How Litigation Threatens Professional Football

Lawsuits from injured players may spell the end of the NFL.

Professional football is the most popular spectator sport in America, which is one reason yesterday’s Super Bowl was expected to draw 110 million viewers. With its famous athletes, storied franchises, and lucrative TV contracts, it's an industry whose future appears limitless.

But football has a problem: the specter of mass brain damage among current and former players. So far, the steady trickle of disturbing revelations has had no apparent effect on ticket sales or TV ratings. What it has done, though, is more ominous: It has invited lawsuits.

If football falls into decline, it may not be the result of fans turning away, athletes avoiding it, or parents forbidding it. It may be from lawyers representing players who sustained chronic traumatic encephalopathy and expect to be compensated for the damage.

Already, more than 4,000 former players are suing the NFL, claiming it failed to warn them of the hazards. The family of San Diego Chargers great Junior Seau, whose autopsy revealed CTE after his suicide last year, has filed a wrongful death suit against the league. The Seaus are also accusing Riddell Inc. of making unsafe helmets.

Walter Olson, a Cato Institute fellow, blogger (Overlawyered.com), and author of several books on liability, knows well how a tide of litigation can transform a landscape. And he has a bold prediction: "If we were to apply the same legal principles to football as we do to other industries, it would have to become extremely different, if not go out of business."

"Seriously?" you may ask. A guy who made a good living engaging in high-speed collisions with 300-lb. blocks of granite can say he didn't understand the risks involved? It may seem that case will be laughed out of court.

But Olson thinks not. "Courts have not been very friendly to this argument, particularly when something as grave as permanent brain damage is involved," he told me. And it's become apparent that while players were aware of the possibility of mangled knees, broken bones, and concussions, they didn't grasp that repeated blows to the head could produce debilitating and irreversible mental harms.

Exposure to asbestos was long known to be unhealthy, but that didn't stop sick workers from succeeding in court. More than 730,000 people have sued some 8,000 companies, and dozens of firms connected to asbestos in some way have been driven into bankruptcy.

The NFL has a weak hand in other ways as well. Professional football players, notes Olson, make particularly appealing litigants, since they tend to be well-known and widely liked. Their cases will get a lot of sympathetic publicity.

These athletes are handsomely paid, which means that brain trauma may deprive them of years of high earnings while requiring them to get expensive care for decades—all of which the league and other parties (stadium owners, equipments makers, and so on) may be forced to pay for.

On the other side are owners, many of whom are resented for charging high prices, fielding losing teams year after year or simply being insufferable. (Jerry Jones, I'm looking at you.)

Next in the line of fire are the soulless corporations that make or sell helmets, facemasks, and other gear that failed to prevent these injuries—and may even have contributed to them. Doctors and trainers who cleared players to return to action after a fog-inducing tackle will get close scrutiny to determine whether they put the team's needs above the patient's.

The NFL and other defendants can argue that they too were surprised to find out how much brain damage can result from the game and therefore should not be blamed for it. But as Olson notes, the game is still being played in pretty much the same way as it was before. Lawyers for the plaintiffs, he says, can ask: "How much difference would that knowledge have made if you're still letting this happen?"

It's always possible, of course, for lawmakers to pass legislation exempting organized football from the usual liability standards. But if one state or 10 states do so, attorneys can find excuses to file the lawsuits in states that don't—since the NFL is an interstate business.

A federal law might take the issue out of state courts. But how many senators will want to vote to deprive ravaged gridiron legends of their day in court?

The NFL has a lot of experience with blitzes. But it's never seen anything like the one that's coming.

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  • Generic Stranger||

    The server squirrels are getting bolder. Not satisfied with individual comments, they've now started duplicating entire posts.

  • Fist of Etiquette||

    Do we really want foreigner rugby players laughing at us?

  • Ted S.||

    The foreign soccer fans already laugh at us; why not have the foreign fans of another form of football laugh at us?

  • Not a Libertarian||

    Why does it exercise so many foreign soccer fans that Americans largely ignore their sport?

    I don't think that we ever bemoan the fact that they don't play baseball in Manchester.

  • Timon 19||

    I don't know. Why does it exercise so many Americans that soccer exists and is played heavily in this country? I mean, it's getting to the point where fewer and fewer people are getting the vapors about it (and they're getting older and older), but there's a lot of completely undeserved resentment out there.

  • rhofulster||

    COMMIE KICKBALL!!!!

  • Timon 19||

    And practically speaking, foreign soccer fans don't really give a shit one way or the other, for the most part. They tend to view the Super Bowl as a semi-fascinating curiosity, but otherwise don't really care.

