Kilburn policy analysis of the recent concussion lawsuit filed against the national football league (nfl)
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| Kilburn POLICY ANALYSIS OF THE RECENT CONCUSSION LAWSUIT FILED AGAINST THE NATIONAL FOOTBALL LEAGUE (NFL) Jarrod A. Kilburn jkilburn14@jcu.edu Political Science Senior Thesis & Honors Program Senior Thesis Department of Political Science in the College of Arts & Sciences, John Carroll University University Heights, Ohio Words: 16,074 Footnotes: 194 Pages: 57 TABLE OF CONTENTS
Works Cited 52
By all accounts, professional football appears to be thriving. According to a survey taken in January 2014 by the Harris Poll, adult fans aged 18 and over voted professional football to be their favorite sport among those in the professional realm1. 35% of fans in this age bracket voted for the National Football League (NFL), producing a margin of victory of 21% over the second place finisher, Major League Baseball (MLB)2. This was the 30th consecutive year the results of this poll have shown that the NFL was deemed to be the most popular sport among target responders3. Not only is the NFL the most popular of all professional sports, but it is the most valuable. For the 2013 league year, the NFL will bring in a little over $9.3 billion4, making it not only the most lucrative sports league in the United States, but in the entire world5. However, for all the success that the NFL has enjoyed over the past three decades, a number of threats may be looming as a result of the fallout from the recent lawsuit filed against the league by former players. This lawsuit began as a series of smaller suits that were eventually consolidated into one. The various lawsuits were filed over the course of the past decade by approximately 4,500 former NFL players, alleging that the league knowingly concealed information regarding the potential long-term risks of suffering a concussion, most notably chronic traumatic encephalopathy (CTE). In August of 2013, the NFL proposed a $765 million settlement to this lawsuit in an effort to appease the plaintiffs, while also hoping to avoid further litigation. Despite the fact that a settlement was reached in the case, it appears this is not the last that the NFL and we in the public sphere will hear about this issue because of the repercussions surrounding it, both intended and unintended. This thesis will explore a number of elements surrounding the concussion lawsuits filed against the NFL and its subsequent settlement. In part one, I will explore in-depth what exactly a concussion is, what the consensus on proper treatment of one should be, and the definition and discovery of chronic traumatic encephalopathy (CTE) in the brains of former NFL players. In part two, I will examine the lawsuit itself, providing details in chronological order as a means to educate the reader. The reason for this is that while I believe most people know that a lawsuit had been filed against the NFL, they may not know exactly why it was filed. In part three, I will explore the intended consequences of the lawsuit and what changes, if any, they hoped to bring about. In part four, I will perform a qualitative policy analysis of the lawsuit and its settlement by analyzing the various dimensions it encompasses, including legal, economic, ethical (in regards to the rules of the game), and medical. This analysis will also look at both the future of the game at the professional level and the league, in addition to the possibility of the case setting any legal precedent that could be used in the future. In undertaking this particular element of the thesis, I understand that there is no way to isolate all of the potential unintended outcomes that could result from the plaintiffs taking legal action against the NFL. But, by focusing on how the settlement of the suit has been received thus far, coupled with certain outcomes that were not originally detected, I will try to situate the lawsuit in a much wider and long-term context, while also attempting to predict its potential effect.
