By Karl Friedrichs, Partner, Locks Law Firm
Last week’s headlines reporting a proposed $765 million settlement between the National Football League (NFL) and retired players validates concerns about the dangers of head injuries in football and other contact sports. The litigation involved allegations that the League did not adequately protect the players against the dangers of blows to the head, and also, knew of the health risks that resulted from such brain trauma and failed to disclose them to its current and former employees. Beyond these players, however, there is a larger population of young athletes who continue to be at risk and who may benefit most from the awareness that the NFL concussion litigation has brought to the public. In fact, based upon tangible examples of concussions causing deaths in young people, it is not an overstatement to conclude that the knowledge uncovered in the NFL litigation may save lives.
The science behind concussions has revealed the cause, but no accurate means of prevention. Moreover, a collection of information on the effect of concussions on individuals has clearly demonstrated that there is no pattern regarding how it will impact one person versus another. One thing that medical specialists have established is that concussions affect youths differently than adults. Second Impact Syndrome, or SIS, only affects kids or young adults under the age of 25. It’s a term that dates back to 1984, when two authors, Richard L. Saunders, MD, and Robert E. Harbaugh, MD, writing for The Journal of the American Medical Association, described a scenario where a head injury, resulting in Post-Concussion Syndrome (PCS), is followed by another blow to the head, before the brain has healed, which can result in brain swelling or death. PCS is a broad term for all of the symptoms that can arise following a head injury.
At the forefront of current day research into the dangers of SIS is Robert C. Cantu, M.D., co-director of the Center for the Study of Traumatic Encephalopathy at Boston University. Cantu, the co-author of the recently published book, Concussions and Our Kids, looks for 26 symptoms of PCS in the adolescent patients he sees in his clinic every week. These kids include all types of athletes and both genders. Perhaps, surprisingly, it has been broadly reported that girls are twice as likely as boys to sustain a concussion playing sports such as soccer, lacrosse, hockey or cheerleading. Regardless of this finding, the root concern in 2013 is related to boys playing football. Dr. Cantu’s research into the effect of concussions on the developing brain has led him to recommend that kids not play tackle football until they are at least 14 years of age.
Cantu’s advice has far-reaching legal effects on youth football. According to its website, 250,000 youths participated in Pop Warner football in 2010, a program tailored for kids ages five to 14. However, it is the parents, not the kids, who must give legal consent for their children to participate in this organization. Therefore, a quarter of a million young people in 2010 were placed in an environment where it was left to their parents to decide whether or not they should participate in a potentially dangerous sport.
Since that time, 49 states have enacted legislation addressing concussions in youth sports and the prevention of SIS, including New Jersey and Pennsylvania. For example, New Jersey’s law requires: the development of an interscholastic athletic head injury safety training program; certain measures to protect student athletes who have experienced concussions; and continuing education for athletic trainers. This legislation will serve not only to educate the public about concussions and provide the framework for safety, but it may also be utilized by lawyers suing a school district for injury resulting from concussion where the guidelines established by the state were not followed.
The “concussion crisis,” as it has come to be called, is not a new problem. It was on the radar of concerned parents and legislators before the first NFL concussion lawsuit was filed in January 2012. But with the popularity of the NFL, and the suicides of three NFL players since 2011, the discussion has moved into the mainstream. Even the pendulum of support for the NFL concussion litigation in the court of public opinion has swung as more is learned about the effects of repetitive head trauma. One only needs to contrast the “comments” sections that followed articles early in the NFL litigation process with today’s public observations. At first, the general theme was that the former players’ lawsuits were just another story of the “broke” athlete using his name recognition to take one last try at a money grab, to the realities of the present public stance — that the game must change or it will become extinct.
In 2011, U.S. Senator Tom Udell introduced a Bill, the “Children’s Sports Athletic Equipment Safety Act,” that sought to improve the safety standards in football equipment in general and helmets in particular, including regulating marketing that promoted concussion-proof helmets.
“The best helmets in the world don’t stop rotational forces, where the brain whips around and snaps back,” Cantu commented in a recent interview. The Master Complaint filed by former players against the NFL also highlights facts establishing that concussions have been a problem known for decades by the NFL’s medical experts. A committee was formed back in 1994 following two well-known players, Al Toon and Merril Hoge, being forced to retire due to lingering symptoms of concussions. But while it was thought that the committee was formed to address a worsening problem for its players, in fact its main objective in the ensuing years was to deliberately skew data and obfuscate facts to attempt to paint a picture that a concussion problem did not exist. The subsequent deaths and suicides of former NFL players who had their post-mortem brains examined by Cantu and others, demonstrated otherwise. The autopsies consistently revealed deadly tau proteins that contributed to chronic traumatic encephalopathy and death. Scientists contend that those clumps of tau proteins developed in the brains due to repetitive head trauma.
Moving forward, the NFL, as the gatekeeper of American football, will be looked upon to set the example for player safety and “return to play” concussion guidelines. The science that was discussed as part of the players’ damage claims will have future benefits to prevent Second Impact Syndrome in youths and may help to save lives. The days of characterizing a concussed football player as simply having “his bell rung” and administering smelling salts before pushing him back out on the field are over. And the legal community will ensure that our youths are protected from further injury, just as it has successfully enabled the regulation of countless other high risk activities.
Karl Friedrichs is a partner in the Cherry Hill, NJ office of Locks Law Firm, handling commercial litigation and personal injury matters including medical malpractice. He has a particular focus on assisting victims of traumatic brain injury (TBI) and nursing home neglect and played a significant role in representing more than 2,000 former NFL players who sued the League. Friedrichs can be contacted at kfriedrichs@lockslaw.com or by phone at (856) 663-8200.
