By Richard Robeson* and Nancy M. P. King**
In January 2014, Judge Anita B. Brody rejected1 the terms of a class action settlement between the National Football League (NFL) and a litigation class consisting of former NFL players with concussion-related health issues and the descendants and heirs of deceased players whose deaths were related to concussions — mild traumatic brain injury (MTBI) — sustained during their playing careers. Although the amount of the settlement was agreed to by both plaintiffs’ attorneys and attorneys for the NFL, Judge Brody expressed concern that its $765 million cap would be inadequate to the medical and financial needs of not only the more than 5, 000 former players who filed suit but also some 18, 000 former players who would be eligible over the settlement’s 65-year term.2 Judge Brody therefore ordered the cap to be lifted and the settlement renegotiated. Some current players also expressed dissatisfaction with the settlement, with one player pointing out that $765 million divided by the League’s 32 teams was equivalent to one-third of the average one-year salary per team.3 Another player called it “hush money,”4 because one of the conditions of the agreement was that the NFL would not admit to any wrongdoing regarding its handling of concussions or its own concussion research.5
The renegotiated settlement approved in April 2015 by Judge Brody is now worth $1 billion;6 and over the last several years the NFL has drastically altered how it handles possible concussions7 and Return-to-Participation.8 Even so, the settlement’s exclusions9 — not least among them being that no one who retired after July 7, 2014 can benefit — have been the cause of yet more recrimination and appeal. Some plaintiffs are especially dissatisfied that chronic traumatic encephalopathy (CTE), a degenerative brain disease that is associated with repeated concussions (recurrent MTBI), is a diagnosis that is expressly not covered by the settlement.10 This latter exclusion is the essential cause of the appeal, a ruling upon which is anticipated early this year. These putative shortcomings have significant implications for current players, including how the matter of informed consent may be regarded. As imaging techniques now make it possible to deductively diagnose CTE in the living,11 there will almost certainly be players diagnosed with CTE and other MTBI-related conditions who will have chosen to continue (or begin) to play in the NFL after July 7, 2014, but who will have no claim to any portion of the $1 billion, as the League pursues the goal of growing from the current $10 billion per year to $25 billion by 2027.12 Whether they will have made informed choices to continue play, and whether they may have moral claims against the NFL for failure to inform, are different questions unaddressed by the litigation.
A definitive diagnosis of CTE is still only possible via post mortem neuropathology examination. The list of those so diagnosed continues to grow,13 and includes some of the NFL’s most heralded players. In 2014, the first scans of living brains revealed markers for CTE14 in NFL Hall of Fame players Tony Dorsett, Joe DeLamielleure, and former All-Pro Leonard Marshall. They are to be commended for having the courage to speak publicly about the diagnosis, thus becoming participants in discussion of the larger societal issues illuminated by the sports concussion problem. But one must wonder also whether, for example, Mr. Dorsett’s hope15 that we will see an effective treatment for a cure or reversal of the effects CTE in his lifetime also advances a narrative that will persuade current and potential players to imagine a less frightening future for themselves, in which the remarkable advances in the science of repairing the musculo-skeletal system will be mirrored by comparable advances in repairing the brain. After all, a USA Today series describing the day-to-day problems that many retired athletes face includes stories of, as it were, miraculous returns to good health by former, much older, NFL players via stem cell infusion.16 The argument against the NFL in the original concussion suit was that the League knew both the dangers and the consequences of concussion, and kept this information from the players. As we have discussed previously,17 some compared the NFL’s handling of MTBI to the tobacco industry’s handling of the relationship between smoking and cancer. The NFL’s best argument, after a period of denouncing investigative reporters and scientists18 was that they were unaware of any definitive link between MTBI, euphemistically called “head trauma,” and the associated neurological conditions that scientists continued to link with CTE and MTBI. The League can no longer claim ignorance of these associations. But neither can players. And neither can parents and guardians of minor-age athletes.
As a practical matter, informed decision-making is a complex process that is complicated by the contextual information available to decision makers. For players and their loved ones, the context in which decisions about playing football are made includes the association between character and violence, the effects of loyalty to the team and to fellow players, the many ways in which playing football functions as a means of advancement in modern American society, the impulse to blame players for failing to report concussive impacts, and the illusion that safer equipment and rules changes can eliminate the risks. Considering all these factors, it would not be surprising if over-optimism and the failure to focus on the long-term consequences of what appear to be advantages in the short term continue to shape the choices of many players. In the environment that sports sociologist Earl Smith calls “SportsWorld,”19 it is reasonable to ask whether an admixture of limitless faith in biomedicine and the promise of enormous wealth can provide a meaningful basis for good decision-making, particularly when what is under consideration is repeated, violent insults to the brain.
