Nfl Takes a Page from the Big Tobacco Playbook: Assumption of Risk in the Cte Crisis

• Jurisdiction: United States,Federal
• Publication year: 2019
• Citation: Vol. 68 No. 3

NFL Takes a Page from the Big Tobacco Playbook: Assumption of Risk in the CTE Crisis

Mikayla Paolini

NFL TAKES A PAGE FROM THE BIG TOBACCO PLAYBOOK: ASSUMPTION OF RISK IN THE CTE CRISIS

Abstract

Traumatic brain injury in sports, once considered an injury you could "rub some dirt on " and get back in the game after, has risen to the level of a public health epidemic over the past decade. Most public attention to the issue is connected to high-profile National Football League (NFL) athletes, increasing numbers of whom are diagnosed post-mortem with chronic traumatic encephalopathy (CTE), a progressive neurological disorder with symptoms akin to Alzheimer's. With gridiron giants like Mike Webster, Terry Long, Andre Waters, and Junior Seau sleeping on train station floors and drinking antifreeze, their greatest legacy may no longer be the things they gave to the game of football, but what the game of football took from them.

As research connecting CTE with repeated blows on the football field grows, the NFL faces litigation concerning its role in preventing or raising awareness of this issue. In response, the League has taken a page from the tobacco industry playbook by employing the same strategies used during decades of litigation surrounding the adverse health consequences of smoking cigarettes. Accordingly, this Comment explores the utility of using Big Tobacco as a predictive template for future NFL/CTE litigation by unpacking the historical parallels and distinctions between these two industry giants, especially as pertains to an assumption of risk defense. Ultimately, this comparative analysis informs litigation strategy by outlining the unique pressures and structures faced by NFL plaintiffs such that they should overcome an assumption of risk defense in CTE cases. While their circumstances are fundamentally different, NFL athletes face the same institutional complicity and orchestrated denial as did tobacco users, only this time, all of America has a Sunday ticket.

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Introduction.............................................................................................609

I. National Football League and Chronic Traumatic Encephalopathy............................................................................611

A. Introduction to Chronic Traumatic Encephalopathy................ 612
B. Timeline of CTE Scientific Developments and NFL Responses 613

II. Assumption of Risk........................................................................619

A. Introduction to the Doctrine ..................................................... 619
B. The Doctrine as Employed in Tobacco Litigation .................... 620

1. Introduction ........................................................................ 620
2. First Wave (1950s-1960s) .................................................. 621
3. Second Wave (1980s) ......................................................... 622
4. Third Wave (1990s-Present) ............................................ 624

C. The Doctrine as Applied to Sports Torts .................................. 626

III. Comparable and Contrasting Strategies and Successes.....627

A. Overlapping Strategies............................................................. 628
B. Why the NFL Context Is Different ............................................ 630

1. Contract Structuring ........................................................... 630
2. Social Pressures ................................................................. 633
3. Full Appreciation of Risk .................................................... 636

C. Counterarguments and Refutations .......................................... 639

Conclusion.................................................................................................641

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Introduction

On April 19, 2017, former New England Patriots tight end Aaron Hernandez¹ hanged himself with a bed sheet in a Massachusetts prison.² Hernandez was serving a life sentence for the 2013 murder of Odin Lloyd and had been acquitted of two other murders just days earlier.³ Suspecting neurological problems, Hernandez's family donated his brain to the CTE Center at Boston University, where top neuropathologists discovered classic markers for chronic traumatic encephalopathy (CTE): an abundance of abnormal protein tau in the frontal lobe and around small blood vessels.⁴ His hippocampus and fornix (responsible for memory) and amygdala (responsible for emotional regulation, fear, and anxiety) were also severely affected.⁵ This led head researcher Dr. Ann McKee to conclude that at the age of twenty-seven, Hernandez had the most severe case of CTE the CTE Center had ever seen in someone his age, with "damage . . . akin to that of players well into their 60s."⁶ While McKee declined to use pathology as a way to retrospectively explain or excuse Hernandez's murderous behavior, she stated that "in our collective experience . . . individuals with CTE-and CTE of this severity-have difficulty with impulse control, decision-making, inhibition of impulses for aggression, emotional volatility, [and] rage behaviors."⁷

