Journal of Legal Medicine, 34:425–452
C 2013 American College of Legal Medicine
Copyright 0194-7648 print / 1521-057X online
DOI: 10.1080/01947648.2013.859969
HELMET-TO-HELMET CONTACT: AVOIDING
A LIFETIME PENALTY BY CREATING A DUTY
TO SCAN ACTIVE NFL PLAYERS FOR
CHRONIC TRAUMATIC ENCEPHALOPATHY
Thomas A. Drysdale*
[T]his stuff is for real because I’m experiencing it now. I’m scared to death. I have
four kids, I have a beautiful wife and I’m scared to death what might happen to me
10 or 15 years from now.
Rodney Harrison1
INTRODUCTION
On May 2, 2012, Junior Seau, one of the most talented and feared linebackers
ever to play in the National Football League (NFL), died of a self-inflicted
gunshot wound to the chest.2 Seau was only 43 years old and left behind three
teenaged children.3 Less than a year later, in January of 2013, Seau’s family
sued the NFL after tissue samples from Seau’s donated4 brain showed that he
was suffering from chronic traumatic encephalopathy (CTE), “a degenerative
brain disease linked to repeated head hits and brain trauma.”5 The Seau family
* Third-year
law student at Southern Illinois University. Address correspondence to Mr. Drysdale at
Southern Illinois University School of Law, Law Journal Office, Lesar Law Building, Carbondale,
Illinois 62901 or via e-mail at [email protected].
1
Kevin Kaduk, Rodney Harrison Says He’s “Scared to Death” After a Career Filled with
Concussions, YAHOO! SPORTS, Jan. 30, 2013, http://sports.yahoo.com/blogs/nfl-shutdown-corner/
rodney-harrison-says-scared-death-career-filled-concussions-015416631-nfl.html. Harrison is a former all-pro safety for the San Diego Chargers and the New England Patriots who has suffered an
estimated 20 concussions during his 15 years in the NFL. Id.
2
Greg Bishop & Rob Davis, Junior Seau, Famed N.F.L. Linebacker, Dies at 43; Suicide Is Suspected,
N.Y. TIMES, May 2, 2012, http://www.nytimes.com/2012/05/03/sports/football/junior-seau-famed-nfllinebacker-dies-at-43-in-apparent-suicide.html? r=0.
3
Id.
4
Mary Pilon & Ken Belson, Seau Suffered from Brain Disease, N.Y. TIMES, Jan. 10, 2013, http://www.
nytimes.com/2013/ 01/11/sports/football/junior-seau-suffered-from-brain-disease.html.
5
Ken Belson, Junior Seau’s Family Sues N.F.L., N.Y. TIMES, Jan. 23, 2013, http://www.nytimes.com/
2013/01/24/sports/ football/junior-seaus-family-sues-nfl.html.
425
426
DRYSDALE
alleges that the NFL intentionally hid the link between repeated blows to the
head and long-term cognitive issues.6
Recognizing that the lawsuit would never bring Junior back, the family
hopes it will “send a message that the N.F.L. needs to care for its former
players . . . and make the game safer for future generations.”7
A little more than a year before Seau’s death, former Chicago Bears
star Dave Duerson suffered a similar fate.8 Duerson also shot himself in the
chest, presumably so his brain eventually could be examined.9 In the months
leading up to his suicide, Duerson had complained of a variety of symptoms,
including memory loss, blurred vision, and headaches.10
In May 2011, it was confirmed by Dr. Ann McKee11 that Duerson also
suffered from CTE.12 According to DeMaurice Smith, the executive director of
the NFL Players Association, “Duerson’s having C.T.E. ‘makes it abundantly
clear what the cost of football is for the men who played and the families.”’13
While Duerson was a member of the famed Chicago Bears defense that won
the 1985 Super Bowl, he will be remembered for how he apparently came
to believe he was suffering from CTE, “acted upon it and requested that his
brain tissue be examined for confirmation and contribution to science.”14
As former NFL offensive linemen Pete Kendall said: “[T]he whole issue
of C.T.E. is something that players young and old have no choice but to think
about.”15 After years of denying the long-term cognitive effects of repeated
head trauma in the face of evidence to the contrary,16 the NFL now must accept
that CTE is a very real consequence of an NFL career.17
While the NFL, its players, and its fans are coming to grips with the
realities of CTE, the efforts to reduce the number of concussions sustained
by players have become a focal point in discussions regarding the NFL’s
6
Id.
Id.
8
Alan Schwarz, Duerson’s Brain Trauma Diagnosed, N.Y. TIMES, May 2, 2011, http://www.nytimes.
com/2011/05/03/sports/football/03duerson.html? r=0.
9
Id.
10
Id.
11
Dr. Ann McKee is a Professor of Neurology and Pathology at Boston University School of Medicine. She
is a Co-Director of the Center for the Study of Traumatic Encephalopathy and “Chief Neuropathologist
for the National VA ALS Brain Bank.” Ann McKee, MD, BU CENTER FOR THE STUDY OF TRAUMATIC
ENCEPHALOPHY, http://www.bu.edu/cste/about/leadership/ann-mckee-md/ (last visited Jun. 19, 2013).
12
Schwarz, supra note 8. Dr. McKee stated, after examining Duerson’s brain, that indisputable evidence
of CTE was found and that he was not suffering from any other disorders. Id.
13
Id.
14
Id.
15
Id.
16
Michael Farber, The Worst Case: Doctors Warn That Repeated Concussions Can Lead to Permanent Brain Dysfunction, SI VAULT, Dec. 19, 1994, http://sportsillustrated.cnn.com/vault/article/
magazine/MAG1006087/index.htm.
17
See Les Carpenter, CTE Is a Real Risk for Football Players, WASH. POST, Oct. 28, 2009, http://
www.washingtonpost.com/wp-dyn/content/article/2009/10/27/AR2009102703547.html.
7
CHRONIC TRAUMATIC ENCEPHALOPATHY SCREENING
427
future. Since 2010, alone, the NFL has changed the length of kickoffs,18
imposed new rules to limit head and neck contact with defenseless players,19
and even required teams to consult with independent neurologists whenever
a head injury occurs to a player,20 all in an attempt to reduce the number
of head injuries and the effects therefrom suffered during the season. The
NFL continues to consider new options each season, in an effort to solve this
ongoing and potentially life-threating situation.
Despite the NFL’s best efforts, however, football is an extremely physical
and violent game, in which concussions and head injuries are inevitable.
Players continue to hide concussion symptoms from coaches and trainers to
avoid being taken out of a highly contested game21 and possibly even losing
their starting positions permanently.22
Some players openly admit that they will continue to play violently despite the new rules,23 while others still deny that the NFL even has a concussion
problem.24 Furthermore, the inconsistencies in concussion reporting protocol
in the NFL shows that the NFL lacks a “reliable way to account for concussions all season long,” and, thus, the statistics showing a drop in concussions
since the new rules were put in place demonstrate, at best, conflicting data.25
Because concussions are inevitable despite the efforts by the NFL, players who are exposed to repeated blows to the head will continue to develop
CTE as their playing years come to a close. In addition, until very recently,
CTE only could be detected once an athlete died and his brain tissue could be
examined under a microscope.26 It was impossible to tell whether an athlete
with a history of concussions was at risk for CTE while still playing football.27
18
Dustin Fink, NFL Kickoff Change, THE CONCUSSION BLOG, Mar. 23, 2010, http://theconcussionblog.
com/2011/03/23/nfl-kickoff-change/.
19
New NFL Rules Designed to Limit Head Injuries, NFL.COM WIRE REPORTS, http://www.nfl.com/news/
story/09000d5d81990bdf/article/new-nfl-rules-designed-to-limit-head-injuries (last updated July 26,
2012).
20
Id.
21
See Jason M. Breslow, NFL Concussions: The 2012-2013 Season in Review, FRONTLINE CONCUSSION WATCH, Feb. 1, 2013, http://www.pbs.org/wgbh/pages/frontline/sports/concussion-watch/
nfl-concussions-the-2012–13-season-in-review/.
22
Gary Mihoces, NFL Concussions: Your Job or Your Health?, USA TODAY, Dec. 3, 2012, http://www.
usatoday.com/story/sports/nfl/2012/12/03/alex-smith-nfl-concussions/1741691/.
23
Michael Klopman, Channing Crowder, Dolphins Linebacker: “They Give Me a Helment, I’m Going
to Use It,” HUFFINGTON POST, Oct. 21, 2010, http://www.huffingtonpost.com/2010/10/21/channingcrowder-miami-do n 771215.html.
24
Kevin Kaduk, Deion Sanders Doubts NFL’s Concussion Problem, Says Former Players Are Looking for Payday, YAHOO! SPORTS, Feb. 3, 2013, http://sports.yahoo.com/blogs/nfl-shutdown-corner/
deion-sanders-doubts-nfl-concussion-problem-says-former-225011441–nfl.html.
25
Mark Fainaru-Wada & Steve Fainaru, NFL Reports Remain Inconsistent, ESPN OUTSIDE THE LINES,
http://espn.go.com/espn/otl/story/ /id/8706409/nfl-concussion-program-marked-inconsistenciesmaking-difficult-assess-whether-league-making-progress-issue (last updated Dec. 13, 2012).
26
Terry Zeigler, CHRONIC TRAUMATIC ENCEPHALOPATHY (CTE), SPORTSMD.COM, Feb. 1, 2012, http://www.
sportsmd.com/Articles/id/44.aspx.
27
Id.
