The National Football League and Brain Injuries

The National Footballa League (NFL) was both the most popular spectator sport in the U.S. and a major economic entity, taking in roughly $10 billion a year in revenue.1 Its annual championship game, the Super Bowl, was a hugely popular television event. Super Bowl XLVIII, held in February 2014, was watched by 111.5 million people, making it “the most-watched television event in U.S. history,” according to the NFL.2

Injuries were expected in the NFL due to the game’s physical nature, and players routinely missed games or an entire season while recovering. However, beginning in the late 20th century and accelerating through the 2000s and 2010s, there was an increased interest in the long-term effect of head injuries on NFL players. Medical professionals and some retired players were particularly concerned about the number of deceased football players found to have chronic traumatic encephalo- pathy (CTE), a brain disease that caused behavioral problems, dementia,b and depression, among other potential health issues.3

One former player died of a drug overdose at age 45 and was later found to have had CTE and Alzheimer’s disease.4 His wife described the changes she saw in her husband: “The most obvious was the depression. . . . Then he was having difficulty engaging. He wasn’t keeping in touch with his childhood friends, his college friends, people that he had maintained very strong relationships with. . . . When this all began and when it became extreme, and when it became severe is really hard to go back and know for sure. . . . He just really stopped engaging in life.”5

In June 2012, over 2,000 retired players sued the NFL over head injuries.6 “The NFL must open its eyes to the consequences of its actions. . . . The NFL has the power not only to give former players the care they deserve, but also to ensure that future generations of football players do not suffer the way that many in my generation have,” said one former player.7 The lawsuit alleged, in part, that “[t]he NFL, as the organizer, marketer, and face of the most popular sport in the United States, in which [mild traumatic brain injury (MTBI)] is a regular occurrence and in which players are at risk for

a In this case study, football refers to American football and not to the sport known in the U.S. as soccer.

b Dementia was “a general term for a decline in mental ability severe enough to interfere with daily life. Memory loss is an example. Alzheimer’s [disease] is the most common type of dementia.” Alzheimer’s Association, “What Is Dementia,” http://www.alz.org/what-is-dementia.asp, accessed June 2014.

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MTBI, was aware of the evidence and the risks associated with repetitive traumatic brain injuries virtually at the inception, but deliberately ignored and actively concealed the information from the Plaintiffs and all others who participated in organized football at all levels.”8

In June 2014, the lawsuit seemed to be drawing to a close, nearly a full year after the two sides had agreed on a $765 million settlement.9 This delay was due to concerns from the judge overseeing the case regarding its terms.10 It would still be a few months before the judge gave her final approval.11 The settlement only applied to retired players and not to those currently in the NFL.12,c

This was a pivotal moment for the owners of the 32 independently owned teams that made up the NFL. The settlement resolved the NFL’s issues with retired players but raised new questions regarding what to do about current and future players. Could players be safely protected from serious harm through equipment innovations, rules changes, or by having players sign waivers to protect the NFL from future legal action?

Or, was this the beginning of a long-term trend leading to the eventual decline of public support and the league’s profitability? If the parents of aspiring players—part of the extensive youth- and college-football systems that underpinned American football—decided that the game was just too dangerous for their children to play, this would have a tremendous impact on the NFL in terms of both talent coming into the league and public support. “I can’t keep my boys . . . safe from everything. But there’s just certain things that I think are obvious ones to stay away from, and increasingly, I think football is one of those things,” noted one father.13

NFL teams were valuable and profitable businesses (see Exhibits 1 and 2). As an owner, was this the right time to sell before declining attendance, viewership, and fan support affected the NFL’s economic viability? (See the Appendix for background information on football and the NFL.)

