By Brandon Matsnev, Temple University Beasley School of Law
One typically does not have a duty to save a man drowning in a river. However, if the observer begins a rescue—whether it’s throwing the man a rope, swimming out to save him, or even calling 911—negligence liability may attach under the voluntary undertaking doctrine. Thus, one who voluntarily undertakes to help another person and fails may actually become liable to that person.
Can the NFL be liable for negligence under the voluntary undertaking doctrine simply by researching head injuries and reporting overly optimistic results? In brief, the answer is: it depends. Players would have to show that the NFL directed its research at players and that they detrimentally relied on this research in their decision to continue playing football. Each of these requirements would likely be a significant obstacle to recovery.
Chronic Traumatic Encephalopathy (CTE) is a progressive, degenerative brain disease that by certain accounts is caused by repetitive hits to the head, or brain trauma. While the disease takes many years to develop, it is unclear whether successive hits accelerate the degeneration or whether, once the disease starts, it will worsen regardless of further trauma. Moreover, the number of blows required to trigger the disease is unknown. Its symptoms can include memory loss, aggression, and depression. As of now, the condition can only be detected by autopsy after death through staining tau protein deposits in brain tissue. If present, CTE may show up as brown and red splotches, which indicate large accumulations of tau proteins. This process is highly complex and takes several months to complete.
Given widespread media attention to the disease, many Americans associate it with NFL football. Indeed, numerous players have been diagnosed with it in the past decade, and many believe they are living with it. Some, in fact, have quit football because of the concern about safety and the long-term health effects of concussions.
CTE has made its way into the courtroom in the form of various lawsuits. The most high-profile suit involved thousands of former NFL players and the NFL. This reached a $765 million settlement in 2013, in which the NFL did not acknowledge liability. One condition of this settlement was that the NFL would pay benefits to the families of players diagnosed with CTE.
While this large-scale suit was certainly newsworthy, others have received comparatively less media attention. For instance, in May of this year, the family of former NFL player Adrian Robinson sued the league alleging, effectively, that the NFL caused Robinson’s CTE. The complaint presented an interesting and common theory of liability in such lawsuits: the voluntary undertaking doctrine. The NFL, in voluntarily undertaking to research the effects of head injury—beginning in 2003, it published various medical reports over a decade—owed a duty to its players to conduct this research reasonably. Plaintiffs claim that the league was negligent by failing to conduct research in good faith and by propagating false information that underemphasized safety risks in football. As a result, they continued to play football, unaware of the sport’s true health risks.
NFL’s recent efforts to address the head injury problem
Recently, the NFL has come closer to acknowledging fully the problems with head injuries in football. It had previously received criticism—and continues to receive it—for being reluctant to be more open about the issue. Thus, while the NFL has taken affirmative steps toward increasing awareness about long-term effects of head injury, many see these as mere public relations efforts aimed at boosting the league’s struggling reputation when it comes to player safety. Nevertheless, the progress has been visible.
The most obvious example of the NFL’s evolution on the issue is, simply, admitting that a problem exists in the first place. In 2007, NFL Commissioner Roger Goodell expressed concern about players returning to practice or a game after a concussion—although he suggested that this was a limited occurrence. In 2010, during a congressional hearing, the league formally and expressly acknowledged that concussions can lead to dementia and memory loss, among other conditions.
Beyond mere words, the NFL has also put in place strengthened game regulations with the goal of preventing head injuries. For example, the NFL has been serious about imposing fines and suspensions on players making illegal hits to the head. Additionally, a relatively new policy bars a player from returning to a game when he sustained a concussion or exhibited any of the symptoms of a concussion after a hit. Per the NFL’s 2009 guidelines, these symptoms include confusion and new or persistent headaches. Since the NFL had previously allowed return to play—or at least not banned it per se—this was a dramatic change in league policy.
The NFL has also made an effort to increase concussion and head injury awareness among players themselves. For instance, the league required that posters warning about the risks of head injury be placed in locker rooms.
