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

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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


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OPEN FORUM Concussion in Professional Football - a legal perspective

Annette Greenhow Assistant Professor Bond University Gold Coast Australia

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  • http://youtu.be/Ck0DWfgDvho
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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…
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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

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The Maxwell Claim

  • 75 retired players have sued the NFL

alleging negligence and fraudulent concealment relating to concussion management

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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.

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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.
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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.

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  • 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.

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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.

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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.

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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.
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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.

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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.

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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

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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.

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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?