Concussions and Brain Injuries

A concussion occurred when the brain came in contact with the skull at a high rate of speed.14 Concussions varied in severity but could result in symptoms including amnesia, confusion, difficulty sleeping, and trouble concentrating.15 Concussions were a traumatic brain injury (TBI), and the U.S. Centers for Disease Control and Prevention noted that “TBI symptoms may appear mild, but the injury can lead to significant life-long impairment affecting an individual’s memory, behavior, learning, and/or emotions.”16 This was echoed by the Mayo Clinic, which said that “[e]vidence is emerging that some people who have had multiple concussions over the course of their lives are at greater risk of developing lasting, and even progressive, impairment that limits their ability to function.”17 Rest was critical: “Resuming sports too soon increases the risk of a second concussion and of lasting, potentially fatal brain injury. . . . No one should return to play or vigorous activity while signs or symptoms of a concussion are present. Experts recommend that adults, children, and adolescents not return to play on the same day as the injury,” Mayo Clinic staff noted.18

The long-term effects of head injuries were first noticed in the 1920s when a doctor observed a neurological condition in retired boxers.19 The term “punch drunk” was used to describe these individuals.20 This syndrome was a form of CTE.21 CTE was a brain disease seen in people who sustained multiple head injuries, including those minor enough to go undetected—known as

c The lawsuit was settled in April 2015 and allowed retired players to access as much as $1 billion from the NFL. Associated Press, “Judge OKs 65-Year Deal Over NFL Concussions That Could Cost $1B,” Time, April 22, 2015, http://time.com/3831859/nfl-concussion-lawsuit-deal/?xid=newsletter-brief, accessed May 2015.

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“subconcussive” injuries.22 The disease gradually destroyed brain tissue and caused the accumulation of a specific protein in the brain.23 According to one center focused on the disease, people with CTE could suffer from neurological and behavioral health issues, including “memory loss, confusion, impaired judgment, impulse control problems, aggression, depression, and, eventually, progressive dementia.”24 Disease onset followed no specific timeline.25

The cost of care for individuals with neurodegenerative diseases could be quite high; the authors of one study found that “[t]he yearly monetary cost per person that was attributable to dementia was either $56,290 . . . or $41,689 . . . depending on the method used to value informal care.”26 The life expectancy of a dementia patient varied, but it was estimated that the average person with Alzheimer’s disease (a form of dementia) could live for as long as 10 years post-diagnosis.27

Injuries in the NFL

Each team had (on average) four athletic trainers, two orthopedists, two primary care physicians, one chiropractor, and one neuro-trauma consultant present at each game.28 In addition, there was one independent athletic trainer, one ophthalmologist, one dentist, one radiology technician (for X-rays), one airway management physician, and two EMTs/paramedics at each game.29

The odds of being injured varied, with quarterbacks being by far the least likely to be injured, while running backs and players on special teams (e.g., those involved in kick- or punt-returns) were the most commonly injured players.30 Players were most likely to injure their “lower leg/ankle/foot” (26% of all injuries), though the quarterback was most likely to injure his shoulder (17%).31 These injuries often affected players throughout their lives. In one poll of retired players, 89% said that they “[suffered] from aches and pains on a daily basis”; of these players, 63% attributed “nearly all of them” and 29% attributed “most of them” to football.32

Head Injuries in the NFL

The authors of one studyd used the NFL’s data of 787 reported concussions from 1996 to 2001 to determine that “[t]here were 0.41 concussions per [NFL] game.”33 Furthermore, the authors found that “[i]n 58 of the reported cases (9.3%), the players lost consciousness; 19 players (2.4%) were hospitalized. A total of 92% of concussed players returned to practice in less than 7 days, but that value decreased to 69% with unconsciousness. . . . More than one-half of the players returned to play within 1 day, and symptoms resolved in short time in the vast majority of cases.”34

During the 2013 preseason and regular season, NFL players sustained a total of 228 concussions (see Table A).35 Nearly half were from the injured player’s helmet coming into contact with that of another player—a helmet-to-helmet hit.36 The next most likely source of a concussion (15%) was from a player’s head hitting the ground.37 (See Exhibit 3 for concussions by player position.) The vast majority of ex-players surveyed in one 2013 poll reported experiencing at least one concussion while in the NFL, and 35% had at least five concussions.38 Of those who had a concussion, 67% believed they had “continuing symptoms as a result.”39

d The authors of this study were also members of the NFL’s Mild Traumatic Brain Injury Committee.