Lastly, the NFL has contributed a significant amount of money to various research institutes and foundations to investigate the long-term effects of head injury. In 2010, the league donated over $30 million toward neurological research. And, as part of its 2013 class action settlement with over 4,000 former players, the NFL was required to contribute $75 million for medical exams as well as another $10 million for neurological research.
Research efforts and criticism
Just two decades ago, the picture was a bit different. In 1994, then NFL Commissioner Paul Tagliabue called the alleged concussion crisis “pack journalism.” That same year, however, the NFL created the now-infamous NFL Committee on Mild Traumatic Brain Injury. The Committee’s task was to investigate the long-term effects of head injuries in football. This investigation was publicized as the NFL’s attempt to “search for the truth.” From the start, it was subject to criticism. For instance, critics noted that the committee was led by Dr. Elliot Pellman, who had no neurological experience.
About a decade later, the Committee began publishing its findings. It would go on to publish sixteen reports in various medical journals. The Committee presented numerous conclusions, including the following:
There was no evidence of “worsening injury or chronic cumulative effects” of head;
With proper rest, NFL players can return to play after sustaining a concussion if they are asymptomatic;
Repeat concussions do not lead to slower brain recovery;
Those with a history of concussions do not have an increased risk for future concussions.
The Committee did qualify its research, however, by noting that the process was long-
term, meaning its “necessarily preliminary” findings could evolve as its researched advanced.Specifically, in its first paper, the Committee emphasized the importance of independent research to supplement its own.
Despite attempted qualifications, the Committee’s research was heavily criticized. Some of this was due to contrary findings from Boston University researchers, including Dr. Ann McKee. In 2002, even before the Committee’s first paper was published, Dr. Bennett Omalu—portrayed by Will Smith in Concussion—found signs of CTE in the brain of Mike Webster, a former NFL player. Omalu published his findings in 2005. Since researchers believed that CTE was caused by repetitive brain trauma, this seemed to directly contradict the Committee’s conclusions.
Moreover, the Committee’s underlying methodology has been questioned. The Committee refused to release the actual data upon which it based its conclusions. And, as recently as last year, a bombshell news report claimed that the NFL’s studies omitted 10% of documented concussions, including those of high-profile players like Troy Aikman. The NFL responded that if there were omissions, these were the result of human error rather than any ulterior motive to conceal information.
In researching the long-term effects of head trauma, it is possible that the NFL voluntarily undertook a duty that makes it liable for a player’s CTE. Before considering the validity of this theory, it’s necessary to understand the relevant legal framework.
Restatement (Second) of Torts provides: “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.” § 323.
By way of example, in Simmons v. Homatas, the employees of a club voluntarily undertook to assist an intoxicated patron, subjecting them to liability under the voluntary undertaking doctrine. 925 N.E.2d 1089, 1097 (Ill. 2010). The employees discovered the patron sick in the bathroom. Id. at 1092. They escorted him outside. Id. The valet picked up his car. Id. The employees opened the door for him and helped him into it. Id. He drove off and crashed it fifteen minutes later. Id. The court held that under these facts, the employees voluntarily undertook a duty to protect the patron. Id.
This case nicely illustrates three general rules that have developed for liability under the voluntary undertaking doctrine. First, the efforts or services must have been directed at a particular person or group. See Wright v. Brooke Group Ltd., 652 N.W.2d 159, 178 (Iowa 2002). Second, the person at whom efforts were directed must have relied on these efforts. Gunsalus v. Celotex Corp., 674 F. Supp. 1149, 1157 (E.D. Pa. 1987). If he was unaware of them, there is likely no liability. See Green v. Unity Sch. Of Christianity, 991 S.W.2d 201, 206 (Mo. App. 1999). Alternatively, even without reliance, the efforts must have increased the risk of harm. Gunsalus, 674 F. Supp. at 1157. Third, the efforts must have placed the person in a worse position than he would have been in otherwise. See Payton v. Abbott Labs, 437 N.E.2d 171, 182 (Mass. 1982).
