NFL Concussion: A frontier Tort
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NFL Concussion: A frontier Tort



NFL Concussion: A frontier Tort. Team Concussed.

NFL Concussion: A frontier Tort. Team Concussed.



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  • This part can just be explained by speaker – too much for it to be on slides Figure 1 : This analysis is simplified but illustrative. When neither the Player or the NFL hold liability for the extra societal cost incurred from a violent hit, the actual outcome will be no enforcement and a violent hit. The Player will always go for the violent hit because more violent hits lead to more fame and higher pay. The NFL ’ s payoffs decrease as enforcement gets stricter because of punishment and monitoring costs. The problem is that this outcome does not consider the cost to society which outweighs the benefit to the NFL and the player. The efficient outcome then would be for a safe hit to occur in which society incurs no loss.

NFL Concussion: A frontier Tort NFL Concussion: A frontier Tort Presentation Transcript

  • NFL Concussions: A frontier Tort Team Concussed
  • Dave Duerson 1960-20111987 NFL Man of the Year2 Super Bowls4 Straight Pro BowlsUnion Leader
  • GameplanThe state of the NFL and concussionsDefinition of concussions and other brain injuriesThe NFL from Dispositionism and SituationalismThe Master ComplaintCurrent Policy EffortsPolicy Proposals
  • What We’re dealing with: The nfl$9.5 billion revenueAverage NFL team $1.1 billionLambeau Field: $282 million inoutput, 2,560 jobs, $15.2million in tax revenue54% of U.S. identifies asfootball fans21 of 46 most watched U.S.programs were Super Bowls
  • What We’re Dealing With: ESpN$40 billion110 million homesJanuary 1- Nov. 1 19.7% of coverage 2,833 minutes
  • Head Injuries2012: 141 ConcussionsWeek 10 15 concussions 3 starting QBs
  • What is a Concussion?According to the CDC, a type of mTBI thatoccurs from a blow, bump, or jolt to the headNo standard definition Impaired consciousness Amnesia Loss of consciousness for 30 minutes or less Headaches Dizziness Irritability Fatigue Poor concentration Altered sleep patterns
  • What is a Concussion? Chronic Traumatic EncephalopathyStructural change tothe brain from A single traumatic brain injury Multiple mTBIDiagnose throughdirect brain tissueexamination
  • Long Term EffectsLife Expectancy Average male: 77 NFL Player: 55 1 year on NFL roster: -3 years of life expectancy 1 year smoking a pack of cigarettes a day: -2 months of life expectancy
  • Long Term EffectsCompared to those with noconcussions or mTBI Clinical Depression: 3x more likely Dementia: 5x more likely All measures of cognitive functioning: bottom 50%Brain autopsies show correlationbetween structural changes inbrain (CTE) and recurrentconcussions
  • Disposition & Situation Which team are you on?
  • Typical Critiques of DispositionismImperfect Information
  • NFL Players on the ISSUEJets Linebacker BartScott “I don’t want my son to play football. I play football so he won’t have to.”
  • Dispositionism: A price to be Paid• "Sometimes if youre buzzed or dazed ... if you get your bell rung they consider that a concussion—I wouldnt. If thats considered a concussion, Id say any football player at least records 50 to 100 concussions a year."
  • Dispositionism: Bad ActorsJames Harrison “I try to hurt people.” "I dont want to see anyone injured, but Im not opposed to hurting anyone.
  • Typical Critiques of DispositionismExternalitiesOutcome Bias
  • Situationalism
  • An Internal Case for SituationalismBracketed Morality Standards of morality depend on situation Competitive settings: justify aggression and legitimize injurious aggression
  • An Internal Case for SituationalismBracket morality (cont’d)Aggression Instrumental Aggression Hostile Aggression Collegiate contact sport athletes: Hostile aggression “tantamount” to competition
  • An Internal Case for SituationalismBracketed Morality (cont’d)How is it justified? Hostile aggression as an “edge” Intrinsic motivation for approval Inherent nature of contact sports
  • An Internal Case for SituationalismBracketed MoralityIsn’t this dispositionist? All driven by context Coaches, ownership, other players, fans
  • An External Argument for Situationalism• Power Structure Drafted by a team they have to play for, negotiating a contract under a bargaining agreement they did not help to form Short careers require players to gain favor Decisions will be made by ownership in consideration of $9 billion in projected revenue for 2012 Players can be traded or cut at almost any time Reported head injuries can diminish value as a free agent Macho Culture • Culture discourages signs of weakness and reporting injuries Culture of team morality and sacrifice Culture permeates to coaches and trainers
