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 or 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 of 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 of 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 of 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?
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