By David S. Cerra, Villanova School of Law 2L and Staff Member of the Villanova Sports and Entertainment Law Journal.
Long-term concussion risks have received a significant amount of attention in recent years. Opinions are changing at all levels of sports regarding the proper treatment of concussions and in particular the amount of time an athlete should abstain from participating in sports after getting his or her “bell rung.” Nowhere are concussions more visible than in the NFL where fans get a front row seat to the equivalent of a three hour controlled car crash every Sunday.
Cerra explores the legal basis for the ex-players’ claims in Maxwell v. NFL, the potential for future litigation, and the likely impact on the level of entertainment for fans of the NFL in its traditional form in his Comment on the next page.
Multiple concussions can lead to degenerative brain diseases like Chronic Traumatic Encephalopathy (CTE) and dementia later in life. The suffering of former NFL players has been brought out of the shadows following the highly publicized 2006 suicide of former Philadelphia Eagles and Arizona Cardinals defensive back Andre Waters in which concussion related depression is suspected and more recently, the death of former Baltimore Colts and Syracuse University legend John Mackey from dementia. Current players such as linebacker Lofa Tatupu are increasingly agreeing to donate their brains to organizations like Boston University School of Medicine’s Center for the Study of Traumatic Encephalopathy which has been at the forefront of researching the connection between football and long term brain disease.
Over the past few seasons the NFL has made multiple revisions to the rules pertaining to head injuries. Helmet-to-helmet hits, hits on defenseless receivers, and defenders launching themselves have resulted in particularly heavy fines. Starting with the 2011 NFL season, teams are now kicking off from the thirty-five yard line. This change was likely intended to drastically reduce or eliminate kick returns, an exciting yet dangerous aspect of the game. The NFL has also implemented strict new rules for determining when a player may return to play after receiving a concussion.
Consistent with the trend towards greater safety, NFL teams are becoming more conservative with players that experience multiple concussions within a short period of time. Aaron Rodgers sat out two games at the end of the 2010 season after receiving his second concussion. This decision jeopardized the Green Bay Packers’ playoff chances and ended Rodgers consecutive start streak in process. Detroit Lions’ coach Jim Schwartz stated in response to how long running back Jahvid Best would be out after receiving his third concussion since 2009:
“Coming back from a concussion isn’t like coming back from a sprained ankle or a bad shoulder or a pulled hamstring. Some of those things you can tough out. You can’t tough out a concussion.”
As admirable or needed as these changes may be, they have been met with criticism by some fans as they threaten an aspect of professional football essential to its tradition and appeal—hard hits.
One reason for the NFL’s new focus on brain injury may be the threat of litigation. In July of 2011 seventy-five former NFL players filed a lawsuit against the NFL and equipment manufacturer Riddell (Maxwell v. NFL). The basis of the players’ suit is that the NFL knew or should have known about the long term dangers of sustaining multiple concussions and failed to enact proper guidelines or educate players and teams. Furthermore the players claim the NFL failed to provide sufficiently safe equipment through its league-mandated Riddell helmets. As a result these players claim they suffer ailments ranging from headaches and memory loss to dementia.
Maxwell v. NFL may set the stage for future suits against the NFL by former players. Already two similar suits have been filed including one in Pennsylvania which was joined by former Chicago Bears quarterback Jim McMahon. Success or a settlement in Maxwell may prompt athletes to sue the NCAA, other professional sports leagues such as the NHL, or even quasi-sports entertainment companies like the WWE for failing to provide adequate concussion safety procedures. The plaintiffs in Maxwell claim the NFL sets the standard for safety rules on which all football organizations and other sports model themselves. As a result football players who never made it to the pros or athletes in other sports could claim the NFL is partially responsible for head injuries they incurred.