Thursday, March 15, 2012


If I were a law student pondering a specialty, I’d consider personal injury suits with an emphasis on football. Former National Football League players alone could create a clientele that would keep me busy for an entire career.

If you’ve been reading the sports pages for more than the box scores lately, you know what I’m talking about. Not only have former NFL players—some still in their 20s-- been suing the league en masse for compensation for the results of concussions they sustained on the gridiron, but revelations about the organized administration of the post-surgical pain-killer Toradol, to keep players with various ailments on the field, have opened a broader area of litigation.

Then came the NFL itself with the appalling charge that the New Orleans Saints made “bounty” payments to defensive players who maimed opponents, and comments by players from other teams who said that, yeah, their clubs did pretty much the same thing. According to experts quoted in a piece in last week’s the New York Times, this means that individual players, coaches and teams might be dragged into civil court to answer (and pay) for their misdeeds, with consequences as yet undetermined. Suffice it to say that the defense-lawyer side of the situation might prove as lucrative as the plaintiff’s side.

Of course, as any honest lawyer (I’m sure there are some) will tell you, suing ain’t the same as winning, so it’s too soon to start toting up damages. Further, football being the institution that it is, predictions of the NFL’s demise under the lawsuit avalanche probably are overstated. Nevertheless, the NFL certainly is in for a rocky stretch and may suffer collateral problems from the spotlight on injuries the legal actions will bring. Given the sport's multiple dangers, more parents will be withholding permission for their kids to play it on the lower levels, and without such feeders the head eventually could die. As evidence mounts that concussions’ effects are cumulative and that even ones not recognized at the time of occurrence may bite years later, would you sign Junior’s consent form?

Over the past couple of seasons the NFL has taken steps to deal with the issue. Ironically, however, that may only strengthen the legal hands of head-injury suffers who say that those measures are based on information previously known but ignored. Surely, the NFL can’t claim to only recently have heard about “The Silent Epidemic.” I began writing about it in the Wall Street Journal in 1982, and I wasn’t the first.

The recent case that most stirred the pot was the 2011 suicide at age 50 of Dave Duerson, an ex-Chicago Bears safety who shot himself to death after wrestling unsuccessfully with the progressive headaches, memory loss and general lack of function his head injuries caused. Duerson’s post-mortem exam revealed that he suffered from advanced brain damage called chronic traumatic encephalopathy, rare in someone his age. Team doctors must have—or should have—noticed this and blown the whistle on his career long before the condition became acute, his heirs assert.

To make that point in court, though, they’ll have to stand in line. About 650 other retired players also have filed suit against the league, saying it taught such unsafe practices as head-first tackling, ignored scientific evidence of the seriousness of head traumas and failed to treat them properly once they occurred. So many such suits pend that a Philadelphia federal judge recently consolidated some of them, but 18 separate actions remain and the number climbs.

The damaging assertion that teams encouraged players to play through injuries was underlined in a New York Times op ed piece on Toradol last December by Nate Jackson, whose eight-year NFL career as a wide receiver and tight end ended in 2009. By using such pain-maskers, players run the risk of turning small injuries into large ones. Jackson wrote:

“When I played for the Denver Broncos from 2003 to 2008, Toradol was a popular pregame injection. The night before we took the field 10 to 20 of us would go into a designated room and stand in line to receive our shots. I don’t remember what if any specific injury I was nursing but I do remember that my body was perpetually feeling bad, as were those of my teammates. Our training staff knew this and would encourage us to get a shot. We were told it would make us feel better so we lined up for the needle.

“When I got to the front of the line I was told that the shot was known to cause internal bleeding in a very small percentage of patients but was otherwise safe. The disclaimer was given with needle in hand and a line of men waiting behind me. There was no hesitation, no trepidation, no point at which I felt that taking Toradol was a risk… The big risk, in my mind, was not being at my best the next day. The big risk was not taking the shot, playing poorly and being viewed by the staff as unwilling to do what it took to help the team win. The big risk was losing my job.”

The fact that Jackson and others like him weren’t forced onto the field at gun point will be used in its defense by the NFL, and by the individuals possibly sued for “bounty” hits. So will the concept of “assumed risk,” which in football means that anyone who plays the brutal game does so knowing that the potential for injury is high. Indeed, a case can be made that whatever they tell their wives football players are daredevils like test pilots, fire fighters and war correspondents, machos types for whom risk adds to their jobs’ appeal.

The league, however, ought to immediately do a couple of things to protect players from themselves. One is to award lifetime, Cadillac-level health coverage to anyone who dons an NFL uniform; it’d be expensive but probably less so than what the current lawsuits will cost. The other is to abolish forevermore the post of team doctor; while medical personnel should be available for sideline emergencies, further care should be entrusted only to the players’ own physicians. I certainly wouldn’t want anyone who works for someone else sticking a needle in my butt.


Mike Levy. said...

Good luck in your new career as a plaintif's attorney. The opportunities are not limited to just football. I think they'll be good financial ops coming in from all contact sports. All this translates into just one thing...higher ticket prices.

andrew said...

Good piece. Being a football fan has become kind of a bummer for me. Case in point; injuries derailed the Bills last year. It's always been a rough sport, but these guys just keep getting bigger and bigger.