Writers of Pro Football Prospectus 2008

02 Sep 2013

MMQB: On the Concussion Lawsuit

PK tackles the concussion lawsuit, Bill Belichick's problems drafting defensive backs, and his impressions of final cuts.

Posted by: Rivers McCown on 02 Sep 2013

14 comments, Last at 04 Sep 2013, 6:14pm by akn


by Alexander :: Tue, 09/03/2013 - 6:44am

Can people explain the outrage on this settlement to me? Lets face it, it is PURELY out of PR that the NFL is even giving the ex-players any money at all (unless they actively concealed information, I mean MORE than just knowing). Everyone has always known football is dangerous, and even idiots knew/know that concussions were/are not good.

This is no different than any other dangerous profession, NFL players are compensated well above the average person with their Education/Intelligence levels, etc, and part of that is attributed to the riskiness of the profession. The janitor who works in a coal mine makes more than one who works in an office building...for that exact reason.

by Theo :: Tue, 09/03/2013 - 7:35am

Bill Barnwell wrote a good piece on this... http://www.grantland.com/blog/the-triangle/post/_/id/72867/what-you-need...

I think your answer is in this line:
"If the NFL were found to have been liable of negligence in this combined lawsuit, it would have been disastrous, considering the inevitable claims that would follow."

I don't know what the outrage is, I hardly read or hear many opinion websites.

by Alexander :: Tue, 09/03/2013 - 9:28am

Yea, but Bill Barnwell doesn't know the law. And proving negligence means proving not only that the NFL knew there was a problem, but also they knew of a way to alleviate the problem, PLUS proving that the players did not assume the risk (which they did).

The settlement, like I said, is basically charity + a small hedge against a rogue, emotional jury + a judge with an axe to grind (because any reasonable judge would grant summary judgment for the NFL based on the facts we know).

by collapsing pocket (not verified) :: Tue, 09/03/2013 - 12:18pm

And proving negligence means proving not only that the NFL knew there was a problem

Which they likely did.

but also they knew of a way to alleviate the problem

You mean like having concussion protocols which involved more than smelling salts?

based on the facts we know

And apparently the NFL was willing to pay three quarters of a billion dollars in order to keep us from learning any more "facts" in this case. Avoiding discovery was worth that price to them. What does that tell you?

by evenchunkiermonkey :: Wed, 09/04/2013 - 7:26am

Exactly right about avoiding discovery. How scummy would the NFL look to a jury if it turns out they knew about the risk of CTE and other issues in, say 1989? How much would a jury verdict amount to in that case? Multiple Billions? IMO the NFL should've been providing health care to the vets involved in this suit long ago. Will they settle with this new group of plaintiffs who are suing both the NFL and Riddell? I think so.

by akn :: Wed, 09/04/2013 - 6:14pm

I don't believe CTE isn't the issue--research on that is relatively recent, and I doubt the NFL were doing brain autopsies in the 70's in secret underground morgues and burying the results.

No, the real issue is likely what the NFL knew about the increased risk of repeat concussion in the 1-2 weeks following the first. Over the past few years, independent, NIH-funded research has revealed the basic pathological process of concussions (namely, an energy imbalance from mitochondrial dysfunction), and how it takes several days to recover from that process. That same research shows very clearly why there is such a high risk of repeat concussion while the brain heals itself during that period. This applies to multiple sub-concussive hits as well.

All this progress in concussion research stemmed from a better understanding of the epidemiological truths that were eventually culled from college and high school players, rather than the NFL. It is a very real possibility that the NFL had that epidemiological data much earlier, and thus by keeping it to themselves delayed the real advances in understanding and management we are seeing today. It's also possible that the NFL kept data about the long term health of its players buried as well, including the rates of dementia, Alzheimer's, and ALS (which would have accelerated CTE research).

