DJK It's Just A Concussion Note

ITS JUST A CONCUSSION: THE NATIONAL FOOTBALL
LEAGUES DENIAL OF A CAUSAL LINK BETWEEN

MULTIPLE CONCUSSIONS AND LATER-LIFE COGNITIVE
DECLINE
Daniel J. Kain*
INTRODUCTION
Violent collisions are a primary ingredient behind the incredible success
of the National Football League (NFL). Unfortunately, player concussions
are a common result of such collisions. The debate that currently polarizes
the respective football and scientific communities is whether multiple
concussions sustained during an NFL players career cause later-life
cognitive problems such as dementia and depression. The NFLs internal
Concussion Committee maintains that if multiple concussions are managed
properly,1 the player will not suffer any long-term effects.2 This stance taken
by the NFL represents the minority opinion on the issue.3
*
B.A., West Chester University, 2004; J.D. Rutgers University School of Law
Camden, 2009. Please be aware that substantive scholarship has not been added to this Note
since Super Bowl Sunday of 2009. Consequently, the Note does not account for the sea
change in NFL concussion policy that occurred after the October 28, 2009 Congressional
hearing. I wish to thank my wife Lauren for her patience and support throughout my RUTGERS
LAW JOURNAL experience. Special thanks to Lindsay Donn, Geoffrey Stark, John Wixted,
Shanin Specter, Chris Nowinski, Andrew Brandt, Professor John Oberdiek, and Dr. Thomas
Kain for their helpful comments in review of this Note. Finally, I would like to thank the
Kain, Dolan, & Biddle families for their loving support.
1. In 1994, former NFL Commissioner Paul Tagliabue appointed an NFL Committee
on Mild Traumatic Brain Injury (MTBI). See Paul Tagliabue, Tackling Concussions in
Sports, 53 NEUROSURGERY 796 (2003) (explaining that as the league began to inquire about
the specific area of concussions, it realized that there were many more questions than answers
on the topic). On August 14, 2007, the NFL published the following statement regarding its
concussion policy:
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Clinical and neuropathological studies by some of the nations foremost

experts demonstrate that multiple concussions sustained during an NFL
players career cause cognitive problems such as depression and early-onset
dementia.4 Dr. Bennet Omalu, M.D., a forensic pathologist at the University
of Pittsburgh, has examined the brain tissue of deceased NFL players Mike
Webster, Terry Long, and Andre Waters.5 All three subjects of Dr. Omalus
studies suffered several concussions during their respective NFL careers.6
Before their premature deaths, Webster, Long, and Waters presented clinical
symptoms of sharply deteriorated cognitive function and psychiatric
symptoms such as paranoia, panic attacks, and major depression.7 Dr. Omalu
Current research with professional athletes has not shown that having more than one
or two concussions leads to permanent problems if each injury is managed properly.
It is important to understand that there is no magic number for how many concussions
is too many. . . . [Players] should not be at greater risk of further injury once [they]
receive proper medical care for a concussion and are free of symptoms.
Press Release, National Football League, NFL Outlines For Players Steps Taken to Address
Concussions (Aug. 14, 2007) (emphases added) (on file with author).
2. Id.
3. See Robert Mitchum, Consensus Difficult to Find; NFL Conclusions Come Under
Attack, CHI. TRIB., June 20, 2007, at C2 (explaining how the NFLs conclusion that there is no
increase in secondary brain injuries after a second concussion is met with skepticism by NFL
players and independent doctors).
4. See Robert C. Cantu, Chronic Traumatic Encephalopathy in the National Football
League Player, 61 NEUROSURGERY 223 (2007) (finding that the brain tissue of three dead NFL
alumni shared common features of brain damage). See also Kevin M. Guskiewicz et al.,
Association between Recurrent Concussion and Late-Life Cognitive Impairment in Retired
Professional Football Players, 57 NEUROSURGERY 719 (2005) (conducting a survey of over
2,550 former NFL players that indicated a direct correlation between the number of
concussions sustained by a player in his NFL career to the probability of his incurring
cognitive impairment in later life).
5. See Bennet I. Omalu et al., Chronic Traumatic Encephalopathy in a National
Football League Player, 57 NEUROSURGERY 128 (2005) [hereinafter Omalu, CTE Part I]
(examining the brain tissue of fifty-year-old Mike Webster); Bennet I. Omalu et al., Chronic
Traumatic Encephalopathy in a National Football League Player: Part II, 59 NEUROSURGERY
1086 (2006) [hereinafter Omalu, CTE Part II] (examining the brain tissue of forty-two-yearold Terry Long); Cantu, supra note 4, at 223 (finding that the most recent subject of Omalus
forensic study, forty-four-year-old Andre Waters, exhibited the same type of neurological
damage as Webster and Long).
6. See Cantu, supra note 4, at 223. All three athletes were regarded as iron men: hard
hitters who rarely took themselves out of a game due to head trauma, and continued to play
despite suffering multiple concussions. Id.
7. Id.
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concluded that Chronic Traumatic Encephalopathy (CTE) triggered by