428
DRYSDALE
A recent breakthrough, however, has allowed scientists at UCLA to
detect signs of CTE in living brains through the use of positron emission
tomography (PET) scans.28 This discovery has been heralded as “the first
step, the first glimpse, the first hope” in managing future head exposure and
providing access to healthcare to those players at risk for and in the early stages
of CTE.29 If the NFL is serious about providing for the long-term health of
its players, it is necessary to impose a legal duty to scan players who have
suffered serious head injuries during their career, while they are still playing
the game.
Section I of this Commentary provides an overview of CTE and its
causes, and explores the evolution of the discovery of CTE in NFL football
players. Section II provides an insight into the current concussion litigation
that has been filed against the NFL, along with a discussion of conflicting
views of the NFL’s legal duty to protect its players. Section III discusses the
various solutions the NFL has implemented and is considering implementing
to reduce head injuries and attempt to mitigate the long-term effects of cranial
impacts. Section IV outlines the problems with the NFL’s attempts to curtail
concussions and ultimately shows that the efforts by the NFL will prove
ineffective because concussions are an inevitable part of football; thus, players
will continue to develop CTE as a result of repeated blows to the head.
Finally, section V proposes a solution by creating a new legal duty, making
it mandatory for the NFL to order and pay for CTE scanning for players
who have suffered severe head injuries during their playing career. These
scans would detect and limit the effects of CTE as soon as possible, and
would provide dual benefits to both the NFL and its players through liability
reduction and access to medication and psychotherapy.
I. EXPLORING THE CAUSAL LINK BETWEEN CHRONIC
TRAUMATIC ENCEPHALOPATHY AND CONCUSSIONS
IN NFL PLAYERS
To understand CTE, it is necessary to understand the cause of CTE:
repeated blows to the head that result in concussions.30 “A concussion is a
traumatically induced disturbance of neurological functions, most often the
28
Sean Gregory, CTE Detected in Living Ex-NFL Players; Junior Seau’s Family Sues:
What Now for Football and Concussions?, TIME, Jan. 24, 2013, http://keepingscore.blogs.
time.com/2013/01/24/cte-detected-in-living-ex-nfl-players-junior-seaus-family-sues-what-now-forfootball-and-concussions/?iid=sp-article-mostpop1. A PET scan is “an imagining test that uses a
radioactive substance, called a tracer, to look for disease or injury in the brain.” A PET scan can
show how the brain and its tissues are working. The tracer is injected through a vein and assists the
radiologist in seeing certain areas of the brain or diseases more clearly. PET Scan, MEDICINEPLUS,
http://www. nlm.nih.gov/medlineplus/ency/article/003827.htm (last visited June 27, 2013).
29
Gregory, supra note 28.
30
Belson, supra note 5.
CHRONIC TRAUMATIC ENCEPHALOPATHY SCREENING
429
result of a direct blow to the head.”31 Concussions may be sustained in several
ways, the first being through deceleration of the head.32 When the head is in
motion and is stopped suddenly, “the skull stops, but the brain, swimming in
spinal fluid, continues forward, sometimes striking the rough inner surfaces
of the skull.”33 Concussions are also commonly caused by acceleration.34
Acceleration concussions occur when the head is at rest and “is jarred into
motion by a blindside hit to the body.”35
Almost all of these injuries, whether through acceleration or deceleration, will involve the player’s head rotating.36 This results in “centrifugal force” combining with “linear force to damage axons.”37 Regardless of
whether the concussion is caused by acceleration or deceleration, “if enough
axons are disturbed, the brain will short-circuit,” and a concussion will
result.38
Concussions are graded on a scale of one to three, with grade one being
the least severe form of head trauma and grade three representing a serious
cranial injury.39 When a player sustains a grade one concussion, the player
will remain conscious and “suffers only momentary confusion . . . [and] no
medical intervention is necessary.”40 A grade two concussion will result in
a ringing in the ears, coupled with temporary amnesia and nausea.41 Grade
three concussions, the most severe, will leave the athlete unconscious.42 Once
a player has suffered his first concussion, he “is four times more likely to get
one than a player who has been concussion-free.”43
As far back as 1994, medical professionals began to warn of the negative
impacts of repeated concussions in NFL players.44 In 2005, a study of former
31
Farber, supra note 16. “A concussion occurs when axons and their synaptic connectors—the fibers that
transmit impluses away from the brain’s neurons—are stretched or distorted by a blow to or a sudden
movement of the head.” Id. Following a blow or movement of this type, mental awareness may return
in “seconds or minutes.” Id. If the axons are severely damaged, “the lights will go out and no one will
be home for a while.” Id.
32
Id.
33
Id.
34
Id.
35
Id. This type of blindside hit results in the brain being “shaken on its stem like a pom-pom atop a car
antenna.” Id.
36
Id.
37
Id.
38
Id.
39
Id.
40
Id.
41
Id.
42
Id.
43
Id.
44
Id. In one of the first articles ever written on the subject of the long-term effects of concussions in
the NFL, Dr. James P. Kelly, director of the brain injury program at the Rehabilitation Institute of
Chicago and an assistant professor of neurology of Northwestern University Medical School, reported
that “[t]he evidence is clear that repeated insults will do neuropsychological damage.” Id.
430
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NFL football players showed that retired players who had suffered three
or more concussions were five times more likely to develop mild cognitive
impairment and were three times more likely to suffer from significant memory
problems than those retired players who had not suffered from concussions.45
These statistics strongly suggested that an NFL player suffering from
a history of concussions, “particularly recurrent concussion[s],” may be at
risk of developing late-life memory impairment, mild cognitive impairment,
and Alzheimer’s disease.46 Furthermore, retired NFL players with a history
of concussions were found to have “a progressive decline in mental health
functioning and a higher rate of memory problems” when compared to the
control group and those players without a history of concussions.47
Since the 1920s, it has been known that repetitive brain trauma, such
as concussions, “may produce a progressive neurological deterioration, originally termed ‘dementia pugilistica’ and, more recently, chronic traumatic
encephalopathy.”48 CTE is a degenerative brain disease that presents in ways
similar to that of Alzheimer’s disease.49 Unlike Alzheimer’s disease, which is
known to have genetics as one of its causes, CTE has a distinct environmental
cause in the form of repeated brain trauma.50
CTE results in a number of changes to the brain, most notably “the
buildup of an abnormal protein called tau.”51 The protein, over time, accumulates in the brain and “congregates in clumps in and around the brain
disrupting its function.”52 These tau deposits eventually lead to CTE and the
numerous symptoms associated with the disease.53
An individual suffering from CTE may progress through three different
stages of the disease, with the severity of symptoms increasing with each
stage.54 The severity of CTE “appears to correlate with the length of time
engaged in the sport and the number of traumatic injuries” suffered by an
45
Kevin M. Guskiewicz et al., Association Between Recurrent Concussion and Late-Life Cognitive
Impairment in Retired Professional Football Players, 57 NEUROSURGERY 719, 719 (2005).
46
Id. at 722.
47
Id.
48
Ann C. McKee et al., Chronic Traumatic Encephalopathy in Athletes: Progressive Tauopathy Following
Repetitive Head Injury, 68 J. NEUROPATHOLOGY & EXPERIMENTAL NEUROLOGY 709, 709 (2009).
49
Zeigler, supra note 26.
50
Id.
51
Id.
52
Id.
53
Id. The symptoms of CTE include: disorientation, confusion, dizziness, headaches, lack of insight, poor
judgment, dementia, slowed muscular movements, staggered gait, impeded speech, tremors, vertigo,
deafness, and deterioration in attention, concentration, and memory. Id.
54
Id. In the first stage of CTE the patient has affective disturbances and psychotic symptoms. Id. As
the disease progresses to stage two, “the individual may suffer from social instability, erratic behavior,
memory loss, and the initial symptoms of Parkinson’s disease.” Id. In the third and final stage, the
affected individual will deteriorate to dementia and may start to develop other symptoms, such as
dysarthia (i.e., difficulty pronouncing words), dysphagia (i.e., difficulty swallowing), and ptosis (i.e.,
drooping of the eyelids). Id.
CHRONIC TRAUMATIC ENCEPHALOPATHY SCREENING
431
athlete.55 While it is currently unclear whether a single traumatic brain injury
may result in CTE,56 what is known is that “repetitive closed head injuries
[seem] to be the cause” of the disease, and, therefore, athletes involved in
contact sports, such as football, are at risk of contracting CTE.57
In 2009, Dr. Ann McKee, a leading CTE expert, released the results of
a study examining the brains of five deceased NFL players.58 According to
the study, all five football players had “neuropathologically verified CTE at
autopsy.”59 One test subject in particular, who had played football at the high
school and college levels, along with 10 years in the NFL, was concussed
“3 times during his college career and at least 8 times during his NFL career;
however, only 1 concussion was medically confirmed.”60 This player had
never lost consciousness for more than a few seconds and had never required
hospitalization.61 Around age 40, the player began to experience impairments
in his “short-term memory, attention, concentration, organization, planning,
problem solving, judgment, and ability to juggle more than one task at one
time.”62 The player had no specific psychiatric history nor had he ever taken
performance-enhancing drugs.63 The player’s family history was also negative
for both psychiatric illness and dementia.64
In the same year, McKee examined the brain of diseased Football Hall
of Fame player Lou Creekmur.65 McKee specifically noted that important portions of Creekmur’s brain, which control language and learning, had shrunk,
and the ventricles in Creekmur’s brain had widened and filled with fluid in an
attempt to replace the lost mass.66 According to McKee, the deposits of tau in
Creekmur’s brain were so large that “all she had to do was lay the slide on a
light table to make a diagnosis.”67
McKee stated that it was clear from the moment that she first saw the
sample of Creekmur’s brain that she was looking at the “most obvious case
of dementia caused by head trauma she had ever seen in a football player.”68
McKee noted that Creekmur’s case was critically important because his brain
55
McKee, supra note 48, at 710.
