRIES AN INCREASED RISK OF HEAD INJURY WHICH MAY HAVE LONG-TERM EFFECTS AND HELMETS DO NOT PREVENT THIS. Does this mean that professional football needs to be banned or changed? No, I don’t believe that it does. But we do need to be aware of what it is. Let’s call a spade a spade. Let’s not gloss over the issue by having a safety first campaign, or throwing millions of dollars towards helmet research or touting an independent neurologist on the sidelines and that concussions are finally going to be managed correctly. These things are great and long overdue, but they ultimately don’t negate the fact that unless repetitive head contact is taken out of the game of football, (let’s say it again): EVERY NFL PLAYER SHOULD BE FULLY INFORMED THAT PLAYING PROFESSIONAL FOOTBALL CARRIES AN INCREASED RISK OF HEAD INJURY WHICH MAY HAVE LONG-TERM EFFECTS AND HELMETS DO NOT PREVENT THIS. I don’t know whether or not that means that every player needs to sign something that clearly illustrates this understanding before they play in the NFL. I will leave these issues up to the lawyers. Whether or not the NFL recognizes itself for what it truly is will be something that may ultimately end up being determined in a court of law. But what I do know is that sooner or later the public will realize what the NFL truly is. It’s bloodsport. It’s still a great sport. It’s entertaining and love it or leave it, it’s part of our culture. But let’s not call it safe anymore. It’s a very unsafe sport and it’s a very unsafe profession. If players fully understand their risks and agree to play, and spectators understand the risks and agree to watch, then the NFL will continue to exist, just as it has… just as boxing has. And I will continue to watch.
Stay tuned for the more complicated part of the story with Part II of “The Reclassification of Football: The Collegiate, High School and Youth Game of Football”.
After two months of court-ordered negotiations, the NFL and players announced a proposed deal that for many falls well short of expectations.
My initial reaction to the deal was, and still is, that it is fair. Most importantly, it is beneficial to the players and families currently suffering with severe neurological disorders.
Yes, the dollar figure pales in comparison to the annual revenue of the NFL and teams. The fact that the NFL’s alleged misconduct may never be discovered—unless certain players opt out—is a detriment to the public.
However, when balanced against the lives of many players and families that are on the verge of bankruptcy and death, the urgency is clear. Guaranteed money now is much better than no money after years of litigation.
As I’ve said repeatedly, whether this lawsuit was successful or not, the most important thing already occurred: a new era of concussion awareness was born.
One of the biggest reasons why this case didn’t settle for more than a billion was due to the complex legal issues—specifically, causation—that the plaintiffs would face as they tried to prove their claims.
According to a report by the Fainaru brothers, causation may not have been the only reason why the settlement was much lower than expected. Apparently, Judge Brody signaled multiple times that she was going to dismiss the strongest part of the players’ case.
Although I don’t question the Fainaru brothers’ report in the slightest, I do question the legitimacy of the threatened dismissal.
I say this because, based on my interpretation, the threat of dismissal is contrary to the law.
The strongest theory in the plaintiffs’ case revolved around the creation of the Mild Traumatic Brain Injury Committee. In 1994, the NFL voluntarily assumed a duty to spearhead concussion research.
According to the plaintiffs’ allegations, the NFL spent the next 15 years denying and orchestrating an affirmative campaign of disinformation designed to manipulate the players’ understanding of neurological risks.
Since this voluntarily and/or gratuitously assumed duty is independent from the CBA, preemption should not be triggered. The Third Circuit precedent bolsters this conclusion, and the case law should have foreclosed the dismissal of all negligence and fraud based claims that relied upon the MTBI Committee’s conduct. See, Kline v. Security Guards, Inc. 386 F.3d 246; Trans Penn Wax Corp v. McCandless, 50 F.3d 217; See also, Voilas v. General Motors Corp., 170 F.3d 367.