    They tend to laugh at the notion that the winner of the big game is declared the "World Champion", but that's more of an eyerolling thing.

  • WTF||

    They tend to laugh at the notion that the winner of the big game is declared the "World Champion", but that's more of an eyerolling thing.

    Um, because they think the winner is not the best football team in the world?

  • Timon 19||

    More like "hardly anyone else participates, so why bother with the puffery".

  • WTF||

    More like "looking for an excuse to try to feel superior".

  • Timon 19||

    That would apply in either case, wouldn't it?

    Most people overseas really don't care. At all. To the extent that they do, it's more of a "those people sure are strange and full of themselves" thing.

  • granite state destroyer||

    A surprising (to Americans) number of people in Europe aren't that excited about soccer either. The World Cup is a big event because it's like the Olympics and an excuse to express supressed nationalist feelings, but in general I find educated people here are fairly casual fans compared to the typical American football or baseball fan (or EPL loving American soccer nerd, which seems to be a new thing back in the US). And the recent corruption scandals in soccer are not helping matters. The Superbowl actually gets a fair amount of publicity in the German speaking world, and sports bars here in Vienna were packed the other night with Austrians - at 2 am local time, so clearly American football holds some attraction overseas.

  • Mitch52||

    Soccer is only popular around the world because of the lack of sports equipment for the kids, through the ages and in poor countries today. When all you can afford is a ball made of rags you play soccer.

  • Drake||

    Another reason to hate lawyers. That's what I needed.

    When they finish destroying the NFL, can we replace it with lawyer Rehabilitation night?

  • Zombie Jimbo||

    That third paragraph wasn't clear, do the players expect to be compensated or the lawyers?

  • Steve G||

    Anyone catch the NFL trying to get ahead of this disaster w/ their NFLevolution.com ads last night?

  • Loki||

    Yeah they've been running those ads for a while actually.

  • ||

    Do you really want to dissuade people from running into each other, head first, at top speed? Then take away their helmets, pads, everything except a mouth guard. I don't remember rugby or Aussie-rules having this problem. In the short term, we'll have much higher scoring games. In the long run receivers will become as big as tight ends.

  • Ted S.||

    The other problem is all the changes made to make the passing game the major part of football.

  • WTF||

    Yes, as part of the problem is that players use the hard plastic helmets and shoulder pads as weapons. Take that away, and a lot of these issues will resolve themselves rather quickly.

  • Ted S.||

    Do you really want to dissuade people from running into each other, head first, at top speed?

    It depends on which people. I wish our elected officials could spend their days running into each other, head first, at top speed, rather than coming up with new ways to abridge our freedom.

  • ||

    Perhaps, I should've been more specific. On the other hand, you just invented another sport entirely that I would totally pay to watch.

  • sarcasmic||

    Brings no meaning to 'get your goat.'

  • H. Reardon||

    This comment should be randomly repeated in all threads.

  • ||

  • Timon 19||

    Do you really want to dissuade people from running into each other, head first, at top speed? Then take away their helmets, pads, everything except a mouth guard. I don't remember rugby or Aussie-rules having this problem.


    This.

  • ||

    It's impossible to tell if a rugby or Aus rules player has brain damage.

  • Loki||

    ...or if the brain damage happened before or after they took up the sport.

  • LiberTarHeel||

    "But as Olson notes, the game is still being played in pretty much the same way as it was before."

    With one well-documented difference: the improved ballistic impact efficiency of modern-day helmets has allowed players to launch themselves in a human torpedo position (leading with the head, arms back or even to the side), endangering the target and tackler alike.

    "Impact tackling" (coupled with helmet-to-helmet tackling and other blows to the head) is, I submit, the single biggest cause of increased head and neck injury among players. I believe this will prove an affirmative defense in litigation.

    Someone mentioned rugby, albeit in jest. But there is a point to be made there. Rugby is every bit as violent a game, yet injury patterns are completely different. I submit this is solely due to aggressive penalties for all "high" or "dangerous" tackles and to the *lack* of ballistic uniform components that are as much weapon as they are protection.

  • ||

    there is a very interesting chapter in this book about the introduction of helmets. According to it, it was done to prevent serious head injuries - and led to catastrophic injuries (ie tetraplegia) as players put their heads down and used them as battering rams, thereby snapping their necks. I believe some rule changes lessened the incidence of this, but it seems only to exchange it for chronic injury

  • Ted S.||

    If football falls into decline, it may not be the result of fans turning away, athletes avoiding it, or parents forbidding it. It may be from lawyers representing players who sustained chronic traumatic encephalopathy and expect to be compensated for the damage.