Id.
57
Zeigler, supra note 26.
58
McKee, supra note 48, at 709.
59
Id. at 710.
60
Id. at 711.
61
Id.
62
Id. The player’s family noted that the player repeatedly asked the same questions over and over, could
not recall why he went to the store without a list, and would ask to rent a movie that he had just recently
viewed. Id.
63
Id.
64
Id.
65
Carpenter, supra note 17.
66
Id.
67
Id.
68
Id.
56
432
DRYSDALE
clearly showed no signs of Alzheimer’s and that “the damage in the brain is
undoubtedly CTE.”69
Despite both of these 2009 developments, NFL Commissioner Roger
Goodell refused to acknowledge the existence of a connection between head
injuries, sustained during a football career, and debilitating brain diseases,
such as CTE, that develop later in life.70 While testifying in front of Congress
in October of 2009, Goodell dodged questions from several members of the
House Judiciary Committee, claiming that a medical expert could give better
answers to questions concerning the link between head injuries and brain
disease than he could.71
Frustrated, Representative Linda Sanchez of California compared Goodell’s denial to that of the tobacco companies denying the link between smoking
and adverse health consequences in the 1990s.72 While Goodell attempted to
claim that it was a priority of the NFL to take care of retired NFL players,
Representative Maxine Waters of California cut Goodell off, demanding specific details about the steps being taken by the NFL to deal with problems
related to head injuries.73 Goodell only could respond by claiming that “talks
between the owners and the players are in the early stages.”74
A short time later, in January of 2010, Dr. Ira Casson, a neurologist
who served on the NFL’s committee on concussions,75 took a similar stance in
front of the House Judiciary Committee, denying the link between professional
football and dementia.76 When asked about the link between repeated traumatic
brain injuries and brain damage later in life, Casson stated: “[M]y position
is that there is not enough valid, reliable, or objective scientific evidence at
present to determine whether or not repeated head impacts in professional
football result in brain damage.”77
Previously, Casson also had claimed that steroid use and human growth
hormone use would need to be considered to make an accurate assessment of
the link between concussions and brain disease, even though these substances
“have never been shown to cause the tau protein buildup and neurofibrillary
tangles that are hallmarks of the brain damage found in players.”78
69
Id.
Associated Press, Conyers Wants Review of All Data, ESPN NFL, http://sports.espn.go.com/nfl/news/
story?id=4601966 (last updated Oct. 28, 2009).
71
Id.
72
Id.
73
Id.
74
Id.
75
This committee was later renamed as the NFL Head, Neck, and Spine Medical Committee. Associated Press, Batjer, Ellenbogen to Lead Committee, ESPN, http://sports.espn.go.
com/nfl/news/story?id=5000898 (last updated Mar. 16, 2013).
76
Alan Schwarz, Congress Examines NFL Concussions, N.Y. TIMES, Jan. 4, 2010, http://www.nytimes.
com/2010/01/05/sports/football/05concussions.html.
77
Id.
78
Id. This statement alludes to the problems associated with CTE. See McKee, supra note 48.
70
CHRONIC TRAUMATIC ENCEPHALOPATHY SCREENING
433
Despite the denials of Casson and Goodell, in December of 2009, NFL
spokesman Greg Aiello admitted what the rest of the League had been denying: “It’s quite obvious from the medical research that’s been done that concussions can lead to long-term problems.”79 This statement signaled the shift
in the NFL’s policy on denying the link between concussions and brain injuries such as CTE. This shift in policy, coupled with mounting scientific
evidence, also signaled the beginning of complex litigation problems for the
NFL.
II. THE CURRENT CONSOLIDATED CONCUSSION LAWSUITS
FILED AGAINST THE NFL
Recognizing that the link between CTE and repeated concussions is, in
fact, real, more than 2,300 players filed lawsuits against the NFL between
2011 and 2012.80 On June 7, 2012, these claims were consolidated into a
master class action complaint against the NFL, alleging, among other things,
that the NFL “caused and contributed to the increased risks of latent brain
injury,” and that the NFL failed “to take appropriate steps to prevent and
mitigate repeated traumatic head impacts (including sub-concussive blows
and concussions) and the latent brain injury.”81
A. The Plaintiffs’ Complaint That the NFL Breached Its Duty
of Care to Monitor Former NFL Players for Neurodegenerative
Diseases Including CTE
One of the biggest questions posed by the plaintiffs in this litigation is
whether early diagnosis of injuries like CTE “will lead to improved treatment
for the medical, cognitive, psychological, and behavioral sequelae of the
latent brain injury.”82 Through this lawsuit, the plaintiffs and their families
are seeking to compel the NFL to provide medical monitoring to former NFL
players due to their increased chances of developing diseases, such as CTE,
from their years of playing professional football.83
The plaintiffs have alleged that the NFL sought, over the years, to “glorify
the brutality and ferocity of NFL football” by contending that “getting your
bell rung” or “being dinged” does not have a serious effect on the health of the
79
Id.
Rick Meyer, Will the NFL Feel the Long-Term Effects of Concussions or Can It Avoid the Big
Hit?, NFL CONCUSSION LITIGATION 1, 1 (2011), available at http://nflconcussionlitigation.com/wpcontent/uploads/2012/08/MeyerConcussionPaper-copy.pdf.
81
In re National Football League Players’ Concussion Injury Litigation (2012) (No. 2:12-md-02323-AB
MDL No. 2323), Plaintiff’s Master Administrative Class Action Complaint for Medical Monitoring,
at 4, available at http://nfl concussionlitigation.com/wp-content/uploads/2012/01/download-102.pdf
[hereinafter Class Action Complaint].
82
Id. at 6.
83
Id. at 1.
80
434
DRYSDALE
players and is a natural and desired outcome of playing football.84 According
to the plaintiffs, this outlook encourages players to play despite being injured,
“in part, because failure to play through an injury creates the risk of losing
playing time, a starting position, and possibly a career.”85
The complaint states that, due to data available for many years, the
NFL knew or should have known that players subjected to repeated blows
to the head have suffered and continue to suffer from, among other diseases,
CTE.86 The NFL acquired this knowledge through its employment of medical
experts studying the health risks of playing football, “including the health risks
associated with concussive and sub-concussive injuries.”87 This knowledge
put the NFL in a superior position to that of the players regarding the longterm effects of concussions, and, thus, “the NFL shouldered for itself the
common law duty to make the game of professional football safer for the
players.”88
Additionally, the complaint states that the NFL further assumed this duty
through its creation of a Mild Traumatic Brain Injury Committee in 1994 to
study the long-term effects of concussions on NFL players.89 The creation
of this committee required the NFL to use “reasonable care in the study of
concussions and post-concussion syndrome in NFL players [and] the study
of any kind of brain trauma relevant to the sport of football.”90 According
to the plaintiffs, this duty required the NFL to exercise “reasonable care to
keep NFL players informed of neurological risks” and truthfully to inform
players about the risks of permanent brain damage associated with repeated
concussions incurred while playing in the NFL.91
The complaint alleges that this legal duty was breached by the
NFL through its denial of the link between concussions and CTE, despite years of evidence to the contrary, indicating the need for medical
monitoring.92
84
Id. at 7-8.
Id. at 10.
86
Id. at 12-13. The class action complaint states that, due to published papers showing CTE is prevalent
in retired NFL players who have a history of repeated head injury, the NFL should be charged with
knowledge of the link between CTE and playing professional football. Id. at 13. The complaint further
alleges that these reports show that “over ninety percent of the players suffered from CTE.” Id.
87
Id. at 14.
88
Id. at 14-15.
89
Id. at 29.
90
Id.
91
Id. at 17. The complaint goes on to allege that, during the last 20 years, the NFL has continued to
exercise this common-law duty, by sponsoring medical research “regarding the link between repetitive
head impacts sustained while playing football and [mild traumatic brain injury] that can and does result
in short-term neuro-cognitive injury and decline.” Id. at 19.
92
Id. at 52. As a result of the alleged breach by the NFL, the plaintiffs are seeking an injunction to create
a medical monitoring program funded by the NFL, “which would facilitate the early diagnosis and
adequate treatment in the event a neurodegenerative disorder or disease is diagnosed.” Id.
85
CHRONIC TRAUMATIC ENCEPHALOPATHY SCREENING
435
B. The NFL Attempts to Dismiss the Plaintiffs’ Complaint Based
on Pre-emption Grounds
In its answer, the NFL made no attempt to deny the link between repeated
concussions suffered during an NFL career and CTE; nor did the NFL deny the
possible existence of a legal duty to monitor and detect latent brain diseases.93
Rather, the NFL’s primary argument was that the complaint was pre-empted
by the collective bargaining agreements (CBAs) between the NFL and its
players.94 The NFL argued that the CBAs are governed by section 301 of
the Labor Management Relations Act, which provides for “preemption of
all state-law claims . . . whose resolution is substantially dependent upon or
inextricably intertwined with the terms of the CBA, or that arise under the
CBA.”95
To support its claims, the NFL pointed to provisions in the CBAs providing that team physicians are responsible for “informing players of medical
risks associated with returning to play.”96 According to the NFL, these “physician provisions” of the CBAs need to be taken into account when determining
“the degree of care owed by the NFL and how it relates to the NFL’s alleged
failure to establish guidelines or policies to protect the mental health and
safety of its players.”97
The NFL used these “physician provisions” to support its position that
determining whether the NFL exercised reasonable care, “which depends first
on the assessment of what, if any duty was owed, cannot be made without
first determining the scope of the duties placed on Club medical staff by the
CBAs.”98
Relying heavily on Duerson v. National Football League, the NFL contended:
93
See In re National Football League Players’ Concussion Injury Litigation (2012) (No. 2:12-md-02323AB MDL No. 2323), Memorandum of Law of Defendants National Football League and NFL Properties LLC in Support of Motion to Dismiss the Amended Master Administrative Long-Form Complaint on Preemption Grounds, available at http://nflconcussionlitigation.com/wp-content/uploads/
2012/01/download-123.pdf [hereinafter Defendant’s Memorandum].
