Are You Ready for Some Football
By James A. Johnson ©2018 The 2018 Super Bowl is over and fans of the New England Patriots are hurt and somewhat injured by the loss. Now owners, players, coaches and team physicians can focus on real injuries, known as concussions. Concussions, also known as traumatic brain injuries, occur when your brain violently impacts the inside of your skull. Concussions can permanently damage your brain function ability to think or work. These injuries lead to tort claims and product liability lawsuits against the NFL, high schools, college teams, helmet manufacturers and others involved in the game of football. Every evening we seat ourselves in front of the television glancing at the headlines in the newspaper and then turn quickly to the sports page. After that, we grab the remote and click on ESPN, Fox Sports Live, ESPN Classics, ESPN Sports Center, DirectTV or Xfinity. If it is a Sunday, Monday or Thursday night in September, October and November there is a game of controlled violence, called football. We read, discuss, view and even vociferously argue sport in America. Most of us perform our jobs in a perfunctory manner, but when it comes time for sports, our enthusiasm reaches a fervor level. FOOTBALL Are you ready for some football? This is the rhetorical question every September and at the Super Bowl. Well, YES and NO. This controlled violence is still violence, engendering results like retired players who can’t get out of bed without help, migraine headaches, quarterbacks and linemen who can’t raise their arms or tie their shoes. This game has caused suicides, namely Aaron Hernandez, Jovan Belcher, Junior Seau, O.J. Murdock, Kurt Crain, Mike Current, Dave Duerson and Ray Easterling. There was an avalanche of litigation against the NFL, NFL Properties, Riddell Sports Group and others. Approximately 2,500 former players and surviving family members sued the NFL for allegedly distorting and hiding data about concussions. On April 15, 2013, a Denver, Colorado jury found Riddell Inc., liable for failing to warn about concussion dangers. The jury awarded 11.5 million to a Rhett Ridolfi, a high school student and found Riddell 27 percent at fault. Ridolfi, a former Colorado high school football player suffered serious brain injuries and partial paralysis. The jury assessed 3.1 million in damages against Riddell. In 2010 the NFL gave Boston University’s Center for the Study of Traumatic Encephalopathy one million dollars to study the brains of 60 deceased football players.1 Although all the test results are not in, many showed signs of (CTE) chronic traumatic encephalopathy. CTE is a neurodegenerative disease caused by repeated blows to the head. Do we need to have all of the tested results when we know that the symptoms of CTE are slurred speech, headaches, psychosis and depression? On December 3, 2012, an additional study from Boston University detailed 33 causes of chronic traumatic encephalopathy (CTE) in deceased ex-NFL players. I hope this article will direct the moral compass of the NFL, NFLPA, owners, coaches, general managers and players to action. NATIONAL CENTER FOR INJURY PREVENTION According to the National Center for Injury Prevention, it is estimated that as many as 47 percent of all high school football players suffer a concussion each year. Football players who suffer multiple concussions are at risk of suffering permanent brain damage. A few years ago, not one state required that high school and middle school athletes who suffered concussion symptoms receive medical clearance to return to play. According to USA Football, all 50 states now have some form of student-athlete concussion law in place.2 One of the purposes of this article is to inform coaches, players, parents, athletic directors and general counsel of the seriousness of the risks of concussions to young people whose brains have not yet fully developed. Every concussion is a brain injury. The effect of this damage range from behavioral and emotional disorders to full body paralysis. An excellent resource for comprehensive facts and laws covering youth sports is Law Atlas-The Policy Surveillance Portal- Choose a topic -Youth Sports Traumatic Brain Injury Map Laws - Injury and Violence Prevention. It covers such information specifying requirements when an athlete may return to play and requiring distribution of some form of TBI/concussion sheet. For example, it states: “Every year as many as 300,000 young people suffer concussions or traumatic brain injuries (TBIs), from playing Sports. These injuries can have serious and long-term effects, and all states have adopted laws aimed at reducing harm for youth sports TBIs occurring at scholastic activities. This map identifies and displays key features of such laws across all 50 states and the District of Columbia and over time, from 2009 to 2017.”3 LITIGATION The power and tension between intercollegiate athletics and the university have escalated. Football and basketball coaches who are successful often overshadow the institution itself. Money is power. These coaches are deities on their campuses and in their respective states. The revenue stream from sports often drives university decision making and conflicts with the values of the university. My point being that university administrators must strike a delicate balance and enforce educational values and at the same time reward winning athletic programs. This balance requires a tightening of the reins on coaches and requiring in their contracts immediate reporting and action in handling allegations of wrongdoing and allegations of crimes. Case in point is the Penn State situation. But, I suspect there are other athletic programs