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Concussions, Football, and the Law

Panel at Michigan Law School examines the legal role in injuries suffered in hard-hitting sport

By Katie Vloet
Nov. 25, 2013

Donovan Warren has had a couple of concussions that he didn't tell anyone about. He wakes up with headaches sometimes. He has played when he's still had symptoms.

Warren was a standout cornerback for Michigan and since has played on the offseason and practice squads for several NFL teams. He participated in a panel discussion at the U-M Law School Wednesday (Nov. 20, 2013) that examined the legal ramifications of concussions in football. Warren is not a participant in lawsuits that have been filed against the NCAA or the NFL, but he sat on the panel to provide the perspective of a player who has been knocked out on the gridiron.

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"Especially as a college athlete, you actually just want to go out there and play through the concussion because you want to reach the ultimate goal" of playing in the NFL, he said.

The panel, organized by Jake Gatof of the Michigan Health Law Organization and Alexandra Grossbaum of the Sports Law Society, also included Richard Lewis, a partner at Hausfeld LLP, the lead counsel in football-related concussion cases including NFL and NCAA; Sherman J. Clark, the Kirkland & Ellis Professor of Law at U-M, whose courses include torts and sports law; Dr. James T. Eckner, an assistant professor of physical medicine and rehabilitation in the U-M School of Medicine who specializes in sport-related concussion; and former Michigan backup quarterback Jack Kennedy.

The discussion occurred at a time of a growing recognition of the long-term damage concussions may cause, including dementia, depression, and physical ailments similar to Parkinson's disease. Studies have documented the connection between concussions and emotional distress, and high-profile former stars have talked openly about their memory loss and clinical depression.

In August, the NFL reached a tentative $765-million settlement over concussion-related brain injuries among its 18,000 retired players. The deal would pay to compensate victims, pay for medical examinations, and underwrite injury research as well as safety and education programs. In the NCAA, a fifth class-action lawsuit regarding concussions was filed last week. The NCAA is mediating two lawsuits.

In the midst of the lawsuits and wider awareness, the attitude toward concussions has changed in recent years, Eckner said. "We don't just say to tough it out and let the athlete keep playing if he says he's OK" as was done many years ago, he said. Injured college athletes, for instance, receive a multi-faceted concussion assessment and their return-to-play decision is individualized, taking into account both the details of their current injury and recovery course, as well as details of their own prior medical history.

Eckner also talked about the condition CTE (chronic traumatic encephalopathy), a degenerative disease linked with multiple concussions. Only a relatively small number of football players have been diagnosed with the condition, and he pointed out that there is a great deal to learn about it, including how to accurately diagnose it in a living athlete.

Some former NFL stars have been tested for the condition and have been diagnosed as having signs of CTE, which is linked with dementia and depression. To avoid such health problems as well as other injuries, Denver Broncos offensive guard John Moffitt retired earlier this month at age 27. He left behind more than $1 million, as well as future earnings potential.

Clark asked Lewis about the legal issues involved in the concussion cases and pointed out that the lawsuits hinge on a demonstration of negligence, and proving that the negligence caused the players harm. The plaintiffs, he said, also have to demonstrate that they would have done something differently if they had been told about the potential damage from concussions.

Lewis has said that the NCAA didn't do enough to inform players, to monitor them, or to make medical resources available to them, especially as they get older; documents released recently also indicate that concussion management plans haven't been enforced by the NCAA.

Lewis said the NFL's strongest defense is that the players have an assumption of risk when they play the game. However, he said, the extent of the potential damage was not clear to players, such as a client who played in the NFL and is now living in the back of his car. "He said to me he knew he'd get banged up, but he didn't know that he wouldn't be able to function," Lewis said.

(View court documents from the NFL and NCAA cases).

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