multiple NFL concussions represented a partial cause of their deaths.8
A peer-reviewed clinical study performed by Dr. Kevin Guskiewicz9
found that retired players who sustained three or more concussions in the
NFL had a fivefold prevalence of Mild Cognitive Impairment (MCI)
diagnosis in comparison to NFL retirees without a history of concussions.10
In reaching this finding, Dr. Guskiewicz employed a survey of over 2,550
former NFL athletes.11
In January 2006, the findings of doctors Omalu and Guskiewicz received
national exposure when the New York Times featured a front page story
about the suicidal death of Andre Waters.12 Mounting media exposure placed
pressure on the NFL to address the long-term effects of NFL concussions.
Consequently, the NFL scheduled a Summit on Concussions for June 2007.13
8. Id. CTE is a neurological disorder first discovered in boxers, jockeys, and wrestlers
who sustained multiple blows to the head. Id. at 223-24. CTE presents clinically as dementia
or parkinsonism with symptoms like slight mental confusion, general slowing in muscular
movement, hesitancy in speech, and tremors of the hands. Id. The brain tissue of Webster,
Long, and Waters all demonstrated trademark signs of CTE, including neurofibrillary tangles,
neurtrophil threads, and cell dropout. Id. at 223. See also discussion infra Part I (providing an
in-depth analysis of CTE and its scientific history).
9. Dr. Guskiewicz serves as the Research Director of the Center for the Study of
Retired Athletes, see Center for the Study of Retired Athletes, Board of Directors,
http://www.csra.unc.edu/board_of_directors.htm (last visited Aug. 19, 2009), and the
Chairman of the Department of Exercise and Science at the University of North Carolina.
Alan Schwarz, For Jets, Silence on Concussions Signals Unease, N.Y. TIMES, Dec. 22, 2007,
at A1.
10. Guskiewicz et al., supra note 4, at 722. MCI is a diagnostic classification typically
applied to older individuals who exhibit some evidence of cognitive decline (usually in
memory), and perform below expected levels on formal neurocognitive testing. Id. at 720.
MCI is often conceptualized as a transitional state between the cognitive changes of normal
aging and dementia. Id.
11. Id. at 721. Guskiewicz employed another large scale study targeted specifically at
the link between multiple NFL concussions and depression in 2007. See Kevin M. Guskiewicz
et al., Recurrent Concussion and Risk of Depression in Retired Professional Football Players,
39 MED. SCI. SPORTS EXERCISE 903 (2007) (finding that 595, or 24.4% of the former NFL
players surveyed sustained at least three concussions suffered from clinical depression).
12. Alan Schwarz, Expert Ties Ex-Players Suicide To Brain Damage From Football,
N.Y. TIMES, Jan. 18, 2007, at A1 (detailing at great length the studies of doctors Cantu, Omalu
and Guskiewicz, and the tragic deaths of Mike Webster, Terry Long, and Andre Waters). Dr.
Omalu explained that if Waters had lived to the age of sixty, he would have been fully
incapacitated. Id.
13. Each team was required to send a team doctor and two trainers to the June summit.
See Les Carpenter, Compromise Reigns at Summit on Concussions, WASH. POST, June 20,
2007, at E01. See also Gary Mihoces, NFL Disputes Doctors Diagnosis of Footballers
Dementia, USA TODAY, June 19, 2007, at 2C (reporting on the central disagreement between
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Scientists and players were initially hopeful that the NFLs scheduling of
the Summit indicated a newfound willingness on the part of the league to
revise its concussion policies and procedures.14 Unfortunately, the NFLs
August 14, 2007 press release denying the scientific probability that more
than one or two concussions leads to permanent problems indicates that the
research of doctors Omalu and Guskiewicz fell on unresponsive NFL ears.15
Thus, it seems that the Summit served largely public relations purposes for
the NFL.16
This Note will highlight several factors that contribute to the NFLs
concussion problem. Additionally, the note will analogize the NFLs denial
of a causal link between NFL concussions and cognitive decline to the
tobacco industrys denial of the link between cigarette consumption and
cancer. In the tobacco context, plaintiffs brought successful negligence and
deceit claims against the tobacco industry for knowingly and falsely leading
consumer-smokers to believe that smoking was safe.17 Here, the NFL
continues to inform players that multiple concussions will not cause later-life
cognitive problems in spite of an overwhelming amount of contrary
