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A sign explaining concussion symptoms is posted on door inside Bradwell Elementary School's gymnasium.


Legal, safety questions stem from NFL concussions crisis

by Lisa Carter and Scott Kitun
Feb 21, 2013


Brandon Marshall

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Chicago Bears wide receiver Brandon Marshall speaks to students and teachers during an OfficeMax event on Jan. 31 at Bradwell Elementary School.

Seau card

Scott Kitun/MEDILL

Former San Diego Chargers linebacker is featured on a 1995 first-edition Topps trading card. Seau, who was found to have chronic traumatic encephalopathy, committed suicide last May.

Former San Diego Chargers linebacker Junior Seau committed suicide in May by shooting himself in the chest. Seau’s family donated portions of his brain to the National Institutes of Health where scientists detected chronic traumatic encephalopathy, or CTE. Similarly, Dave Duerson, former Chicago Bears defensive back committed suicide in 2011 by shooting himself in the chest. He asked his family to have his brain examined for CTE, and the disease was found.

Now Seau’s family has filed a wrongful death lawsuit in California Superior Court that may pave the way for similar litigation. It comes on top of more than 140 concussion lawsuits involving more than 3,300 players that have been filed against National Football League, the most lucrative sports league in the country.

In August, attorneys for the NFL asked the judge to dismiss all of the lawsuits but nobody thinks the issue is anywhere close to being resolved.

Chicago-based attorney Nicholas Hobart, who is not a party to any of the cases, said NFL officials believe the suits involving concussions should be handled through an arbitration process, not in court.

“The NFL is trying to get all of these lawsuits dismissed by arguing that they don’t belong in the courts in the first place,” Hobart said. “It argues that federal labor law preempts the state law claims and that they actually fall under the [collective bargaining agreement]. Therefore, arbitration is proper."

Hobart said the Seau family’s lawsuit will likely be consolidated with the remaining suits. And if the NFL’s motion to dismiss fails, “it will still be years before any kind of trial or resolution occurs due to the magnitude of discovery.”

Meanwhile, the players and their families contend the league was negligent by not protecting players from severe injury. Their position has been and continues to be that the league knew or should have known of the dangers associated with repeated concussions.

Currently, CTE can only be detected after death. In an American Journal of Geriatric Psychiatry study, deposits of tau, a protein that forms over damaged brain cells, was more prominent in brains of five former NFL players including Seau and Duerson than it was in the brains of five non-NFL players.

But detecting CTE in living individuals may be possible in the near future,
according to Dr. Julian Bailes at Evanston’s NorthShore Neurological Institute.

“It is the holy grail of CTE research to be able to identify those who are suffering from the [CTE] syndrome early, while they're still alive,” Bailes said. “Discovering the effects of prior brain trauma earlier opens up possibilities for symptom treatment and prevention.”

If CTE could be identified in current players, it could have a major impact on their careers. Additionally, it could add fuel the filing of lawsuits against the NFL, which has an estimated value of $35 billion.

Such a medical advance also would likely force the league and its players to renegotiate their bargaining agreement to reflect the recognition of inherent risks of playing the game. Players would be able to have regular brain scans allowing them to formulate a benchmark that could help determine the actual damage their brain is sustaining.

Likewise, the league likely would take increased precautionary measures for concussions such as stricter tackling rules and potentially even widening the playing field. That would increase players’ room to run and possibly decrease the intensity of impacts, according to ESPN analyst and longtime team executive Bill Polian.

Prevention and symptom treatment would apply not only to professional players, but to children as well. Children as young as 5 years old in Pop Warner leagues are playing tackle football. But current professional players such as Chicago Bears wide receiver Brandon Marshall believe Pop Warner leagues and the NFL already are working to make the sport safer.

“I think the steps the NFL [is] taking now with implementing rules in Pop Warner football, trying to show [children] how to properly tackle and protect themselves is the best thing for us moving forward,” Marshall said. “We do have to make the game safer, and I think the NFL is doing everything in their power to do that, not just on our level, but starting at the young age of 6 years old.”

Experts such as Chris Nowinski, former professional wrestler and co-founder of the Sports Legacy Institute, disagree. He argues the age requirement should be changed to reduce the likelihood of concussions in children.

“There probably should be a higher age to play contact football,” Nowinski said. “Certainly not 5 [years old], but maybe stretch it to 14. There’s a lot of logic to that because that’s when you start having access to athletic trainers. You have to set limits to exposure.”

Lawmakers have taken notice of the concussion problem and its relation to children. In Texas, the legislature passed a bill in 2011 requiring coaches and trainers in public schools to complete two hours of training in identifying concussions. The bill also requires that a player who exhibits concussion symptoms during a game must be examined and cleared by a physician before getting back onto the field.

Mike Harrison, head athletic trainer at Allen High School in Allen, Texas, believes the bill affects the likelihood of future lawsuits involving concussions with high school athletes.

“If you follow protocol and what’s represented by state law, I think you’ve done everything possible to decrease the possibility of liability and lawsuit there,” Harrison said. “I think that’s one thing that we do, and we’re fortunate to stay underneath the state law.”

Todd Kuska, head football coach St. Rita of Cascia High School in Chicago, believes the root of the concussion crisis begins with education, particularly in teaching young football players how to properly tackle. If those skills are taught, he believes it will reduce the risk of injuries and decrease the amount of lawsuits filed.

Professional players, he said, are a different story. “I don’t know what’s going to happen with those [NFL] lawsuits,” Kuska said.

The NFL has identified concussion prevention as important and continues to make changes to protect player safety. But the inherently violent nature of the game isn’t likely to change any time soon, experts say, and players are still motivated to hit as hard as possible.

“Obviously, things are different when you get to the NFL [with the] amounts of blows to the head…Those athletes are some of the strongest people in the world, and that causes more problems for them,” coach Kuska said. “Guys aren’t admitting they have a concussion because in the NFL, it’s their paycheck. It’s their job.”