Beyond the Line of Scrimmage

The NFL’s ongoing battle against concussions and CTE

December 12, 2022 Photo

After the NFL trade deadline passed and certain player acquisitions were made by the Miami Dolphins, Dan Orlovsky, the former NFL quarterback and ESPN football analyst said, in substance, that the Dolphins were now his pick to win it all. Orlovsky noted that the team has a Super Bowl caliber quarterback in Tua Tagovailoa. Tagovailoa is a former national college football champion and offensive most valuable player with Alabama, and while he has had a bumpy professional career so far, this season he is trending toward star player.

While also discussing Tagovailoa and his future, the famous neuropathologist Dr. Bennet Omalu, said to many media outlets: “[T]ua, my brother, I love you. I love you as much as I love my son. Stop playing. Stop. Hang your helmet and gallantly walk away.”

Dr. Omalu is not just someone who dabbles in the field of concussions and chronic traumatic encephalopathy (CTE); he is the same doctor portrayed by Will Smith in the 2015 hit movie, “Concussion,” which documented the NFL’s disturbing rise in CTE cases.

Concerning Tagovailoa, Dr. Omalu did not mince his words: “[M]y advice to him is, look, it’s time. You’ve suffered long-term permanent brain damage.… [I]f you love your life…gallantly walk away.”

As of the writing of this article, Tagovailoa played quarterback in week eight of the NFL season against the Detroit Lions. He passed for 382 yard and had three touchdowns. His quarterback rating was a whopping 138.7. All of this is to say, he played great.

So why does this all matter to us in the insurance defense industry? As you read further, allow your claims mind to run a legal run-pass option on potential lawsuits that could involve medical malpractice, employment actions, product liability, and workers’ compensation claims. Remember, before you get too fired up about the assumption of the risk defense, as a general rule, that “risk” must be willingly assumed by a plaintiff. As we discuss the facts further, this theory may be as bad as a classic prevent defense, in that you can expect a loss if you rely on either.

What Happened?

For those who don’t follow the NFL, this season Tagovailoa suffered two apparent concussions in two different NFL games played within the same week (Sept. 25 and 29). In the second game against the Cincinnati Bengals, Tagovailoa was violently thrown to the ground as he was being sacked. After he hit his head, Tagovailoa suffered a visible seizure that caused his fingers and arms to involuntarily move into what is described as a “fencing response.” This type of defensive neurological reaction has been associated with concussions or brain injuries. After that second hit, Tagovailoa lay on the field for almost 10 minutes before being carted off and taken to a local hospital.

During the Cincinnati game, Tagovailoa’s neurological response (again, associated with head trauma) was watched on the NFL’s shiny new “Thursday Night Football” streaming service. Since medical professionals have linked CTE outcomes to professional football players (based considerably on the work of Dr. Omalu and Boston University), the NFL knew it had an optics problem in prime time.

Yes, everyone loves football (including me), but no one likes seizures and head trauma. In front of a national audience, Tagovailoa’s seizure put on display every parent’s worst fears about allowing their kids to play tackle football. The NFL is a financial juggernaut, and it is very aware of not killing the golden goose by injecting head trauma into its fans’ living rooms.

Tackling the Problem

In fairness to the league, the concussion problem is not an easy one to solve, given the speed and violent nature of the sport. Players are bigger and faster than ever, and contact is hard and sometimes unpredictable. The NFL can mandate rule changes and concussion protocols, but it has not solved the neurological problem of brain-related injuries with all of its money and technology. 

As of now, there is no football helmet that can eliminate concussions. Technology has not provided a solution from stopping the human brain from shifting inside a person’s head and striking the skull. The Centers for Disease Control and Prevention has affirmatively stated, “There is no concussion-proof helmet.”

Originally, in 2019 (and subsequently updated), The New York Times did a deep dive into the quest to create a helmet that could prevent concussions. In an article entitled, “This Helmet Will Save Football. Actually, Probably Not,” author Michael Powell describes the money spent and efforts made to create a helmet that could be an effective shock absorber. Powell notes that the NFL recognizes that concussions are a threat to its future.

In response, the NFL has spent over $200 million to try and develop a safe helmet. In 2022, the science still has not tackled the problem, even with inventive foam inserts that became available. Powell quotes Dr. Lee Goldstein, with Boston University’s CTE Center, as noting, “[The new type of helmet] is like developing a better cigarette filter. It’s smoother and it might not give you a hacking cough. But you still get lung cancer.”

