Brain Injuries, Not Lawyers, May Spell The End Of Football
Tyler Cowen, an economist at George Mason University, has made a name for himself explaining how important it is that things stay just the way they are. (Cf. David Hume) Earlier this week, for example, he was in the New York Times opining that our banking oligarchy can’t be broken up because smaller banks “could make mistakes or take on bad risks without being punished very much in terms of capitalization revenue,” as if we didn’t just loan $1.2 trillion and directly pay $182 billion to bail out these same big banks precisely because they “made mistakes or took on bad risks.” As Paul Krugman aptly summed up one of Tyler’s critiques of a model of macroeconomics,
There’s something about macro that seems to invite this sort of thing: more even than the rest of economics, macro seems afflicted with people who mistake confusion for insight, who think their own failure to understand basic ideas reflects a failure of those ideas rather than their own limitations.
“Mistaking confusion for insight” is one of the hallmarks of attacks on our legal system, with nary a day going by without a prominent politician or the like making a hopelessly ignorant comment about the law, like Rick Santorum’s passionate argument in favor of scrapping the Constitution and replacing it with the Articles of Confederation.
Grantland, launched last year, was premised on the crazy idea that there existed a sizable market of readers who appreciated both long-form journalism and the world of sports. I haven’t a clue if the website is doing well financially, but they’ve been a journalistic success, with fascinating articles like this article on a boxing match in 1810 that set the stage for almost every fighting trope you see today. Just when I think the site is the go-to resource for sports reporting, I see Tyler Cowen (along with Kevin Grier, another economist) bring his ipse dixit style to the subject of tort lawyers and football:
The most plausible route to the death of football starts with liability suits. Precollegiate football is already sustaining 90,000 or more concussions each year. If ex-players start winning judgments, insurance companies might cease to insure colleges and high schools against football-related lawsuits. Coaches, team physicians, and referees would become increasingly nervous about their financial exposure in our litigious society. If you are coaching a high school football team, or refereeing a game as a volunteer, it is sobering to think that you could be hit with a $2 million lawsuit at any point in time. A lot of people will see it as easier to just stay away. More and more modern parents will keep their kids out of playing football, and there tends to be a “contagion effect” with such decisions; once some parents have second thoughts, many others follow suit. We have seen such domino effects with the risks of smoking or driving without seatbelts, two unsafe practices that were common in the 1960s but are much rarer today. The end result is that the NFL’s feeder system would dry up and advertisers and networks would shy away from associating with the league, owing to adverse publicity and some chance of being named as co-defendants in future lawsuits.
In other words, the old trial lawyers are taking the fun out of everything argument. It’s often trotted out to claim that lawyers are responsible for taking the fun out of playgrounds, so it was only inevitable before someone claimed that trial lawyers posed the greatest threat to our nation: as Cowen and Grier claim, because of lawyers, “American people … might actually start calling ‘soccer’ by the moniker of ‘football.’”
It’s tempting to dismiss Cowen and Grier outright, given that their entire argument is premised on pure conjecture that “insurance companies might cease to insure colleges and high schools against football-related lawsuits.” Insurance companies gladly (and profitably) insure cars and car drivers, despite there being over 30,000 car accident fatalities every year — why would it be any different for football?
Insurance companies thrive on predictability because it allows them to price insurance premiums appropriately, and suspected traumatic brain injuries in minors caused by football is a known, regular number: a little over 25,000 emergency department visits annually. Football-related deaths is also a known quantity, thanks to the work of the National Center for Catastrophic Sport Injury Research, around one to four deaths annually (in sandlot, high school, college, and professional) due to brain or spine injuries and about a dozen due to “indirect” causes like heat stroke and the like. The potential risk is easily identifiable to insurance companies, and we’re getting better at determining when a minor head trauma in a child warrants a CT scan, thereby reducing the likelihood that head trauma on the field will go undetected (and thus untreated) and develop into a more serious injury that creates the potential for large liabilities.
But Grantland is all about long-form journalism, so let’s take the time to unpack the numerous confusions and mistakes underlying Cowen and Grier’s analysis.