In response, Hernandez's estate filed a federal lawsuit on behalf of his four-year-old daughter, Avielle, against the National Football League (NFL) and the New England Patriots. The suit seeks $20 million in damages to compensate Avielle for the deprivation of "love, affection, society and companionship of her father while he was alive."⁸ The complaint alleges that both the NFL and the

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Patriots were aware of the neurological harm that would occur from repetitive impact on the field but did not do enough to protect Hernandez from that harm.⁹

Hernandez's complaint, insofar as it links CTE to NFL play, is nearly identical to the complaint issued by a class of retired NFL players in In re National Football League Players Concussion Injury Litigation, which the NFL settled in 2016.¹⁰ The temporal relevance of Hernandez's case reveals an underlying question that all cases brought by NFL players after the 2016 settlement will also pose: did he assume the risk of CTE by continuing to play in the face of nearly conclusive scientific evidence that it would result in his eventual cognitive demise?¹¹

This is the same question faced by plaintiffs when bringing suit against Big Tobacco¹² companies after the Surgeon General officially linked cigarettes and cancer in 1964¹³ : did smokers assume the risk of lung cancer by continuing to use tobacco in the face of scientific recommendation against doing so? This overlapping legal question is not the only parallel between CTE and cigarettes, as both public health crises arose following decades of denial by the responsible industry (NFL and Big Tobacco, respectively) such that tobacco litigation provides a useful template for projecting what the legal future of CTE claims may look like.¹⁴ Although there is much we can learn from the history of Big

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Tobacco litigation, critical distinctions also exist surrounding the CTE crisis which must be taken into account.

This Comment argues that although the NFL responded to CTE litigation by deploying the same strategies that proved successful for Big Tobacco, the assumption of risk defense should not be applied to the NFL in the same way that it was to the tobacco companies. In particular, it informs litigation strategy by highlighting the unique social and structural pressures NFL plaintiffs face such that they may prove successful against the assumption of risk defense where tobacco litigation plaintiffs failed. To unpack these crucial distinctions, this Comment begins in Part I by outlining the medical intricacies of CTE and presenting a timeline of the NFL's responses to developing connections between football and CTE. Next, Part II unpacks the assumption of risk defense and how it functions in the context of sports. This Part also provides a historic timeline of tobacco litigation, with an emphasis on the eras in which Big Tobacco successfully employed the assumption of risk defense. Finally, Part III discusses the overlapping strategies between tobacco industry giants and the NFL, then demonstrates how the NFL situation is different from tobacco litigation such that the assumption of risk doctrine should not apply. This Part will close with presentation and response to several counterarguments.

I. National Football League and Chronic Traumatic Encephalopathy

Understanding the experiences of Aaron Hernandez and the hundreds of other NFL players diagnosed with CTE requires a thorough examination of the medical and historical contexts through which their debilitating neurological disease arose. Accordingly, this Part provides the contextual framework in which to situate the assumption of risk doctrine. First, section A offers a medical overview of CTE, including its symptoms, diagnostic complications, and the unique susceptibility of professional football players. Next, section B chronicles how the NFL responded to an increasing body of scientific literature linking CTE to football-from creating committees on concussion safety with the goal of fostering confusion to rule changes that were largely symbolic and offered little protection to athletes most at risk for CTE. Finally, it sketches the current context of the CTE crisis, noting the minimal progress since the early 2000's, when traumatic brain injury first took the spotlight.

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A. Introduction to Chronic Traumatic Encephalopathy

Chronic traumatic encephalopathy is a progressive neurological disease found in people with a history of repeated brain trauma.¹⁵ First identified in 2002 following the autopsy of former Pittsburgh Steeler Mike Webster, CTE is similar to dementia pugilistica ("punch-drunk syndrome"), a disease identified in professional boxers since the 1920s.¹⁶ CTE presents clinically as dementia, with symptoms including memory loss, confusion, impaired judgment, impulse control problems...