94
Id. at 1.
95
Id. at 2. According to the NFL, to resolve the plaintiff’s claims, the court would be required to interpret
the CBAs “to determine whether the NFL had such duties, the scope of any such duties, and the
reasonableness of the NFL’s conduct in light of the CBA provisions.” Id.
96
Id. at 3.
97
Id. (citing Maxwell v. Nat’l Football League, No. 11-CV-08394 (C.D. Cal. Dec. 8, 2011) (holding
that, because the CBA places primary responsibility on team physicians to identify conditions, the
“physician provisions of the CBA must be taken into account in determining the degree of care owed
by the NFL and how it relates to the NFL’s alleged failure to establish guidelines or policies to protect
the mental health and safety of its players.”)). Defendant’s Memorandum, supra note 93, at 16; Duerson
v. Nat’l Football League, No. 12 C 2513, 2012 WL 1658353, at ∗ 4 (N.D. Ill. May 11, 2012) (finding
that “evaluating the reasonableness of the NFL’s conduct will require interpretation of terms of the
CBAs imposing duties on NFL clubs to protect player health and safety”); Defendant’s Memorandum,
supra note 93, at 17.
98
Id. at 20.
436
DRYSDALE
Provisions [of the CBA] requiring that the Clubs pay the costs of certain medical
care for its players, and provisions requiring that the Club physician perform a preseason, and in some cases a post-season physical examination, could be interpreted
to impose a duty on the NFL’s clubs to monitor a player’s health and fitness to
continue to play football, such that the NFL could reasonably rely on the clubs to
notice and diagnose player health problems arising from playing in the NFL.99
The NFL admitted that the CBAs “establish the duties of the NFL and its
Clubs to provide medical care to NFL players.”100
According to the NFL’s interpretation, the CBAs establish the legal
duty of the NFL to promulgate, implement, and subsequently enforce rules
regarding “professional football generally, and health and safety-related rules
in particular. Indeed the CBAs provide that the NFL and its Clubs have an
obligation” to do so.101 “Thus, the NFL’s alleged duty—to ‘make the game of
professional safer for players’—expressly arises under the CBAs.”102
Therefore, the NFL did not argue that it did not owe a legal duty to
former players to monitor their health and safety. Instead, the NFL suggested
that any such obligation would arise under the CBAs, and thus, the plaintiffs’
claims should be pre-empted.103
C. The Plaintiffs’ Respond to the NFL’s Claim of Pre-emption
In response to the NFL’s pre-emption claims, the plaintiffs have asserted
that the CBA provisions cited by the NFL pertain exclusively to other parties,
namely teams and physicians, and “have nothing to do with the NFL’s own
independent duty to exercise reasonable care in safeguarding Players from
neurological injuries.”104 The plaintiffs reiterated the NFL’s independent duty
to monitor and care for player health and safety arises from the history of
the NFL undertaking studies on concussions and the NFL’s own statements
“holding itself out as a protector of player well-being.”105
The plaintiffs contended that interpretation of the CBAs will not be
necessary to determine whether the NFL’s historical actions gave rise to a duty
of care.106 Rather, the court only will be required to weigh: “(1) the relationship
between the NFL and the Players; (2) the ‘utility’ of the NFL’s conduct;
99
Id. at 21 (citing Duerson, 2012 WL 1658353 at 4).
Id. at 31.
101
Id.
102
Id. (emphasis added).
103
Id. at 4.
104
In re National Football League Players’ Concussion Injury Litigation (2012) (No. 2:12-md02323-AB MDL No. 2323), Memorandum of Plaintiffs in Opposition to Defendants National Football League’s and NFL Properties LLC’s Motion to Dismiss the Amended Master Administrative Long-Form Complaint at 2, available at http://nflconcussionlitigation.com/wpcontent/uploads/2012/01/MTDReplyBriefFINAL.pdf [hereinafter Plaintiff’s Reply Memorandum].
105
Id. at 15.
106
Id.
100
CHRONIC TRAUMATIC ENCEPHALOPATHY SCREENING
437
(3) the ‘nature’ and ‘foreseeability’ of the risk; (4) the ‘consequences of
imposing a duty’ on the NFL; and (5) the ‘overall public interest.”’107
While the NFL suggested that the duties of the teams and the physicians
somehow lessen the duties owed by the NFL, the plaintiffs pointed out that
it is “no defense that a similar duty rested upon another person,” meaning
that “a party who fails to take reasonable precautions cannot escape liability
‘simply because two (or three, or thirty) colleagues also failed to take proper
care.”’108 Thus, the scope of the legal duty owed by the NFL does not depend on
the duties owed by individual teams or by team physicians; it is determined
by the NFL’s own “statements, actions, and unique understanding of brain
injuries.”109
The plaintiffs stressed that the NFL cannot avoid liability, at this point,
simply because the team physicians failed to warn players that repeated concussions could lead to brain diseases, such as CTE.110 The plaintiffs went
as far as alleging that the team physicians were incapable of determining the
long-term effects of impacts, which resulted from “latent conditions that manifested themselves only years after retirement.”111 According to the plaintiffs,
the teams’ and physicians’ failure to take effective steps to protect players
informs the duty the NFL owed.112
The plaintiffs attacked the NFL’s use of both Duerson and Maxwell,
claiming both courts simply assumed, without analysis, “that the CBA duties of Clubs and doctors might absolve the NFL of responsibility for its own
negligence.”113 Furthermore, neither court considered “one of the Player’s core
arguments: that the NFL’s voluntarily assumed legal duty of care is unaffected
by the potentially parallel duties of Clubs and doctors.”114 According to the
plaintiffs, the NFL—not physicians, doctors, and teams—was in the best position to “spearhead reforms” at a systemic level, addressing injuries resulting
from concussions.115
On August 26, 2013, the NFL, without admitting liability, proposed
a $765-million settlement offer to put an end to the current concussion
107
Id. (citing R.W. v. Manzek, 888 A.2d 740, 746-47 (Pa. 2005)). The plaintiffs stressed that this list of
factors reflects “considerations of public policy, not of contract.” Id.
108
Id. at 16 (citing 57A AM. JUR. 2d Negligence § 80; Lyon v. Ranger III, 858 F.2d 22, 25 (1st Cir. 1988)).
109
Id. at 17.
110
Id.
111
Id. at 17-18.
112
Id. at 18.
113
Id. at 30.
114
Id. at 31. For example, the Northern District of Illinois in Duerson “simply hypothesized that a court
might ‘plausibly interpret’ the CBAs to ‘impose a duty on the NFL’s clubs to monitor a player’s health.”’
Id.
115
Id. at 33.
438
DRYSDALE
litigation.116 The settlement offer, which still requires the approval of a courtappointed mediator, does little to resolve the question of how the NFL will
handle cases of CTE in the future and even less to compensate those who have
already fallen victim to CTE-related deaths.117 Moreover, the plaintiffs, faced
with the possibility of losing the case or waiting for years of litigation to be
resolved before receiving financial assistance they desperately need, appear
to be prepared to let the NFL off the hook for substantially less than the $2
billion in damages originally sought.118 Nevertheless, if a substantial number
of plaintiffs choose to opt out of the settlement offer, it still could be rejected
by the mediator and the case then likely would proceed to trial.119 Therefore,
due to the large number of possibilities and uncertainties surrounding the potential settlement, the offer does not resolve the scope of the NFL’s duties to
monitor its players for CTE in the future.
III. THE NFL’S ATTEMPTS TO LIMIT CONCUSSION EXPOSURE
THROUGH A SERIES OF ENACTED AND PROPOSED RULE
CHANGES
Whether the NFL finally recognized the mounting scientific evidence of
the long-term effects of concussions or whether the League was attempting to
limit its liability due to the massive number of lawsuits it is facing, the NFL
has attempted to mitigate long-term concussion damage by implementing and
discussing various rule changes aimed at reducing head injuries and increasing
player safety.120
116
Lester Munson, In the End, Settlement Not Surprising, ESPN.com, http://espn.go.com/nfl/story/ /id/
9612467/questions-answers-nfl-retired-players-lawsuit-settlement. The settlement offer was proposed
just as U.S. District Court Judge Anita B. Brody was set to issue her first major ruling on the case.
117
Id. The settlement states that “the agreement is not an admission by the NFL of liability on the
concealment issue.” Moreover, in order to reach the settlement agreement, both the NFL and the
plaintiffs agreed that all action on the issue of whether the NFL concealed the link between concussions
and diseases like CTE would be deferred. Thus, if the proposed settlement is accepted and approved,
the lawsuit never will enter the discovery phase, which could have uncovered the “smoking gun”
showing that the NFL conclusively had knowledge of the link between traumatic brain injury and
CTE.
