Concussion in Professional Football - a legal perspective Annette - - PowerPoint PPT Presentation

OPEN FORUM Concussion in Professional Football - a legal perspective

Annette Greenhow Assistant Professor Bond University Gold Coast Australia

• http://youtu.be/Ck0DWfgDvho

Concussion in Professional Football

• All governing bodies of the main football

codes have implemented policies designed to minimise the risk of concussion, educate players and others about the severity of concussion, formulate return-to-play guidelines and increase sanctions for dangerous play

• But…

Legal action has started in the United States in 2 separate claims…

• Maxwell et al v National Football League et al
• filed in July 2011 in the United States

Superior Court, Los Angeles.

• Easterling et al v National Football League -

filed in August 2011 in the United States District Court in Pennsylvania

The Maxwell Claim

• 75 retired players have sued the NFL

alleging negligence and fraudulent concealment relating to concussion management

Alleged duties owed by the NFL

• To protect the plaintiffs on the playing

field.

• To educate players, trainers, physicians and

coaches about Chronic Traumatic Encephalogathy (CTE) and/or concussion injury.

• To have strict return-to-play guidelines to

prevent CTE and/or concussion injury.

Duties cont…

• To promote a “whistleblower” system where

teammates would bring to the attention of the trainers and coaches that another player suffered concussion.

• To design rules to eliminate the risk of

concussion during games and/or practices and rules penalties for players who use their head hit

• r tackle.

Duties cont…

• To promote research into and find a cure of CTE

and the effects of concussion industry over a period of time

• To other stakeholders - the State governments,

local sports organisations, players and the public at large to protect against the long-term effects of CTE and/or concussion injury.

• Breaches
• Failure to enact rules, policies and regulations to

best protect its players.

• Failure to institute acclimation requirements or

procedures to ensure the proper acclimation of players before they participated in practice or games.

• Failure to regulate or monitor practices, games and

medical care so as to minimise long-term risks associated with cognitive brain injuries.

Breaches cont…

• Failure

to require that an adequate concussion brain injury history be taken of players.

• Failure to invoke league wide guidelines

policies and procedures regarding the identification and treatment of concussive brain injury and return-to-play.

Breaches cont…

• Failure to properly inform players of the

health risks associated with concussive injury.

• Failure to warn of the harm of repetitive

concussion injury.

Breaches cont…

• Failure to provide complete, current and

competent information and directions to the athletic trainers, physicians and coaches regarding concussive brain injuries and its prevention, symptoms and treatment.

• Failure to establish any guidelines or

policies to protect mental health and safety

• f its players.

Breaches cont…

• Failure to implement standardised post concussion

guidelines by failing to enact rules to decrease the risk of concussions during games or practices.

• Failure to implement mandatory rules that would

prevent a player who suffered a mild tramatic brain injury from re-entering a game and being placed at further risk of injury

• Failure to warn the public of the health risks

associated with multiple concussions.

Fraud

• Allegation that the NFL embarked upon a scheme
• f fraud by denying knowledge of the link

between concussion and cognitive decline.

• Refers to independent scientific research finding

the link between concussion and CTE, and the contrary findings of the NFL‟s own research body.

• Alleges the NFL made material misrepresentations

to its players, former players, Congress and the public that there was no link between concussion and later-life cognitive injury.

The Easterling Claim

• 7 retired players, representative of

players from 1970‟s, 1980‟s, 1990‟s and 2000‟s

• Certification as a class action for

negligence and wrongful conduct

• Estalishment of a Medical Monitoring

Fund and trust fund to support retired, current and future players

The Easterling Claim cont…

• Alleges that the NFL knew or ought to have

known that players with a history of multiple concussions had been associated with a greater risk of future brain injury.

• Alleges that the Collective Bargaining Agreement
• f 4 August 2011 is an „admission‟ of this link.
• The CBA has included a new Neuro-Cognitive

Disability Benefit.

Issues for consideration

• Does a duty of care exist between the

governing body and the player?

• Has there been a voluntary assumption of

risk by the players - football is a inherently dangerous contact sport?

• Who should carry burden of research - the

players or the governing body?

• Are the players contributory negligent?
• Limitation periods?
• Other considerations?