In the recent past, these injuries were described as “being shaken up” or “having your bell rung,” but today the term “concussion” is frequently heard when discussing these injuries in professional football. Every Sunday, or so it seems, at least one player is either forced from the game with a concussion or concussion-like symptoms. The word is now so prevalent in the modern lexicon of the league that it would appear that everyone with any level of stake in it, be it fan or player, knows exactly what it entails. This is not the case. Too many people surrounding or involved with the NFL know little about what a concussion truly is and how extremely severe an injury it can be. This section will serve to educate the reader on this matter. I have used the term concussion thus far in the thesis, both in the introduction and to this point. Yet in doing so, I have technically been remiss because that is an incorrect term. Concussions actually should be referred to as “mild traumatic brain injuries,” or mTBI’s6. The reason for this is twofold. For one, this is the preferred clinical term by those who are involved in concussion science7. A second reason is that the term concussion, unfortunately, carries a long history of underestimation, at least in terms of its use in the United States8. It has been only during the last 30 or so years that in-depth and concentrated research has been conducted on mTBI’s, yielding “disturbing evidence regarding the profoundly deleterious and long-term effects of accumulated concussions9.” Contrary to what was once thought, a concussion really is a form of a traumatic brain injury, albeit one that could be considered mild (to put it in perspective, a more severe brain injury would be one that could be found in car accidents10). As a result of this, the injury “should be labeled as such as a reflection of the gravity of what is at stake11.” However, for the rest of this thesis, I will refer to the injury as a concussion rather than an mTBI. This is not only because of the ease of comprehension for the reader, but also because at a recent International Conference on Concussions in Sport, the panel (comprised of 28 people with one or more of the following: MD, PhD, MBBS, MB, and BS) chose to refer to the injury as a concussion12. The panel determined that a concussion is “the historical term representing low velocity injuries that cause brain “shaking”13.” Since a concussion is a subset of a TBI (traumatic brain injury), the panel chose to continue to refer to the injury as such. I will do the same. This brings us back to the main question at hand – what exactly is a concussion? According to the consensus reached at the International Conference on Concussions in Sport in November of 2012, a concussion is “a brain injury and is defined as a complex pathophysiological process affecting the brain, induced by biomechanical forces14.” They may be caused either by a “direct blow” to the head, face, and neck, or a blow to another spot on the body where an “impulsive force” can be transmitted to the head15. Concussions typically result in the “rapid onset of short-lived impairment of neurologic function that resolves spontaneously,” although in some cases the impairments may start to appear over a number of minutes to hours16. For the most part, concussions result in a “functional disturbance rather than a structural injury” and have a “graded set of clinical symptoms,” which may or may not include the loss of consciousness17. The resolution of the clinical and cognitive symptoms traditionally follows a particular order, but it is extremely important to be aware of the fact that, unfortunately, in some cases symptoms may be prolonged18. The panel found that the majority (which in this case was between 80% and 90%) of concussions subside within 7 to 10 days, which is a relatively short period of time when considering the fact that this is an injury to the brain19. Another oft-asked question when discussing concussions concerns the identification of symptoms. According to the panel, the suspected diagnosis can include symptoms of a somatic nature (such as a headache), a cognitive nature (such as the individual feeling like he/she is in a fog), or an emotional nature (such as lability20). Symptoms of a concussion can also include physical signs (such as a loss of consciousness or memory), behavioral changes (such as irritability), cognitive impairment (such as a delayed reaction time), and sleep disturbance (such as insomnia21). If one or more of the aforementioned symptoms appears to be present, a concussion should be suspected and should be dealt with through the appropriate channels22. But what exactly are the appropriate channels? And who defines them? According to those on the panel, when a player takes a blow to the head, neck, face, or body that causes the head to be affected and the player begins to show one or more of the symptoms of a concussion, the player should be evaluated by the physician or healthcare provider that is onsite using “standard emergency management principles23.” Once observed by a licensed onsite physician, the “appropriate disposition of the player” must be determined in a “timely manner24.” Upon exiting the playing surface, the panel determined that the concussed or potentially concussed player should not be left alone following the injury and should be closely monitored25. If the player is deemed by the physician to have a concussion he/she will be barred from returning to play on the day of the injury whether they are a non-elite athlete (a D3 football player, for example) or an elite one (NFL player, for example), something that was unanimously agreed upon by the panel26. The reason for this is that data from high school and college level athletes show that those athletes who suffered a concussion and were allowed to re-enter the game on the same day may “demonstrate neuropsychological deficits post-injury that may not be evident on the sidelines and are more likely to have delayed onset of symptoms27.” In terms of managing the concussion once it has been officially diagnosed, the panel agreed that the first thing that must happen is physical and cognitive rest (usually a period of between 24 and 48 hours) until the acute symptoms subside28. Once the symptoms have subsided, the panel listed a four-step process over the course of the next 96 hours (24 hours per each step) in order to get the athlete back up to speed and ready to compete the following week. The first step is light aerobic exercise, such as walking, swimming, or riding a stationary bike at less than 70% of maximum heart rate, in order to increase the heart rate and see how the body responds29. Step two in the process requires sport-specific exercise, such as an NFL running back