118
Steve Fainaru & Mark Fainaru-Wada, Players Sought $2 Billion from NFL, ESPN.com,
http://espn.go.com/espn/otl/story/ /id/9622926/players-initially-sought-2-billion-plus-nfl-concussionsettlement. The players had demanded “more than $2 billion to settle the case. Judge Brody’s
statements to the attorneys for the plaintiffs that their case, however, was “in real danger of being
dismissed” coupled with the potential for years of litigation that would deny many former players
medical and financial assistance they need, led the plaintiffs to agree to settle for much less than they
originally sought. Of the $765 million, only $675 million will be set aside to compensate all of the
players and families of players who have suffered from diseases such as CTE.
119
Id. While Judge Brody indicated that a large portion of the plaintiffs’ case was likely to be thrown out,
she also noted “at least part of the case was likely to survive” the motion to dismiss. Id. Thus, “if a
significant number of players were to exercise their right to opt out of the settlement agreement,” the
case is likely to proceed to trial in a limited capacity. Id.
120
See generally NFL.com Wire Report, supra note 19.
CHRONIC TRAUMATIC ENCEPHALOPATHY SCREENING
439
A. Rule Changes Already Implemented by the NFL in an Attempt
to Reduce the Number of Concussions
In 2010, the NFL reworded the League’s rules to prohibit a player from
“launching121 himself off the ground and using his helmet to strike a player
in a defenseless122 posture in the head or neck.”123 Violations of this rule only
result in the imposition of a 15-yard unnecessary roughness penalty.124 In the
same season, the NFL mandated that once a player loses his helmet on the
playing field, the current play must immediately be whistled dead.125
Also, in 2010, the NFL mandated that during field goals or extra point
attempts, defenders must line up with their entire bodies on the outside
of the snapper’s body to protect the snapper while he is in a position of
vulnerability.126 Violations of this rule, however, result in only a five-yard
penalty for illegal formation.127
To reinforce the seriousness of the rule changes, in the middle of the
2010 season, Commissioner Goodell issued a memo to all NFL teams stating
that “more significant discipline, including suspensions, will be imposed on
players that strike an opponent in the head or neck area in violation of the
rules.”128
The most drastic step the NFL has taken to reduce head injuries was the
2010 change to the NFL kickoff rules. To reduce what has been referred to as
one of the most violent plays in the game,129 the kickoff was moved up from
the 30-yard line to the 35-yard line.130 The NFL also outlawed the use of the
three-man wedge on kickoffs, while allowing the two-man wedge to remain
121
“Launching” is defined as “leaving the ground to make the hit.” Jason Bon, 2010 NFL Rule
Changes—Hitting Defenseless Players, BLEEDING GREEN NATION, Aug. 10, 2010, http://www.
bleedinggreennation.com/2010/8/10/1615365/2010-nfl-rule-changes-hitting.
122
A “defenseless player” includes: “[a quarterback] in the act of passing, a [wide receiver] in the act of
making a catch, a kick or punt returner in the act of making a catch, a runner who is in the grasp or
whose forward progress has been stopped, a player on the ground at the end of the play, a [quarterback]
after a change of possession, and a kicker or punter after the ball is kicked.” Id.
123
NFL.com Wire Report, supra note 19. While this rule has been in place for several seasons, it previously
applied only to wide receivers getting hit. The new rule now applies to all players. Id.
124
Bon, supra note 121.
125
NFL.com Wire Report, supra note 19.
126
Bon, supra note 121.
127
Id.
128
National Football League, Goodell Issues Memo Enforcing Player Safety Rules, NFL.COM, Oct.
20, 2010, http://www. nfl.com/news/story/09000d5d81b7b9ef/article/goodell-issues-memo-enforcingplayer-safety-rules. Goodell’s memo stated: “[I]n recent years, we have emphasized minimizing contact
to the head and neck, especially where a defenseless player is involved. It is clear to me that further
action is required to emphasize the importance of teaching safe and controlled techniques, and of
playing within the rules. It is incumbent on all of us to support the rules we have in place to protect
players.” Id.
129
See Jeffri Chadiha, Should the NFL Eliminate Kickoffs?, ESPN, Sept. 26, 2012, http://espn.go.com/nfl/
story/ /page/hotread-kickoffs/should-nfl-eliminate-kickoffs-pursuit-safer-game.
130
The Concussion Blog, supra note 18.
440
DRYSDALE
a legal play.131 Consequently, players on the kicking team must now line up
closer to the end zone, reducing the amount of space the players have in which
to get a running start.132
In 2011, the NFL also mandated that certified athletic trainers be available in press boxes during all NFL games.133 These athletic trainers assist
medical personnel located on the sidelines in identifying potential concussions because the symptoms are often difficult to spot and assess from the
field level.134
On March 20, 2013, the NFL voted to introduce yet another new rule
aimed at player safety.135 Starting in the 2013–2014 season, if a running back
lowers the crown of his helmet while he is inside the tackle box136 or while
he is less than three yards downfield and makes contact with a defender, the
team will be given a 15-yard penalty.137
B. Rule Changes That Have Been Considered by the NFL but Have
Not Yet Been Implemented
According to the NFL, the kickoff change, alone, has reduced the number
of concussions that occur each year.138 Because of this result, the NFL has
started to entertain the idea of eliminating the kickoff as a part of the game
altogether.139
John Mara, co-owner of the New York Giants, supported the idea, stating
that he could “see the day in the future where [the kickoff] could be taken out
of the game.”140 Mara specifically noted that he believed the kickoff is “one
131
Id.
See id.
133
Jim Corbett, Concussed NFL Alumni Seek Awareness, Amends, USA TODAY, Dec. 26, 2011, http://
usatoday30.usatoday.com/sports/football/nfl/story/2011-12-26/concussions-former-players-dorseylevens/52231256/1.
134
See id.
135
See generally John Clayton & Adam Schefter, Tuck Rule Gone, Helmet Rule Approved, NFL, http://
espn.go.com/nfl/story/ /id/9075058/nfl-owners-end-tuck-rule-approve-helmet-penalty (last updated
Mar. 20, 2013).
136
The tackle box is the “area on the field that extends laterally between the offensive tackles on either side
of the offensive line. The tackle box is significant for both the offense and the defense.” Sporting Charts,
What Does Tackle Box Mean?, NFL DICTIONARY, http://www.sportingcharts.com/dictionary/nfl/tacklebox.aspx (last visited June 26, 2013).
137
Seth Walder, Jim Brown Supports New Running Back Helmet Rule, While Fellow NFL Rushing Legend
Emmitt Smith Calls Proposal “Absurd,” N.Y. DAILY NEWS, Mar. 19, 2013, http://www.nydailynews.
com/sports/football/nfl-legends-brown-smith-butt-heads-rb-rule-article-1.1293242.
138
Associated Press, Concussions Decline After Change to Kickoff Rule, NFL.COM, Aug.
8, 2012, http://www.nfl.com/news/story/0ap1000000047303/article/concussions-decline-after-changeto-kickoff-rule. According to Jesse David, the senior vice president of Edgeworth Economics, the
number of concussions incurred at kickoff “decreased by 43 percent from 2010 to 2011.” Id.
139
Chadiha, supra note 125.
140
Id.
132
CHRONIC TRAUMATIC ENCEPHALOPATHY SCREENING
441
of the most dangerous plays in football.”141 According to Mara, the problem
is that concussions come from several different aspects associated with the
kickoff.142 Because the problem exists on more than one level, there is no single
thing that can be done to prevent concussions on the kickoff and, therefore, to
ensure player safety, the play should be eliminated altogether.143
Greg Schiano, now the Tampa Bay Buccaneers’ head coach, also endorsed the proposition, when as a college coach at Rutgers University, he
watched one of his players suffer paralysis while making a tackle on a
kickoff.144 According to Schiano, “players would be grateful for such visionary changes 30 years from now.”145 Schiano has advocated that punts should
replace kickoffs because “blockers and tacklers don’t have running starts at
one another.”146 The main concern for proponents of kickoff elimination like
Mara and Schiano is that players are becoming “too big, strong, and fast to
continue a tradition that leaves them in precarious positions.”147
In a December 2012 meeting between NFL Commissioner Roger Goodell and Chair of the NFL’s Competition Committee Rich McKay, Goodell
brought up Schiano’s proposal: following a touchdown or a field goal, give
the scoring team the ball on its own 30-yard line in a fourth-and-15 situation
instead of allowing the scoring team to kick off.148 The options at that point
would either be for the scoring team to go for the first down149 or, as Schiano
suggested, punt it away, resulting in punts replacing kickoffs.150 Despite Goodell mentioning these proposed changes, the NFL has not taken any action to
eliminate kickoffs in the NFL game.
To protect its own interests, the NFL Players Association has requested that the NFL place independent neurologists on the sidelines at every
NFL game “and include them as part of the initial concussions examination protocol.”151 In the past, when a player has shown signs of a concussion, the immediate examination of the player was conducted by the team
141
Id.
Id. Mara noted that concussions come “from the wedge, from the crossing blocks where a guy goes
from one side of the field to another, [and] from a full-speed collision between a return guy and a
tackler.” Id.
143
Id.
144
Id.
145
Id.
146
Id.
147
Id.
148
Chris Chase, Roger Goodell Brings Up Idea NFL Could Eliminate Kickoffs, USA TODAY SPORTS, Dec.
6, 2012, http://www.usatoday.com/story/gameon/2012/12/06/goodell-kickoff-rule-changes/1751289/.
149
If the team chose not to punt and did not gain the 15 yards necessary for a first down, the opposing
team would take over with good field position. Id.