Much of the case law on voluntary undertaking for scientific research deals with tobacco companies’ researching the effects of their product on customer health. See, e.g., Wright, 652 N.W.2d. at 178; Philip Morris, 75 F. Supp. 2d at 944; Gunsalus, 674 F. Supp. 2d at 1157. In all these cases, the courts have ruled in favor of tobacco companies. See Baryo v. Phillip Morris, 435 F. Supp. 2d 961, 970 (W.D. Mo. 2006). While these cases are good for the NFL, it would be interesting if the league to relied on them heavily in a voluntary undertaking case. Indeed, the league tried to distance itself from accusations of collusion between the league’s lawyers and those of tobacco companies. Still, despite public relations concerns, these cases are good law.
Directed at Players
If players can show that the NFL directed its head injury research at them specifically, rather than the general public, the NFL may be liable. See Wright, 652 N.W.2d. at 178; see also Jablonski v. Ford Motor Co., 955 N.E.2d 1138, 1163 (Ill. 2011). Thus, public marketing initiatives do not suffice. See Serv. Employees Int’l Union Health & Welfare Fund v. Philip Morris Inc., 75 F. Supp. 2d 936, 944 (E.D. Ark. 1999). And, relatedly, voluntary undertaking liability does not encompass failures to fulfill promises made in advertising. Gunsalus, 674 F. Supp. 2d at 1157.
In Wright, smokers sued cigarette companies under the voluntary undertaking doctrine. 652 N.W.2d at 178. They alleged that the companies, in promising to study the health effects of smoking, owed them a duty to inform them of their research truthfully. Id. The court sided with the tobacco companies, reasoning that these promises were mere advertisements that were not directed at any particular group. Id. Rather, the companies’ goal was simply to educate the public on their products. Id. Thus, the voluntary undertaking theory failed. Id.
It is not entirely clear whether the NFL’s brain research was actually aimed at helping its players. First, the NFL published its articles in scholarly medical journals rather than direct its conclusions at players themselves. Surely, professional football players do not spend time reading these journals. And, the NFL has stated that the reason it published these studies was to deepen its understanding of the causes and effects of concussions, rather than necessarily to keep its players safe. In this way, the voluntary undertaking issue is similar to a tobacco company’s general promise to increase knowledge and awareness of the health effects of cigarettes.
On the other hand, a party opposed to the NFL would assert that the studies were one component of a larger scheme by the NFL in reassuring players that there is no long-term harm with concussions. In fact, the NFL communicated some of its research conclusions to players, although equivocally. For example, it issued a pamphlet to players stating: “research with professional athletes has not shown that having more than one or two concussions leads to permanent problems if each injury is managed properly. It is important, however, to understand that there is no magic number how many concussions is too many.”
This issue would likely come down to which party frames the journal articles in the best light. While this element is a close call, the argument leans in favor of the NFL. The fact is, it published scientific studies. Then again, if more information comes out regarding the NFL’s communicating its research with players directly, that could tilt the scale on this element, as it would suggest the research was conducted primarily for players rather than for the league’s own benefit.
Players must also show that they relied on the NFL’s research, which will be a challenge. Under the voluntary undertaking doctrine, the person at whom efforts were directed must have relied on these efforts. Gunsalus v. Celotex Corp., 674 F. Supp. at 1157. This requires that the person be subjectively aware of these efforts. See Green, 991 S.W.2d at 206.
For NFL players to succeed on a voluntary undertaking claim, they would have to show reliance on the NFL’s concussion research. That would be difficult to say the least. As discussed above, this research was in medical journals. Under a subjective reliance standard, it would insufficient for the players to claim that they assumed the NFL would keep them safe. Rather, they must assert that they were aware of the NFL’s research conclusions and relied on them in their decisions to continue to play football—the pamphlets are a good example. Without this, their negligence claim would fail.
Increased Risk and Worse Position
Even if the NFL players were not subjectively aware of the NFL’s research conclusions, they can alternatively show that the NFL’s undertaking to conduct research and potentially bad research conclusions put them at an increased risk of harm. See Gunsalus v. Celotex Corp., 674 F. Supp. at 1157. The argument here would be this: the NFL, in reaching faulty or inaccurate conclusions about long-term effects of head injury, put players at an increased risk of developing CTE than they otherwise would have had. This analysis blends into that for the final element: that the research must have placed them in a worse position than they were in before. See Payton, 437 N.E.2d at 182. Here, players face a few obstacles to recovery.
