by E. Marcus Davis and Marcy Cornell

The incidence and long-term effects of concussive head injuries, cumulatively called Chronic Traumatic Encephalopathy, or CTE, is a serious issue in violent sports, particularly as seen in the NFL. Despite the NFL’s dismissal of, and in some cases, aggressive disagreement with, scientists researching the condition, incontrovertible evidence is accumulating which proves that not only does the condition exist, but action must be taken to protect professional football players and their families from the suffering resulting from this condition. At the very least, players must be properly informed about the risks of their profession and the ways in which they might protect themselves even if they continue to participate in these dangerous activities. The NFL’s state of willful ignorance is nothing short of criminal negligence, if not outright fraud.

CTE is a form of brain damage. When a player is tackled or otherwise receives a blow to the head, even in a helmet, his brain impacts the inside of the skull, which causes a concussion. Even a single concussion can be dangerous; the brain is a very delicate organ and is easily damaged under such tremendous impacts as are common in professional (and even high school and college) football. It is important to realize that there is no such thing as a mild traumatic brain injury. CTE occurs when a player is victim to one or repeated concussions, and the brain is damaged. New research suggests that the brain, after these kinds of impacts, begins producing more tau proteins. CTE is a permanent, degenerative condition and results in varied symptoms, including severe headaches, dizziness, memory loss, emotional instability, depression, loss of cognitive functions, and economic harm. These effects are not minor or short-lived. The media has been taking more notice of this condition lately after some of the players who have been suffering from this condition for years or decades finally took their own lives, unable to deal with the depression, dementia and other effects which have plagued them relentlessly long after the players were forced to retire from football.

This has been very awkward for the NFL, which has a history of encouraging players in hard tackles, going to far as to sell photos and films of compilations of the most violent hits, glorifying them with such titles as “The Best of Thunder and Destruction – The NFL’s Hardest Hits.” The vast majority of the featured hits involve helmet contact. The NFL has encouraged both players and audiences to be more bloodthirsty, producing a market and incentive for players to become bigger, stronger and faster, and to engage in dangerous, violent behavior to satisfy an audience that wants to see them “KO the quarterback,” to use an example from the back cover of one of the same gladiator-mentality NFL-produced films. There has been an unspoken policy of turning a blind eye to the players who blatantly break the rules about what is and is not an acceptable level of player-on-player violence.

It becomes obvious, therefore, that the NFL has a vested interest in making CTE seem less serious than it is. For many years, they denied that concussions were a serious problem, that all brain injuries were important health risks, that suffering a concussion can make a person more likely to suffer further concussions, and that CTE exists at all. They appointed a doctor as the head of their committee on “mild” brain injuries who was not a neurologist, neurosurgeon or neuropsychologist, but was in fact a rheumatologist with training in the treatment of joints and muscles, and not in any way qualified for the position. They commissioned studies based on biased and unscientific data, and distanced themselves from and denigrated the science of studies they themselves had paid for, when the results were contrary to their public position. They issued public statements and written materials in support of their position, and in some cases even threatened those who had spoken out with different opinions, ignoring scientific opinions and evidence from as far back as the 1920s about the problems related to concussions. Their policy has been to put profits before people, by lying, obfuscating the truth, and using junk science and unqualified experts to hide the truth from players being permanently brain injured. In October of 2009, the Judiciary Committee for the United States House of Representatives held a hearing on the NFL’s policy on concussions, and the NFL’s attitude at that hearing reminded one of the representatives “of the tobacco industry, who knew for years and years that smoking wasn’t good for you but kept denying it.”

However, in recent years, they have had to revise the position they have held for so long. As the players in the NFL have, in fact, become bigger, stronger and faster, and complied with the coercion to behave aggressively during play, the impacts have become more violent and the resulting medical problems more pronounced, to the degree that it is no longer possible to deny the validity of the growing sea of evidence about the existence and severity of CTE. The discovery of the tau protein in players’ brains, for example, has made it possible to definitively diagnose CTE during an autopsy – although it is not yet possible to make a laboratory-confirmed diagnosis during a player’s lifetime. Study after study has found correlations between concussion in NFL players and long-term, debilitating mental and physical effects. The NFL has been forced, under the eye of the media and of Congress, to begin enforcing its rules about violent contact, to apologize for promoting the sales of photos of severe helmet impacts, and to recommission its committee to study the effects of concussion on its players, changing its name from the “Committee on Mild Traumatic Brain Injury” to the “Head, Neck and Spine Medical Committee,” and admitting that its previous work had been biased, selective and unscientific. This new attitude, however reluctant, produced some improvement immediately- one coach observed that he had seen a dramatic change in the behavior of his players within one week’s time. While this is encouraging in one sense, it is also tragic to realize that the NFL, through a few simple policy changes which they had steadfastly refused to consider for decades, effected a change that, had they done it sooner, could have saved countless players and their families from unbearable suffering. In other words, the NFL had always had the ability and power to change the nature of the game; it simply never chose to do so.