In the late 1990s, half of concussed players in the NFL returned to play either the same game or one day later. As late as the mid 2000s, the average return to play time was only 4-5 days. Last year, that average was 16 days, which is both much safer and consistent with current research. If team doctors had exercised that kind of management 30 years ago, I believe the rate of CTE and other related chronic issues would be much much smaller.

by Kyle D. (not verified) :: Wed, 09/04/2013 - 10:16am

If you think they charitably gave out that much money while believing they were totally safe in regards to the lawsuits, you're kidding yourself. The NFL brass themselves couldn't even know what might have come out during discovery, what dusty old reports were sitting around that would damning when read today. Their entire defense was going to have to rest on them not being able to put 2 + 2 together to figure out head injuries were a problem and absolutely anything showing anybody even remotely associated with the league suspected otherwise would have made them look either willfully ignorant or like they were intentionally hiding information.

by collapsing pocket (not verified) :: Tue, 09/03/2013 - 12:31pm

Lets face it, it is PURELY out of PR that the NFL is even giving the ex-players any money at all (unless they actively concealed information, I mean MORE than just knowing)

What a coincidence that now they won't have to reveal what they did know. But ya, I'm sure its just a PR move and has nothing to do with their fear of having to explain themselves.

This is no different than any other dangerous profession

And in any other dangerous profession an employer who knew about a danger and didn't take steps to inform their workers and alleviate the danger could be found liable as well.

part of that is attributed to the riskiness of the profession

A very small part, maybe, but this isn't the same as coal mining. I would argue that this is one profession which isn't highly compensated because of inherent danger but because the employees have very rare skills which people will pay to watch. CFL players don't make less than NFL players because the CFL is less dangerous, its because fewer people are willing to watch and spend money on the CFL.

by Aaron Brooks Go... :: Tue, 09/03/2013 - 3:14pm

NCAA players aren't paid anything (a crime in and of itself), but NCAA football is an amazing cash cow.

by DenverCheeze (not verified) :: Tue, 09/03/2013 - 1:07pm

"“Football didn’t do this to me,’’ he said. “My ignorance did it. That, and maybe others who should have known better.”"

I dont understand the logic on why players who played with concussions cannot take responsibility for their own ignorance or blindness to their state of health. I wish I could get paid any amount for stupid things I have done and should be responsible for.

Dont get me wrong, I am very compassionate to the sufferers of long term negative affects, but its like a boxer coming back years later and saying...'I had no idea repeated trauma to my head could affect me long-term!'. Or a drunk driver crashing bad then blaming the alcohol industry stating he was not aware alcohol can impair his driving ability.

by justanothersteve :: Tue, 09/03/2013 - 3:26pm

This has also been my take on the concussion issue. I've been lucky in that of all the incredibly stupid things I've done in the past have caused me few physical problems. I don't blame the loud music of the bands I've seen in concert or even listened to at home for the tinnitus in my left ear. I don't blame my junior high school for my chipped front tooth from when while hurrying I slipped and fell down a flight of stairs in eighth grade. I also did all sorts of crazy stuff when I was younger that could have seriously injured me or even gotten me killed which I won't mention here. (I'm sure many here could say the same thing.) Like I said, I was lucky.

I sympathize with the former players. I also sympathize with the fast food workers who would like to make more than minimum wage. We all make decisions for which we must take responsibility.

by Jerry :: Tue, 09/03/2013 - 6:47pm

Obviously, a concussed player is unlikely to have full control of his faculties, so he's unlikely to make a solid, informed decision. And, if we return to the days of not too long ago, when he'd go to the bench, have a doctor or trainer hold up two fingers and ask how many fingers are up, and have several chances to answer, NOBODY was paying any attention to any long term consequences. In fact, a player who had things together enough to say "I'm not thinking straight. I'm not going back in." would very much risk being cut. It's easy to say after the fact that players should have should have taken responsibility, but it was an environment where no one would have respected that decision.

by Anonymousse (not verified) :: Wed, 09/04/2013 - 12:05am

The concussed player chose to play the sport that results in lots of high speed blows to the head.

by Kyle D. (not verified) :: Wed, 09/04/2013 - 10:23am

True enough, but if he initially chose to play not knowing the potential long-term impacts because people were intentionally keeping those facts under wraps? Arguably, he might have had his faculties already damaged by the time he would have discovered that on his own.

It's really not all that different from a company being sued because they knew there were safety issues with their factory. You could just as easily argue "This worker didn't realize this powerful, fast moving machine could be dangerous?" Sure, he'd be aware of some level of danger, but he wouldn't know that ownership had cut back on safety to help the bottom line without telling him.