As one concussion MDL reaches the stage of resolution, another battle is set to begin. Following a similar path of the NFL, the NCAA Concussion Litigation has reached a point where the consolidation of multiple lawsuits into a single forum has been ordered.
In late December 2013, the Judicial Panel on Multidistrict Litigation ordered all pending putative class actions against the NCAA to be transferred and consolidated to the Northern District of Illinois.
As we saw with the NFL Concussion Litigation, when there are multiple lawsuits pending throughout the country, it is most efficient for the cases to be sent to a single forum in front of a single judge.
Philadelphia is the battleground in the NFL litigation and the “referee” is the Honorable Judge Anita B. Brody. For the NCAA litigation it will be Chicago, with the Honorable Judge John Z. Lee presiding.
The genesis of the NCAA litigation is slightly different, which has triggered in fighting amongst the plaintiffs’ lawyers. (Forthcoming article: Motion Filed to Halt Settlement Negotiations) The Arrington case, filed more than 2 years ago, has advanced the players’ claims significantly. The lawyers engaged in a voluminous amount of discovery, uncovering damning communications that undoubtedly showed the NCAA’s betrayal of the student-athletes.
The Arrington lawyers were able to advance the case to a point where the NCAA was publicly humiliated and concerned that class certification was a real possibility. The NCAA raised the white flag, initially, and it was announced that the parties were heading to mediation. Catching word of this, other lawyers around the country started to file putative class actions — whether this was done for altruistic reasons or to represent non-proposed-class members’ claims (i.e. pre-2004 student athletes) is debatable.
Against this backdrop, MDL No. 2492 In Re: NCAA Student Athlete Concussion Injury Litigation was formed.
The first step in multidistrict litigation is the development and appointment of a leadership structure. Judge Lee has ordered the parties to identify two Lead Counsel to represent the players.
In the NFL litigation, Chris Seeger and Sol Weiss fill this role. As you saw, these lawyers basically have all the power, so it is clearly a coveted role to assume.
Multiple lawyers will obviously be vying for these two positions. Since two factions have apparently formed—i.e. the Arrington lawyers vs. all the others—the court may be inclined to appoint a representative from each faction.
By making these appointments, it may be the first step in resolving some of the bickering that has developed. If the parties cannot reach an agreement by February 24, 2014, Judge Lee will be forced to make the decision at or before the March hearing.
That initial pretrial conference is scheduled for March 5, 2014 at 2 pm. This hearing should iron out whether resolution viz-a-viz the ongoing mediation with Judge Phillips will remain fruitful or if protracted litigation is necessary.
If it’s the latter, then additional discovery will be planned and the putative class will be restructured to include virtually all former student athletes that played a contact sport at any NCAA-affiliated college.
At bottom, the next four weeks will be critical in assessing whether the lawyers can put aside their differences, and focus on a global resolution that will benefit all former and current student athletes.
By: Carrie Truax
Early in the film, Head Games, narrator Christopher Nowinski says, in reference to playing football, “It’s the closest thing to being a warrior without having to actually go to war.” I found this quote to be very intriguing, because to me, American culture is vividly manifested in football. Sports culture rules social interaction. Especially in the last five years, there has been a shifted focus on honoring the military in sports. Nowinski’s comment about being a warrior called to mind some very important comparisons between the two contexts. Military personnel are sent into battle with extreme protection, and trained to withstand countless physical attacks. Professional football players enter the stadium with pounds of protective equipment, prepared to make tackle after tackle. With that being said, I do not believe football players are given the same education as soldiers in battle. Lifelong illnesses, physical complications, and eventually in some cases, even death are all a result of playing professional football. Head Games made this point, but I do think it underestimates that playing professional football actually is going to war -going to war against your own body.
In this documentary, doctors and ex-professional football players band together to make a clear argument for better protection, more education, and less romanticizing in professional sports in order to alleviate the exponentially growing number of head injuries. In my opinion, the most important argument made in this film is the need for greater education. Head Games stated that 14 out of the first 15 players they studied had developed chronic traumatic encephalopathy or CTE, which results from mutiple concussions or head injuries. All of these patients were studied post-mortem, as that is the only way to clearly detect CTE. A greater need for education from the National Football League, NCAA, Pop Warner, statewide high school associations, and little leagues is perhaps the only way for changes to be made. Education and awareness about the causes of repeated distress on the brain is the only way to fully combat this epidemic.
The documentary also states that rest appears to be the soultion, yet players do not get off the field in time or in some cases – at all. At times, players well-being can be sacrificed for the good of the team, especially if the future of the season is at stake. According to Head Games, players should demand appropriate rest time and withdraw from competition if continual head trauma ensues.