If Judge Brody were truly leaning towards the dismissal of these claims, it would have been an unpredictable shocker. I think most scholars believed that the claims hinging on the MTBI Committee’s conduct were the most likely to prevail.
Nevertheless, the threat of having the heart of the plaintiffs’ case tossed out of court – if true – had to have been the overriding force in getting the deal done.
On the other hand, if the dismissal was just posturing, then I think the entire report was based on a source that was jockeying for a settlement in an attempt to counter the public’s perception that this deal was lousy.
In other words, according to the source’s reasoning, the players had no other option but to settle at this number because the value of the case would have been significantly weakened if Judge Brody had ruled on the NFL’s Motion to Dismiss.
This source also purports to send warning signals to any player contemplating whether he should opt out (this simply means declining to take part in the settlement). So the reasoning goes: if a player opts out, he’ll face a significant and perhaps futile hurdle in defeating preemption, and thus his entire case would be tossed out of court.
Again, this source may have simply taken this position in order to garner a settlement. This leads to the final point.
Although there is a deal in principal, the settlement must be confirmed by Judge Brody. Class-wide notices will soon be sent out to all former players and their families. The notice will set forth the terms of the deal and provide the player with the right to opt out.
The terms of the settlement will have a deal-buster provision (aka a “blow-up provision). This means that if a certain number of players choose to opt-out, then the entire settlement agreement could be terminated. It is unknown at this time what the necessary number (or percentage of players) must opt out in order to trigger this provision.
If the public’s perception of the deal is an accurate indicator, then the provision may very well be triggered. Even if the provision is not triggered, that does not foreclose individual players from opting out and marching ahead with their lawsuit.
If a player chooses to opt out, he can pursue an individual lawsuit against the NFL in hopes of maximizing his settlement value. This means discovery is still possible, and the public may have an opportunity to find out exactly what the NFL knew and when they knew it.
This route, however, is risky.
Various studies have shown that class members who opt out and pursue individual claims often times increase what they would have recovered in the class settlement by many multiples. For example, instead of a $170,000 settlement, a player could receive $1,700,000 – or NOTHING!
Although the potential for a significantly enhanced settlement or verdict is appealing, it comes with significant risks. In the event a player decides to opt out, and his case is later defeated on preemption grounds or on the merits, his rights are fully extinguished and he will receive NOTHING from the settlement.
Stay tuned; the NFL Concussion Litigation is far from over.
NFL and Players announce a historical settlement. The press release issued from Judge Layn Phillips, the appointed mediator, is pasted below:
NFL, RETIRED PLAYERS RESOLVE CONCUSSION
LITIGATION; COURT-APPOINTED MEDIATOR
HAILS “HISTORIC” AGREEMENT
Thousands of Retirees and Families to Benefit
Medical Testing; Research; Compensation and
Promotion of Safety All Part of Agreement
Former United States District Judge Layn Phillips, the court-appointed mediator in the consolidated concussion-related lawsuits brought by more than 4,500 retired football players against the National Football League and others, announced today that the parties had reached an agreement that would end the litigation against the NFL and NFL Properties and provide medical and other benefits, as well as compensation, to qualifying injured players or their families.
The agreement came after nearly two months of intensive negotiations under the supervision of Judge Phillips. It will be submitted for approval to United States District Judge Anita B. Brody, who is presiding over these cases in federal court in Philadelphia. Under the agreement, the NFL and NFL Properties will contribute $765 million to provide medical benefits and injury compensation for retired NFL football players, fund medical and safety research, and cover litigation expenses. Attorneys’ fees, to be approved by the district court, will be paid in addition to the settlement amount.
“This is a historic agreement, one that will make sure that former NFL players who need and deserve compensation will receive it, and that will promote safety for players at all levels of football,” said Judge Phillips. “Rather than litigate literally thousands of complex individual claims over many years, the parties have reached an agreement that, if approved, will provide relief and support where it is needed at a time when it is most needed. I am deeply grateful to Judge Brody for appointing me as mediator and offering me the opportunity to work on such an important and interesting matter.”