Finally, complicating a satisfactory resolution of the legal issues is that per Judge Brody’s ruling on the revised settlement, no payments from the fund can be made until “all appeals have been exhausted.” Yet whether and when the finalization of any settlement can help the many players whose lives have been disrupted by CTE is only one unknown here. Whether an eventual settlement can also raise the profile of the problem of CTE, help players, would-be players, and their loved ones make better-informed decisions, and ultimately spur meaningful prevention and treatment — not only in football but in other sports as well — are questions for which we should all want answers, the sooner the better.
References
1, 2. K. Belson, “Judge Rejects N.F.L. Settlement, For Now,” New York Times, Jan. 14, 2014.
3, 4. B. Wilner, “NFL Concussion Settlement Draws Mixed Reactions From Former Players,” Huffington Post/AP, August 30, 2013.
5. Alternative Dispute Resolution Center, “No Admission of Liability or Weakness of Claims,” NFL Retired Players Resolve Concussion Litigation; Court-Appointed Mediator hails “Historic” Agreement, available at
6. Associated Press/LA Times, “Former players ask appeals court to reject NFL concussion settlement,” November 15, 2015. < http://www.latimes.com/sports/nfl/la-sp-nfl-concussion-settlement-20151119-story.html> [Last visited 02012016].
7. “NFL Head, Neck and Spine Committee’s Protocols Regarding Diagnosis and Management of Concussion.”
8. “National Football League Head, Neck and Spine Committee’s Protocols Regarding Return to Participation Following Concussion.”
9. In re National Football League Players’ Concussion Injury Litigation, No. 2:12-md-02323-AB, MDL No. 2323, slip op. at 50 n 41 (E.D. Pa, April 22, 2015).
10. M.C. Dale, “Lawyers: NFL concussion deal excludes central brain injury,” Associated Press, Nov. 19, 2015.
11. W. Weinbaum and S. Delsohn, “Dorsett, others show signs of CTE,” ESPN.com:OTL, April 5, 2014. < http://espn.go.com/espn/otl/story/_/id/9931754/former-nfl-stars-tony-dorsett-leonard-marshall-joe-delameilleure-show-indicators-cte-resulting-football-concussions> [Last visited 02012016].
12. D. Kaplan, “Goodell sets revenue goal of $25B by 2027 for NFL,” SportsBusinessDaily.com, Apr. 5, 2010.
13. Associated Press/Huffington Post, “Former Super Bowl Champion Who Died At 27 Had CTE,” Jan 26, 2016.
14. Supra at 11.
15. ESPN News Services, “Dorsett battling CTE,” Feb. 9, 2015.
16. B., Schrotenboer, “How Soviet Union science helped American sports heroes,” USA Today, May 18, 2015. < http://www.usatoday.com/story/sports/2015/05/18/goride-howe-stem-cells-john-brodie-stemedica-soviet-union-fetal/27504019/> [Last visited 02012016].
B. Schrotenboer, “Bart Starr walking again after stem cell treatment,” USA Today, July 22, 2015. < http://www.usatoday.com/story/sports/2015/07/22/bart-starr-improving-after-stem-cell-treatment/30540473/> [Last visited 02012016].
17. R. Robeson and NMP King, “Loss of Possession: Concussions, Informed Consent, and Autonomy,” Journal of Law, Medicine & Ethics, Vol 42:3, Fall 2014, pp. 334-343.
18. L. Ezell, “Timeline: The NFL’s Concussion Crisis,” Frontline, Oct. 8, 2013.
19. E. Smith, “Violence in SportsWorld,” Journal for the Study of Sports and Athletes in Education, Vol. 4:2, Summer 2010, pp. 5-12.
* Richard Robeson
Adjunct Professor of Practice – Bioethics, Department of Communication
Bioethics Faculty, Graduate School of Arts and Sciences
Wake Forest University Center for Bioethics, Health & Society
Wake Forest University
Winston-Salem, NC USA
robesor@wfu.edu
+1-336-454-3065
** Nancy M. P. King, JD
Professor, Department of Social Sciences & Health Policy
and Wake Forest Institute for Regenerative Medicine,
Wake Forest School of Medicine
Co-Director, Center for Bioethics, Health, & Society
and Graduate Program in Bioethics,
Wake Forest University
Winston-Salem, NC USA
