Each Sunday from September through January, millions of Americans huddle around the TV with various snacks and drinks to watch their favorite football teams compete for the chance to advance to the Super Bowl. On the field during nearly every game, there is a myriad of injuries that occur, and they can range from life-altering to simple nuisances. Concussions are one of the most complex injuries one can suffer but are also the most common injuries football players get during their careers. While in the moment, a player can categorize a concussion as an annoyance that may force them to miss the remainder of a game, the terrifying truth is that repeated concussions can lead to Chronic Traumatic Encephalopathy (CTE). CTE is a complex disease that severely damages the brain. The symptoms of CTE are wide-ranging and can affect each individual differently, the effects are also difficult to pinpoint as they can be attributed to other things like changes in lifestyle or other diseases.
CTE occurs when the tau protein forms clumps that spread and kill brain cells; the disease can hide until after a player’s professional career is over, as symptoms such as changes in mood and behavior may not appear until an athlete’s late 20s or 30s. While changes in mood and behavior may be the first symptoms to appear, the disease progresses to include serious cognitive issues like impaired judgment and memory loss. While CTE was first described in 1928, the first physical evidence of CTE was only found in 2005 and can only be properly diagnosed after death through an examination of brain tissue. The relative threat of CTE has led the National Football League (NFL) to implement new regulations in order to minimize the risk of brain injuries, but the degenerative nature of this disease leads to a large gap in what legal standards of care can cover.
CTE has only come to the forefront recently due to the fact that we are now seeing how it affects players in the long term. While the development of CTE is a relatively newly known phenomenon, the NFL was aware of concerns regarding head injuries since its inception and particularly since the mid-1960s. Between 1965 and 1969, over 100 players died of brain injuries, leading to a set of changes in equipment and rules that were proposed by neuroscientist Richard Schneider. The league introduced new protective helmets and the banning of certain methods of blocking. These changes to the rules of football led to a decrease in head injury fatalities. While the regulations of the 1960s attempted to uphold the standard of care the NFL promised its athletes, it failed to update the regulations protecting its athletes as new information regarding concussions and head trauma became available.
One of the first questions when considering how and if the National Football League should compensate these affected players is if the NFL can be held liable for this lack of protective regulations. While the NFL has updated its concussions protocols, there are thousands of players that were made susceptible to CTE due to a lack of effective preventive concussion measures. The NFL even acknowledges this by stating that they believe that one-third of the retired athletes in the National Football League will develop CTE. In the court records for In Re: NFL Players’ Concussion Injury Litigation, the NFL continues by stating that they believe that the effects of CTE will begin to show up in athletes of younger ages. During this court case, the United States District Court did find the NFL liable for hiding the dangers of concussions from former athletes and forced a $765 million settlement between the NFL and 5,000 former players. The settlement broke down the payments to former players by the disease caused by concussions sustained while playing football: $5 million for those diagnosed with Alzheimer’s, $4 million for those diagnosed with CTE, and $3 million for those diagnosed with dementia. This direct admittance of liability broke with what the NFL had done in the past: directly deny any correlation between CTE and football. While the results of a civil suit do not necessarily mean an admission of guilt, the civil suit ending in a settlement can be a step forward towards other athletes receiving compensation for failures to uphold the standard of care.
The National Football League did not change its protocols for concussions until 2011. As the NFL has acknowledged that concussions and playing professional football league have a direct correlation, any player who has played since the 1960s and throughout the conclusion of the 2011 season should be eligible for a settlement for being put in danger by the NFL underplaying and not disclosing the true dangers of the sport. The NFL is liable for any and all diseases that occur due to concussions from playing football during the time that the protocols were not in line with the maximum level of protection available. While not all players who play in the National Football League will develop CTE, repeated concussions can cause a myriad of problems, especially if athletes receive concussions at a young age. By taking responsibility and becoming an example in proper concussion management, the NFL can, in turn, protect future generations of football players from the less dire consequences of concussions like depression and post-traumatic headaches.
Before the change in protocol in 2011, the standard of care that was supposed to be upheld by the National Football League was not met due to unchanging regulations when the concussion medicine and diagnosis landscape was changing. The National Football League’s behavior meets the four elements of negligence, as it owed a duty to the athletes and failed to provide reasonable care by not updating their concussion protocol, leading to life-altering cognitive and physical diseases. Assuming that information regarding traumatic head injuries had not changed in fifty years is negligent. Lawsuits regarding improper concussion protocols came to the forefront in 2005 after a college-level player went into a coma after repeated concussions. The school was found negligent after not having a sufficient concussion protocol. Standard of Care is the key reasoning behind why the National Football League would be found guilty of negligence. The Standard of Care changes over time with scientific discovery and advances in technology, the medical knowledge regarding the brain and how impacts to the brain may affect its function have changed greatly since 1965 when the original concussion protocol was drafted.
Studies on CTE have hinted at the fact that as medicine progresses more athletes will be diagnosed with CTE. A recent study on the brains of donated NFL players showed that 87 out of the 91 brains were positive for CTE; a different study found CTE in 101 out of 128 football league players’ brains. As these numbers rise, more lawsuits will be filed due to negligence. A founded history of CTE will probably also not be needed in future concussion-related lawsuits due to the fact that repeated concussions can cause brain injuries other than CTE. It is the NFL’s responsibility to pay for the proper care that these athletes will need after knowingly putting these athletes at risk for long-term side effects.
While the National Football League has updated its concussion protocols, it runs the risk of repeating the past. In order to avoid more negligence, the National Football League must continue to update its health and safety protocol to keep up to date with evolving medical practices. Since the most recent update of the health and safety standards in 2018, the National Football League has enforced more stringent rules during kick-off and head-to-head collisions and has closely watched the types of helmets allowed during play. Teams in the NFL can also be fined hefty fines for violations of the protocols set in place by the Head, Neck, and Spine Committee. Despite the initial reconstruction of health and safety standards, there was still a large number of concussions. While these are all steps that will help prevent another onslaught of lawsuits and negligence allegations, the National Football League must ensure that they continue updating these protocols regularly. The National Football League also has a duty to the players from 1965 to 2011 to provide them with the care that they need after giving they were misled by the National Football League.