Part of the reason for the dramatic suicide events is that, since the NFL has so vigorously denied CTE’s significance for so long, they offer no help to existing sufferers. Players become so affected that they are forced into retirement, which is only the beginning of their troubles. Without adequate medical and psychological care, these players are left to deal with CTE on their own, without even the assurance that their problems are acknowledged as legitimate. Their earning capacity suffers or is eliminated altogether, their health is affected, their mental state becomes irregular, their family life and friendships degenerate… even if depression were not a direct consequence of CTE, it seems very likely that it would be an indirect one. Their families suffer as well, and a large fraction of the plaintiffs in the resulting legal actions are spouses, who are asking for compensation for their own pain, suffering and economic loss because of the effects of CTE on their husbands.

One way in which the NFL is still failing is in the information they give to players. Through the numerous lawsuits being filed against them by players, it has become clear that at no point- not during recruitment, training, signing, playing, never– does the NFL warn players about even potential risks associated with concussions. In fact, their policies and literature do the opposite, telling players that the “only scientifically valid evidence of chronic encephalopathy is in boxers and in some steeplechase jockeys,” and that “mild TBIs in professional football are not serious injuries.” These direct statements are reinforced by the NFL’s policies, which return players to the field before fully recovered from concussions, and which do not require that they be examined thoroughly after such incidents. New players in particular are young and ill-informed as to the risks of playing. There is a huge disparity in knowledge and economic standing between the players and the NFL. Most of the players are poor and subject to undue influence from the NFL because they desperately need and want the generous NFL salaries. Since they are not adequately warned of the  dangers of CTE, they are more likely to assume the risk of future disability in order to obtain the big money payoff for the next few years of the typically short career life of most NFL players. It seems particularly odd for the NFL to fail to disclose the risks involved to these players, when in all likelihood the salaries would entice a great many players to join regardless of the risks, and the disclosure would keep the NFL safe from legal harm and from public criticism by putting the responsibility of choosing money over health and safety in the players’ hands. That is not to say that the NFL would be in the right to continue to encourage violent behavior and unsafe practices, but even the players who chose to participate and suffered from CTE later ought then to be relieved at least of the feeling of betrayal that the current sufferers feel over not being offered a choice based on accurate and truthful information. The NFL’s omissions include failing to disclose that the NFL’s rules regarding helmet contact, return to play and treatment of concussions are in conflict with the rules of other sports leagues and the recommendations of the medical community; that the statements and conclusions of the MTBI Committee and its members were in conflict with medical research on the subject; failing to disclose that medical research had identified that concussions present serious long-term health problems and that there are serious risks to returning to practice or competition before fully recovering from a concussion; and failing to disclose the nature of those health problems, including that concussions  can cause early onset of dementia, Alzheimer’s disease, CTE and second-impact syndrome, all of which can result in death.

The NFL, in making false and misleading statements with the intent to induce players to join the NFL and play a certain way, has been able to build a multibillion-dollar enterprise. The players, justifiably, relied on the NFL’s false and misleading statements, as a result of which many of the players suffer physical and mental injuries, including severe headaches, dizziness, memory loss, emotional instability, depression, loss of cognitive functions and economic harm. In the face of this willful misconduct and conscious indifference to the consequences of its actions, the NFL has, in effect, committed fraud against its own players, simply for its own financial benefit. Several Hall of Fame players, despite their successes, have expressed the wish that they had never played at all, because the effects on their lives were not worth it. The NFL must recognize that, instead of dragging their feet and opposing the truth, they should take action to prevent such tragic and needless suffering. They have proven that even small policy changes can have immediate and dramatic positive effect; if they would only take a positive approach to the problem, and implement better policies, such as properly informing new players about the risks of concussion or how to avoid head injuries during game play, they would save themselves from litigation and save the players from making choices that affect their entire lives out of ignorance.

We, along with attorney Von Dubose of Bondurant, Mixon and Elmore, are representing many NFL players in a class action lawsuit against the NFL. We are handling these cases on a contingency fee basis and will not charge a fee if we do not prevail. We would be happy to discuss with any NFL player or spouse the pending litigation and explore the possibility of adding you as a plaintiff to our class action case.