CONCUSSIONS AND CONTRACTS: THE NATIONAL FOOTBALL LEAGUE'S LIMITATIONS TO PROTECTING ITS PLAYERS FROM CHRONIC TRAUMATIC ENCEPHALOPATHY.

AuthorWolpert, Julia
  1. INTRODUCTION 1 II. THE REPERCUSSIONS OF PLAYING FOOTBALL: CHRONIC TRAUMATIC ENCEPHALOPATHY 2 A. The Mortality Rate of Chronic Traumatic Encephalopathy 3 B. Countless Players Have Been Diagnosed with Chronic Traumatic Encephalopathy 4 III. THE PROTECTIONS AND PITFALLS PLAYERS' CONTRACTS PROVIDE: THE 2011 COLLECTIVE BARGAINING AGREEMENT 6 A. Player-Favored Provisions 7 B. Lack of Protections 9 IV. SOLUTIONS 12 A. Use of Objective Diagnosing 12 B. Guarantee Players More than the Signing Bonus 14 C. Lifetime Healthcare for All Retired Players 15 V. CONCLUSION 16 I. INTRODUCTION

    Football is considered the American sport. From August through January, the National Football League ("NFL") dominates American television every Sunday. This past season alone, the NFL "generated about $15 billion..." in revenue. (1) Fans pack stadiums and families watch from home as 22 men compete in a war-like competition in a physical and mental battle for a ball. Football is renowned for its contact style. Fans cheer for players who tackle their opposition commonly leading with their helmet. Strong, athletic men hit each other under the false confidence that their football pads are protecting them. An inarguable fact in the game's current state: concussions are inevitable. The NFL has not adequately addressed this issue, which results in jeopardizing its players' health. These frequently occurring head collisions cause many players to develop a neurodegenerative traumatic brain injury.

    Until recently, the NFL did not acknowledge these brain injuries. Instead, it has continued to ignore neuroscientists' studies and sent their players on the field unaware of the consequences. In the 2011 season, "162 head injuries [were] reported...[with about] 10.80 concussions occurring every week...." (2) Players had "a 72% chance of a concussion injury occurring at every NFL game." (3) On August 17, 2011, multiple retired NFL players filed a class action lawsuit regarding "the league's...mishandling of concussion-related injuries." (4) The action settled, resulting in "retirees receiv[ing] awards up to $4 million for 'Death of CTE' but only if the previous player had died between January 1, 2006, and July 7, 2014." (5) This excludes thousands of players who have suffered or continue to suffer today. Those who have retired after July 4, 2014, and players currently playing in the NFL are not covered for CTE. (6) About 20,000 players will receive nothing from the settlement. (7)

    Subsequent to the lawsuit and public outcry, the NFL has begun utilizing players' contracts to provide some health protections. The NFL enters into contracts with players using a Collective Bargaining Agreement ("CBA"). The NFL is slowly progressing from a "play through it" culture to a "player-first" culture, which will hopefully be reflected in the next updated agreement. (8) To further protect players health and decrease the number of premature deaths, the CBA must be revised to contain mandatory provisions providing players adequate protections from traumatic brain injuries.

    This article will discuss the lethality and prevalence of brain injuries in the NFL, how the CBA addresses the problem of brain injuries, and provisions the CBA must implement to adequately protect players.

  2. THE REPERCUSSIONS OF PLAYING FOOTBALL: CHRONIC TRAUMATIC ENCEPHALOPATHY

    Chronic Traumatic Encephalopathy ("CTE") is a neurodegenerative disease caused by repetitive brain trauma, including concussions and subconcussive injuries. (9) The scientific link between concussions and CTE has been around for years. (10) Dr. Martland first investigated the connection in professional boxers who suffered "considerable head punishment," colloquially called "punch drunk." (11) These athletes showed signs of "truncal ataxia, Parkinsonian syndrome, and mental deterioration necessitating commitment to an asylum." (12) As research progressed, scientists began discovering CTE in athletes across other high-contact sports, including American football. In 2002, Dr. Bennett Omalu, the leading neuroscientist in CTE research, discovered CTE in Mike Webster, former Pittsburg Steeler center guard. (13) Webster was the first NFL player to be diagnosed with CTE. (14) Since this initial discovery, many more football players have been diagnosed with CTE.