“This agreement lets us help those who need it most and continue our work to make the game safer for current and future players. Commissioner Goodell and every owner gave the legal team the same direction: do the right thing for the game and for the men who played it,” said NFL Executive Vice President Jeffrey Pash. “We thought it was critical to get more help to players and families who deserve it rather than spend many years and millions of dollars on litigation. This is an important step that builds on the significant changes we’ve made in recent years to make the game safer, and we will continue our work to better the long-term health and well-being of NFL players.”
“This is an extraordinary agreement that will provide immediate care and support to retired players and their families,” said lead plaintiffs’ attorney Christopher Seeger of Seeger Weiss LLP. “This agreement will get help quickly to the men who suffered neurological injuries. It will do so faster and at far less cost, both financially and emotionally, than could have ever been accomplished by continuing to litigate.”
“The benefits in this agreement will make a difference not only for me and my family, but also for thousands of my football brothers who either need help today or may need help someday in the future,” said Kevin Turner, a former running back for the Philadelphia Eagles and New England Patriots. Turner, who has been diagnosed with ALS, will serve as the lead plaintiff for one group of retired players. “I am grateful that the NFL is making a commitment to the men who made the game what it is today.”
Once final documentation is completed, the settlement will be filed with Judge Brody, who will then schedule a hearing to consider whether to grant preliminary approval to the agreement. If the settlement receives preliminary approval, Judge Brody will direct the parties to distribute notice to the retired players. After giving retired players an opportunity to file objections to the settlement, Judge Brody will hold a hearing to consider whether to grant final approval. Judge Brody is expected to issue the precise schedule within a few weeks.
“Approval of the settlement will require Judge Brody to determine that it is fair, reasonable, and adequate in light of the claims and defenses, and the expense, uncertainty and time inherent in litigating the claims, particularly given the benefits provided by the agreement,” said Judge Phillips. “There is no question that this settlement will provide benefits much sooner, and at much less cost, for many more retirees, than would have been achieved through extended litigation. For these and other reasons, I will strongly endorse this settlement in my report to Judge Brody.”
A summary of the key terms of the agreement is attached.
Principal Terms of NFL Litigation Settlement
Class Settlement – The settlement will include all players who have retired as of the date on which the Court grants preliminary approval to the settlement agreement, their authorized representatives, or family members (in the case of a former player who is deceased).
No Admissions of Liability or Weakness of Claims – The settlement does not represent, and cannot be considered, an admission by the NFL of liability, or an admission that plaintiffs’ injuries were caused by football. Nor is it an acknowledgement by the plaintiffs of any deficiency in their case. Instead, it represents a decision by both sides to compromise their claims and defenses, and to devote their resources to benefit retired players and their families, rather than litigate these cases.
Payments – The NFL and NFL Properties will make payments in connection with the settlement as follows:
(A) Baseline medical exams, the cost of which will be capped at $75 million;
(B) A separate fund of $675 million to compensate former players who have suffered cognitive injury or their families;
(C) A separate research and education fund of $10 million;
(D) The costs of notice to the members of the class, which will not exceed $4 million;
(E) $2 million, representing one-half of the compensation of the Settlement Administrator for a period of 20 years; and
(F) Legal fees and litigation expenses to the plaintiffs’ counsel, which amounts will be set by the District Court.
Timing of Payments – If the agreement receives preliminary approval from the District Court, the NFL will pay the costs of preparing and distributing notice to the class members (up to $4 million). If the settlement receives final approval, and any appeals have been concluded, the NFL will pay approximately 50 percent of the settlement amount over three years, and the balance over the next 17 years.
Baseline Medical Examinations – Eligible retired players may receive a Baseline Medical Assessment, the results of which will be used to establish a qualifying diagnosis, either now or at a point in the future. The baseline examination program will operate for a period of 10 years. After 10 years, any funds allocated for this program that have not been spent will be added to the fund for payment of monetary awards.
