Football At The Crossroads Of The Safe Mainstream And The Violent Margins

Almost exactly a year ago, I wrote “Brain Injuries, Not Lawyers, May Spell The End Of Football,” contesting the absurd claim by two economist-bloggers that “The most plausible route to the death of football starts with liability suits.” As I wrote then:

“[L]iability 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. …

 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.

A year later, not much has changed in the NFL litigation, in which thousands of former players allege the NFL failed to take reasonable actions to protect Players from the chronic risks created by concussive and sub-concussive head injuries and fraudulently concealed those risks from Players. That’s not surprising given its scope; earlier this week, U.S. District Judge Anita Brody, who is overseeing the NFL Concussion MDL here in Philadelphia, set oral arguments on the League’s motion dismiss for April 9. (The League has argued that, regardless of the merits of the allegations against them, the cases are “a labor dispute the resolution of which depends upon an interpretation of the terms of the applicable [collective bargaining agreements],” and thus the claims are “pre-empted by § 301 of the Labor Management Relations Act” and subject to individual arbitration, rather than civil litigation in the courts. For more on the details of the case, to call Paul Anderson’s blog “comprehensive” would be an understatement.)

 

Yesterday, Bloomberg BusinessWeek published a thorough, even-handed article about the CTE litigation, putting the litigation as a whole into the proper context, including by identifying the real stakes in the litigation:

Even hypothesizing an impressive-sounding $5 billion settlement, the owners could handle the tab. Paid out over 25 years to cover players’ needs as they arise, such a settlement would work out to $200 million a year. Divide that 32 ways, and each team would face a hit of $6.25 million a year. That would be a meaningful tax—the current salary cap per team for active players is $121 million—but one the franchises could absorb without much distraction, particularly since the money could be paid out in installments.

One of the plaintiffs’ lawyers, Gene Locks (also here in Philadelphia) conceded in the article that players starting professional careers in the past couple of years have better notice about concussion risks, and so the lawsuits are really “talking about a fixed number of older players and former players.”

 

As BusinessWeek recognized, the real problem for football, as I mentioned a year ago, is not the possibility that it will be held liable for those injuries, but rather the dawning public recognition that football is simply unsafe in its current form:

Beyond the present litigation, the NFL faces a more ominous longer-term question. New research suggests the peril players face may not be limited to car wreck hits. It may extend to the relentless, day-in-and-day-out collisions that are the essence of the game. If science one day determines that merely playing serious tackle football substantially increases the danger of debilitating brain disease—as smoking cigarettes makes lung cancer much more likely—it’s conceivable that the NFL could go the way of professional boxing.

For the players, as this article just published in Esquire notes, “injuries are a day-to-day reality, indeed both the central reality of their lives and an alternate reality that turns life into a theater of pain.” Two weeks ago, the National Institute of Occupational Safety and Health sent out letters to former NFL players, telling them of recent studies revealing an increased risk of Alzheimer’s disease, Amyotrophic Lateral Sclerosis (a.k.a., Lou Gehrig’s disease), and Parkinson’s disease. Harvard and the NFL Players Association, in turn, just announced a $100 million cooperative agreement to study the health effects of football in general. Finally, also just this month it was revealed that Junior Seau did indeed have chronic traumatic encephalopathy, and his family just joined the NFL litigation.

 

The question is whether our society cares enough about these players and future players to reform the game. Americans have a tendency to tolerate a high level of violence, and we make a great effort to conceal its existence. For example, earlier this month, a federal judge dismissed the ACLU’s Freedom of Information Act seeking information about the U.S. government’s use of drones to kill three American citizens in Yemen. The NRA maintains its talking points (and thus the growing sales of the companies that control it) by squelching government research into gun safety. For years, the NFL kept the true dangers of the sport under the rug.

 

But public perception of football’s dangers has certainly changed dramatically, and has all come to a head in the last month. As President Obama told The New Republic in an interview that was just published:

I’m a big football fan, but I have to tell you if I had a son, I’d have to think long and hard before I let him play football. And I think that those of us who love the sport are going to have to wrestle with the fact that it will probably change gradually to try to reduce some of the violence. In some cases, that may make it a little bit less exciting, but it will be a whole lot better for the players, and those of us who are fans maybe won’t have to examine our consciences quite as much.

He then went on to express concern for college players, who are exposed to many of the same dangers but who don’t have nearly the same amount of assistance available to protect them as professional players do.

 

The sort of honest conversation we’re having today about football would have been impossible even a year ago — even hinting at the problem prompted all sorts of balderdash, including from supposedly credible sources like economists and professors, about the evils of greedy trial lawyers. To the extent lawsuits play any role in the “death” of football, it was certainly not by imposing any sort of significant financial hardship on the NFL, but rather by simply bringing to light the truth about the sport. The question now isn’t whether football is dangerous to its players — it obviously is — but if football will evolve to become a safer sport or if it will remain a violent spectacle. If it remains the latter, it will become just as marginalized as smoking and boxing.

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  • Ralph Jacobson

    Really an excellent summary of a fascinating concurrence of law, sports, and culture. I completely agree with your conclusion: it’s hard for anyone to argue that the greedy lawyers somehow brought this on. I think that if the public sees a package of meaningful attempts to make the risks more tolerable (e.g., focus on helmet not being a weapon), they will stick with the sport. How the lawsuit resolves is, in the long run, much less important to the league than handling public perceptions.

    • http://www.litigationandtrial.com/ Max Kennerly

      Absolutely. The money is modest compared to the sport; the public perception of danger should be a far bigger worry.