    When a player receives repeated blows to the head, the brain moves forward, backward, and rotationally inside the skull--an unnatural motion. (15) This unnatural movement causes the brain to elongate, causing severe stress on the nerve cells. (16) While the brain normally uses tau proteins inside the nerve cells to keep the intended structure, this process is interrupted by the riving and sudden motion caused by these repeated blows to the head. (17) The tau proteins respond to trauma by detaching from the nerve cells and clumping together. (18) When enough tau proteins clump together, they will eventually kill the nerve cell. (19) Repeated trauma leads to accumulated tau protein, and, over an extended period of time, this eventually kills part of the brain. (20) This entire process alters the brain, presenting itself through memory loss, mood changes, and altered decision-making. (21)

    1. The Mortality Rate of Chronic Traumatic Encephalopathy

      The final stage of CTE is premature death. In one study, researchers compared mortality rates of the general population to the publicly available data on mortality rates of NFL players from the 1970 and 1994 seasons. (22) The research concluded that line players have higher mortality rates, compared to other players. (23) Additionally, players who were drafted for more than two seasons face higher mortality rates compared to their peers. (24) Based on this information, one article inferred that "there is a strong causal relationship between the presence of CTE and suicide in former NLF players as a result of their diminished psychological and cognitive capabilities." (25) Former Chicago Bears defensive back, David Duerson, shot himself in the heart at age 50. (26) The last text message David sent to his ex-wife requested her to see that his brain was donated to the NFL's brain bank for research. (27)

      Though the general public is uninformed of the specific symptoms of CTE, there is a growing concern for head injuries. Starting in 2017, high school football participation has declined, whereas high school sports overall participation has increased. (28) This decline is likely due to parents' taking precautions so their children can avoid brain injuries. (29) This nationwide concern has developed into potential legislation. California has proposed a law to ban contact football before high school. (30) Due to this current trend, the NFL should be incentivized to take precautions against this brain injury.

    2. Countless Players Have Been Diagnosed with Chronic Traumatic Encephalopathy

      Research has shown CTE is a common post-mortem diagnosis in NFL players. In 2017, Dr. Anne McKee, one of the leading neuropathologists in CTE research, examined 202 brains. (31) Of those brains, 111 were NFL players, and of those 111 brains, 110 were diagnosed with CTE. (32) This repetitive brain trauma results from the head collisions on the field. In the most susceptible position, a collegiate offensive lineman was found to collide with other players at an average G-force of 25.8. (33) This is roughly equivalent to a driver "crash[ing] his car into a wall at 30 miles per hour." (34) Scientists found "a college offensive lineman took 62...blows to the head" in a single game. (35) Comparatively, NFL players are likely to be heavier and faster, so the collisions are likely to be at a more extreme G-force. In the 2015 NFL season, "[t]here were 271 concussions...and 182 concussions in the regular seasons alone, which is a 58% rise over the 2014 season and the highest number in four years." (36) Considering these are only the reported concussions, it is no surprise that many players are diagnosed with CTE.

      Currently, CTE can only be diagnosed post-mortem. However, in 2012, Dr. Omalu was able to diagnose CTE in Minnesota Viking linebacker Fred McNeill while he was still alive. (37) Dr. Omalu confirmed McNeill was correctly diagnosed with CTE once McNeill died in 2015. (38) This new technique to diagnose CTE in living patients still requires a few years of research. (39) If researchers could show that current NFL players have this injury, the NFL would easily be held accountable.

      As research progresses, studies have shown CTE can be the result of not only concussions but also hits to the head that do not result in a concussion. A concussion results when "the brain is shaken violently enough that the brain cells are damaged to the point where they do [not] work properly," resulting in obvious symptoms. (40) Comparatively, a subconcussive hit results when "the brain is shaken, but not so violently that the damage to the brain cells is severe enough [for the player to exhibit] symptoms." (41) Just last year, researchers experimented with mice and simulated a concussive impact injury. (42) After examining the mice's brains post-mortem, they found that closed-head impact injuries, not necessarily resulting in concussions, are likely to lead to CTE. (43) This research suggests that players who continue to enter the field without receiving medical treatment for head collisions, regardless of being diagnosed with a concussion, are likely to suffer from CTE.

      Moreover, a Boston University study published in 2018 found a "positive correlation...between 'the amount of time spent playing sports with long-term exposure to sub-clinicalhead [sic] trauma' and CTE." (44) Players who receive hard hits to the head, but do not experience "loss of consciousness or other symptoms...including [but not limited to] headaches, dizziness, vision problems, or confusion" are still likely to be diagnosed with CTE post-mortem. (45) Concussion Legacy Foundation co-founder and CEO, Chris...

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