with serious problems that have not yet surfaced. A reassessment is in order with new rules to keep coaches input at a minimum in admission policies, discipline and other areas that are purely university business. So with the clarity of hindsight, I implore Athletic Directors, University General Counsel and lawyers, in general, to accept my challenge and moral assignment and eliminate this cascade of litigation involving educational institutions and athletic programs. NEW YORK STATE In 2011 New York passed The Concussion Management and Awareness Act (Ch. 496 of the laws of 2011) that became effective July 1, 2012, for all public and charter schools. This Act requires the Commissioner of Education, in conjunction with the Commissioner of Health, to promulgate rules and regulations related to students who sustained a concussion or (MTBI) mild traumatic brain injury. These guidelines apply to all public school students who have sustained a concussion regardless of where the concussion occurred.4 The law requires that school coaches, physical education teachers, nurses and certified athletic trainers complete a New York State Education Dept. (NYSED) approved course on concussions and concussion management every two years. The law also requires that students who sustained or are suspected to have sustained a concussion during athletic activities are to be immediately removed from such activities. Students may not return to athletic activities until they are free of symptoms for a minimum of 24 hours and have been evaluated by and received written and signed an authorization to return to activities from a licensed physician. SHOW ME THE MONEY For years, there has been a groundswell of talk about whether college players should be paid or to profit from their fame before they graduate. This writer answers that question with a resounding NO! The reasons are obvious and you cannot make the amateurism argument if you are paying players. Moreover, paying players money raises questions of maintaining the academic integrity of institutions. The National Collegiate Athletic Association (NCAA) President, Mark Emmert has increased the value of athletic scholarships to cover the full cost of attending college. In fact, the five wealthiest college football conferences notified the NCAA in October 2014 of their proposals to provide more benefits to athletes under the new governance model. This allows the Big 10, ACC, Big 12, Pac-12 and SEC to pass legislation without the support of the other Division I leagues. These changes would increase benefits to student-athletes including athletic scholarships that will fully cover tuition; guaranteeing multiyear scholarships and allow former athletes to return to school at any time and provide long-term health care and insurance to former athletes.5 We need to restore authentication to the sport and preserve the integrity of competition which in turn will foster even greater competition and help to remove the asterisk in front of new records. It appears that National Football League Commissioner, Roger Goodell has heard my rumblings and message. Affirmative steps are being taken, in earnest, to address player safety, conduct and rule changes. U.S. District Judge Anita Brody in Philadelphia approved a one billion settlement for NFL players and family members that became effective on July 7, 2017. The revised settlement approved by Judge Brody covers more than 20,000 NFL retirees and is designed to last at least 65 years. It also provides up to 5 million to individual retirees who develop Lou Gehrig’s disease and other profound problems.6 As an interesting aside, the U. S. Court of Appeals Seventh Circuit in Chicago held on June 26, 2018 that the NCAA transfer rules do not violate the Sherman Act. Student athletes who transfer to Division I schools are required to wait a full academic year before they can play on teams. The opinion upheld the year in residency rule of the NCAA based on college athletes are amateurs and cites the 1984 U. S. Supreme Court opinion NCAA v. Board of Regents of the Univ. of Oklahoma7 and Agnew v. NCAA Seventh Circuit opinion in 2012.8 CONCLUSION The purpose of this article is not to deter participation in football but rather to educate and inform attorneys, athletic directors, coaches, parents and players of the risks and symptoms of a concussion. Participation in sports by young people can engender mental and physical toughness, discipline, sportsmanship and leadership qualities. These individual attributes collectively can also provide an advantage in the game of life. In the final analysis, to inspire true sport and protect the rights of athletes, Grantland Rice, the Dean of Sports Journalist said it best: “When the one great scorer comes to mark against your name, he will not write if you won or lost, but how you played the game.” James A. Johnson of James A. Johnson, Esq. in Southfield, Michigan is an accomplished Trial Lawyer. Jim concentrates on Sports & Entertainment Law, serious Personal Injury, and Insurance Coverage. He is an active member of the Massachusetts, Michigan, Texas and Federal Court Bars. Jim can be reached at www.JamesAJohnsonEsq.com ENDNOTES
- Rich Barlow at http://www.bu.edu/today/2010/nfl-gives-1m-to-bu-center-for-athlete-brain-study/ (last visited 8-1-18).
- https://usafootball.com -National Center For Injury Protection (last visited 8-1-18).
- The Concussion Management Awareness Act - https://www.nysenate.gov Legislation
- Detroit Free Press, Nation & World, Oct. 2, 2014 at Sec. 9C.
- https://www.nflconcussionsettlement.com (last visited 8-1-18).
- NCAA v. Bd. of Regents Univ. Oklahoma, 468 U. S. 85 (1984).
- Agnew v. NCAA, 683 F. 3d 328 (7th Cir. 2012).