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Table A Concussions in the NFL, 2011 to 2013 (preseason and regular season)

Year Practice Game Total 2011 37 215 252 2012 45 216 261 2013 43 185 228 3 Year Average 41.7 205.3 247.0

Source: John York, Mitchel S. Berger, Matthew Matava, and Jeff Miller, “Super Bowl XLVIII Health and Safety Press Conference,” PowerPoint presentation, January 2014, p. 3, http://nfllabor.files.wordpress.com/2014/01/hs-press- conference.pdf, accessed May 2014.

The NFL’s Response to Head Injuries

In the mid-1990s, the NFL formed the Mild Traumatic Brain Injury Committee (MTBIC).40 Dr. Elliot Pellman, a rheumatologiste and physician for the New York Jets, was selected to lead the effort.41 “Concussions are part of the profession, an occupational risk . . . like a steelworker who goes up 100 stories, or a soldier,” Pellman said.42 Members of the MTBIC authored multiple research papers, the first of which was published in 2003.43 The members arrived at such findings as: “[M]any NFL players can be safely allowed to return to play on the day of injury after sustaining an MTBI.”44 In another study, the authors found that

[T]here may be a different tolerance level for concussion between professional and nonprofessional athletes. The level of conditioning and skill necessary for success in the NFL may result in an overall sample pool of athletes who are less prone to injury. . . . There may be a “natural selection” process in professional football whereby athletes who are easily injured do not successfully rise through the ranks of high school to collegiate football to the NFL without resilience to cerebral concussion.45

Other professionals disagreed. One group of doctors and researchers studied the brain of a former NFL player who had shown signs of neurological problems before his death at age 50 from a heart attack.46 The authors found evidence of CTE in his brain and said that “[t]his case highlights potential long-term neurodegenerative outcomes in retired [NFL] Players subjected to repeated [MTBI]. . . . We recommend comprehensive clinical and forensic approaches to understand and further elucidate this emergent professional sport hazard.”47 A later examination of brain tissue from another ex-NFL player, who committed suicide at age 45, also revealed evidence of CTE.48

One neurosurgeon highlighted the limitations of the MTBIC’s studies, observing that its work focused only on current players, who were thus unlikely to have symptoms of CTE.49 An assessment of the NFL’s efforts by the ex-players suing the league was more critical: “The NFL propagated its own industry funded and falsified research to support its position . . . despite the fact that independent medical scientists had already come to the opposite conclusion.”50

e “The role of the rheumatologist is to diagnose (detect), treat and medically manage patients with arthritis and other rheumatic diseases. These health problems affect the joints, muscles, bones and sometimes other internal organs (e.g., kidneys, lungs, blood vessels, brain).” “What Is a Rheumatologist?” American College and Rheumatology, updated August 2012, http://www.rheumatology.org/Practice/Clinical/Patients/What_is_a_Rheumatologist_/, accessed June 2014.

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Retired Players’ Deaths and the Focus on CTE

Broader interest in the long-term effects of head injuries was piqued in part by the suicides of several ex-players. In late 2006, Andre Waters, a retired 12-season veteran known for his physical style of play, killed himself at age 44.51 One observer, describing the reaction of the doctor who examined Waters’s brain, said that it “had degenerated into that of an 85-year-old man with similar characteristics as those of early-stage Alzheimer’s victims.”52

In early 2011, Dave Duerson committed suicide at age 50.53 Before doing so, he left a note saying, “Please, see that my brain is given to the [NFL]’s brain bank.”54 Analysis of his brain showed that Duerson had CTE.55 Ray Easterling, an ex-player in his 60s with dementia, in late 2011 became one of the first people to sue the NFL over head injuries.56 A few months later, Easterling killed himself; analysis of his brain revealed CTE.57