First, the NFL explicitly warned that its research was preliminary and that independent studies were needed to confirm the NFL’s findings. Similarly, in distributing concussion pamphlets to players, the league noted that there were unsettled questions that it has not yet resolved. Thus, a player would have trouble claiming that he took each and every research conclusion to be the truth, given the NFL’s overtly questioning its own research. More broadly, this creates some doubt as to whether players detrimentally relied on the NFL’s conclusions. If a player would point to this research as a reason he continued playing, the obvious counter point would be that he ignored the NFL’s warnings.
Second, the NFL’s viewpoint on head injury has long been the minority viewpoint on the subject. So, ironically, when plaintiffs assert the NFL had put forward research that blatantly contradicted settled science, this undermines their voluntary undertaking argument because players may have been less likely to take the NFL’s research seriously. One common argument—appearing in complaints—is that the NFL was a kind of protector of its players given the nature of their relationship. Thus, the NFL should have known that players would rely on its assertions of their safety. However, the NFL—since beginning its research—was heavily (and publicly) criticized for its methodology and approach. And, it’s reasonable to think that a player, in evaluating the conclusions of the NFL’s insider committee on head injury, would not take its often self-serving research at face value. Many knew the research conclusions were minority viewpoints, and the NFL had a clear interest in reaching certain findings over others.
Finally, an NFL player who has played football his entire life would have a difficult time arguing that, were the NFL’s research more cautionary, he would have quit a sport he’s played for decades. This is not speculation, either. In the past couple years, only a handful of players out of the league’s thousands have actually quit the game over safety concerns. This is true despite well settled science—now endorsed by the NFL—which says that brain trauma in football can lead to long-term health troubles. In Gunsalus, the plaintiff, a smoker, failed to convince the court that he would have quit using cigarettes had the tobacco companies been more open about the dangers of their products. 674 F. Supp. at 1157. The court rejected this contention, noting that the plaintiff produced no evidence supporting his argument. Id. If nothing else, this shows that a baseless “I would have quit the NFL, trust me” argument, on its own, would fail in court.
In sum, it’s true that in conducting scientific research, the NFL may have assumed liability under the voluntary undertaking doctrine. However, any plaintiff who brings a claim under this theory would have a tough road ahead. Nonetheless, it will be interesting to see the merits of this argument considered in court.
 Bryant Lee, Knocked Unconscionable: College Football Scholarships and Traumatic Brain Injury, 85 Geo. Wash. L. Rev. 613, 624—25 (2017).
 Ann McKee, Rhett Talks: Current Concepts in CTE (2017).
 Sarah James, Ringing the Bell for the Last Time: How the NFL’s Settlement Agreement Overwhelmingly Disfavors NFL Players Living With Chronic Traumatic Encephalopathy, 11 J. Health & Biomed. L. 391, 399 (2016).
 Lee, supra note 1, at 625.
 Major Study of Athletes’ Brains Links Head Injuries to Brain Damage, CBS News (Dec. 4, 2012), http://www.cbsnews.com/news/major-study-of-athletes-brains-links-head-injuries-to-brain-damage/.
 Kayleigh R. Mayer, This is Football, You’re Supposed to Get Hit: Tackling Concussions and Chronic Traumatic Encephalopathy; Has the NFL Been Wrongful?, 10 DePaul J. Sports L. Contemp. Probs. 31, 35 (2014).
 Major Study, supra note 5.
 See id.
 See, e.g., Des Bieler, Former Terps, Redskins Player Frank Wycheck ‘Scared’ To Think He Has CTE, The Washington Post (Feb. 7, 2017), https://www.washingtonpost.com/news/dc-sports-bog/wp/2017/02/07/ex-redskins-player-frank-wycheck-sure-he-has-cte-scared-of-what-comes-next/?utm_term=.912a8dc64b49.