going through a dynamic warm-up, in order to add movement without putting any risk of impact on the head30. The third step involves non-contact training drills, such as an NFL quarterback participating in some light throwing drills, in order to increase the level of exercise, coordination, and cognitive load31. Step four allows the player to go through a full contact practice with no restrictions, as if he/she had never suffered the concussion at all, in order to restore confidence and “assess functional skills by coaching staff32.” When all of these steps are completed with no set-backs or issues, then the panel agreed that the athlete should be allowed to be eligible to participate in the next game, as the player has demonstrated that there are no lingering after-effects and that he/she is symptom free. It is important to note before going any further that football is not the only sport dealing with concussion issues. For example, while football is the number one athletic activity with the most concussions, girls soccer comes in at a close second, as it has seen a 58% increase in the amount of concussions suffered in the last decade33. However, given the incredible popularity of football, specifically the NFL, the problem it has been reconciling with receives far more attention despite the fact that it is not an issue exclusive to football. The consequences of an athlete playing in a league like the NFL where there is contact on literally every single play returning before his concussion can properly heal could potentially be major. Not only are they at risk for suffering another concussion, but they could potentially be at risk for chronic traumatic encephalopathy (CTE). CTE was first described in 1928 as being characteristic of boxers who took considerable amount of punishment to the head34. The clinical symptoms then included “slight mental confusion, a general slowing in muscular movement, hesitancy in speech, and tremors of the hands35.” Degenerative effects of CTE, which were evidenced as early as 1928, include “marked truncal ataxia, Parkinsonian syndrome, and mental deterioration” so severe that in some cases institutionalization had to occur in order for proper care to be administered36. The reason for this severe cognitive degeneration is that repeated hits to the helmet over the course of an NFL career can potentially cause irreparable damage in the form of a toxic protein called tau developing in the brain37. When there is repeated trauma to the brain over a long period of time, the tau proteins begin to form and inevitably “choke off cellular life in the brain,” causing the aforementioned neurological deficiencies38. This is a distinctive disorder that the general population just simply does not develop (in other words, it stems from violent contact sports such as football) and only gets worse as the player diagnosed with it ages. Unfortunately, CTE cannot be tempered with early diagnosis, as the definitive diagnosis can only be made postmortem39 Over the past decade, the NFL has been forced to deal with the reality of CTE present in the brains of their former players. The legal action brought forth against the league as it pertains to CTE has received significant amounts of media attention40. This has stemmed from the recent “high-profile” suicides of former NFL players. In February of 2011, former Chicago Bears safety Dave Duerson, member of the vaunted 1985 Bears defense famously dubbed “The Monsters of the Midway,” committed suicide by shooting himself in the chest so as to preserve his brain, which he had asked to be studied after his death41. Post-mortem pathology of his brain showed that he had “diagnostic evidence of CTE42. In May of 2012, former San Diego Chargers and New England Patriots linebacker Junior Seau, a fan favorite and 12-time Pro Bowler, committed suicide in a similar manner to Duerson’s, as he too shot himself in the chest. Pathology of his brain also showed to contain elements of CTE43. Diagnosis has not just come from former players who have taken their own lives, though. In an article published in 2010 by Sports Illustrated, Dr. Ann McKee, an associate professor of neurology and pathology at Boston University who had been studying the brains of deceased former NFL players, was interviewed. In the interview, McKee revealed that in the past three years she was given the brains of 16 former NFL players by their families, some of whom suffered “dementia, ALS (amyotrophic lateral sclerosis), or severe depression44.” Rigorous testing had been performed on 14 of those brains, with a staggering 13 of them diagnosed with CTE45. In the brains of former offensive lineman Lou Creekmur and linebacker Wally Hilgenberg, McKee concluded that there were “hardly any areas untouched by the damage” and that the “incredible chaos in the brain” was so “widespread” that the two men were “demented” when they died46. Evidence of CTE in the brains of former NFL players was present much earlier than 2010, though. In 2006, Dr. Bennet Omalu, a forensic pathologist at the University of Pittsburgh, examined the brains of deceased former NFL players Mike Webster, Terry Long, and Andre Waters47. All three men had suffered multiple concussions during the course of their NFL careers. Prior to their premature deaths (none of the men were older than 50 years of age), all three men had shown “clinical symptoms of sharply deteriorated cognitive function and psychiatric symptoms such as paranoia, panic attacks, and major depression48.” Omalu concluded that CTE brought on by multiple concussions suffered during their NFL careers was a partial cause of their deaths49. After his final study of the brains of the former NFL players, Omalu asked himself “whether one should be surprised that CTE was evidenced in all three studies50.” Omalu answered his own question with a resounding “absolutely not51.” The aforementioned Dr. McKee would later agree with him, saying that she could say confidently that this was a “distinctive disorder” that the general population does not develop52. McKee also added that she had “never seen this disease in any person who does not have the kind of repetitive head trauma that football players would have53.” In short, some of the leading professionals in their respective fields who have done extensive research concerning the matter have claimed that CTE brought on by suffering multiple concussions is an entirely unique condition, one that could only be attained by playing an inherently violent sport like football. This claim, coupled with over 4,500 former NFL players alleging that the league misdiagnosed their concussions, mismanaged their concussions, and misinformed them about concussions as a whole is the crux of the recent lawsuit filed against the league.