Once proper education and awarenss are fully developed and intertwined in the football atmosphere, players will be more apt to reveal when they are in pain. At the same time, coaches and parents alike will be more aware of symptoms or signs of head trauma and will be more likely to protect athletes.
Finally, sports have been heavily romanticized by the media, especially in the new media age. Sporting events are not only covered live by sport media companies, but also by ameatur sport journalists, better known as fans. Social media enables fans, athletes, coaches, and sports jouranlists alike to unite on a common front to idealize sports. Networks like ESPN and FoxSports have even a greater responsibility in the glamourization of sports. All of these entities combined are guilty of romanticizing sports. Because such a heavy influence is placed on competition, and the outcome of competition, little weight is placed on injury and the need for injury awareness. Once the leaders of professional sports leagues demand control, serious sporting injuries like concussions can begin to be remedied.
Head Games challenges its viewers to consider all circumstances related to the seriousness of concussions. From the professional ranks to little league, players should watch Head Games to become aware of the conditions surrounding head trauma. Although there have been great strides in the recent past to overcome these injuries, there is still work to be done. Most importantly, the leaders of sport organizations need to place as much value in head trauma education as they do ticket sales. Concussions and CTE are issues that can no longer be ignored. I commend advocates like Christopher Nowinski for taking the first step in player awareness and education. There needs to more films like Head Games and organizations like the Sports Legacy Institute to provide adequate education and awareness, better protection, and less romanticizing in professional sports.
Carrie Truax, a native of Madison, IN, is a senior Communication Studies major at Clemson University. While at Clemson, Carrie has worked in the Athletic Communications Department for 3 years. She has also interned with the Washington Redskins and the Atlanta Falcons. Upon graduation, Carrie plans to attend graduate school and pursue a career in sports public relations.
One of the leading advocates for concussion awareness, Katherine Snedaker, is putting on an event that must not be missed:
Connecticut Students: Return to School THEN Return to Play
One Day Concussion Training offered in Two Connecticut Locations from 9 am to 3 pm
Thursday, January 30, 2014 Stamford: Chelsea Piers Connecticut
Friday, January 31, 2014 North Haven: Quinnipiac University School of Medicine
Helping Students with Concussions Return To Learning: Accommodating the K-12 School Day with Concussion Management Teams
This is not a simply “concussion awareness” event. Instead, each of the days will focus on Learning about Best Practices in Concussion Management from national experts. Then with new information and insight, participants will brainstorm with other stakeholders about solutions to improve concussion care for Connecticut students. The morning sessions are designed teach specifics for each group below, and afternoon panel discussions will provide networking and sharing opportunities between groups.
For School Nurses & Staff – Learn strategies and accommodations for student concussion management during the school day with the goals of reducing student symptom severity and potentially promoting a faster recovery. Learn how to implement a Concussion “Return to School” Protocol at the local level. Learn from Brenda Eagan Brown, MEd, CBIS, co-author of the new 2013 CDC Resource: Helping Students Recover from a Concussion: Classroom Tips for Teachers.
SPORTS NIGHT
The Student Athlete – Concussion Issues for Coaches, Athletic Trainers and Officials: Managing the Risk
A Presentation for Sports Organizations by Alan Goldberger, a nationally recognized authority on sports officiating and sports law
By: Ali Rogers
Run faster. Play tougher. Hit harder. We disregard the consequences of over-aggressive behavior in sports and rave about the hardest hit in last weekend’s big game. We set aside the physical, psychological, and cognitive repercussions of blows to the head because admitting something might be wrong shows weakness. We somehow allow our priorities to fall in the wrong order, sacrificing the well being of athletes while deeming the most aggressive players as the most valuable players. We, in these regards, are the unaware and uninformed. But even as we are becoming more aware and more informed, does knowing lead to prevention? “Head Games” gives us an extensive view into the risks and dangers of sports-related concussions. While awareness may be the only truly effective effort, the authors of the film highlight a significant attempt to spread the message and to make athletes, coaches, and parents ask, is it worth it? Key themes throughout “Head Games” are the state of denial of the risk factors in which some people remain, the emotional and physical toll concussions take on athletes, and the willingness to sacrifice the well being of one’s self in the name of optimum athletic performance.