  • An Internal Case for Situationalism• “Kill the head and the body will die.” Greg Smith
  • The Media’s Trend towards Situationism
  • Pre-2007: Dispositionism in the MediaFootball players seen as dispositionist actors, whowere aware of the consequences of theirparticipation in the sport“Football players are trained and conditioned towithstand pain and stay in the game…” – SteveYoung, Playing Hurt is Part of the Game“But as a player, you just accept injury as part of thegame…” – Joe Theismann, QB learned how to protecthimself
  • Pre-2007Football hits were glorified and a source ofentertainmentJacked Up was part of the Monday NightFootball countdown on ESPN from 2003 –2006
  • 2007: The tides ChangeOn January 18, 2007, The New York Times printed the front-pagearticle, “Expert Ties Ex-Player’s Suicide to Brain Damage fromFootball.”Schwarz, a baseball writer, described neuropathologist Dr. BennetOmalu’s study of former Philadelphia Eagles football player AndreWaters’ brain, who had committed suicide in 2006.Omalu found that Waters’ brain tissues looked like those of an 85-year-old man and had similar characteristics to those with earlystage Alzheimer’s disease.Omalu concluded that the Waters’ brain damage was “eithercaused or drastically expedited by successive concussions Mr.Waters, 44, had sustained playing football.” Id.The following day, ESPN published a similar story.Pathologist says Waters’ brain tissue had deteriorated
  • Alan Schwarz By 2011, Schwarz alone had published more than one hundred twenty-one stories about the effects of football concussions• "Schwarz may not have been out to get football, but he was clearly less emotionally invested in it than most of his predecessors and peers, who had helped build the sport into the de-facto national pastime with romantic coverage of heroic sacrifice. He was not a fan. “I’d been pitching this to reporters for years,” Nowinski told me, of the head-injury problem in general. “People in football told me, point blank, ‘I don’t want to lose my access.’ It literally took a baseball writer who did not care about losing his access, and didn’t want the access, to football.””• -- Ben McGrath, Does Football Have a Future, The New Yorker (Jan. 31, 2011)
  • Study of Ex-N.F.L. Players Ties Concussion to Depression Risk (March 31, 2007) Concussion Panel Has Shakeup As Data Is Questioned (March 1, 2007) N.F.L. Culture Makes Issue Of Head Injuries Even Murkier (Feb. 3, 2007) Lineman, Dead at 36, Sheds Light on Brain Injuries (June 15, 2007)Wives United by Husbands’ Post-N.F.L. Trauma (March 14, 2007) Dark Days Follow Hard-Hitting Career in N.F.L. (Feb. 2, 2007)Two Authors Of N.F.L. Study On Concussions Dispute Finding (June 10, 2007) Hearing in Congress Puts N.F.L. on Notice (June 28, 2007) 2 Former N.F.L. Players Sue Over Sharing of Fees (Feb. 15, 2007) N.F.L. Doctor Quits Amid Research Doubt (March 1, 2007)
  • Increase in ArticlesA search of the term “concussion” on’sNFL page yielded 1,155 results in the five yearsbetween January 19, 2007 and January 19, 2012 nearly eight times the 146 articles ESPN published in the five years prior to Schwarz’s first article. search, Oct. 23, 2012.In addition, ESPN now has a “topics” page on itswebsite, wholly dedicated to tracking the issue ofconcussions.
  • Move towards Situationism• “I didnt know the long-term ramifications.You can say that my coach didnt know the long-term, or else he wouldnt have done it. It is going to be hard for me to believe that my trainer didnt know the long-term ramifications, but I am doing this to protect the players from themselves”• – Ted Johnson in Alan Schwarz, Dark Days Follow Hard- Hitting Career in NFL, N.Y. Times (Feb. 2, 2007)
  • SituationismPolicy discussions on helmets, change ofrulesFootball compared to dog fighting- Malcolm Gladwell, Offensive Play: HowDifferent Are Dogfighting and Football?Idea that football is inherently dangerousbecomes more pervasive
  • Move from out-group to in- groupFootball players move from people’s out-groupto in-group as part of the shift fromdispositionism to situationismFootball players no longer seen as overpaidathletes who are aware of the riskFocus on long-term effects, effects on players’families
  • ESPN CoverageDirect ties to NFL through Monday nightfootballRaising doubt between the link betweenconcussions and football
  • “Michele Steele and Mike Fishdiscuss the rush to judgmentamong the media, public andmedical field about former footballplayers and concussions”
  • ESPN vs. NY Times
  • ESPN vs. NY Times