With the present state of the science, the NFL and other contact sport leagues implemented a plan to lessen the effects on players who endure concussions during games. Keep in mind that the Medical College of Wisconsin concluded that “concussion ranks among the most common injuries in football. Beyond the risks of concussion are growing concerns that repetitive head impact exposure (HIE)may increase risk for long-term neurologic health problems in football players.”

Many football fans are familiar with the class-action settlement with retired football players who suffered from CTE. There have also been product liability cases against helmet manufacturers with mixed outcomes for both the plaintiffs and the defendants. Due to all of this, the NFL concussion protocol and its enforcement became a hot-button issue, and that resurfaced during the Tagovailoa injury saga.

The Aftermath

As we begin to consider potential exposures, let’s revisit Tagovailoa’s two concussions that occurred within a week. As previously mentioned, the first appeared to have occurred on Sept. 25, in a game against the Buffalo Bills, where Tagovailoa was shown stumbling and falling to the ground after a hard hit. Immediately, Tagovailoa was removed from the game but was somehow cleared to reenter the contest. Then, we know days later in Cincinnati that Tagovailoa was hospitalized after being slammed to the ground. Tagovailoa told the press, “[G]etting carted off—I don’t remember that.”

The Mayo Clinic describes CTE as a “brain degeneration likely caused by repeated head traumas.” CTE is thought of as being rare and linked to second-impact syndrome. The initial symptoms include difficulty thinking, memory loss, and problems with executive functioning.

According to the experts such as those at Boston University, CTE can be brutally progressive, leading to impulse control issues, depression, anxiety, parkinsonism, progressive dementia, and suicide in some cases. In sum, the disease involves the progressive degeneration of a person’s brain tissue. CTE symptoms may not develop until years after repeated head trauma, and there is no cure for it.

You can draw your own conclusions about how the Tagovailoa situation was handled. The appearance is that decisions were made to protect the golden goose and paper the mess away. First, an immediate “investigation” was initiated into how a concussed player was cleared to go back into a game with some type of claimed “back injury.” A scapegoat was needed, so the independent doctor known as the unaffiliated neurotrauma consultant was fired and conveniently blamed for missing the concussion in the first game.

This appears somewhat shady since the Miami Dolphins’ team doctors claimed that Tagovailoa “did not report or exhibit any signs or symptoms of a concussion during his locker room exam, during the remainder of the game, or throughout the following week,” until he was knocked out again, of course. 

The next step was to add the term “ataxia” to the list of “no-go” protocol factors for return-to-play for all players. Ataxia is known as impaired balance or coordination due to damage to the brain, nerves, or muscles.

Finally—and this is just a guess, of course—all of the doctors involved put their medical malpractice carriers on notice. Workers’ compensation carriers also may be getting a bit of a headache from the potential risk arising from this incident.

The potential of negligence was crystalized by Dr. Chris Nowinski of the Concussion Legacy Foundation, who told People that, during the Buffalo Bills game, Tagovailoa showed classic signs of a concussion. Dr. Nowinski elaborated that Tagovailoa grabbed his head and indicated pain after the hit. Then he lost his balance and showed signs of visual disturbance. Finally, Tagovailoa fell to the ground and had to be helped to his feet by his teammates.

Dr. Nowinski warned that two concussions sustained days apart could have horrible consequences. “Because of this, [Tua] shouldn’t play the rest of the season,” he told People.

We all knew it was likely that Tagovailoa would not stop playing professional football. He is only 24 years old and is considered a top NFL quarterback. He will get paid. Nothing herein is intended to pass any type of judgment about Tagovailoa’s choices—I am sure these decisions are incredibly difficult and most people don’t face them. In addition, the NFL’s commitment to player safety, and the financial resources invested in that, should be considered in analyzing this situation.

One must wonder, however, if Tagovailoa is relying on statements from the NFL’s chief medical officer, Allen Sills, who was quoted by the NFL as saying those involved with Tagovailoa’s care operated with “absolute integrity” and that “these people are the people that you would want caring for you.”

Let’s hope Dr. Sills is right. But it does appear—based on the public evidence and reporting—that “these people” put an arguably concussed player into a professional football game a few days after an ostensible concussive episode. Given this evidence, I am not exactly sure who “these people” are caring for, the player or the golden goose? 

About The Authors
Christopher Fusco

Christopher Fusco is a founding and managing partner of Callahan & Fusco LLC.

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