The lawsuit filed against the league began relatively unceremoniously, but quickly grew to unprecedented size in terms of legal action being taken against a professional sports league. The first complaints were filed almost immediately after the league experienced its most recent lockout. On July 19, 2011, 75 retired players filed a complaint in the Los Angeles Superior Court against the NFL alleging “negligence, fraud, and a loss of consortium54.” The claim arose as a result of concussion-related injuries suffered by the plaintiffs during their playing careers that included some variation of “memory loss, headaches, dementia, tingling in the head and neck, sleeplessness, poor vision, and dizziness55.” The plaintiffs mandated that the NFL knew “for decades” the dangers associated with suffering multiple violent blows to the head, but “nevertheless failed to fulfill its assumed duty to protect its players from such dangers56.” They alleged that the league knew as early as the 1920’s of the harmful effects stemming from suffering a concussion, yet “concealed these facts from the coaches, trainers, and players until 201057.” It was argued in the complaint that the plaintiffs were completely unaware of these dangers and relied on the NFL to protect them58. Over the next six months, more former players dealing with similar symptoms as a result of suffering concussions during their playing days either joined the complaint in the Los Angeles Superior Court or filed their own. These actions led to the Judicial Panel on Multidistrict Litigation issuing an order on January 31, 2012 that consolidated several of these lawsuits against the NFL into one “”master” case of Multidistrict Litigation59. Like the initial complaint, these lawsuits also claimed “tortious60 conduct on the part of the NFL resulting in neuro-degenerative disease and injury” to the plaintiffs61. Just over nine months later, in June of 2012, attorneys representing over 2,500 individual lawsuits against the NFL filed a motion in the United States District Court for the Eastern District of Pennsylvania seeking to consolidate the aforementioned suits into a single class action suit62. Accompanying the motion was a “petition for relief,” which presented all the “factual allegations and legal theories of recovery63.” The petition filed against the league sought damages for “wrongful death, several varieties of fraud, negligence broken down over different time periods (pre-1968, post-1968, 1987-1993, and post-1994), and negligent hiring/retention64.” The motion was granted. Just over a year later, the number of former players either filing similar suits against the league or joining suits already filed nearly doubled. On January 24, 2013, it was reported that well over 4,000 retired players, more than one-third of players to ever sign an NFL contract, had filed or joined suits against the NFL pertaining to head injuries they suffered in their careers65. Among the plaintiffs were marquee stars, relative unknowns, player spouses, and even estates of players who had committed suicide as a result of their debilitating neurological conditions66. Some plaintiffs played as many as 282 NFL games, like former defensive lineman Jim L. Marshall, some in as few as 1, like former quarterback Pete Mikolajewski67. The following figures will help provide a visual representation of the wide range of the plaintiffs involved in the suit:
One of the largest complaints lodged by the plaintiffs in the suit was that the league was negligent, both in terms of properly informing the players of the potential risks of concussions despite knowing that there were indeed serious consequences of multiple traumatic head injuries and in terms of properly researching the harmful effects of concussions. This is where the 1994 Mild Traumatic Brain Injury Committee becomes extremely important in order to understand the consolidated lawsuit. In 1994, the NFL made its first attempt to address the issue of the increasing number of head injuries being suffered by its players. Then-NFL Commissioner Paul Tagliabue established the Mild Traumatic Brain Injuy (mTBI) Committee as a means to further study the effects of concussions on NFL players70. The committee, led by Dr. Elliot Pellman, a rheumatologist and then-head physician of the New York Jets, performed studies over the course of 14 years71. During that time, the committee found that there were only 0.41 reported concussions per NFL game between the 1996 and 2001 seasons72. It was figures like these that allowed Pellman to conclude the following after nearly a decade and a half of research: [B]ecause a significant percentage of players returned to play in the same game as they suffered an mTBI and the overwhelming majority of players with concussions were kept out of football-related activities for less than 1 week, it can be concluded that mTBIs in professional football are not serious injuries.73 However, it was right around this time that these reports were published that