Injury Compensation Fund – The fund of at least $675 million will be available to pay monetary awards to retired players who present medical evidence of severe cognitive impairment, dementia, Alzheimer’s, ALS, or to their families. The precise amount of compensation will be based upon the specific diagnosis, as well as other factors including age, number of seasons played in the NFL, and other relevant medical conditions. These determinations will be made by independent doctors working with settlement administrators appointed by the District Court.
If a retired player’s condition worsens over time, he may apply for a supplemental payment.
In the event the Injury Compensation Fund ultimately is deemed insufficient to pay all approved claims, the Settlement Administrator will make a recommendation to the Court that the NFL make an additional, one-time contribution to the Injury Compensation Fund up to a maximum amount of $37.5 million.
Research and Education Fund – The NFL will allocate $10 million toward medical, safety, and injury-prevention research, and toward educating retired players on NFL benefits programs. A portion of this fund will be used to support joint efforts by the NFL and retired NFL players to promote education and safety initiatives in youth football.
Other Benefits – No retired player will forfeit or become ineligible for any other benefits provided by the current Collective Bargaining Agreement between the NFL and the NFL Players Association.
Schedule for Further Activity – The parties will prepare and file complete agreements with Judge Brody in Philadelphia, who will then schedule a hearing to consider whether to grant preliminary approval to the settlement. Assuming preliminary approval is granted, the Judge will direct that notice be given to the retired players and will schedule a hearing to consider whether to grant final approval to the settlement.
Q & A with Judge Layn Phillips on NFL Litigation Settlement
Who will receive the money and how?
Retired players will have the opportunity to participate in baseline medical exams. Players with demonstrated cognitive injury, now or in the future, will be able to obtain a monetary award. The decisions regarding who qualifies and the amount of the award will be made by independent doctors and fund administrators agreed upon by the parties, and the federal court in Philadelphia will retain ultimate oversight.
How will the medical monitoring work?
A nationwide network of health care providers will be available to give the baseline exams to retired players. The goal will be to make the exam sites convenient so that as many retirees as possible can take advantage of the potential medical benefits.
Is this an acknowledgement by the NFL that it hid information on long-term effects?
No. An agreement doesn’t imply anything about either side’s position. It doesn’t mean that the NFL hid information or did what the plaintiffs claimed in their complaint. It does not mean that the plaintiffs’ injuries were caused by football or that the plaintiffs would have been able to prove that their injuries were caused by football. On the other hand, it doesn’t mean that the plaintiffs wouldn’t have been able to prove their case. The settlement means that the parties reached an agreement to put litigation behind them, get help to retired players who need it, and work proactively to support research and make the game safer. These are goals everyone can share.
What would be the process without a settlement?
Absent a certified litigation class or some creative form of consolidation, every case would have to be addressed individually. Doing so would be complicated, time consuming, expensive, and the outcome for both sides would be highly uncertain.
How were you able to get the parties to settle something that seemed so contentious?
To their credit, both sides recognized that it would be far more productive to get out of court and do something good for retired players with medical needs and focus on the future of the game and making it safer. I would characterize it as a ‘win-win.’ The alternative was for the two sides to spend the next 10 years and millions of dollars on litigation, which would have been great for lawyers, expert witnesses, trial consultants and others. But it would not do much for retired players and their families who are in need. This resolution allows the sides to join together, do something constructive, and build a better game for the future. Both sides faced major risks and uncertainties that made a class settlement far and away the best path for resolving these issues.
Will this prevent other lawsuits of this nature from being filed?