150
Id. The rationale behind this approach was, again, that punts are “less susceptible to violent collisions
than kickoffs.” Id.
151
Barry Wilner, NFL, Union Try to Change Culture on Concussions, THE BIG STORY, Oct. 19, 2012,
http://bigstory.ap.org/article/nfl-union-try-change-culture-concussions.
142
442
DRYSDALE
physician.152 In December of 2011, 31 of 44 NFL players surveyed reported
that they would like the league to have independent neurologists at all NFL
games.153 In January of 2013, the NFL responded to this request and announced
that it “expects” independent neurological consultants to be available on the
sidelines during games in the 2013–2014 season to help diagnose and treat
concussions.154
Also, discussion of expanding the size of the NFL playing field has
begun. The NFL could consider expanding its field to match that of the
Canadian football field, which is 35 feet wider and 30 yards longer than
the standard field size used in the NFL.155 Proponents of this idea believe
that the field expansion, particularly the widening, could have a serious,
positive impact on safety regarding head injuries.156 According to former
NFL Competition Committee member and Canadian Football League (CFL)
member Bill Polian, expanding the field would create more space and “perhaps
a safer game” because there have been fewer collisions in the CFL.157 The
rationale behind this proposed idea is simple: “[A] wider field would spread
out bodies over more space, reducing hits in the middle of the field.”158 The
idea also has been endorsed by former NFL great Warren Moon, who played
six seasons in the CFL before starting his NFL career.159 Moon said that,
in his experience, there are “fewer head[-]to[-]head collisions by big men
in the CFL,” a fact Moon considers significant.160 Again, although this idea
has been suggested by a few individuals, the NFL has not given any serious
consideration to field expansion at this time.
IV. DESPITE EFFORTS BY THE NFL, CONCUSSIONS,
AND EVENTUALLY CTE, ARE INEVITABLE CONSEQUENCES
OF AN NFL CAREER
Although the NFL has appeared to take steps to reduce the long-term
effects of head injuries, the League’s efforts have been met with mixed reactions from both players and fans, and created a wide array of skewed results.
152
Id.
Associated Press, NFLPA Voices Safety Complaints, ESPN, http://espn.go.com/nfl/story/ /id/8903292/
demaurice-smith-domonique-foxworth-nflpa-lay-complaints-safety-issues (last updated Jan. 31,
2010).
154
Id.
155
Dan Pompei, A Radical Idea Discussed to Make the NFL Safer; Going from the CFL to the NFL; and All
the Latest Chatter, NATIONAL FOOTBALL POST, Feb. 10, 2013, http://www.nationalfootballpost.com/NFPSunday-Blitz-1048.html.
156
Id.
157
Id.
158
Id.
159
Id.
160
Id.
153
CHRONIC TRAUMATIC ENCEPHALOPATHY SCREENING
443
The NFL’s numbers on the reductions in concussions are, at best, suspect due
to the discrepancies in the way teams list and report concussions.161
The discrepancies are caused by the process through which concussion
statistics are gathered from weekly injury reports released by individual NFL
teams.162 These reports fail to account for any concussions that a player may
suffer the week before a bye,163 when he can recover enough to avoid being
listed on the team’s injury report the next week.164 Furthermore, unless a team
makes the playoffs, no concussion statistics are gathered from the last week
of the season, meaning players from 20 teams go unreported in the season
totals at the end of the year.165
The NFL’s contention that the new kickoff rules have been effective
presents even more problems. While the NFL has claimed a decline in concussions due to moving the kickoff from the 30-yard line to the 35-yard line,
different sets of statistics show a much higher number of concussions during
the same time period, for which the NFL claims a decrease occurred.166 These
other sets of statistics appear to show “only a nominal decrease between 2010
and 2011.”167
Dustin Frink, a trainer in Illinois who tracks NFL concussions for “The
Concussion Blog,” concludes that the NFL lacks a “reliable way to account
for concussions all season long.”168 Frink says the NFL’s published numbers
show that the league has an internal set of concussion reports that is “beyond
the official injury reporting system the public sees.”169
A. NFL Rule Changes Find Little to No Favor Among NFL Players,
Coaches, and Owners
Reactions by the NFL players to the new kickoff rules have been
negative.170 Josh Cribbs, a kick returner for the Cleveland Browns, believes
that the new rule will eliminate the kick-off return from the game completely,
161
Fainaru-Wada & Fainaru, supra note 25. Several teams in the NFL use “different and imprecise terms
to describe concussions on injury reports, obscuring the prevalence and severity of head injuries from
week to week.” Id.
162
Id.
163
A “bye week” is defined as “a week during the playing season in which a team does not play a game.”
Bye Week, CAMBRIDGE DICTIONARIES, http://dictionary.cambridge.org/dictionary/british/bye-week (last
visited June 20, 2013).
164
Fainaru-Wada & Fainaru, supra note 25.
165
Id.
166
See id.
167
Id.
168
Id.
169
Id.
170
New Kickoff Rules Winning Few Fans Among Players and Coaches, NFL, Aug. 15,
2011, http://www.nfl.com/news/story/09000d5d821785ce/article/new-kickoff-rules-are-winning-fewfans-among-players-coaches. Rashied Davis, a wide receiver for the Detroit Lions, stated that he
“hated” the new kickoff rule. Id. Linebacker Osaiah Ekejiuba went as far as to call the rule “awful.” Id.
444
DRYSDALE
reducing a league game to nothing more than “a scrimmage.”171 John Harbaugh, head coach of the Baltimore Ravens, believes that placing defenders
closer to the return man eventually will result in more violent collisions as
players will attempt to “smash the returner inside” the 15-yard line.172
Player reactions to NFL rule changes regarding how defensive players can administer hits have been similarly negative. Former Chicago Bears
linebacker Brian Urlacher complained that it is not clear what players can and
cannot do under the League’s new rules.173 According to Urlacher, defensive
players have no idea what hits will result in a penalty during the game, and
they still may be fined for plays that were not even penalized at the time of
contact.174
Cincinnati Bengals linebacker James Harrison said that the new hitting
rules will not change the way he plays the game.175 According to Harrision,
even if he were to attempt to hit a player low, the risk remains that the hit may
“blow out his ACL,” which could end a player’s career.176 As Harrison sees
it, a player with a blown-out knee cannot make a living or support his family,
making a knee injury just as life-threating as a blow to the head.177
Several players have echoed the feelings of Harrison and Urlacher, passionately expressing their dislike of the new hitting rules and questioning
their effectiveness.178 Also, some players, like Channing Crowder, formerly
of the Miami Dolphins, have stated they will not follow the new NFL rules
designed to limit concussions and actually will continue to use their helmets
as a weapon on the field.179
Responses to proposed rule changes by the NFL have fared no better
around the League. Reactions to the proposed kickoff elimination have been
extremely negative, with most players and coaches believing that eliminating
171
Id.
Id.
173
Brian Urlacher Rips NFL Over Fines, Flags: “It’s Very Frustrating for Me,” HUFFINGTON POST, Nov. 4,
2011, http://www.huffingtonpost.com/2011/11/04/brian-urlacher-nfl-fines-flags n 1075646.html.
174
Id.
175
Chris Chase, NFL Players Speak Out on the NFL’s Awful, New Dangerous Hit
Rule, YAHOO! SPORTS, Oct. 20, 2010, http://sports.yahoo.com/nfl/blog/shutdown corner/post/
NFL-players-speak-out-on-the-NFL-s-awful-new-da?urn=nfl-278498. When asked about the new
hitting rules Harrsion replied: “It’s a physical game, it’s a violent game. You’re going to get hurt.” Id.
176
James Harrison Has New Approach, ESPN, http://espn.go.com/ nfl/story/ /id/8770032/james-harrisonpittsburgh-steelers-discusses-way-hits (last updated Dec. 21, 2012).
177
Id.
178
Chase, supra note 175. Adrian Wilson of the Arizona Cardinals stated that, while he attempts to use
his best judgment when hitting other players, the decision is often made in a split second and the
head-to-head collisions are often times “unavoidable.” Id. Antrel Rolle of the New York Giants said
that the new rules were “absolutely ridiculous” because it is impossible to have absolute control over
your body when attempting to make a tackle. Id. Former Washington Redskins player Phillip Daniels
believes the new hitting rules are turning the NFL into a “cupcake league,” and, when the helmet goes
on, all players make the choice of “hit or be hit.” Id.
179
Klopman, supra note 23.
172
CHRONIC TRAUMATIC ENCEPHALOPATHY SCREENING
445
kickoffs will take away an exciting play that is an invaluable part of the game
and leave players who excel as kick returners unemployed.180
Furthermore, some team officials believe that a wider NFL field actually
could lead to more high-impact hits.181 Rick Smith, general manager of the
Houston Texans, believes that a wider field will result in more high-speed
collisions because defenders will be farther away from their intended targets,
resulting in a build-up of more speed before contact is made.182
Despite these flaws in the NFL rule changes and other proposals, the
biggest problem faced by the NFL and its players in the battle to reduce head
injuries is the mentality of the players themselves, a mentality that appears to
be supported by the NFL.
