WASHINGTON, September 8, 2012 – Do not let your son play football. Okay, if he must play and you must let him, then you should not let him be a running back, a receiver, return punts or kickoffs, or be the quarterback.
If I am killing a dream, let him play through the pee-wee league, take lots of video so you and he can watch in later years and relive his glorious football exploits.
The American Academy of Neurology released a comprehensive study last week, just before the 2012 NFL football season began, that confirms significant previously held beliefs that head injuries cause neurologic problems later in life. The study, published in the medical journal Neurology, followed approximately 3500 retired professional football players, and found that professional football players were three times more likely to have neurodegenerative diseases than the general population.
The study also found that professional footballers were at a four times greater risk of developing amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig’s disease.
The study found a higher incidence, compared to the general population, of players afflicted with Alzheimer’s and Parkinson’s disease.
Finally, the study found that players, compared to the general population, were at an increased risk of dying from a neurological disorder.
We have recognized this problem for quite a while. Studies have repeatedly linked concussions in football players to chronic traumatic encephalopathy (CTE). We have collectively changed our attitude about head injury related to trauma. It is clear that a lifetime of having your head hit, violently, is detrimental to your health.
Repetitive hits on a competitive level are the culprit.
Whether this understanding comes from the publicity of the over 2,000 lawsuits filed against the NFL by former players who took multiple hits to the head, or from the science which has been made public is not important. The knowledge is good for all of us and what we will see if the NFL lawsuits continue is more and more evidence of the relationship between head trauma, concussions and the health results.
The NFL has filed motions in the lawsuits seeking to have the cases dismissed. The players have sued for damages claiming that the NFL knew of the relationship between head trauma and long term consequences and continued to allow players to play, not concerned about those consequences. Scores of ex-players have significant neurological problems which have ruined their lives, many have died way too young, and many have committed suicide because they could not live with the problems their head injuries produced.
A former pro player, Mickey Washington, got out of the league after eight years without significant injury, and he became an attorney. He has filed suits on behalf of 19 former players and claims in those suits that the NFL was conducting a “conspiracy to defraud” that consisted of three goals:
- To discourage talented players from retiring and to persuade players to return to games regardless of concussions;
- To prevent the players’ association, the NFLPA, to have sufficient knowledge which would allow them to ask for, or demand that policies, procedures and condition designed to protect the players be put into place and included in the Collective Bargaining Agreement (the allegation is that the NFL misrepresented that there was a link between concussions and brain damage, and therefore the players did not know to negotiate for better benefits); and
- To deprive players the right to seek damages in courtrooms.
Washington’s lawsuits are particularly telling because he was previously involved, as an attorney, in representing the NFL, and because he was a former player with first-hand knowledge of what goes on at the playing field level.
Head injuries cause depression, memory loss, mood swings and dementia.
The American Academy study found that the velocity players, the running backs, the wide receivers, and the punt and kickoff returners, were more likely to develop problems because they were more susceptible to violent hits than other position players. The hits these velocity players are subjected to come from great speed impacts and produce harder hits.
I mentioned above that we will see more about the relationship between head injury and being hit in the head if the NFL lawsuits continue. I predict they will continue, but that they will never make it to any courtroom. The NFL’s motions to dismiss the cases are based on their claim that the Collective Bargaining Agreement covers safety and health rules. Several legal principles, in my opinion, will result in this argument failing, thus allowing the lawsuits to continue.
Basic tort law typically holds that you cannot contract away your negligence, or you responsibility when injuring others. The waiver you sign allowing your child to play football at school or in the local youth league is an example of this, and that waiver is not necessarily enforceable if negligence exists which produced your child’s injury. If coaches were supposed to be watching and guarding and protecting and did not, again, the waiver may not be enforceable.
So too with the NFL, where the players allege that the league was at least negligent in allowing them to return to games after the league knew, or should have known that the players were more likely to develop long terms problems after repeated hits.
Additionally, courts typically will not enforce a contract when the contract is formed fraudulently. This is the players’ claim: the NFL misrepresented known risks associated with concussions. Whether this claim is true is not important at this “motion to dismiss” stage of the proceedings. The players will be given the right to prove this allegation.
Assuming the lawsuits continue, the issues turn to liability and potential damages if the players win.
One liability problem for the players association is that they had at least the same access to studies as the NFL. It seems ill advised to suggest that “you knew” but “we did not” as a basis to hold the NFL responsible. Studies were available to everyone. If I know, or should know, of a risk, and proceed anyway, the laws will say I assumed the risk. Assumption of the risk is a defense in courtrooms that can be raised by the defendant, here the NFL, and the defense may bar the plaintiffs’ recovery.
Who knew what and who should have known are going to be central issues in these lawsuits. I predict that the further along these cases proceed, the more likely it is that the NFL will settle them to avoid full-blown public litigation. The verdicts, if for the Plaintiffs, can, and most probably will be enormous. The NFL will want to avoid this from happening.
A damages problem for the players will be proving a direct connection between the hits they took in the NFL, versus the hits they took in college, in high school, in junior league, and in pee-wee games. The law requires a direct, causal connection be proven between the defendant’s act and the plaintiff’s injury before the defendant can be held responsible.
The NFL just donated $30 Million to the National Institutes of Health to support research into concussive management and treatment. In its 92-year history, this is the largest philanthropic donation ever made by the league. This type of effort is appropriate and the league should continue to work toward helping its players to avoid injuries, to recognize them when they occur, and to help the players who have been injured.
The timing of this donation is perhaps a bit suspect, however, as clearly the NFL has a downturn in its image in light of the recent publicized suicides of a number of former players, and the comments of many former players announcing they would not allow their children to play football. It seems that the donation, as well, may have been motivated by the lawsuits.
We love watching football. We love seeing the hits. Television executives know this, because they keep showing us replays of the hits. Perhaps knowing what can happen to those who are hit will modify our ooh and aah reactions and redirect us into action as it relates to our children who want to play football.
I am advocating an exponential ramp-up of safety being required at all levels of football. Limiting your child’s competitive football life to little league is clearly safer than allowing him to continue year after year, as the other players hitting him are bigger, stronger and faster. Limiting involvement in football improves your child’s chances of avoiding head injuries.
My thinking is clearly contrary to the overwhelming opinion involving the sport we love to watch. If my thought follows to its logical conclusion, eventually there would be no more football. That possibility is unimaginable for many given the money involved, the lifestyle involved and the enjoyment involved.
I love watching tennis, track and field, and bowling.
I am a bit boring at times. Nevertheless, Go Redskins!
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics. Paul is the featured legal analyst on the Washington Times Radio, on the Andy Parks show, on Wednesdays at 5:15 P.M., and he is a columnist on the Washington Times Communities.
His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.
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