 Mark Fainaru-Wada & Steve Fainaru, SF’s Borland Quits Over Safety Issues, ESPN (Mar. 17, 2015), http://www.espn.com/espn/otl/story/_/id/12496480/san-francisco-49ers-linebacker-chris-borland-retires-head-injury-concerns.
 NFL Brain-Injury Panel A “Sham,” Former Players Say, CBS News (Apr. 9, 2013, 4:09 PM), http://www.cbsnews.com/news/nfl-brain-injury-panel-a-sham-former-players-say/.
 Settlement agreement available at: https://www.nflconcussionsettlement.com/Documents/ Class_Action_Settlement_Agreement_with_Exhibits.pdf.
 Elise Michael, School of Hard Knocks — The Impact of the NFL Concussion Litigation, 33 Cardozo Arts & Ent L.J. 289, 290 (2015).
 Joe Lemire, New Lawsuit Says NFL Knew of CTE for Decades, Vocativ (May 22, 2017, 2:06 PM), http://www.vocativ.com/431903/nfl-lawsuit-adrian-robinson-jr-cte/.
 The complaint is available at: http://www.bplegal.com/webfiles/pdf/Wallach/20170515_complaint_as_filed.pdf.
 Rodney K. Smith, Solving the Concussion Problem and Saving Professional Football, 35 T. Jefferson L. Rev. 127, 138 (2013).
 See NFL Brain-Injury Panel, supra note 11.
 Lauren Ezell, Timeline: The NFL’s Concussion Crisis, PBS (Oct. 8, 2013, 9:57 PM), http://www.pbs.org/wgbh/pages/frontline/sports/league-of-denial/timeline-the-nfls-concussion-crisis/.
 Mayer, supra note 6, at 38.
 Amy L. Bernstein, Into the Red Zone: How the National Football League’s Quest to Curb Concussions and Concussion-Related Injuries Could Affect Players’ Legal Recovery, 22 Seton Hall J. Sports & Ent. L. 271, 282 (2012).
 Mayer, supra note 6, at 39.
 Bernstein, supra note 20.
 Michael, supra note 13, at 303.
 Ezell, supra note 18.
 Daniel Kain, “It’s Just a Concussion:” The National Football League’s Denial of a Causal Link Between Multiple Concussions and Later-Life Cognitive Decline, 40 Rutgers L.J. 697, 725 (2009).
 Ezell, supra note 18.
 Ashley Hayes & Michael Martinez, Former NFL Players: League Concealed Concussion Risks, CNN (July 20, 2011, 7:16 PM), http://www.cnn.com/2011/HEALTH/07/20/nfl.lawsuit.concussions/index.html.
 Michael, supra note 16, at 298.
 Hayes & Martinez, supra note 31.
 Ezell, supra note 18.
 Kain, supra note 30.
 NFL Downplayed Concussions in ‘False’ Study: Report, Yahoo! Sports (Mar. 24, 2016, 1:32 PM), https://sports.yahoo.com/news/nfl-downplayed-concussions-false-study-report-173238342–nfl.html.
 Alan Schwarz, Walt Bogdanich & Jacqueline Williams, N.F.L.’s Flawed Concussion Research and Ties to Tobacco Industry, N.Y. Times (Mar. 24, 2016), https://www.nytimes.com/2016/03/25/sports/football/nfl-concussion-research-tobacco.html.
 See Steve Fairnaru & Mark Fainaru-Wada, Mind Control: How Multiple Research Groups and the NFL Battled Over Junior Seau’s Brain to Lead the Science of Concussions, ESPN (Apr. 29, 2013), http://www.espn.com/espn/feature/story/_/page/JuniorSeau/mind-control.
 Ezell, supra note 18.
 James, supra note 3.
 NFL Downplayed, supra note 38.
 The NFL has thus far avoided full discovery in CTE lawsuits. A lengthy fact-finding process would certainly reveal new information and, as a result, likely change the analysis that follows.
 See Schwarz, supra note 39.
 Mayer, supra note 6, at 38.