    You've also got an army of concern trolls in journalism who have decided to make this one of their causes célèbres. It's much the same as the way we have journalists obsessing about the melanin content of every new coaching hire.

  • EDG reppin' LBC||

    Ugh. The Rooney Rule. Total bullshit.

  • Mickey Rat||

    From how the current players have been reacting to the new rules regarding head injuries, resentment, it seems likely these former players litigating would have resisted most attempts to reduce head injuries. Look at the player reaction when the NFL announced that in upcoming seasons the League would require players to wear the full complement of pads.

    Part of the problem may be that helmets are too good at protecting from most injuries which encourages leading with the head.

  • Generic Stranger||

    Boxing is notorious for causing brain damage (hence the term "punch drunk"). Hasn't slowed it down any that I've noticed. Most of it's decline is due to competition from other sports such as mixed martial arts.

  • waaminn||

    Sometimes man you jsut gotta throw your hands up in the air!

    www.UGotAnon.tk

  • Bee Tagger||

    That's not proper tackling form, either.

  • Fist of Etiquette||

    Touchdown!

  • RFID||

    Sometimes you need to give the opposing reciever a big hug in the endzone on 4th down and keep him in that hug until you win the game!

  • Loki||

    You wouldn't be referring to anything in particular...

  • ||

    You mean the receiver who was pushing off?

    I'm still convinced that Alex Smith is the one who tripped the circuit breakers when no-one was looking (as they never are at him).

  • Ken Shultz||

    "Exposure to asbestos was long known to be unhealthy, but that didn't stop sick workers from succeeding in court."

    Other examples include the tobacco lawsuits and breast implants, and most of the problems that were alleged with the latter still haven't been proven.

    "Already, more than 4,000 former players are suing the NFL, claiming it failed to warn them of the hazards."

    I suspect the real grievance of a lot of those former players is that they played in the era before free agency and huge signing bonuses, so they never got to cash in the way players do now...

    And now's their chance!

  • R C Dean||

    it failed to warn them of the hazards

    It used to be that there was no duty to warn of obvious hazards.

  • Almanian.||

    Yep - eliminate the helmets and a lot of this goes away. The fact that this is NOT what the NFL will do suggests to me that they're in the clutches of BIG HELMET.

    Riddell - I'm lookin' at you...

  • Invisible Finger||

    More likely they're in the clutches of Dark Helmet.

  • Loki||

    Dark Helmet: So NFL, at last I have you in my clutches, to have my way with you, the way I want to.

  • newshutz||

    Better than in the clutches of Darth Hemlet

  • newshutz||

    posted too slow to be first, and misswrote and misstyped.

  • newshutz||

    Though Darth Hamlet would be interesting

  • Stormy Dragon||

    Do employers have no legal responsibility whatsoever to provide safe work environments for their employees? If they do, what distinguishes legitimate complaints from illegitimate?

  • sarcasmic||

    With proper threats of violence from The State, all risks in life may be prevented.

    All hail The State!
    All hail The State!
    All hail The State!

  • Heroic Mulatto||

    The State was a pretty funny show, but that's overkill.

  • Night Elf Mohawk||

    "Safe" is relative to the danger inherent in the job. An employer can do all that is reasonable and still not provide a "safe" working environment. The nature of football is that people will get hurt and no one who's ever played fails to realize that.

  • Stormy Dragon||

    I'm not talking about football specifically, but they article seems to suggest that lawsuits against employers for unsafe working conditions are never legitimate.

  • sarcasmic||

    Straw men are made of straw.

  • Night Elf Mohawk||

    If y'all were lucky enough for me to be God-King, "assumption of risk" would have a much more prominent place in these cases and "who has a deep pocket to pay the sympathetic plaintiff" would have a much less prominent place.

  • Stormy Dragon||

    Under current law, you have to explicitly assume a risk. Do you think in any of these cases the employers can show that, say, employees with asbestos related illnesses were told ".this factory has asbestos in it and by working here, I recognize that I am likely going to develop lung cancer in 20 years".

    Or are you talking about some sort of implicit "assumed risk" where by agreeng to work some place, you're agreeing to any health risk that may result, regardless of how reasonable it was to anticipate them, and if you're not capable of performing an environmental hazard study of your workplace independently, well then you deserve to die because your employer had no obligation to tell you they built the office building entirely out of vitrified nuclear waste.