B. The Game and Culture of Football Makes Any Attempt at Rule
Changes to Avoid Concussions Futile
According to the current concussion litigation, as recently as 2010, the
NFL fined some players for what the League deemed “illegal and dangerous
hits.”183 Despite these fines, however, the NFL turned around and sold photographs of these same hits on its website “for between $54.95 and $249.95.”184
Certain coaches seem to believe in the same double standard as the
NFL. After one of his players delivered a devastating hit in the 2013 NFC
Championship game that left the opposing player unconscious and eventually concussed, Baltimore Ravens Head Coach John Harbaugh called the
hit “as good a tackle as you’re ever going to see in football.”185 This “warrior mentality,” which the NFL appears to support and which is still embraced by many players, prevents players from reporting concussions because
they feel they owe a duty to their teams to continue to play through the
pain.186 Several incidents in the 2012–2013 NFL season, alone, represent this
mentality.
In September of 2012, Detroit Lions wide receiver Calvin Johnson took
a helmet-to-helmet hit in a game against the Minnesota Vikings.187 Johnson
180
Chadiha, supra note 129.
Pompei, supra note 155.
182
Id.
183
Class Action Complaint, supra note 81, at 11.
184
Id.
185
Clark Judge, Ravens’ Pollard: NFL Really Does Stand for Not for Long, CBS SPORTS.COM, Jan. 25,
2013, http://www.cbssports.com/nfl/blog/clark-judge/21613854/ravens-pollard-nfl-really-does-standfor-not-for-long.
186
Stephanie Smith, Warner: Playing Through Concussion “Part of the Game,” CNN MEDICAL NEWS, Nov.
22, 2010, http://www.cnn.com/2010/HEALTH/11/22/playing.through.concussions/index.html. Critics
of the NFL’s concussion protocol claim that players who are afraid of losing time on the field “may feel
compelled to hide their symptoms. At the same time[,] the [L]eague places a premium on winning.” Id.
187
Breslow, supra note 21.
181
446
DRYSDALE
was tested for a concussion but was allowed to return to the game.188 Following a bye week, Johnson did not appear on the injury report released
by the Lions two weeks later.189 Nevertheless, on three separate occasions,
Johnson told reporters that he suffered a concussion in the earlier game, but
that “it’s part of football” and “[if] you get concussed you gotta keep on
playing.”190 A month later, the Lions issued a report disputing Johnson’s statement and standing by the team’s position that Johnson did not, in fact, suffer a
concussion.191
Shortly after the Johnson incident, fans cheered as struggling Kansas
City Chiefs quarterback Matt Cassel lay motionless on the field following a
massive hit that resulted in a concussion.192 Two weeks later, Cassel’s backup,
quarterback Brady Quinn, told reporters that he attempted to play through a
concussion against the Oakland Raiders.193 Quinn, who had spent three years
as a backup quarterback in the NFL, told reporters that he “tried to stay in the
game, because it was the first opportunity for me in a while. . . . I tried to play
through it.”194
Similar incidents around the league suggest that this warrior mentality
is still very much in existence despite the push for improved player safety and
reduced head injuries.195 Many players hold views similar to those of Johnson
and Quinn and feel that concussions are part of the game and something they
“signed up for.”196
The 2012–2013 season also provided a glaring example of why many
of the concerns that players have about reporting concussions are all too
188
Id.
Id.
190
Id.
191
Id.
192
Id.
193
Id.
194
Id.
195
See id. In early 2012, then New York Jets running back Shonn Greene was the victim of an illegal
helmet-to-helmet hit. Greene returned to the huddle “dazed and wobbly, but was eventually given the
green light to continue to play.” Id. Greene later admitted that he did not remember quarterback Mark
Sanchez sending him out of the huddle and toward the sidelines for a concussion test. Id. Later in the
season, Washington Redskins safety Jordan Pugh exited a game against the Vikings with a head injury.
Id. Despite exiting the game, Pugh was allowed to return to play only to exit again 90 seconds later for
good because he was unable to continue playing. Id. The Washington Redskins were also fined $20,000
by the NFL for violating League concussion rules for rookie quarterback Robert Griffin, III. Id. After
Griffin was hit in the head, the Redskins announced that Griffin was “shaken up.” Id. Following the
game, head coach Mike Shanahan called the injury “a mild concussion.” Id.
196
See Pat Yasinskas, Ed Reed: “I Feel Effects from” Blows, ESPN, http://espn.go.com/nfl/playoffs/2012/
story/ /id/ 8894201/2013-super-bowl-baltimore-ravens-ed-reed-says-junior-seau-signed-nfl-dangers
(last updated Jan. 29, 2013); Craig Peters, Titans Players React to NFL Memo on Increased
Discipline for Illegal Hits, TITANS ONLINE, Oct. 21, 2010, http://www.titansonline.com/news/
article-1/Titans-Players-React-to-NFL-Memo-on-Increased-Discipline-for-Illegal-Hits/c061d854be96-4e02-9ac1-673eea849471; Smith, supra note 172.
189
CHRONIC TRAUMATIC ENCEPHALOPATHY SCREENING
447
real. Ten games into the NFL season, San Francisco 49ers quarterback Alex
Smith suffered a concussion against the St. Louis Rams.197 Smith attempted to
remain in the game, despite suffering from blurred vision, before eventually
being replaced by backup quarterback Colin Kaepernick.198 Kaepernick went
on to permanently replace Smith as the 49ers’ starting quarterback for the
remainder of the season, which culminated in a trip to the Super Bowl.199
Smith later said that the only thing he felt like he did to lose his job was
get a concussion.200 Critics claim that the decision to replace Smith with
Kaepernick, even after Smith had fully recovered, “will only make players
more reluctant to report head injuries.”201 This view was supported by former
49ers linebacker Bill Romanowski, who questioned whether Smith made the
right choice.202 Romanowski stated that “‘a lot of guys still do’ play through
concussions,” and the fact that Smith lost his job “once again brings up the
issue that the culture is still in question.”203 Eventually, this culture leads to a
player being faced with a choice: “job security over the short haul vs. quality
of life over the long haul.”204
Furthermore, players continue to suffer concussions and fail to realize
it, causing them to stay in the game and never report the injury. In fact, most
concussions that are labeled grade one never make the injury reports put out
by the NFL.205 According to Dr. Bennet Omalu, who was the first to identify,
describe, and name CTE as a disease in football players and wrestlers, “for
every documented concussion[,] there are hundreds of impacts to the head
called sub-concussions.”206 Dr. Omalu explained that players would not have
immediate impairment with sub-concussions,207 making it impossible for a
player to report or even recognize that his health may be in serious jeopardy.
Regardless of a player’s attitude, some concussions are unavoidable,
even if players are making their best efforts to play safely and within the
rules. Bernard Pollard, a safety for the Baltimore Ravens and one of the most
outspoken players on the subject of concussions, pointed out that, while the
NFL is attempting to move in the right direction, “at the same time coaches
197
Breslow, supra note 21.
Id.
199
Id.
200
Id.
201
Id.
202
Mihoces, supra note 22.
203
Id.
204
Id. Denver Broncos wide receiver Brandon Stokley agrees that players are forced to make this choice.
Stokley reports that players still hide and play through concussions to avoid losing their jobs. Stokley,
who has played 14 seasons in the NFL, estimates that he has suffered “about a dozen concussions going
back to college” and reports that, during his younger years, he would “play through the lesser hits.” Id.
205
Farber, supra note 16.
206
Smith, supra note 186.
207
Id.
198
448
DRYSDALE
want ‘bigger, stronger, and faster’ players year in and year out.”208 Pollard
explained that this conflict means big hits will continue to happen no matter
what precautions are put in place and, therefore, concussions will continue to
increase.209 Former NFL quarterback Kerry Collins agreed, stating that, while
the NFL may try to protect players, “some things happen in the course of the
game where there is going to be big hits.”210 Tennessee Titans linebacker Will
Witherspoon took the same position as Pollard and Collins, admitting that,
while everyone tries to play a clean game, “sometimes things happen that are
beyond your control,” and playing the game tentatively to attempt to limit
head injuries actually may result in an increase in other types of injuries.211
Further exacerbating the problems, a study at the end of the 2012–2013
season showed that four in five NFL players did not trust the medical staff on
their respective teams.212 Even the President of the United States has recently
questioned the safety of football.213
Taken together, all of these concerns point to the conclusion that the NFL
cannot eliminate concussions, and players will continue to develop debilitating
brain diseases like CTE following retirement, unless the NFL changes course
and engages in a new form of preventative care. While such a solution may not
have been a possibility in the past, recent medical developments have made it
possible for the NFL to divert its expansive resources toward detecting CTE
before it ruins the lives of players.
V. CREATING A DUTY TO USE PET SCANS TO DETECT CTE IN
ACTIVE NFL PLAYERS TO REDUCE LIABILITY AND INCREASE
PLAYER SAFETY
Until recently, one of the biggest problems with CTE detection and
treatment was the fact that no specific markers or tests existed to detect CTE
in living athletes.214 In February of 2013, however, a major breakthrough was
made in the area of CTE research.215
208
Tony Lee, Baltimore Ravens Safety: NFL Won’t Be in “Existence” in 30 Years, BREITBART, Jan. 26,
2013, http://www.breitbart.com/Breitbart-Sports/2013/01/26/Pollard-Comments-NFL.
209
Id.
210
Peters, supra note 196.
211
Id.
212
Rick Maese, NFLPA Survey: Nearly Four in Five Football Players Don’t Trust Team Medical
Staffs, WASH. POST, Jan. 31, 2013, http://articles.washingtonpost.com/2013-01-31/sports/36648066
1 football-players-nfl-teams-demaurice-smith.
213
President Questions Safety of Football, ESPN, http://espn.go.com/nfl/story/ /id/8886528/presidentbarack-obama-not-sure-allow-son-play-football (last updated Jan. 28, 2013).
214
Zeigler, supra note 26. This lack of testing also explains why CTE is not an area that has received
attention until recently. Id.