One of the more shocking suicides was that of 43-year-old Junior Seau in May 2012.58 Seau played from 1990 to 2009, during which time he was named to 12 Pro Bowls as one of the league’s best linebackers.59 He too was later found to have had CTE.60 “We saw changes in his behavior and things that didn’t add up with him . . . ,” Seau‘s ex-wife said. “But [CTE]f was not something we considered or even were aware of. . . . [Now] that it has been conclusively determined from every expert that he had obviously had CTE, we just hope it is taken more seriously. You can’t deny it exists, and it is hard to deny there is a link between head trauma and CTE.”61

As researchers examined more brain tissue from ex-football players, it became clear that a number of them had CTE. One group of researchers studied the brains of eight deceased ex-professional football players, none of whom were older than 52; seven had CTE.62 A 2012 study revealed even stronger linkages: 34 of 35 deceased professional footballers studied had varying stages of CTE.63

The NFL Reacts

While this was all unfolding, the NFL started taking action. It sponsored a conference on concussions in 2007 and drafted a pamphlet on the issue.64 In discussing long-term effects, the pamphlet stated that “[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. . . . Research is currently underway to determine if there are any long-term effects of concussion in NFL athletes.”65 The league worked with the NFL Players Association (NFLPA, the union representing players) to determine how concussed players should be managed and outlined four key points.66 The first was that “[t]he player should be completely asymptomatic and have normal neurological test results, including mental status testing at rest and after physical exertion, before returning to play.”67 However, in January 2010, Dr. Ira Casson, a former co-chairman of the MTBIC, said that “there is not enough valid, reliable or objective scientific evidence at present to determine whether or not repeat head impacts in professional football result in long-term brain damage.”68

In late 2009, NFL Commissioner Roger Goodell appeared before a congressional committee and defended the NFL.69 “We have published every piece of data in the [NFL]. We have published it publicly, we have given it to medical journals, it has been part of peer review. We don’t control those doctors. They are medical professionals,” he said of the NFL’s research efforts.70 A few months later, an NFL spokesman said that “[it’s] quite obvious from the medical research that’s been done that concussions can lead to long-term problems.”71

f The brackets were in the original text.

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Under the collective bargaining agreement (CBA) between the NFL and the NFLPA in 2011, players could receive up to $100,000 a year towards their care if they developed Amyotrophic Lateral Sclerosis (ALS), dementia, or Parkinson’s disease.72 The 2011 CBA also contained a provision to extend benefits to players “who have a permanent, neuro-cognitive impairment.”73 Only certain players qualified for these benefits though; they had to be 54 years old or younger and “have executed a release of claims and covenants not to sue.”74 Furthermore, players could receive these benefits for a maximum of 15 years, or until they turned 55.75

Beyond Football

The NFL was not the only professional sports league involved in the head injury discussion. Athletes from the National Hockey League (NHL) sustained a total of 53 concussions during the 2013–2014 regular season.76 The NHL had rules regarding when an athlete could resume playing following a suspected concussion, but players were not always forthcoming about head injuries. “Guys downplay the symptoms or don’t report them because of job security and they don’t want to lose their spot. . . . And, guys want to keep playing because they want [to] help their team. In the back of our minds, too, you don’t want other teams to know you have a head injury,” one player explained.77 In 2014, the NHL was facing a lawsuit from 200 retired athletes regarding head injuries.78

The Lawsuit In June 2012, some 2,000 retired players united their separate legal efforts against the NFL

regarding head injuries into one lawsuit.79 The lawsuit also targeted entities the players believed held some responsibility, such as Riddell, Inc., which made helmets for the NFL.80 “The case seeks a declaration of liability, injunctive relief, medical monitoring, and financial compensation for the long- term chronic injuries, financial losses, expenses, and intangible losses suffered by the Plaintiffs and Plaintiffs’ Spouses as a result of the Defendants’ intentional tortious misconduct, including fraud, intentional misrepresentation, and negligence,” the players said in the lawsuit.81

The lawsuit accused the league of misleading players: “The NFL caused or contributed to the injuries and increased risks to Plaintiffs through its acts and omissions by, among other things: (a) historically ignoring the true risks of MTBI in NFL football; (b) failing to disclose the true risks of repetitive MTBI to NFL players; and (c) since 1994, deliberately spreading misinformation concerning the cause and effect relationship between MTBI in NFL football and latent neurodegenerative disorders and diseases.”82 The plaintiffs also accused the NFL of encouraging violent play.83