From young athletes who don’t want to know the effects of concussions on the brain to parents who don’t care to hear an activist’s warning, “Head Games” reveals an over-arching sense of denial existing in the sports world. A number of youth, parents, and coaches would rather turn a blind eye to the reality of concussions rather than take action in preventing damage to the brain. Even with more than sufficient amounts of research, they somehow justify allowing such aggressive behavior by simply pretending that severe brain damage caused by concussions does not exist. The question this pattern poses is, why? The instinct theory explains that violence is innate, a characteristic inborn and permanent. Thus, aggressive behavior in sports is considered normal and expected. This justification makes it easy for adults to allow even the youngest of athletes to give it all they’ve got and to never admit there just might be something wrong. Athletes, coaches, and parents deny the severity of concussions to intensify the athletic performance. The more aggressiveness and intensity demonstrated in a game, the more valuable the player is viewed. Denial of the reality will remain in existence until the sports world accepts the reality.
A chronic brain disease is driving an alarming number of players to madness…literally. It seems that playing sports, from little league ball to the pros, gives an individual a certain edge. Being an athlete brings on a certain “cool factor” and often makes others believe he or she has it all together. In reality, some of the all-time greats battle demons deep within themselves – demons caused by emotional disturbance from damage to the brain. Some concussions have brought premature ends to athletic careers; some have even led to suicide. “Head Games” highlights stories of individuals who have experienced sports-related brain damage and one tragic story of the considerable harm concussions can cause. Not only does a lifetime of hits and tackles cause physical suffering, but psychological and cognitive consequences as well. What happens inside the brain may be more devastating than any visible injury.
The juxtaposition of preventing concussions while spotlighting the best hits from the big game puts the sports realm in an awkward state. Mass media have the potential of being the greatest tool in prevention and awareness. All the while, they have more power in their hands than anyone to draw attention to the most spectacular hits. After all, the biggest, baddest hits are what bring in the viewers. As athletes strive to make a name for themselves, they allow this socially learned idea that violence is normal to take hold of their personal goals on the field, court, rink, or in the ring. Most players are indeed aware of the risks, but they unfortunately are willing to overlook the dangers. The players decide to put recognition before good health, all in the sake of proving themselves. No great athlete ever accepts defeat. No great athlete ever shows weakness. No great athlete ever admits that it’s too much to handle. Right?
A helmet may be the only tangible object keeping an opposing player from his or her target. It’s the responsibility of the athlete, coaches, and parents, though, to accept the reality and play with awareness. An athlete must keep his or her priorities in line, even if it means admitting the need for a break. The severity of a brain injury may remain unknown until it’s too late. Steve James, Bruce Sheridan, Christopher Nowinski, and a number of others bring on a new appreciation for life in their film. As the film sheds light on the reality of concussions, the message hopefully reaches athletes, coaches, parents, fans, and media, showing how we each have a role to play in prevention and awareness. The idea that “ignorance is not bliss” is the foundation of Steve James’ lesson in the film (James, 2012). When we live in a culture of toughness in America, admitting that there might be a serious problem is not always a seemingly simple task. Once athletes put it in their heads that their health is more important than any ball game, any play, or any hit, they can finally grasp what is worth valuing and what shouldn’t be taken for granted.
Ali Rogers is a senior communication studies major at Clemson University. This is her fourth year as an intern for the Clemson Football program where she is now in media production, hosting Death Valley Live and the All In Highlight Reel. Ali served as Miss South Carolina 2012 and was first runner-up to Miss America 2013. She traveled over 60,000 miles speaking across the state of South Carolina and used her sports background to promote healthy and active living. She is a full scholarship recipient and will complete her studies at Clemson University in August of 2014.
Over the past two years I’ve closely followed the concussion litigation against the NFL. During this time, I became friends with several former players. Their harrowing stories shared a common theme: brains damaged by lies and deception.
I purposefully refrained from taking an active role in the litigation because I believed the players’ interests were adequately represented. I figured the players would be fighting the NFL for the next several years through a long and drawn out discovery process that would eventually uncover the truth.
To my surprise, the NFL and players’ attorneys announced a proposed settlement right before the start of the 2013 NFL season. At the time, I thought the deal was fair, but I quickly recognized otherwise.
Scores of players called me, sharing their dissatisfaction with the deal. One player told me bluntly, “What good is monitoring? I already know I’m f***ed up.” That’s tough to counter.
Although the deal is adequate for players suffering from dementia and other “severe” neurological diseases, it falls well short for the thousands of other players that are on the borderline. The deal cannot keep up with the rapid advancements in science. Living players are being clinically diagnosed with CTE (this should have been underway years ago, but for the NFL and Chiefs concerted efforts to conceal the reality of CTE). Simply put, $765 million is not enough to compensate all the players that likely have CTE.
Basically, the NFL is paying a fee to make the lawyers go away – many of them took the bait.
I decided that the fight must go on. The commentator hat is coming off. More work must be done. The public demands the truth and the players deserve justice.