215
See Gary W. Small et al., PET Scanning of Brain Tau in Retired National Football League Players:
Preliminary Findings, 21 AM. J. GERIATRIC PSYCHIATRY 138, 138 (2013).
CHRONIC TRAUMATIC ENCEPHALOPATHY SCREENING
449
Scientists at UCLA have developed a method to detect tau protein in
living brains using a PET scan.216 The scientists injected five ex-NFL players
and five control group members with a tracer named FDDNP. A radioactive
molecule attached to the tracer allowed scientists reading the PET scan to see
where the FDDNP was clinging to tau deposits in the players’ brains.217
The results of the study showed that NFL players had “significantly
higher FDDNP signals compared with controls.”218 Furthermore, the results
showed “an increase in FDDNP binding levels with increase in the number
of concussions.”219 These findings indicated that the higher levels of FDDNP
binding patterns in players “are consistent with the fibrillary tau deposition
patterns observed at autopsy in CTE cases.”220 As a result, the study concluded
that the higher level of FDDNP binding in players with concussions suggests
a link between head injuries and CTE.221
Dr. Julian Bailes, the co-director of the NorthShore Neurological Institute and co-author of the study, called this breakthrough “the holy grail” of
head trauma studies.222 According to Bailes, for the first time, the possibility
has been opened for medical professionals to intervene and stop the decline of
players who are showing signs of CTE.223 Dr. Gary Small, the lead author of
the study, reported that these findings may guide researchers in “developing
strategies and interventions to protect those with early symptoms, rather than
try to repair damage once it becomes extensive.”224
The study, the first of its kind, has some limitations. Dr. Small pointed out
that this scan can cost as much as $5,000 and currently only can be performed
at UCLA.225 If, however, as NFL spokesman Greg Aiello claims, the NFL
has no higher priority than player health and safety,226 creating a legal duty to
scan players who have suffered multiple head injuries in their career should
present no issues for a league that generates approximately $9.3 billion in
gross income per year.227
216
Id.
Id.
218
Id. at 140.
219
Id.
220
Id. at 142.
221
Id.
222
Ken Belson, PET Scan May Reveal CTE Signs, Study Says, N.Y. TIMES, Jan. 22, 2013, http://
www.nytimes.com/2013/01/23/sports/football/study-suggests-pet-scans-may-identify-cte-in-livingpatients.html? r=0.
223
Id.
224
Id.
225
Sean Gregory, CTE in Seau, Other Former NFL Players: What Now for Football and Concussions, TIME SPORTS, Jan. 24, 2013, http://keepingscore.blogs.time.com/2013/01/24/cte-detectedin-living-ex-nfl-players-junior-seaus-family-sues-what-now-for-football-and-concussions/.
226
President Questions Safety of Football, supra note 213.
227
Class Action Complaint, supra note 81, at 6.
217
450
DRYSDALE
While the outcome of the pending concussion litigation will have a
substantial impact on how a legal duty to scan living players for CTE plays
out, a close look at the pleadings reveals that this duty may be established
regardless of how the court eventually rules, if the case move forward. If
the court were to agree with the plaintiffs and hold that the NFL, through
its position of superior knowledge of the effects of concussions, did, in fact,
shoulder the common-law duty to make the game of football safer, the duty to
scan active players for CTE would essentially be established. Scanning NFL
players who have a history of head trauma for CTE certainly would fall within
the duty of “making the game safer,” which the NFL would owe to all of its
players.
Furthermore, if the court were to accept the plaintiffs’ contention that
the team physicians are incapable of determining the long-term effects of
concussions (which the court is likely to do based on the limited resources
available to team physicians), the NFL essentially would be the only entity
left with the ability and resources to detect CTE.
While the NFL may argue that the players should shoulder this duty,
the NFL is in the superior position with regard to the knowledge and financial resources to detect CTE at a systemic level. Thus, under the plaintiffs’
common-law duty theory, the duty to use PET scans to detect CTE in active
NFL players fits squarely with the duty the NFL would have to make the game
safer for all players.
If the court decides to rule in favor of the NFL and hold that any
legal duty the NFL may have owed its players falls within the provisions
of the CBAs, the duty to scan active players for CTE is still established.
If, as the NFL contends, the “physician provisions” need to be taken into
account when determining the duty of the NFL, the physicians still would
owe a legal duty to inform the players of “medical risks associated with
returning to play.” A full disclosure of these medical risks now, undoubtedly,
would include the risk of developing CTE for a player with a history of head
trauma.
Nevertheless, as previously noted, due to the lack of resources available
to team physicians228 and the superior financial resources available to the
NFL, this duty cannot be shouldered by the team physicians. Thus, once
the physicians’ duties were determined under the CBAs, the legal duty to
monitor active players for CTE then would fall to the NFL, as the NFL
expressly has admitted that the CBAs establish the duties of the NFL and its
Clubs “to provide medical care to NFL players.”229 This statement by the NFL
indicates that any duty that a club does not owe to its players would fall to the
NFL.
228
229
Id. at 51 (stating that medical monitoring for latent brain injury is highly specialized).
Defendant’s Memorandum, supra note 93, at 31.
CHRONIC TRAUMATIC ENCEPHALOPATHY SCREENING
451
Moreover, the NFL has stated that the CBAs establish the duty of the NFL
to implement health- and safety-related rules regarding professional football;
in fact, the NFL has admitted that it has an obligation to do so. Creating
a legal duty for the NFL to scan its active football players for CTE would
fall within these CBA duties to implement health- and safety-related rules by
requiring players who have suffered multiple head traumas to undergo PET
scanning. Because the NFL does not claim it did not owe a duty to its players,
establishing this duty under the CBAs would fall within the NFL’s proffered
position and still provide the medical monitoring for CTE that current NFL
players desperately need.
With the establishment of the duty to scan, the question still would remain as to when a player first should undergo a PET scan to check for the
presence of CTE. While the research has not advanced to the point where
the exact number of concussive injuries needed to develop CTE can be
determined,230 the research appears to indicate a player begins to develop
a serious risk of permanent brain damage after his third concussion.231 Thus,
a logical progression would be for the NFL to have a duty to pay for a player
with three concussive injuries during his playing career to be scanned for
CTE.
Creating this legal duty would support the position advanced by Dr.
Bailes: that active players who show signs of CTE while still playing now can
make an informed decision about whether to continue their playing career.
If the player decides to retire after the early signs of CTE are detected, the
player then can focus on treating the effects of the disease and stopping it
from worsening by further head injuries. If, however, after learning of the
early presence of CTE, the player decides to continue his NFL career, the
NFL’s liability would be eliminated as the player now would be making an
informed choice to continue to play football in the face of a serious risk to his
health.
Furthermore, assigning this duty to a corporation that grosses $9 billion
a year in net income would allow society to reap the benefits of PET scanning
for CTE and general research on traumatic brain injuries. By creating a duty
for the NFL to use this technology on a group of individuals who are regularly
subjected to head trauma, the benefits can begin to trickle down to the rest of
230
231
Zeigler, supra note 26.
Class Action Complaint, supra note 81, at 21 (citing an article in The New England Journal of Medicine
recommending that a player cease playing football after three concussions); id. at 34 (addressing a
contrary conclusion by the NFL, which specifically focused on players who have suffered three or
more concussions); id. at 37 (addressing a 2003 study on concussions and depression by Dr. Kevin
Guskiewicz, finding that players who have sustained three or more concussions in the NFL had a
five-fold prevalence of mild cognitive impairment); id. at 38 (addressing an NFL concussion pamphlet
released in 2007 that claims that research does not support that having one or two concussions leads to
permanent problems).
452
DRYSDALE
society in the form of further developments of CTE PET scanning. Eventually,
the cost of these scans could become greatly reduced as the scan becomes
more widely available.
As Dr. James P. Kelly, one of America’s top experts on treating concussions, pointed out as far back as 1994, the virtual absence of brain testing is
one of the biggest things that lead to the present problems with traumatic brain
injuries in the NFL.232 Because management of concussions and CTE requires
a gradual, multi-step process that focuses on the prevention of CTE and its
proper diagnosis, placing this duty on the one entity that has the resources
to address the problem for both NFL players and society as a whole would
create a lasting benefit for current and former NFL players, along with several
other segments of the general population.
CONCLUSION
After years of denial, the NFL has no choice but to face the fact that
CTE induced by concussions sustained while playing professional football is
a serious problem that needs immediate attention. Despite the NFL’s efforts
to mitigate the damage caused by concussions through promulgating rule
changes, concussions and eventually CTE are an inevitable part of professional
football. Nevertheless, the NFL is not powerless to act to prevent the crippling
damage of CTE that numerous former and current players are suffering from.
Regardless of whether the duty to scan active NFL players for CTE
arises as an independent duty or whether it is a subset of duties the NFL
owes former and current players, under the CBAs, it is clear that the NFL is
in a position of financial superiority and is best capable of shouldering this
duty. Placing this duty on the NFL not only would decrease liability for the
NFL by creating a truly informed choice on the part of the players, but it
would increase overall player safety and potentially decrease the devastating
consequences of CTE that befell Junior Seau, Dave Duerson, and countless
other former NFL greats.
A legal duty to scan active NFL players for CTE means a benefit for the
NFL, its players, and society as a whole. By scanning its players for CTE while
they are still playing, the NFL has a chance to use its power and influence
potentially to save the lives of players and, at the same time, to create and
develop medical technology that could be used for years to come in detecting
and treating CTE and other debilitating brain diseases.
232
Farber, supra note 16.
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