NFL's Concussion Issue is Not Going Away

PITTSBURGH, PA - DECEMBER 08: Colt McCoy #12 of the Cleveland Browns lays on the ground while speaking to athletic trainers after a helmet to helmet hit from James Harrison #92 of the Pittsburgh Steelers during the game on December 8, 2011 at Heinz Field in Pittsburgh, Pennsylvania. (Photo by Jared Wickerham/Getty Images)

We've been down concussion road before during this offseason at WCG, namely with Sam's well-done piece on the potential (eventual) death of the NFL due to concussion-related lawsuits, but with news coming out over the weekend of yet another concussion-related lawsuit against the NFL, its time to check in again on where the problem currently lies, and what could be the backbreaker for the NFL.

With the newest lawsuit being filed, almost 1,200 former NFL players have sued the NFL due to concussions sustained during their playing days and the lasting, often debilitating impact they can have on former players' lives. The difficult part for the litigates will be to prove that the NFL had a conspiratorial knowledge of the lasting impact of concussions on players' lives and covered them up; or in the least promoted a culture of violence while refusing to investigate the impact this culture could have on the players.

The Saints' bounty system investigation was cited in the most recent concussion lawsuit (although no players that were purported targets of Saints' players under Gregg Williams were included in the lawsuit) as another example of the NFL's emphasis on hard-hitting action and entertainment with reckless disregard for the health and well-being of the players. Lawyer Bruce Hagen, who has filed two separate lawsuits against the NFL on behalf of thirty-three former players, described the bounty system's affect on the pending lawsuits:

"It shows that it's an institutionalized effort by management to go outside the bounds of the game as a way to motivate players even if it means intentionally having them injured.''
Essentially, the former players case is: the NFL marketed itself and fiscally exploded into a booming business on the future pain and suffering of its players through intentional malice. The problem, though, is that the players are missing the one key component that could prove their case: government backing.
The best correlation I have found with the current NFL vs former players lawsuits is the tobacco lawsuits. While concussion lawsuits are employee versus employer (in effect since the NFL oversees each franchise), the tobacco lawsuits were company versus consumers. However, the tobacco lawsuits that began in the 80's were based on a similar idea as the concussion lawsuits: the business (NFL or tobacco) knew its product was capable of causing long-term health ailments and did not disclose it to the individual (players or smokers). The first wave of these lawsuits were unsuccessful; the first was won by the plaintiff but the decision was reversed on appeal. It wasn't until 2000 that someone was awarded a victory over the tobacco companies (to the tune of $50 million).
For the former players, a smoking gun - a letter or audio recording proving the NFL knew of concussion issues - would be great, but what the former players really need is the backing of some form of state or federal government. In 1996 lab tests proved a direct link between smoking and cancer, but it took the backings of over forty states suing tobacco companies to have the strength to endure a potentially long and expensive trial. The NFL has refuted a direct correlation between concussions and brain-related injuries causing long-term affects; from a Yahoo article:

Likewise, independent research contradicted the NFL committee, demonstrating that multiple concussions significantly increased players' risk of cognitive disease and impairment. For example, a 2005 study of over 2,550 former players found that individuals who had suffered three or more concussions during their pro careers were five times more likely than retirees without a history of concussions to be diagnosed with a loss of brain function affecting memory, thinking, language, judgment and behavior.

How did the NFL respond? Think Phillip Morris. Committee member Mark Lovell attacked the above study, claiming that the league wanted to "apply scientific rigor to this issue to make sure that we’re really getting at the underlying cause of what’s happening ... you cannot tell that from a survey." (Right. Because surveys aren't credible, unless paid for by the league). Time and again, committee members denied a link between concussions and cognitive decline. They asked for more time to study the issue. They claimed that independent scientists were drawing premature conclusions.

The federal government's eventual participation into the concussion lawsuits and the scientific validative link between concussions and their long-lasting effects (CTE namely) are really the only thing preventing this situation to escalating to tobacco-lawsuit form. It could take years for the resolution of the lawsuits, but the findings could completely alter the NFL's future landscape.

The NFL, especially at this point, is in a difficult position that they potentially didn't even put themselves in. Maybe the league didn't really know or understand the last impacting of the game on players. Sure, its not normal to crash into another human being, but the league has been like the rest of the world playing from behind in understanding the traumatic effect the violence of the game can have on the remainder of a player's life.

Where we are right now as fans of the NFL is on the brink of a major shift in how the game is played. The NFL has already attempted to cut down on potential head-injuries by shifting the kickoff marker five yards and eliminating a three-or-more man wedge block on returns. It stands to reason that they could just eliminate the third phase from the game completely, especially as concussion issues continue to pock the NFL landscape. More and more lawsuits will be filed, with the league continuing to try and play catch-up to a problem that may already be too far gone to fix.

Later this week: Looking at the role players have in the "culture of violence."

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