To that end, our legal team (comprised of Ken McClain, Dirk Vandever and myself) filed the first ever brain injury lawsuit against the Kansas City Chiefs. Due to a unique opportunity in the law, Missouri is the only state that allows employees to sue their employers directly for occupational diseases. What’s more, our lawsuit is framed to focus squarely on the years (1987 – 1993) when no collective bargaining agreement was in effect.
Today, Chris Martin, Kevin Porter, Joe Phillips, Louis Cooper and Leonard Griffin took the first step to lead the former players down the path of justice. Many other players that played for the Chiefs or Rams could also benefit. The time is now.
A copy of the lawsuit filed today in Kansas City, Missouri can be found here: Cooper et al v. KC Chiefs.
Call us if you’d like to discuss your rights: 573-528-6478 or 816-836-5050.
In a not-so-surprising fashion, the NHL inevitably found itself facing the wrath of former players – and plaintiffs’ attorneys.
On Monday, a group of ten former players filed a putative class action in the District of Columbia. The lawsuit borrows a chapter from the NFL Concussion Litigation playbook.
The players allege that the NHL knew or should have known about the link between repetitive head trauma and neurological diseases since the 1920s, yet the NHL never shared this with the players.
Instead, the NHL created a concussion program in 1997 that spent the next 7-plus years studying concussions. Rather than sharing the results with the players immediately, the NHL allegedly waited until 2011 to report its findings.
The players also attack one of the so-called quintessential aspects of hockey: fighting. They allege that the “NHL has refused to outlaw fighting and all body checking despite significant medical evidence that to do so would substantially reduce the incidence of concussions in professional hockey.”
The players seek to represent a class of more than 10,000 retired NHL players. The putative class seeks medical monitoring – similar to what will be made available to NFL players in the proposed settlement.
Although the legal theories are similar, the factual allegations in the NHL litigation are far less damning than those asserted against NFL.
There is no evidence—at least publicly—that shows the NHL created (1) a brain injury committee, (2) headed by a rheumatologist and (3) spent 15-plus years creating false studies.
What’s more, the NHL actually looks somewhat reasonable—when compared to the NFL—by creating a concussion program and implementing baseline testing in 1997. But guidelines and rules are only as strong as their enforcement measures, which apparently didn’t happen here.
The NFL didn’t make significant changes to its concussion policies until it was scolded by Congress in 2009. To my knowledge, the NHL hasn’t been targeted by Congress. In addition, the NFL is still publicly denying that football causes brain damage. The NHL hasn’t made this pubic faux pas.
As with all professional sports litigation, the players will face an immediate threat of dismissal when the NHL raises the powerful preemption defense. Like the NFL, the NHL will soon argue that this is a labor issue that must be resolved by an arbitrator and not the court.
Derek Boogaard’s wrongful death lawsuit, pending in the Northern District of Illinois, is facing this legal hurdle as we speak. A ruling is expected soon to determine whether Boogaard’s lawsuit is completely preempted by federal labor law. Or if, as Boogaard argues and the NHL players will soon argue, the CBAs will not need to be interpreted and federal labor law is of no moment.
This expected ruling could make or break the NHL concussion class action.
If Boogaard successfully convinces the court that the CBA will not need to be addressed to resolve his claims, the NHL players will use this ruling to persuade the court in the District of Columbia that another federal judge looked at a similar issue and determined that the preemption argument is without merit.
On the other hand, if it is determined that some or all of Boogaard’s claims require an interpretation of the CBA, the NHL players may face an early and possibly devastating defeat.
Even if the players are successful in defeating the preemption argument, certifying a class may be well-nigh impossible.
For example, due to the dual-country aspect of the NHL, the choice-of-law issues may be so unmanageable that the court may determine that the prerequisites for certifying a class are not satisfied.
Actually certifying a class may not be necessary, however. In the NFL litigation, the parties agreed to settle before the certification issue even had to be briefed.
If the NHL litigation reaches a critical mass like the NFL litigation did (i.e. thousands of individual lawsuits filed throughout the country) this could create an unbearable incentive for the NHL to borrow the NFL’s playbook and discuss a global settlement.
While a group of 10 seems small, it certainly seems likely that former NHL players will start lining up to add their name to the NHL Concussion Litigation.
Undoubtedly, NHL players are suffering from similar neurological disorders—and the tragic fate—as many NFL players.
In the following years, Judge Layn Phillips may get to broker another “historic deal” in the exciting arena of concussion litigation.
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.
Why?
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.
The Science
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:
- http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1253627/
- http://www.lycaeum.org/research/researchpdfs/2002_mechoulam_1.pdf
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.