  • R C Dean||

    Perhaps something more rational than your strawman:

    You assume the apparent or obvious risks of any activity that in which you are voluntarily engaged.

  • Night Elf Mohawk||

    You can't assume a risk about which you can't reasonably know. People who worked with asbestos before reasonably informed peopled knew about "friable" and "mesothelioma" weren't assuming that risk. Those who worked with it afterwards, as I did, did.

    IMO, it is reasonable to know that football players get concussions, concussions injure your brain, and that repeated injuries to your brain may turn out badly for you.

  • sarcasmic||

    Under current law, you have to explicitly assume a risk.

    Define risk. I mean, working at McDonalds is risky with those deep fat fryers and hot grills. Someone could hurt themselves! Must they sign a waiver that explicitly defines every possible risk on the job from slipping on a wet floor to a grease burn? See how fucking stupid your "reasoning" is?

  • Loki||

    Do you think in any of these cases the employers can show that, say, employees with asbestos related illnesses were told ".this factory has asbestos in it and by working here, I recognize that I am likely going to develop lung cancer in 20 years".

    In my case, yes. I've never had to work directly with asbestos, but I worked in an old building that had asbestos in the walls and ceiling, and I can assure that I was told about it beforehand. Also I was told to avoid any greyish/ whiteish dust and to call facilities, who will then cordon off the area and properly dispose of the mystery substance, even if it turned out not to be asbestos.

    In short, yes, they take that shit very seriously. The myth of the heartless corporate overlords wantonly exposing their employees to known workplace hazards in the name of the almighty dollar is just that: a myth.

  • Stormy Dragon||

    I also work in an old building with asbestos. All we've ever been told is that it's not a dangerous kind of asbestos, that the company is monitoring it, and there's nothing to worry about. If in 30 years it turns out the company was wrong and everyone starts getting mesothelioma, is it unreasonable to expect the company to be responsible? Or have we "assumed the risk" that they were deceiving us the whole time and it's our fault?

  • Rich||

    At the risk of "giving them ideas" -- obviously anyone who has participated in boxing, football, soccer, martial arts, gymnastics, etc., should be prohibited from owning firearms.

  • JohnLocke||

    No one holds a gun to the head of players asking them to play football in exchange for millions of dollars. In a free country and a free market they're free to decline, and instead do something else with their lives. There are stadiums full of people wanting to take their place. Also, consequently, the player also has free will on the field and can choose to, or choose not to, lead with his head. Not all the time, he can slide, or run out of bounds if he has the ball. He maintains control over, largely, over how often he is hit. Avoiding hits may make him earn less money, but that is a choice he makes. The law should not exist to protect you from your own free choices.

  • Timon 19||

    Receivers don't have a whole lot of say over how and when they get hit. Sure, they can refuse to go across the middle, but then they're not going to be very useful.

  • TANSTaaFL||

    Hasn't stopped Randy Moss from having a successful career.

  • Loki||

    You mean "the greatest reciever to ever play the game*"?

    *I'm sure Jerry Rice would like to have a word with Randy.

  • newshutz||

    What has stopped Randy Moss has never been his ability.

    It his inability to behave properly that makes him kicked from team after team. When even bad boy squads like the Raiders and Patriots can't put up with you, you have a problem.

  • Matrix||

    Well, one thing to do is just an automatic ejection for a helmet to helmet collision. Not all are intentional, but it will dramatically change the way people tackle if they do that.

  • AlmightyJB||

    I don't know about ejection. Maybe like a three strikes your out thing. You would still get the personal foul and if you did it thres times in a season you would have to sit out a game without pay and pay a fine.

  • AlmightyJB||

    Helmet ramming and other techniques meant to intentionally hurt other players is not football and players who use them have no business being in the game.

  • Loki||

    They already have fines and suspensions, although it seems somewhat subjective in how it's enforced. I.e. it seems to be totally up to the whims of someone in the league office to determine what conduct is worthy of a fine or suspension and how much/ how long. Perhaps if they codified it a little better so that everyone is clear on what's acceptable and what's not?

  • AlmightyJB||

    It doesn't seem like it should be that difficult. One simple question. If you did that in backlot football would you get your ass kicked.

  • RickC||

    I might be wrong, it's been quite some time, but when I played high school ball back in the 70s leading with the head, or spearing, was already illegal. Did that change? Or is there no rule like this in the NFL?

  • newshutz||

    In the 70s, tackling was taught to place your face in the chest of the target.

    Woody Hayes in his "how to coach" book put a picture of Jack Tatum knocking out the Michigan quarter back with a perfect tackle.