Contrary to the belief of many tort reformers, “liability suits” do not arise from the imaginations of personal injury lawyers, they arise from tragic stories and negligent acts. Trial lawyers did not wake up one day and say to themselves, “let’s sue football,” and then spin the wheel of horrible injuries and land on brain damage. Players, their unions, their families, and their doctors noticed a trend among football players to suffer brain injuries and be diagnosed with chronic mental diseases like chronic traumatic encephalopathy at a rate far higher than the rest of the population. Then they looked at the scientific and medical studies, including the ones the National Football League put out to try to mislead the players and the public, and realized there was more than just a passing correlation between acute and chronic brain injuries and playing football.
If football is abandoned by the parents of the next generation of potential players, it will not be the result of “liability suits” — it will be because the sport is increasingly being perceived, as Cowen and Grier tellingly analogize, as being as risky as “smoking or driving without seatbelts.” If, as they claim, “modern parents keep their kids out of playing football,” it will not be because of “our litigious society” but rather because parents are trying to protect their children from brain damage. Economists like to talk about incentives; what do you think most parents would rather do, prevent brain damage or bring a lawsuit on behalf of their brain damaged child?
But we’re not done yet: what are we to make of their claim that “[i]f you are coaching a high school football team, or refereeing a game as a volunteer, it is sobering to think that you could be hit with a $2 million lawsuit at any point in time.” Cowen and Grier claim that’s the situation right now, and yet their doomsday prediction — soccer being called football! — isn’t happening before our very eyes. Why not? Perhaps because lawsuits against high school coaches and referees are extraordinarily difficult to win.
Consider the rule of law applicable to coaches in California:
A sports instructor may be found to have breached a duty of care to a student or athlete only if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is “totally outside the range of the ordinary activity” (ibid.) involved in teaching or coaching the sport.
Kahn v. East Side Union High School Dist., 75 P.3d 30 (Cal. 2003). In some states, like Virginia, the legislatures passed special protections making coaches immune from liability as long as they were acting “in good faith.” And let’s not forget the plaintiffs would typically be suing public school districts, which are protected by sovereign immunity. As Thomas R. Hurst (a law professor) and James N. Knight (a litigator) concluded in Coaches’ Liability for Athletes’ Injuries and Deaths, 13 Seton Hall J. Sports L. 27 (2003):
Thus it is very difficult for an athlete to sue a coach for injuries sustained while participating in a sport. It is a hurdle merely to establish a prima facie case of negligence, not to mention the defenses of assumption of the risk, comparative negligence, and various forms of immunity that a coach may assert. While some cases show that a plaintiff may succeed where facts going to extreme disregard for a player’s safety are shown, courts have been generally hesitant to find liability, on the general principle that “the law should not place unreasonable burdens on the free and vigorous participation in sports.”
There’s not one word discussing that hurdle in the article; Cowen and Grier seem to think that doing nothing more than collecting a couple loose facts like ”precollegiate football is already sustaining 90,000 or more concussions each year” and noticing the presence of lawsuits lately is sufficient to prove that lawsuits have put the sport as a whole into a death spiral.
Going deeper into the article reveals that they haven’t the foggiest clue what football brain injury litigation exists at the moment, much less where the field will go in the future:
This slow death march could easily take 10 to 15 years. Imagine the timeline. A couple more college players — or worse, high schoolers — commit suicide with autopsies showing CTE. A jury makes a huge award of $20 million to a family. A class-action suit shapes up with real legs, the NFL keeps changing its rules, but it turns out that less than concussion levels of constant head contact still produce CTE. Technological solutions (new helmets, pads) are tried and they fail to solve the problem. Soon high schools decide it isn’t worth it.
Putting aside that a class action for football players likely isn’t going anywhere (and the fact that their argument seems to admit “the problem” is really one of the football causing CTE, not one of liability), why would “a huge award of $20 million” amount to anything more than a drop in the bucket in the big world of football? Already, there are a handful of successful lawsuits relating to football injuries and deaths every year. A little over two years ago Preston Plevretes, for example, settled his case against La Salle for $7.5 million. Zachary Frith recovered the $3 million policy covering his high school (see page 384; notably, had Zach been in Virginia instead of Missouri, he would have recovered nothing). Despite these large settlements and verdicts, football keeps humming along.
Truth is, just like with medical malpractice, tort liability is only tiny part of the broader social question of whether or not anyone wants to expose their children to a sport that may cause permanent brain damage, or whether or not anyone wants to watch a sport knowing that it may be slowly killing the participants. I don’t know what the future holds for football in general or for the NFL in particular, but I do know this: it will thrive or decay on the basis of public perception, not as the result of a couple dozen lawsuits a year all covered by insurance.