Football isn’t Tennis: Brain Injury Lawsuits Brew on Eve of Super Bowl

February 4th, 2011. By Hunter West

 

Uh, Maybe Not. (Design: good.kv)

This Sunday’s Super Bowl is not only the biggest night in professional football, but also arguably the biggest spectacle in professional sport. Witness the gate, the viewing audience and the lucrative broadcast and advertising contracts.

When you’re watching the big game this Sunday, look for the guys in the three-piece suits standing on the sidelines. No, they’re not journalists. And they won’t have headsets like the coaches do. But they will have binoculars, and notepads.

Those guys will be the lawyers—working for the teams, the league, and the players association. They’ll be watching every play, every tackle, taking notes.

They will disappear just before the Gatorade starts flying. Unless, of course somebody gets beaned in the head by the Gatorade bucket and incurs a concussion. That will bring the lawyers back for more note taking. 

Of course, I’m taking license with reality, here. There will be no suits impeding the pending war between the Steelers and the Packers. But make no mistake: the legal Beagles are catching up with pro football…

As recently reported in publications such as the New Yorker and Slate, the National Football League (NFL) is potentially facing two class-action lawsuits brought by players alleging the NFL knew, or suppressed knowledge of the long-term neurological risks of playing football. The latter stance alleging fraud would be the most aggressive. A lesser position would be one of negligence—to wit, the league was not aware, but should have known of the dangers posed by concussions and how play according to current rules increased the risk.

As this story gains traction, a huge debate will emerge between football purists who agree that ‘football is not tennis’ and anyone who thinks otherwise is not living in reality—and advocates representing players and the medical community who feel the NFL could, and should have been doing a lot more than it has been.

The pro football purists will think the lawsuits frivolous. It’s football, for crying out loud. Of course it is rough. Players know that going in, and while players in hockey, for example, are penalized for taking an opposing player out of the play via an illegal body check into the boards, or a head check—in football it’s the nature of the beast.

Purists will say that messing with the rules…calling more penalties for violent tackles, for example, will disrupt the flow and purity of the game. The emotion. The grunt factor. Purists will feel like they’re watching ballet. And the last thing the NFL wants is to have their sport watered down to the point where fewer people watch.

 

On the other hand, cracking down on at least those aspects of the game where officials have some degree of control might not only help mitigate grievous injuries, but would go a long way in altering the mindset of young, high-school and college-level players who have their sights set on an NFL career.

With the possible exception of the quarterback and the placekicker, the meaner and the more physical the better. That’s the current mindset, and it was aptly summed up by the Steelers’ James Harrison, when he said, “I try to hurt people,” in comments made earlier this season. He was dressed down for that comment later, but most will acknowledge that he spoke the truth. That’s what teams want from their players, that’s what the fans are looking to see, and that’s what the NFL wants to give them.

Until now, perhaps.

A lot depends on how successful these class action lawsuits become, and their basis. A finding for negligence would result in a damages claim. However, if the allegation is fraud and a judge or jury finds for the plaintiff, there could be substantial punitive damages assessed to the defendants, whomever they may be (a collection of teams, the NFL, the player’s association, et al…).

Any allegation will be tough to prove—just as it is tough to enforce in a game as physical, and some say violent as pro football. In hockey, for example, accidents will happen. But a pre-meditated shot to the head, or an illegal hard check into the boards that results in a concussion can (and is now) heavily penalized to the point where players start avoiding such play lest they are assessed fines and lost to the team for several games.

But how do you police such an aggressive sport as football?

The NFL is gong to have to find a way. They may, up until now, have thought: ‘okay, football hurts people but even if we are sued, if the damage awards come in less than the substantial revenue we are making from gates, advertising and broadcast then it’s just the cost of doing business…’

That works for the drug and medical device companies, does it not?

And how can anyone NOT be aware of the result of frequent and concurrent concussions? Just look at the degradation of Mohammed Ali over the years, who evolved from a manic, fast-talking firebrand to a plodding goliath, imprisoned by a brain pummeled into mush by too many blows to the head.

Until now, concussions were just the natural by-product of playing football. If you make it to The Show it is assumed that you suffered physically to get there and will suffer even more while plodding the boards on the NFL stage—but you are also well compensated for your efforts and your pain. In other words, you know what you’re getting into.

That’s not enough today, and the class action lawsuits are a sign that the tide is turning—much in the same way as it has for driving while impaired. There is now, in society, no tolerance for drinking and driving. Zero. Tolerance for concussions isn’t quite that low yet, but the issue is gaining traction. We’re hearing more and more about pro athletes, such as Sidney Crosby, dealing with potential career-ending concussions more frequently.

The tragic death two years ago of actor Natasha Richardson also focused attention on brain injury, and what can be done to prevent it.

The NFL cannot ignore the issue any longer—and these two potential lawsuits will help facilitate that change.

Can football be made completely safe? Of course not. It will always remain one of the most physical (some say violent) sports out there, fraught with risk. To remove the risk, you decimate the game and football as it now exists, just disappears. That will never happen. The NFL is just too successful for that.

Could we imagine life without the Super Bowl? I think not.

But the NFL has an opportunity now to take steps in an attempt to make the game as safe as it can possibly be. Determine the kind of play that results in most brain injuries, and heavily penalize such play. Boot players out of the league entirely, if need be, to drive the message home.

You can’t take the roughness, the grunt, the sheer physicality out of football because that’s what football is…and any player playing the game, or any parent of any kid wanting to put on the pads for the first time, has to know what the risks are.

But an obvious, and ongoing acknowledgment of the risk, and a sensible attempt to mitigate and police the type of play that results in the most grievous brain injuries will not only score brownie points for the NFL in the court of public opinion, such attempts will also help defray the legal and financial fallout from personal injury and wrongful death lawsuits brought against it.

At the end of the day, the biggest reason for doing that is the emulation that occurs at the high school and college level. To that point, there will always be bad boys in the NFL who will always be fan favorites—and there will be those who will strive to emulate them. But at the end of the day, if the NFL is seen as cracking down on the really rough stuff and making football a tad more civilized, such a move will have a domino effect further down the chain. A somewhat more genteel NFL (if such an oxy-moronic term is even feasible) can’t help but benefit the football stars of tomorrow, who may feel that they can compete and excel with less risk to their head—and their lives.

Football is not tennis. But it shouldn’t mean certain death or incapacitation, either…

Tags: Brain Injury, Concussion, Football, NFL, Super Bowl

This was posted on Friday, February 4th, 2011 at 10:11 am and is filed under Personal Injury . Feel free to respond, or trackback. Read our comments policy.