The tentative settlement between the National Football League and 4,500 of its former players and their families in the concussion lawsuits would be a victory for the plaintiffs lawyers and the league, but it has troubling aspects from a public policy perspective. If a settlement is supposed to end a controversy, this one surely will not.
The 425-paragraph complaint filed in 2012, which alleged that the NFL concealed the long-term dangers of repeated blows to the head, told the compelling age-old tale of corporate deceit and the callous disregard for the safety of workers. Yet the $765 million settlement that awaits court approval — reached at the dawn of a new season — comes at a heavy price: no admission of liability, no discovery into what league owners knew and when they knew it, no testimony from the athletes and their families about their physical and emotional suffering, no real information for parents considering whether to let their youngsters play this dangerous game, and a return to business as usual.
Jimmie Giles, a former NFL player and one of the plaintiffs, told the press last week: "This was a good day for all involved. It returns the focus to the football field, where it belongs.'' But maybe we should stay focused on the public health issues.
Researchers have known for some time that repeated concussions can lead to traumatic brain injuries, including chronic traumatic encephalopathy, a degenerative brain disease. In the NFL, 60 percent of the players have suffered one concussion and more than one in four suffered three or more during their short careers, according to the complaint. The consequences can be horrific.
One of my favorite players, Andre Waters of the Philadelphia Eagles, in 2006 shot himself in the head at age 44. He once said that he lost count of the number of concussions he endured after receiving his 15th. The autopsy conducted by neuropathologist Benet Ormolu concluded that Waters' brain resembled that of an Alzheimer's patient in his 80s, caused by successive concussions he suffered playing football.
Waters, of course, was only one of hundreds whose life after football was a nightmare of surgeries, disease and heartbreak. Yet for years the NFL vigorously defended any claims for benefits by former players suffering from the effects of on-the-field concussions.
In 1994, the NFL formed a committee to investigate the issue of concussions and stocked it with individuals who had a vested interest in preserving the $9 billion-per-year business. In the words of the complaint, "the NFL's team of hand- picked so-called experts…did not find concussions to be of significant concern and felt it appropriate for players suffering a concussion to continue playing football during the same game or practice in which one was suffered." The complaint went on to assert that the NFL knew about the risks of the injuries and concealed them. Among the NFL's many defenses, which perhaps made the attorneys' decision to settle a wise one, is that these well-compensated professionals assumed a risk that they knew full well existed when they took the field. Indeed, much has been written about the widespread practice known as "sandbagging."
Sandbagging works like this: Today's players provide a baseline assessment before the season starts so that trainers can determine whether his cognitive functioning has normalized after a concussion. But some players intentionally score low on those initial tests to make their cognitive scores look better if a test is administered after a hit.
NFL Superstar Peyton Manning said in 2011 that he had sandbagged a preseason test — a statement he later claimed was a joke — to ensure a quick return in the event of a head injury. The players know that if they hesitate to make or take a hit, an eager second stringer is anxious to take their place. Isn't this an all-volunteer army?
What separates sports from other professions is that those lucky few who become professionals have had to practice it for years, beginning at a young age. And millions who never really have a chance to make it professionally will endure the same violent collisions from Pee Wee football up through high school and the college game.
What remains unsettled after U.S. District Judge Anita Brody in Philadelphia signs off on In Re National Football League Players' Concussion Litigation is whether the game itself should survive.
Fifty years ago, after boxer Davey Moore died after sustaining repeated blows to the head in a nationally televised fight, Bob Dylan asked whether the promoters, the writers and even the fans were responsible, singing their answer that "Boxing ain't to blame. There's just as much danger in a football game. It's just the old American way. It wasn't us that made him fall. No, you can't blame us at all."
Maybe. But it's worth asking whether it is even ethical to root on and support a game when we know the players are placing themselves at serious long-term risk. And even if we are not to blame, because we paid to watch the gladiators duel it out from our perch in the Coliseum, what does it say about us when we encourage young people to enter this very dangerous arena?
As bioethicist Arthur Caplan told me, the settlement "only reinforces my ethical anxiety about a league that knows its game greatly harms its players but won't fess up, and instead, talks about the 'safe' way to play the game to worried parents in its commercials." In 1905, a year when 18 athletes died in intercollegiate football, President Theodore Roosevelt threatened to abolish the game if the brutality could not be reduced. Perhaps he should have acted.
Alan C. Milstein is a partner at Sherman, Silverstein, Kohl, Rose & Podolsky and is a regular contributor to Sports Law Blog.