By Saleel V. Sabnis, Esq.
The concussion controversy hovering over the National Football League partly dissipated in late August when it was announced the League had settled the lawsuit filed by numerous former players in the neighborhood of $765 million dollars. Settlement agreements rarely mandate that a defendant admit fault, and therefore the NFL will never have to speak to what it knew about the connection between its sport and traumatic brain injuries or when it knew it. This is of little consequence to most of the ravenous public eager for next week’s fresh schedule of hard hitting games almost guaranteed to yield a new generation of wounded players.
That the League may be increasingly ready to turn the page on this chapter in the sport’s history may be telling of a new spotlight it did not anticipate. What has emerged in recent weeks in a new comprehensive book and a tie-in PBS documentary is that the NFL, for nearly two decades, operated like the well-oiled propaganda machine of Big Tobacco in its aim to promote the idea that football was absolutely safe. This comparison is certainly not inapposite to the authors of the recently released “League of Denial: The NFL, Concussions and the Battle for Truth.” The book details that the NFL used its resources to undermine independent scientists and their work on the subject of brain injuries caused by repeated blows to the head; that the League endorsed that there was a tenuous connection between football and concussions or other brain injuries contrary to credible medical evidence; and that executives employed an aggressive scheme designed to hide the truth about whether football caused brain injuries.
That the NFL channeled its inner Big Tobacco in seeking to uphold the utility of its product is not a surprise. What is surprising and alarming is how nuclear, almost “Lance Armstrong-like” the League went in downplaying the dangers of football and attacking those who were discrediting the sport. Big tobacco had its “seven dwarves,” i.e. seven big tobacco CEOs who in 1994 testified with arms locked that they each believed nicotine was not addictive. The NFL had an equivalent as well. Its first “dwarf” was then Commissioner Paul Tagliabue who said in the early 1990’s that the concussion debate was the product of “pack journalism.” Then came the League’s Mild Traumatic Brain Injury (“MTBI”) Committee questionably headed by a rheumatologist which undermined that Chronic Traumatic Encephalopathy (CTE) in former players was caused by football related trauma. This attack was done twofold: attacking the empirical evidence which supported that connection and then discrediting the individuals who conducted that research. Yet, the MTBI Committee wasted no time in hastily offering questionable evidence which supported that concussions are not serious. The book adds other conduct which supports the League’s refusal to address the concussion/brain injury methodically.
If we assume accuracy in the book’s conclusions, the NFL’s conduct was rooted in total self-preservation to the point of criminality. This is where the average fan should pause and digest just the scope of what the NFL did. The countless lives which may have been saved or even improved had the NFL not allegedly camouflaged CTE as an aberrant injury is incalculable. Player safety rules could have been enacted much sooner. Head injury diagnosis and/or treatment for on-the-field collisions may have been more advanced by now. The NFL’s position that it was continuously investigating and researching the CTE/concussion-football link had a trickle-down effect on colleges and high schools who may have delayed in taking affirmative steps to make their games safer until the NFL provided an opinion on the subject. It may have also impacted parents who decided there was no reason their sons could not play football when in fact CTE has been evidenced in teenage football players after studies done on the heels of the NFL concussion crisis. The NFL has taken no strong position on the CTE-football causation debate even though it is nearly 20 years after the formation of the MTBI. The public is not applying the pressure to ask “What is taking so long?”
True, the NFL has made certain strides. It has made multi-million dollar donations to researchers who are engaged in brain injury research. Yet, it has remained silent on what future steps it will take if facts definitively support that playing football can cause CTE and other brain injuries or why it has pushed forward agendas (more regular season and playoff games, two games in four days with the rise of Thursday night games) which run contrary to the interests of player health. As one NFL doctor is alleged to have said when conversing with a researcher who discovered CTE in former players, “If 10 percent of mothers in this country would begin to perceive football as a dangerous sport, that is the end of football.” The NFL can never let that happen.
Perhaps neither can the public. And therein lies the resilience of the NFL given the seriousness of the conduct alleged in the book. Most fans may deem the League’s alleged actions revolting but they also ultimately consider it inconsequential. This is entirely rooted in the public’s demand for their football and not in the seemingly secondary policies which drive the sport. The majority sentiment is if you are a football player, then don’t complain about what happens when you choose to play. In a case of machismo at its worst, many current and former players may say the same. All this presupposes that players have always known and currently know what playing football does to their brains and ultimately dilutes any fault on the part of the League which controls player safety and has its fingers on the pulse of data regarding player health. The League therefore has been given an unjustifiable reprieve by the public. If the NFL were an unsafe car or a harmful over-the-counter drug, it would certainly be recalled. The perk of being a football empire is that the public demands more of the product as long as it is not their heads being smashed into the ground.
Optimists may argue that the concussion chapter is a dark cloud which will forever loom above the league and help change the culture. Perhaps. If there is such a cloud, it will no doubt be suspended over a capacity-filled NFL stadium where fans are eagerly cheering for the next big hit.
Sabnis is an associate in the firm’s Philadelphia office. He has significant experience at the trial court level in state and federal courts in Maryland, New Jersey and Pennsylvania. His practice is concentrated in professional liability and aviation litigation. Saleel has represented local doctors and attorneys sued in complex malpractice actions. He has also represented commercial airlines in a variety of matters and has also litigated general aviation claims. In addition, Saleel has represented companies and individuals in contract and other business disputes and has prior experience in products liability and general personal injury matters.