For a variety of reasons, the underlying theory of this lawsuit about what took place in the past would be difficult to replicate in the future. Everyone now has a much deeper and more substantial understanding about concussions, and how to prevent and manage them, than they did 20 or even 10 years ago, and the information conveyed to players reflects that greater understanding. In addition, the labor law defenses asserted by the NFL would represent a very substantial barrier to asserting these kinds of claims going forward. The combination of advances in medical research, improved equipment, rules changes, greater understanding of concussion management, and enhanced benefits should, and hopefully will, prevent similar lawsuits in the future.
What should parents of kids who play football take from this settlement?
Parents should know that the NFL and the plaintiffs are committed to doing what’s right for the game and making it safer at all levels. The proposed settlement includes funds for medical research and education to support those goals.
On August 28, 2011, we lost our beloved son and brother Derek Sheely to a sports-related brain injury. It is inconceivable to us how, with all the attention on concussions, there is still no unified enforcement to prevent dangerous drills, stop false safety claims, or ensure proper medical attention to concussed athletes. We are haunted by the knowledge that Derek’s death was preventable, and we feel an obligation to share lessons that could prevent other children from suffering Derek’s fate.
- The Sheely family
A copy of the lawsuit can be found here: Derek Sheely, et al v. NCAA, et al
On July 8, 2013, with the highly anticipated ruling on the NFL’s motion to dismiss looming, Judge Anita Brody took many by surprise when she ordered the parties in In re National Football League Players’ Concussion Injury Litigation to mediation. Despite any undertones that the order may have revealed toward Judge Brody’s likely disposition on the matter, the order gives the parties a unique opportunity. With settlement seemingly a distant possibility prior to the order, the parties now avoid years of painstaking litigation by crafting a resolution through mediation or, at the very least, develop a better understanding of the issues (which may pave the way for a settlement further down the road). And as the mediation begins, the parties can build upon the professional sports industry’s recent embrace of mediation as a dispute resolution mechanism. Mediation contributed greatly to resolutions in the recent labor disputes of the NFL, NHL, and MLS (and was also used during the NBA’s labor dispute, albeit with less success). In the NFL’s recent mediation experience during the league’s labor dispute, the owners and players took part in three separate mediations. Those specific sessions can serve as a guidepost for the parties in the NFL concussion litigation as they attempt to resolve their issues through mediation.
Mediation, a form of alternative dispute resolution (“ADR”), is a self-determinative process, similar to negotiation (though instead with a neutral party at the helm), in which the parties determine a resolution rather than a judge, jury, or arbitrator. Despite being court-ordered in many instances, mediation is still voluntary. If a party withdraws from mediation, the litigation simply resumes. Moreover, the mediator cannot disclose anything said or done during the mediation to the court or to others (with some exceptions relating to the well-being or safety of others), and the discussions have no legal effect. Though mediation seems straightforward, for it to succeed in an industry as unique as professional sports, each party (including the mediator) must be cognizant of the many factors that can affect respective motivations and strategies and, in turn, a resolution.
For the NFL concussion litigation, in particular, the success of the mediation can easily be determined at the outset when appointed mediator and retired federal judge Layn Phillips decides how to conduct the proceedings. He can have the parties (whomever they send as representatives) appear at each session face-to-face (“joint sessions”) or in separate rooms with the mediator as an intermediary (“shuttle diplomacy”), or he can choose to utilize a combination of the two. Joint sessions may spur an immediate starting point. However, they are not appropriate in all situations, especially where the underlying emotions or nature of the issues may detract from fruitful discussions and cloud the path to settlement (As a former ADR professor of mine and mediator tells parties, “Mediators are not therapists”). Shuttle diplomacy also presents obstacles, as it too may impair the parties’ ability to engage in candid dialogue. The lack of face-to-face discussions was a common complaint among players in the two failed mediations in the NFL’s labor dispute. There, as a last ditch effort, the parties engaged in several marathon joint sessions, which ultimately aided in the parties’ reaching a settlement.