the aforementioned research by Dr. Omalau and Dr. McKee on CTE came to light. It should be noted that the Tagliabue-founded mTBI Committee did not discover any cases of CTE in NFL players, and that the league’s “official stance denied any increased risk of suffering injury after a concussion74.” In fact, the mTBI Committee had limited CTE cases to being reported “only in boxers and a few steeplechase jockeys75.” When Dr. Omalu concluded in an article written in 2005 for Neurosurgery that CTE brought on by multiple concussions partially caused the deaths of the three previously mentioned players’ brains he had studied, the NFL wrote a letter to the editor of the publication asking Omalu’s article to be retracted76. The NFL and its mTBI Committee claimed that Omalu had “misinterpreted and misapplied the applicable medical literature on CTE,” and questioned the amount of medically defined “traumatic” blows to the head that offensive lineman actually take77. This was in the face of multiple doctors finding Omalu’s football-CTE theory to be plausible and consistent with the similarities between football and boxing, as that was the sport most commonly associated with CTE78. This would not be the first time that the NFL would attempt to dispute the football-CTE theories, thus providing support to the plaintiff’s allegations of negligence and denial on the part of the league. Also in 2005, Dr. Kevin Guskiewicz performed studies finding that former players who had suffered three or more concussions throughout their playing careers had “a five-fold prevalence of cognitive impairment79.” Three years later, Dr. McKee found CTE in the brains of two more former players who had recently died80. Similar to when Omalu’s research was published, the NFL was again highly critical of the two studies. The league mandated that there was “no magic number” as to how many concussions was too many and that each study was merely an “isolated incident81.” It was only in 2007 that the NFL acknowledged the true severity of concussions and began to modify rules to protect the current players, and not until 2010 when the league began warning current players of the long-term risks that come with suffering multiple violent blows to the head82. It could be argued that these allegations of neglect and denial on behalf of the former players against the NFL were unsurprising; particularly after how the congressional hearings on the league’s concussion issue went in October of 200983. Despite the recent findings published by Drs. Omalau, McKee, and Guskiewicz, current NFL Commissioner Roger Goodell elected not to definitively answer as to if there was “a link between playing professional football and the likelihood of contracting a brain-related injury such as dementia, Alzheimer’s, depression, or CTE84.” When asked directly about the matter, Goodell deferred to the “medical experts,” saying that they would know far better than him in regards to concussions85. At a later stage of the hearing, representative Linda Sanchez of California went as far to compare what she felt was the NFL’s “blanket denial” to that of tobacco companies prior to the 1990’s continually saying “there is no link between smoking and damage to [your] health86.” Shortly after the hearings concluded, the NFL instituted new guidelines which required teams to consult with independent neurologists when they were dealing with players who had suffered brain injuries87. One could make the case that it was these events that inspired the former players filing suits against the league to unite and consolidate them into what has been called the Master Amended Complaint88. In the complaint, the plaintiffs mandated that the NFL had been aware of the “growing body of scientific evidence and its compelling conclusions that professional football players who sustain repetitive mTBI’s during their careers are at greater risk for chronic neurocognitive illness and disabilities89.” Given the knowledge that the plaintiffs alleged the NFL had about concussions and the subsequent neurological disorders they could potentially bring on later in life, the plaintiffs also argued that the league “sat on” the information and “ignored, minimized, disputed, and actively suppressed” the link between concussions and neurological diseases, along with the overall “broader awareness” of said link90. In addition, the plaintiffs also contended that the NFL “mythologized violence through the media,” marketed and glorified violence through the NFL Films production company, and that the league “was in a superior position of knowledge and authority and owed a duty to the players [to properly inform them]91.” Furthermore, the plaintiffs argued that the NFL knew full well the “dangers and risks” that came with concussions and “voluntarily undertook the responsibility of studying head impacts in football, yet fraudulently concealed their long-term effects92.” The 4,500 plus plaintiffs involved in the Master Amended Complaint set out fourteen different