  • Interest Groups & Public ChoiceESPN coverage (PR) Doubt factor American institution & freedom of choice (players chose to play) Lack of media regulationConflict within NFLPA (alum, pre-NFL notrepresented)Comparison of PR w/ tobacco Lobbying/capture (of legislators AND public) Almost political ads
  • Tom Brady/Ray Lewis Commercial(Prominent Commercial on ESPN) 
  • NFL Commissioner, Roger Goodell Testimony
  • Big Tobacco in Historical 1994 CongressionalHearing
  • The Master Complaint
  • The Master ComplaintPlayers v. NFL aggregation of 85 individual lawsuits over 2,000 individual playersClaims against the NFL Negligence Fraudulent ConcealmentClaim against Riddell Products liability
  • (NFL) NegligencePre-1968 allegations: failing to properly study the issue failure to properly alter game rules and equipment to minimize possible harm to the playersPost-1968 allegations: negligently promoted the sport as violent• failing to properly study the issue• NFL committee staffed it with unqualified and biased researchers, not in a position to properly study the issue.
  • (NFL) Fraudelent Concealment• NFL’s MTBI Committee distributed “concussion pamphlet” • concealed and minimized the risks of repetitive brain impacts• Pamphlet worded to create reliance: • assured the players that they were receiving comprehensive and up-to-date information about the effects of concussions
  • (Riddell) Products Liability• Strict liability for design defects and manufacturing defects • Breach of warranty (contracts claim)• General negligence claim• Failure to warn
  • Comparisons to Big Tobacco Big Tobacco Concussions hiding the risks hiding the risks (1920s) (early 1950s to 1994) knew and tried to willful deception deceive the players(doctors who smoke) (concussion pamphlets)switch from deception to “safety” MTBI Committee, (filters, safe brands, better equipment etc.)
  • Did NFL Players Assume the Risk?• Even if the NFL didn’t try to deceive, the NFL tried to create doubt• Locker room culture • discussions of risk would be mitigated • unable to act on risk aversion • similar to sexual harassment -- “she kept consenting,” but unable to get out of the situation
  • Current Policies and Dynamics
  • Current Policy & Implied Policy• NFL Policy • Two-pronged policy approach aimed at preventing concussions and avoiding court cases: • Rule Changes • Uniform sideline concussion exam for all teams • “Madden Rule” – when a player is diagnosed with a concussion he must leave the field and not return to the game • Medical staffs are advised to err on the side of caution in diagnosing concussions • Medical Research Investments • Donated $30 million to the National Institute of Health to research concussion and sports-related injuries • Partnership with the U.S. Army to research traumatic brain injuries  
  • Current Policy & Implied Policy• In legislative attempts, Congress has focused on youth concussions and has not proposed legislation targeting the NFL specifically
  • Current Policy & Implied Policy• Collective Bargaining Agreement (CBA) • Between the NFL and NFLPA (the players’ union) • Governed by federal labor law – will likely pre- empt state tort law claims
  • Current Policy & Implied Policy• Insurance and Benefits • Workers compensation • Compensate and provide medical expenses for employees who suffer work-related injuries and diseases • Professional athletes are covered in many states • May interact with tort litigation in a variety of ways • CBA provides for various disability and retirement benefit programs
  • Policy Recommendations
  • Policy Proposal #1 Equipment Improvements• G-Force Helmets (similar to those used in NFL)• G-Force monitors on helmets
  • Policy Proposal #2 Education• Concussion-counter during broadcasts• Concussions listed with player stats• Educate the public: • Realities of life as NFL player • Power dynamic between owners and players • NFL contracts
  • Policy Proposal #3 Diagnosis and reporting• Employ independent doctors and trainers• Mandatory concussion testing (Using instant reply to diagnose potentially injurious hits)• Alter contracts • Guarantee player contracts regardless of injury • Contract bonuses for diagnosed concussion
  • Policy Proposal #4 Liability structures• Strict liability: • Player who causes injury, includes suspension • Team of player who causes injury, includes cap hit• Trust fund • All fines from concussion-related fines go to fund
  • Policy proposal #5 NFL Rule Changes• Eliminate contact practices• Decrease total minutes • Shorten Season • Shorten games • Cap number of quarters• Radical rule changes • No helmets or pads
  • Policy Proposal #6 The nuclear option• End football.