Sports Law

Struggle Between How To Keep NFL Players Safe And The Game "Safe"

Baltimore Ravens strong safety Bernard Pollard is worried about the game potentially changing. Credit: Geoff Burke-USA TODAY Sports
Baltimore Ravens strong safety Bernard Pollard is worried about the game potentially changing. Credit: Geoff Burke-USA TODAY Sports

“Thirty years from now, I don’t think it will be in existence. I could be wrong. It’s just my opinion, but I think with the direction things are going – where [NFL rules makers] want to lighten up, and they’re throwing flags and everything else – there’s going to come a point where fans are going to get fed up with it.” Bernard Pollard, safety for the Baltimore Ravens, has a bleak outlook on the future of the NFL, and it all stems from the NFL seeking ways to make the game safer for its players.

With this one comment from a hard-hitting safety, a tragic autopsy report, and a slew of lawsuits, it seems as if the NFL’s concussion risks are once again back in the public eye.

The National Institutes for Health recently analyzed the brain tissue of the late Junior Seau, and determined that prior to Seau’s suicide, he suffered from chronic traumatic encephalopathy (CTE). The Boston University Center for the Study of Traumatic Encephalopathy classifies CTE as a degenerative disease of the brain that can only be detected by autopsy. The disease is commonly found in athletes and is caused by repeated brain trauma. This repeated jostling of the brain causes brain tissue to progressively degenerate and causes a build-up of an abnormal protein called tau. Typically CTE shows symptoms in the form of memory loss, confusion, impaired judgment, impulse control problems, aggression, depression, and progressive dementia. Gina Seau, Junior’s ex-wife, has said that Junior exhibited many of these symptoms leading up to his eventual suicide.

Upon learning of the diagnosis, Gina Seau and her four children filed suit against the NFL and Riddell Inc. (helmet manufacturers) in California Superior Court in San Diego. The suit alleges that the NFL was aware of the evidence and risks associated with repeated brain injuries, but ignored the information and concealed such information from players. It also alleges that “although the NFL voluntarily assumed its role as the unilateral guardian of players safety, the NFL has exacerbated the health risk to players by promoting the game’s violence and lauding players for returning to play despite being rendered unconscious and/or disoriented due to their exposure to sub-concussion and concussive forces.”

The Seau suit is by no means alone in this fight against the NFL for player safety. In February, the estate of former Chicago Bears player Dave Duerson filed a very similar suit upon finding that Duerson had also been diagnosed with CTE following suicide. Along with Seau’s and Duerson’s lawsuits, nearly 190 other lawsuits by almost 4,000 NFL players have been consolidated into one class action suit in federal court in Philadelphia. United States Eastern District Judge Anita Brody is scheduled to hear oral arguments pertaining to this class action suit in early April of this year.

Although much of this is happening in the present, the fight for player safety, especially the fight against concussions and progressive brain damage, is not a new fight. Sports Illustrated, all the way back in 1978, wrote, “As football injuries mount, lawsuits increase, and insurance rates soar, the game is headed towards a crisis.” This warning was repeated in 1994, and Sports Illustrated called concussions, “the silent epidemic of football.” The attention to the issue, though, really gained its steam in the early 2000’s. In a 2000 survey, it was reported that 51% of players had been knocked unconscious more than once, and that 73% of those players were not required to sit on the sidelines following the injury. Until recently, it seemed as if the NFL was not addressing the concussion conversation. In 2007, the NFL produced a pamphlet that stated “current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems if each injury is managed properly.” Unfortunately, nothing indicates that the concussions sustained by former and even current NFL players were managed properly. Players were not required to sit out following a crushing blow, but rather, many simply waited for the initial wooziness to pass, and then reentered the game.

In 2009, for the first time (and a whopping 15 years after Sports Illustrated highlighted the concussion epidemic), the NFL acknowledged that long-term effects existed from multiple concussions. Roger Goodell, NFL Commissioner since 2006, soon mandated that players with concussion-like symptoms could not return to play without being cleared by a neurologist whom was not affiliated with the team. Although this was the first step in a long process towards keeping athletes safe, is it too little, too late? By this time, lawsuits had already been filed, and the class-action suit was well on its way. Upon filing the class-action suit, the NFL attempted to have the case dismissed from the courts, arguing that an arbitrator, under the terms of the NFL collective bargaining agreement, should hear the action, since the litigation reflects a labor dispute. Oral arguments regarding this issue are set to be heard on April 9th.

Lawsuits aside, the NFL is still faced with the issue of how to keep players safe. There is always going to be the continuous struggle between how to keep the players safe and how to keep the game “safe.” The players themselves are increasingly confronting the issue of player safety, and it has been reported that nearly 600 players have pledged their brains to science for research. But for every 5 people who want the NFL to continue implementing the new rules to keep the players safe, there is somebody with an idea like Bernard Pollard that if the game gets too “soft,” the NFL will lose its fans. The game of football is inherently violent; there is no way around that, but there are ways to mitigate the risks, and the NFL has begun to make efforts to do that. For now though, the NFL must make it the number one priority to keep their players safe. That does not mean that this has to be done solely through the implementation of rules, but the NFL must also make sure that each and every injury is dealt with in the proper manner.

It is likely that the class action lawsuit will eventually settle out of court, but the NFL still stands to lose significant money throughout the process in addition to public sentiment. For years, the issue was not addressed, and now the NFL must tackle it head on, by protecting the players doing the tackling on the field.