Concussions on Trial

Q and A with Daniel Goldberg on the public health implications of the NFL concussion lawsuit

Published on August 29, 2013by Kathleen Bachynski
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Over the past year, more than 4,000 former professional football players sued the NFL, alleging that the league hid its knowledge of the risks of concussion associated with the sport.  On July 8, 2013, the federal judge overseeing the case had ordered both sides to mediation, with a deadline of September 3, 2013. Yet on August 29, 2013, both sides announced that they had agreed to a $765 million settlement “that would fund medical exams, concussion-related compensation and medical research.” The judge overseeing the case still must approve the agreement at a later date.

This development is just the latest fascinating twist in an ongoing national conversation about concussions in sports. According to the CDC, football is the sport with the highest numbers and rates of concussions. Despite wearing helmets, players are still exposed to numerous hits to the head throughout the course of a game, each of which can potentially cause a concussion. And it’s not just the professionals who are at risk: the CDC has estimated that every year, 173,285 sports and recreation-related concussions are treated in children younger than 19 years.

Concussions are a form of brain trauma; they are often called mild traumatic brain injury or mTBI.  The effects of concussions, however, can be anything but mild. In addition to short-term symptoms such as loss of memory and headaches, scientists are studying whether repeated concussions are also associated with various diseases including depression, dementia, Alzheimer’s disease, and chronic traumatic encephalopathy. Concussion research is rapidly evolving, with continual debates over the extent and implications of this public health problem. Indeed, the controversial nature of the topic likely contributed to ESPN’s decision last week to pull out of a forthcoming investigative documentary on head injuries in the NFL.

The NFL lawsuit was a form of mass tort litigation, meaning that many plaintiffs (the players) who have generally similar complaints participated in the suit. Dr. Daniel Goldberg, a professor of bioethics and interdisciplinary studies at East Carolina University, is one of the foremost experts on this issue, and recently published an article in The Journal of Legal Medicine addressing the ethical, legal and historical context of the litigation. Dr. Goldberg shares his perspective on this lawsuit and its broader relevance for population health.

In your article, you write that the NFL litigation has important implications for population health, and not only for professional football players. How do you see this litigation as broader public health issue?

The NFL litigation is an example of a mass-tort action that qualifies as “social impact litigation.”  Social impact litigation does not merely impose accountability on a regulated industry for public health harms it has caused. It also has the potential to contribute substantially to a robust public discussion on acceptable levels of risk and appropriate remedies for costs imposed on the public. Especially given the uncertainty that surrounds concussions in American football (i.e. how many concussions are too many, when is it safe to return to play, etc.), the information in the NFL’s private hands would likely be valuable in assigning prospective as well as retrospective accountability. This lawsuit may help shape an informed and vigorous public discourse on neurological health and American football.

Finally, as the NFL itself concedes, professional football is an enormously powerful determinant of “football culture.” Given that millions of children and adolescents play American football, the NFL’s behavior as to concussions has significant implications at all levels of play.

One common argument is that NFL players “knew the risks” of playing football, and that they must therefore assume the risks of injury that are associated with contact sports. How would you respond to claims that the former players’ allegations of negligence and fraud on the part of the NFL are without merit?

This is known in American tort law as “assumption of the risk,” or the notion that when an activity is obviously dangerous, any participant willingly assumes the risk of harm caused by the activity. There are several possible responses to these claims. The first is that, as I note in the paper, the defense may be unavailable where a defendant actively concealed knowledge material to the patient’s participation in the activity. Thus, if the evidence produced during the litigation had revealed that the NFL knew of the danger, knew it was far more probable or that consequences might be much more severe than most players believed, an assumption of the risk defense might fail. Defendants may be liable for negligence where they increase the risks of an inherently risky activity, even if defendants owe no duty to protect participants from the risk.

The second response is that the assumption of the risk defense typically does not apply where the risks are unknown to the plaintiff. Even inherently dangerous activities may have unknown risks, and so at least some of the NFL plaintiffs could have argued that the true risks of long-term neuropathology were simply unknown to them at the time that they played. The second response is obviously a harder sell, and is problematic for the plaintiffs because, the earlier the time period in question, the more possible it is that neither the players nor the NFL knew of the risks to which the players were exposed.

Ultimately, all these arguments probably increased the likelihood that the plaintiffs would be willing to settle.

In 2009, the House Judiciary Committee scheduled public hearings on the subject of concussions in professional football. In your analysis of these congressional hearings, you find that individuals testifying on behalf of the NFL acknowledged the existence of concussions, and indeed NFL Commissioner Roger Goodell asserted that “Medical considerations must always come first.” Did their testimony suggest that the NFL is taking the problem of concussions seriously?

That is a difficult question to answer because the congressional hearings mark a dramatic change in the NFL’s public face. The NFL’s brand did not come through the hearings unscathed; reporting on the hearings, Alan Schwarz of The New York Times seized upon the comparison of the NFL to the tobacco industry. Nevertheless, it is probably fair to say that by the time leading NFL officials were called to testify before Congress, the problem had much more of the NFL’s attention than it had previously.

