A Frontier Tort White Paper: Concussions in the NFL

E ditor’s Note: While this blog is normally dedicated to analyzing legal issues in the field of sports and entertainment, this post departs from that to spotlight some excellent work done by 1Ls at Harvard Law School. At HLS in fall 2012, the eighty students in Section Six participated in an experimental group project in their first-year torts class. They were to use situationist theory to analyze new, innovative torts on the frontier of law and public policy. The project required students to research, discuss, and write about a current policy problem that may have it solution in tort law. This paper was written by one group in the Section Six torts class, consisting of 25 students including the coauthors of this post, who researched the issue of concussions in the NFL. As described by the authors of this post the organization of the assignment is as follows: “Research subcommittees on the NFL Concussions Team further organized in specialties including Historians, Psychologists, Media Analysts, Mind Sciences, and Economists. These specialty groups examined nonconscious psychological forces and non-obvious contextual behavioral constraints utilizing the situationist perspective on law and public policy. The entire group drafted a white paper, gave a presentation to the class about their policy problem and possible solutions to that problem, and arranged for an expert from outside of Harvard Law School to speak to the class about the topic.   At the conclusion of the class presentations, each group led a class discussion and a class vote on the best policy options, and that vote is reflected in the conclusion of the white paper.”

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The NFL is currently at a crossroads, facing a master complaint (“the Master Complaint”) consolidating 85 suits involving over 4,000 former NFL players and their families with claims ranging from negligence, fraud, and wrongful death to civil conspiracy, all related to head trauma suffered while playing professional football.[1]

As the science surrounding traumatic head injuries and concussions continues to advance, the response from law and public policy parallels that frontier, and legal analysis proliferates the sports law landscape.[2] However, most of the analysis covertly uses the traditional view of the person in law and public policy, rooted in dispositionism, the conception of the human being as a rational actor who uses thoughts and preferences to act in a manner that serves those preferences.[3] Until recently, media coverage of football was predominantly dispositionist, positing that football players are aware of and assume the risk of concussion, head trauma, and injury when choosing to play the sport.[4] The alternative view is situationism, which holds that individuals are more influenced by external factors and situations than naive psychology may assume.[5] Though not a majority view, the situationist view of football has gained some prevalence in the concussion discourse, focusing on the owners, the NFL, and the sport as a whole in trying to understand the situation regarding concussions and possible policy implications.[6]

Aside from tort litigation, currently three categories of policy alternatives are on the forefront: the NFL’s rules changes and medical research aimed at reducing concussions, contractual mechanisms through the Collective Bargaining Agreement, and federal and state legislation.

In addition to those responses to the tort litigation, our NFL Concussions White Paper identifies various policy proposals that focus on the broader categories of equipment changes, public education, NFL rule changes, reporting incentives, and penalties. These proposals address the various factors within NFL football that lead to the problem of concussions. Though each has its strengths and weaknesses, by implementing a combination of the changes, we predict that NFL players and the sport itself will benefit in the long run, thereby preserving this national pastime.

Our analysis has widespread implications not just for football, but for the role of sports in American culture. The policy recommendations outlined above are, at best, a way to mitigate the damage caused by America’s national pastime. In the end, the only way to affect meaningful, lasting change that will adequately protect athletes in all sports, at all levels is a comprehensive shift in our conceptualization of sports. There is some evidence that the ground is already shifting and that the American public is viewing the issue of concussions as a situational, systematic problem. In his Friday column, Bill Simmons, the most widely read sportswriter in America, wrote of the 2012 NFL season:

Just know that we’ll remember the lingering effect of concussions — and how it affects the way we watch football — over everything else that happened this season. The sport changed, and it continues to change, and really, I don’t know where we’re going anymore… So it isn’t just football that’s changing. We’re changing.[7]

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Jessica Jung, Jaimie McFarlin, and Sam Wheeler – Project Steering Committee, NFL Concussion White Paper

The project was designed and supervised by, Professor Jon Hanson and teaching fellows Kate Epstein and Phil Hill. The Harvard Law School Project on Law and Mind Sciences is proud to make available the products of that process — the groups’ white papers; videos of discussions and presentations; and the powerpoint slides.


[1] NFL Players’ Concussion Litigation Master Complaint, WASHINGTON POST, June 7, 2012, available at www.washingtonpost.com/wp-srv/sports/ NFL-master-complaint.html.

[2] See e.g., Jennifer Ann Heiner, Comment: Concussions in the National Football League: Jani v. Bert Bell/Pete Rozelle NFL Player Ret. Plan and a Legal Analysis of the NFL’s 2007 Concussions Management Guidelines, 18 Seton Hall J. Sports & Ent. L. 255; Jeremy P. Gove, Note: Three and Out: The NFL’s Concussion Liability and How Players Can Tackle the Problem,14 Vand. J. Ent. & Tech. L. 649; Joseph M. Hanna and Daniel Kain, NFL’S Shaky Concussion Policy Exposes the League to Potential Liability Headaches, 28 Ent. & Sports Law. 9.

[3] Jon Hanson & David Yosifon, The Situational Character: A Critical Realist Perspective on the Human Animal, 93 GEORGETOWN L.J. 1 (2004).

[4] See generally Lack of Knowledge Puts College Athletes at Risk (June 15, 2004), http://sports.espn.go.com/ncf/news/story?id=1822464 (players do not report head injuries in college football because they do not believe their symptoms are severe enough to indicate a concussion); Joe Theismann, QB Learned How to Protect Himself (Jan. 26, 2004), http://sports.espn.go.com/nfl/playoffs03/columns/story?id=1718303 (Theismann on how he accepted injury as part of the game and adapted); Steve Young, Playing Hurt Is Part of the Game (Sept. 19, 2003), http:// sports.espn.go.com/nfl/columns/story?columnist=young_steve&id=1614554 (Kurt Warner stayed in a game despite concussion because “football players are trained and conditioned to withstand pain and stay in the game”).

[5] Id.

[6] See generally, Alan Schwarz, Before Suicide, Duerson Said He Wanted Brain Study, N.Y. TIMES, Feb. 19, 2011, available at http://www.nytimes.com/ 2011/02/20/sports/football/20duerson.html?scp=1&sq=dave%20duerson&st=cse; Alan Schwarz, Duerson’s Brain Trauma Diagnosed, N.Y. TIMES, May 2, 2011, available at http://www.nytimes.com/2011/05/03/sports/ football/03duerson.html?_r=0; Alan Schwarz, Dementia Risk Seen in Players in N.F.L. Study, N.Y. TIMES, Sept. 29, 2009, available at http://www.nytimes.com/2009/09/30/sports/football/30dementia.html?pagewanted=all&_r=0; Alan Schwarz, Two Bills Put Focus on Equipment Safety for Children, N.Y. TIMES, Mar. 16, 2011, at B16; see also Jason Navia, Sitting on the

Bench: The Failure of Youth Football Helmet Regulation and the Necessity of Government Intervention, 64 ADMIN L. REV. 265, 270 (2012).

[7] Bill Simmons, The Year of Living Cautiously, GRANTLAND, Nov. 30, 2012, http://www.grantland.com/story/_/id/8694627/the-year-living- cautiously.

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