HEAD INJURIES IN FOOTBALL: THE NFL FINALLY RESPONDS

(This is Part II of my series on head injuries in football)  

After more than a decade of denials and evasions of the problem, the NFL was finally forced to admit that concussions could have long-term effects. It didn’t concede easily. It took increased scientific confirmation of the presence of Chronic Traumatic Encephalopathy (CTE), wider public awareness, and political pressure brought to Capitol Hill by Dr. Ann McKee, director of Boston University’s Center for the Study of Traumatic Encephalopathy (Jane Leavy has authored a book about her titled The Woman Who Saved Football) and an organization of wives and widows of former players to get the NFL to respond. Commissioner Roger Goodell was hauled before a congressional hearing where he was asked point blank if concussions caused long-term damage. This time his familiar “don’t-ask-me-I’m-not-a-scientist-ask-them” refrain satisfied no one. One committee member equated his evasion to Big Tobacco.

 

Two new discoveries by Dr. McKee’s research team posed an even more ominous threat to the NFL and the game of football in general.  CTE deposits were found in the brains of a 21-year old college football player, Owen Thomas, who had committed suicide, and an 18-year old high school player who died after a fourth concussion. Finding the presence of CTE in players so young raised several questions that cut to the very heart of the game of football. Could asymptomatic, sub-concussive hits have long-term effects? Is playing the game too dangerous? How safe is it for children to play? At what age? What precautions can be taken to protect players from head injuries? Questions like these substantially raised the stakes for the NFL.

 

The painstaking uncovering of evidence of lasting brain damage from football head collisions, including in young players, finally overwhelmed the NFL’s increasingly weak denial arguments. The league had little choice but to move from denial to damage control. It finally acknowledged there was a problem and in 2009 began to institute modest changes to the rules under which the game is played. The NFL:  

• Replaced MTBI committee members, who had been steadfast in denying long-term damage, with prominent neuroscience experts (2009).
• Instituted stricter return-to-play guidelines (2009).
• Gave $1 million to Boston University’s brain research center, making it its “preferred” brain bank (2010).
• Made a commitment that the league would cooperate with families to provide brains from former players (2010). (But not necessarily to Boston University. The NFL steered the brain of Junior Seau to the National Institute of Health (NIH) where it expected a less hostile reception.)
• Produced a poster to be hung in locker rooms warning that “concussions and conditions resulting from repeated brain injury can change your life and your family’s life forever.” 
• Gave $30 million to the NIH for brain research (2010).
• Moved kick-offs to the 35-yard line in the hope of reducing the speed of collisions (2011).
• Funded “Heads Up Football,” a youth concussion awareness program (2012).
• Banned “crown of the helmet” hits outside the tackle zone (2013).

 

In a November 2012 speech at the Harvard School of Public Health, Goodell boasted of the league’s focus on making the game safer, but also pointed out there were still unanswered questions when it comes to the long-term effects of concussions. It appeared the NFL remained wedded to its strategy of sowing doubt. Its legal troubles, however, were just beginning.

 

Jason Luckasevic, a young Pittsburgh attorney, first learned about CTE from his older brother who had worked under forensic pathologist Dr. Bennet Omalu at the Allegheny County medical-examiner’s office (see previous essay: Head Injuries in Football: the NFL Fumbles). In 2011 he filed a lawsuit against the NFL on behalf of 75 former players charging that the league was involved in “a scheme of fraud and deceit” for its failure to warn players of the dangers of head collisions. This started a series of legal challenges to the NFL.

 

The NFL Players Association launched its own fight against the NFL. It allocated funds to study the health problems that afflict current and former players and in August of 2011 filed a lawsuit on behalf of 4500 retired players and their beneficiaries, a third of whom claimed the NFL had fraudulently concealed the danger to their brains. Faced with this broad legal challenge, the NFL decided damage limitation logic required that it negotiate a settlement of the lawsuit.

 

In 2013 the litigants agreed to a $765 million settlement, though, significantly, the NFL did not have to admit guilt. In light of the NFL’s annual revenues of over $9 billion, and Commissioner Roger Goodell’s stated goal that revenues would increase to $25 billion by 2027, this is a ridiculously meager amount.

 

It is unfortunate a trial did not take place because evidence would have been revealed as to what the NFL knew and when they knew it. This would have shed light on the question of criminal negligence. I don’t expect anyone would have gone to jail—that simply does not happen to officials in big corporations-- but equipped with such evidence, it’s likely a judge would have granted a far larger settlement.

 

In 2014 U.S. district Judge Anita Brody rejected the original settlement saying she did not believe the $675 million set aside for damages would be enough to cover payments to all players who qualified for assistance. After the NFL removed the cap on damages, the judge granted preliminary approval.

 

Removal of the cap, however, may not prove all that significant. Because the settlement delineates the amount of financial compensation to be paid out for various CTE afflictions—e.g., early dementia, moderate dementia, Alzheimer’s, Parkinson’s, and Lou Gehrig’s disease, and death—unless many players opt out of the agreement and pursue their own individual claims against the league, it is estimated the NFL’s total liability will not likely exceed $1 billion. Goodell’s annual salary alone is nearly nine times greater than the $5 million maximum payout for Lou Gehrig’s disease, the most severe delineated brain-damage affliction. A hearing on the final settlement is scheduled for November.

 

In its long history of denials and evasions, the NFL demonstrated its obvious prioritization of money over truth and the health and safety of its players. In doing so, it has placed hundreds, and perhaps thousands, of players at risk of permanent brain damage. Now every time I see a big head hit, I wonder what it might lead to later in the player’s life. I look at former players who had concussions and wonder. Steve Young looks OK now, but will symptoms of CTE start showing?

 

Perhaps worst of all, the NFLs obstruction of scientific research has delayed discovery of a possible definitive connection between sub-concussive hits and brain disease. If such a connection is found, it will be vitally important information for parents to know when considering the risks of letting their children play football.

 

Scientific evidence of the prevalence of CTE in deceased players' brains (76 out of 79 and counting) may be grossly understating the problem.  It is well known that football players suppress evidence of their concussions out of fear of ridicule by coaches, teammates, and even fans.  Complaining can lead to a drop on the depth chart and maybe a quick ticket out of town.  Many choose to keep their symptoms to themselves.

It is unlikely that rule changes will significantly mitigated concussion risk out of the game, even if more extensive ones are adopted.  Some states have gone further than the NFL in attempting to protect young players. California, for example, recently passed a law that limits full-contact practices for middle and high-school teams to no more than three-hours a week during the season and prohibits contact during the off-season. This is likely as far as things will go. Few Americans would want to see the sport revert back to some version of flag or touch football.

Football is a Brutal sport

Football is a brutal and violent sport, which explains much of its appeal to the American public. Love of the “big hit,” replayed countless times on TV and social media is widely celebrated. For many, it’s more appealing that a great run or touchdown catch. Since the recent rule changes, complaints have been widespread, including from some former players and broadcasters, that the game has been softened too much.

 

NFL rule changes are not likely to mitigate concussions. In fact, despite the various changes designed to reduce them, the 2012 season saw a 14% rise. It appears the NFL, colleges and high schools, and the football-watching public, are willing to live with a continued risk of head injuries. We're told this is part of the game.

But circumstances could change.    Could health insurers find it too risky to insure football players like they did for smokers? Could young athletes turn away from the game for fear of damaging their brains?  Could stiff regulations lessen interest in the game as tobacco regulations did for smoking?  Could excessive brutality turn off spectators like occurred in boxing?  Whatever the future, the game of football appears to be at a crossroads.  The NFL needs to get its head out of the sand.