    (Excuse the profanity. I avoid the 'M' word when I can)

  • Fatty Bolger||

    Exposure to asbestos was long known to be unhealthy, but that didn't stop sick workers from succeeding in court. More than 730,000 people have sued some 8,000 companies, and dozens of firms connected to asbestos in some way have been driven into bankruptcy

    Sure, but that's because they managed to turn asbestos into a dirty word, just like tobacco, lead, and silicon (implants). Good luck turning football into a dirty word.

  • Not a Libertarian||

    There was an article by Tyler Cowen that presaged the decline of not only the NFL but of football in general. (I read a brief of it last year, the article may have been published earlier)

    He predicted that football would begin to decline in the next decade and that within a generation would be a regional (ie SEC territory) and marginal sport.

    He also predicted that the NBA would supplant the NFL as the premier American sports league.

    (one would think he was an NBA agent/lawyer on the side given his seeming enthusiasm for the idea)

  • Fatty Bolger||

    What Would the End of Football Look Like?

    The NFL is done for the year, but it is not pure fantasy to suggest that it may be done for good in the not-too-distant future. How might such a doomsday scenario play out and what would be the economic and social consequences?
  • AlmightyJB||

    I don't see that happening. They said the same thing about boxing 30 years ago and we know have UFC.

  • Rasilio||

    "No football Saturdays on college campuses means less binge drinking, more studying, better grades, smarter future adults."

    I'm sorry but he pretty much destroys any credibility he may have with this statement here, conflating the amount of time spent studying in college, the grades one gets, and future intelligence as all having cause and effect relationships.

    The fact is that it doesn't work that way. More studying on the weekends in college may or may not lead to better grades and it may or may not lead to better mastery of the subject matter later in life. In fact it is a HUGE stretch to simply assume that the elimination of College football would actually reduce the incidence of binge drinking or increase the time spent studying. There is no logical reason to assume that Football causes binge drinking but rather happens concurrently with it and there is no reason to assume that College Students would spend that time studying and not finding some other way to goof off.

  • Mickey Rat||

    Yes, simplistic thinking is simplistic. He obviously spent too much time watching football, and not studying.

  • RickC||

    I can't for the life of me figure Cowen out. He seems all over the place with his thinking. I read somewhere that he claims to read 3 or 4 books a night. I remember thinking, if true then when exactly does he ever have time to think.

  • Mike M.||

    I would love to know just how much steroids, painkillers, and other performance enhancing drugs these guys like Junior Seau and Andre Waters pump into their bodies over the course of his career. My guess would be: probably enough to kill a small horse. Lyle Alzado's words of warning before his death obviously fell on a lot of deaf ears.

  • franklygross||

    these guys already get compensated millions to play a game. ignorance is no excuse, how could you possibly not no you risk injury playing in the NFL?? make them sign a waver just like we do when we go to a theme park.

  • Loki||

    while players were aware of the possibility of mangled knees, broken bones, and concussions, they didn't grasp that repeated blows to the head could produce debilitating and irreversible mental harms.

    What the fuck ever. How long has it been common knowledge that banging your head against a wall repeatably can cause brain damage? Or that dropping a baby on its head will increase the likelyhood of that kid ending up in "derp" class in school? It's been common knowledge for a while now that concussions were kind of a big deal. How many of those former players VOLUNTARILY went back into a game after recieving a concussion, thereby risking possible brain trauma?

    Professional football players, notes Olson, make particularly appealing litigants, since they tend to be well-known and widely liked.

    Why? Are there that many people who like murderers, rapists, dog fighting ring leaders, gang bangers, coke heads, and all the various other members of the National Felons League? Most of those guys are not people who should be "well liked" or looked up to, that's all I'm saying.

  • jili5||

    "Exposure to asbestos was long known to be unhealthy, but that didn't stop sick workers from succeeding in court."

    One big problem with that statement. Companies using asbestos lied about it's dangers for the longest time. They paid "expert" doctors to claim it was safe and conducted fraudulent studies "proving" it's safety for the longest time. Workers that were damaged after being lied to are a whole different category than what the rest of this article is dealing with.

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    Charlie. I see what you mean... Benjamin`s bl0g is impressive... last saturday I bought a great new GMC since getting a check for $4588 this-last/month and-just over, ten k this past month. it's definitly the easiest work Ive ever done. I started this four months/ago and immediately began to earn at least $74, per-hr. I follow the details on this straightforward website,, http://xurl.es/tt3nh

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