In August 2013, the two parties reached a $765 million settlement, by which time the lawsuit included roughly 4,500 ex-players.84 The NFL did not admit to any wrongdoing, which Goodell noted was “[because] we don’t believe there is a [sic] any guilt here. We don’t believe necessarily that this is caused by football, but we all want to do what’s right for the players. . . . The cause is not the issue for us. It’s to get them help.”85 Most of the money ($675 million) was earmarked for those with ALS, Alzheimer’s disease, dementia, or “severe cognitive impairment.”86 The amount awarded varied by condition.87 All retired players were eligible for these funds.88 Another $75 million was for diagnostic medical exams; $10 million for education and research; $4 million to inform retired players; and the remainder for legal and administrative compensation, expenses, and fees.89

In January 2014, the judge overseeing the case declined to approve the deal, believing there might not be enough money for all retirees.90 This happened again in April 2014 when the judge wanted further proof that the money was sufficient to pay out claims over the fund’s intended 65-year

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lifespan.91 The settlement was amended in June 2014 so that the retired players could potentially receive more than the $675 million initially set aside for them.92 The judge agreed, though it would still be a few months before the settlement was finalized and approved.93

Player Opinions Despite increased awareness about head injuries, players were far from unanimous on what—if

anything—to do. For some, other injuries were more important.94 In a poll of nearly 300 current players conducted between December 2013 and January 2014, nearly half of respondents were “most concerned” about a knee or leg injury, while just 24% were “most concerned” about a head or neck injury.95 “Anytime you can avoid hits to the head it’s great . . . but if you get hit in your knees, that’s your career,” one player explained.96 “A head injury? Don’t get me wrong, that’s bad. No one wants a concussion. But, here and now, a knee injury can be career-ending,” said another.97

The physical and mental toughness that many players associated with football might lead some to act against the best interest of their health: “This culture encourages NFL players to play despite a head injury. Moreover, failure to play through such an injury creates the risk that the NFL player will lose playing time, a starting position, and possibly a career,” noted the retired players in their lawsuit.98 These observations were echoed by a former player agent: “I watched athletes I represented play with collapsed lungs; I watched them completely fight with doctors at every time to get into the game; I watched players deceive coaches on the sidelines when they were injured and run back into a game.”99 In a January 2014 poll of over 300 active players, 85% “said they would play in the Super Bowl with a concussion.”100

The Federal Government’s Responsibilities? The U.S. Congress had created the Occupational Safety and Health Administration (OSHA)

within the Department of Labor in 1970 to “assure safe and healthful working conditions for working men and women.”101 OSHA achieved this through education, inspections, training, testing, and various other means.102 Employees of OSHA-regulated companies had the right to ask for a workplace inspection if they felt that a safety issue was being ignored.103 OSHA inspectors could cite employers and mandate that a safety issue be addressed.104 The agency did not, however, have the authority to protect independent contractors.105 And with just 2,200 inspectors, OSHA had few employees to enforce its standards, and the fines it could levy were limited to $7,000 for “each serious violation” or $70,000 “for a repeated or willful violation.”106

OSHA generally did not investigate professional sports because it did not view professional athletes as private-sector workers.107 In one letter, an OSHA official said that “I am not aware of any formal OSHA interpretation or any directly relevant case law on whether players on professional sports teams should be considered independent contractors or employees. . . . This determination must be made on a case-by-case basis.”108 Another official stated that “[i]n most cases . . . OSHA does not take enforcement action with regard to professional athletes.”109 Furthermore, the Department of Labor included professional athletes in the same category—performing arts, spectator sports, and related industries—as actors, musicians, and writers in tracking injuries.110 This made it challenging to parse out how often players were injured and where these injuries occurred. There were 5.5 injuries or illnesses for every 100 employees in this group in 2012.111 By comparison, the manufacturing industry had a rate of 4.3 per 100 employees in 2012, and mining, a rate of 2.8.112