counts of legal claims going as follows: negligence-based claims and fraud-based claims, declaratory relief, medical monitoring, wrongful death and survival, fraudulent concealment, fraud, negligent misrepresentation, negligence, loss of consortium, negligent hiring, negligent retention, and civil conspiracy/fraudulent concealment93. Since the plaintiffs were making the case that the NFL made it appear that they were the “guardian and authority” of player safety, they also alleged that the league had no other choice than to uphold its “common law duty to provide players with rules and information that protect them as much as possible from short-term and long-term health risks94.” In short, the crux of their negligence-based claims was that the league failed to “make the game safer, earlier95.” The core of the fraud-based claims was centered on the “affirmative actions the NFL allegedly took to mislead players about the risks of head injury,” with the target being the league’s mTBI Committee96. The plaintiffs held that the mTBI Committee was the injurious party that published materials that “the NFL knew or should have known were misleading, downplaying, and obfuscating to NFL players the true and serious risks of repetitive traumatic head impacts97.” These alleged tortious actions were brought forth against not only one of the “most popular entertainment products in the United States,” but the clear-cut favorite professional sport among those in the United States98. Had the plaintiffs made it to the trial portion of the litigation process, the NFL could have potentially been confronted with the very real and possibly devastating prospect of “paying out tobacco-like damages reaching upwards of billions of dollars99.” This would have been an unprecedented event in the realm of professional sports in the United States. However, the suit never got that far. On August 29, 2013, the NFL and the plaintiffs reached a deal where the league agreed to pay $765 million to “fund medical exams, concussion-related compensation, medical research for retired NFL players and their families, and litigation expenses100.” The settlement would apply to all players who are retired as of the day Judge Anita Brody gives her preliminary approval to the settlement101. In terms of the settlement itself, it will be subject to a formal approval process, allowing plaintiffs to either oppose the settlement and try to obtain more money or elect to remove their name from the case as a means to “continue to pursue their own claims102.” The proposed $765 million will not include the attorney’s fees, as that matter will be dealt with separately in the future. $675 million of the settlement will be made readily available for those retired players who have medical evidence of having “severe cognitive impairment, dementia, Alzheimer’s, ALS, or to their families103.” Compensation for each player will be based on a series of mitigating factors, such as his age, length of his NFL career, and his diagnosis, and will be made by independent doctors working with settlement administrators that the court will appoint104. If all of the $675 million has been allocated before all plaintiffs have received their deserved aid, then the league will make a one-time additional payment with a ceiling of $37.5 million105. Of the remaining money left, a maximum of $75 million will be used for baseline medical exams of retired players, $10 million will go to a separate research and education fund, and $6 million will be devoted to administrative costs106. It was also decided during the settlement that it would have no impact on any of the benefits provided under the new labor deal between the NFL and the NFLPA (National Football League Players Association), and that it would also have no impact on the rights of current NFL players107. On January 14, 2014, it was announced that Judge Brody had rejected the initial $765 million settlement, “fearing the sum may not be enough to cover the injured players108.” While this may appear to be a major issue, it is merely part of the process. Judge Brody was not expected to “rubber-stamp” the settlement, but actually “analyze whether [it] is fair and reasonable and meets those factors109.” In rejecting the initial sum, Judge Brody was attempting to insure that all plaintiffs involved in the suit would be compensated fairly and receive all that they were entitled to under the terms of the settlement. This does not necessarily mean that the settlement is off by any means, as there are subtle adjustments that can be made and “analysis from economists, actuaries, and medical experts” will be heavily relied upon in devising a more suitable figure that can take care of all the former players involved in the suit110. As of March 11, 2014 the settlement with a new dollar figure has not been re-submitted to Judge Brody for approval, but it is probable that it will occur prior to the start of the 2014 regular season.
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