With the NFL concussion litigation, the gravity of the claims at issue (i.e., wrongful death, fraudulent concealment, fraud) may suggest that it be more prudent and practical to separate the parties. Still, wading through the complex issues of the case may not be feasible if the parties are separated given the number of parties involved and the time and money that is required for any protracted discussions. These are all factors that Judge Phillips must consider when deciding how to conduct the mediation; a decision that may seem trivial but will undoubtedly have a great impact.
Another seemingly insignificant yet determinative wrinkle to the process is the parties’ commitment to confidentiality. Surely, the media has and will continue to report on concussions in the NFL, which have rightfully become a matter of great public interest. Still, the order to mediate explicitly requires that the parties refrain from any public disclosure regarding the discussions. The decision to leak details of the talks or to wage a publicity war while mediation is ongoing not only violates the court’s order but also eliminates any semblance of trust between the parties. For example, in the NFL’s labor dispute, the court imposed a confidentiality order regarding the mediation, yet both the parties and the omnipresent “anonymous sources” routinely disclosed intimate details of the talks. This hindered any progress and, not surprisingly, contributed to the failure of the first two mediations. Only once the parties made an effort to maintain confidentiality were they able to reach a mediated settlement.
The high-profile nature of the NFL concussion litigation assures that there will be similar confidentiality issues. Neither the media nor the public are bound by the order and undoubtedly have no intention of respecting it, so it is up to the parties to prevent any detailed information from being disclosed. If media reports surface with any details of the talks (nothing has leaked as of yet), take that as an early indication that not all parties are serious about mediating toward a resolution and that the parties will find themselves back in court.
Lastly, imperative to the success of the mediation is the parties’ preparation for and approach to the discussions. More specifically, a concept or strategy that often gets overlooked in negotiation (and, in turn, mediation) is grasping the value of one’s “best alternative to a negotiated agreement” (“BATNA”). Simply put, this concept consists of a calculated balancing of the relative extrinsic and intrinsic benefits that settlement and its alternatives offer. If a party’s BATNA will lead to a better result than a projected settlement, that party is best served to follow the alternative. But as the circumstances of a dispute change, so, too, do parties’ interests, the relative balance of power, and whether settlement does, in fact, outweigh the alternatives.
For example, in the NFL’s labor dispute, the first two mediation attempts occurred while the district court and court of appeals, respectively, were close to issuing significant rulings in each case. Despite the uncertainty involved, each party seemed to believe that their BATNA—continuing with litigation—outweighed settlement. But by the third mediation, the parties’ alternatives had changed. Without a settlement, the parties would be faced with a prolonged lockout. As their alternatives narrowed, the parties became more aware of and focused on engaging in interest-based bargaining (i.e., exploring mutual gains), which ultimately aided in a resolution.
Similarly, the NFL concussion litigants find themselves mediating with the court’s pending ruling on the motion to dismiss in the backdrop. Either side may adopt the belief that they are better off waiting for Judge Brody’s ruling rather than to mediate. But if the parties were to adopt an interest-based bargaining approach, they may find settlement at this early stage of the litigation to be advantageous. Consider the many nuanced issues of the dispute. Even if the litigation were to survive past the motion to dismiss stage, the court may simply be unable to provide the parties with adequate remedies. For instance, the plaintiffs’ claim for medical monitoring presents several obstacles for the plaintiffs from both a practical and legal standpoint. Across the aisle, the NFL is undoubtedly aware of the effect that prolonged litigation and factual discovery may have on its future liability, image, and, ultimately, bottom line (see, for example, the recent internal emails from the NCAA concussion litigation). Mediation enables the parties to address these issues and contour a mutually-favorable resolution.
If the NFL concussion litigants are to maximize the benefits of mediation, they must be mindful of the foregoing factors, which are by no means exhaustive. Even if the effort does not lead to an immediate settlement, the parties’ candid dialogue, respect for confidentiality, and willingness to engage in interest-based bargaining can pay dividends in the future. The experience may provide the parties with a better understanding of the underlying issues or interests, temper expectations, and serve as a catalyst for future settlement.