Certainly, the NFL’s public face and messaging regarding concussions and football has changed dramatically since the 2009-2010 hearings, but the substance of those changes remains open to question, in my view.

The authors of an NFL-funded study recently published in the Journal of Pediatrics concluded that “youth football is a generally safe activity with regard to concussions for children aged 8-12 years, particularly during practice.” In fact, the authors proposed that to reduce concussions, young children playing football should spend more time practicing tackling in order to learn proper tackling techniques. What do such conclusions imply about who should be held responsible for the prevention of concussions? Are there alternative interpretations of these research findings?

As to the first question, the authors’ conclusions support the NFL’s message that American football is ultimately safe so long as certain safety precautions are observed.  This message subtly shifts responsibility from the most powerful groups (the NFL, the NCAA, etc.) to the local level (coaches, athletic trainers, and, of course, players themselves).

On the merits, I was shocked to read the authors’ recommendations in that study. As journalist Patrick Hruby notes, there are some significant limitations pertaining to the methods of data collection and likely underreporting. Moreover, while I can see that proper tackling technique could have some conceivable effect on safety, the conclusion that children should engage in more full-contact practice as a means of minimizing mTBI flies in the face of an enormous amount of evidence regarding the risks that children face, especially children who have already experienced concussions.

More importantly, however, is the fact that the study underscores one of the NFL’s key messages regarding concussions, namely, that rule changes and appropriate play can substantially reduce the incidence and sequelae of concussions. Not only is there little direct evidence to support this claim, it completely elides the fact that the risk of concussions inheres in the game itself. To the best of my knowledge, neither rule changes nor technological interventions (i.e. helmets) have been linked with any sustained decrease in the risks of concussion in football. The game of football itself is intrinsically dangerous (which does not necessarily imply that people should not engage in it).

How is the NFL concussion litigation similar or different from other lawsuits that have had important public health impacts, such as the tobacco litigation in the 1990s?

The NFL concussion litigation resembles other social impact litigation related to industrial harm (tobacco, lead, vinyl, asbestos, etc.) in that each of them arises out of a private employment dispute between workers and industry, and yet relates to activities that impose significant burdens on the rest of society. CDC statistics indicate that traumatic brain injury results in approximately $77 billion in medical expenses and lost productivity, and there is little doubt that the bulk of those costs are borne by the public, families, and caregivers.

That said, concussions in football do not pose direct health harms to the non-football playing community in the way that lead and tobacco (i.e, lead paint, secondary smoke) do. So there are differences as well—football-induced mTBI is 100% preventable in a way that avoiding the health hazards of lead, tobacco, vinyl, and asbestos may not be. This was not necessarily a fighting issue in the litigation itself because whatever the social impact of the litigation, it was nevertheless at its core a private dispute between the NFL and some of its employees. The public health impact of the litigation is critical, but it is possible these differences weighed more heavily toward the likelihood of an early settlement.

While a settlement has just been reached in the NFL suit, in the meantime, lawyers are also seeking to expand a lawsuit against the NCAA over its handling of head injuries. Might this NCAA lawsuit influence the NFL lawsuit (or vice versa), and if so, how?

That’s a particularly good question! I tend to think that the NCAA and the NFL are such different entities and have such different relationships with their players that it is difficult to extrapolate from one to the other. The parties and stakeholders to the NCAA concussion litigation are watching the NFL litigation closely, of course.

In your article, you write, “[T]he question of what levels of risk are acceptable for which populations are unavoidably moral and political questions.” How might the NFL lawsuit influence our broader national conversations about what level of risk is acceptable for children, as well as for adult professionals who play football?

Public discourse on tobacco changed dramatically once the private documents held by the tobacco industry were for the first time made publicly available through the discovery process of the tobacco litigation.  (Discovery is a central phase of pretrial litigation in which the parties seek evidence from each other regarding the subject matter of the litigation.  It can include demands to produce written documentation, to answer written questions, to make persons appear for depositions, etc.)  Indeed, the idea, proudly noted by a tobacco executive, that “doubt is our product” appears in a memorandum produced via discovery. Examining private documents currently held by the NFL would have arguably had similar potential to alter public dialogue on the particular levels of risk to which it is acceptable to expose children, adolescents, collegiate athletes, and professional players. Scholars and activists continue to mine the immense amounts of data produced during the tobacco litigation, and their findings continue to illuminate our conversations on tobacco, harm, and risk.

What do you think of this latest development in which both parties agreed to a settlement in the NFL lawsuit? How does the decision to settle potentially affect the broader public health conversation about the risks of concussions?

I was not surprised by the fact of settlement, given the NFL’s interests in avoiding the discovery process.

But the amount of the settlement surprised me, given that, after fees and costs, the average plaintiff will receive approximately $170,000.  The lifetime costs of caring for a person suffering from traumatic brain injury and associated health complications are likely to be many times that figure. (The average lifetime cost of caring for a TBI survivor with severe disability exceeds $2 million.) But the plaintiffs were likely concerned about the difficulties of proving causation, and again, the NFL’s interest in avoiding discovery probably pushed both parties towards an early settlement.

Edited by Dana March