evidence.
If the NFL simply accepted the majority scientific opinion implicating a
causal link between concussions and later-life cognitive decline, it could take
procedural and legal actions to remedy the situation.18 However, a continued
attempt to raise ambiguity about the long-term consequences of concussions
might expose the league to a similar liability that struck the tobacco industry.
the NFLs internal Concussion Committee and outside scientists; namely, the NFLs stance
that concussions sustained while playing professional football do not cause later-life cognitive
decline).
14. Carpenter, supra note 13 (suggesting that the general tenor of the Summit was one
of optimism and mutual respect between the NFL Concussion Committee doctors and outside
doctors like Omalu, Cantu, and Guskiewicz).
15. See Press Release, National Football League, supra note 1. Upon notice of the
NFLs denial of any link between NFL concussions and later-life cognitive decline, Dr.
Guskiewicz stated: Theyre just trying to raise ambiguity when the science is becoming more
and more clear . . . The literature has proven it, [and] we confirmed it in June in the presence
of their entire committee. . . . Schwarz, supra note 9 (emphasis added).
16. See infra Part V.A.2 (discussing a potential misrepresentation claim against the
NFL).
17. See, e.g., Philip Morris USA v. Williams, 549 U.S. 346, 349-50, 353 (2007)
(holding that the Constitutions Due Process Clause forbids a state from using punitive
damages to punish a defendant for harm caused to nonparties).
18. The first step in remedying the problem is warning players about the long-term risks
associated with suffering multiple concussions. See infra Parts IV, V.A.
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701
Part I of this Note will track the well documented history of CTE in
contact sport athletes from the 1920s to the present. Part II will address the
definitions, symptoms, diagnosis, and treatment of concussions. Part III will
explore various contributing factors to the NFLs concussion epidemic. Part
IV will examine the sole case involving a player suit against an NFL
affiliated party for failure to warn about the risks of sustaining multiple
concussions. Part V will compare the facts and legal theories of the tobacco
litigation to the facts which present a fertile ground for player suits against
the NFL. Finally, Part VI will offer several suggestions intended to mitigate
the prevalence of cognitive degeneration among NFL alumni.
I. LONGSTANDING HISTORY OF CHRONIC TRAUMATIC ENCEPHALOPATHY IN
CONTACT SPORT ATHLETES
Scientific research indicating a link between multiple concussions
sustained by athletes and CTE is hardly a new development.19 After Dr.
Omalu concluded his third study of a former NFL players brain tissue,20 he
asked rhetorically whether one should be surprised that CTE was evidenced
in all three studies.21 Dr. Omalu answered his own question with a
resounding absolutely not.22
CTE was first described in 1928 as being characteristic of boxers who
take considerable head punishment . . . .23 Clinical symptoms of CTE as
described in 1928 included slight mental confusion, a general slowing in
muscular movement, hesitancy in speech, and tremors of the hands.24
Degenerative effects of CTE, evidenced as early as 1928, included marked
truncal ataxia, Parkinsonian syndrome, and mental deterioration
necessitating commitment to an asylum.25
19. The terms cognitive decline and cognitive degeneration will be used
interchangeably throughout the Note as the NFL Concussion Committee and outside scientists
employ the terms in like fashion.
20. Cantu, supra note 4, at 223.
21. Id. at 224.
22. Id. Dr. Julian Bailes, medical director of the Center for Retired Athletes and
Chairman of the Neurosurgery Department at West Virginia University, responded to Dr.
Omalus findings of CTE in former football players by lamenting: Unfortunately, Im not
shocked. Schwarz, supra note 12.
23. Cantu, supra note 4, at 224 (quoting Harrison S. Martland, Punch Drunk, 91 J. AM.
MED. ASSN 1103, 1103 (1928)).
24. Id.
25. Martland, supra note 23, at 1103. See also A. H. ROBERTS, BRAIN DAMAGE IN
BOXERS, 61 (1969) (echoing Martlands earlier findings regarding the dangers of chronic brain
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Seminal neurological studies performed in the 1970s identified the

neuropathology of CTE in the brain tissue of fifteen deceased boxers.26
These studies provided Dr. Omalu with a highly functional template from
which he could compare the neuropathological signs and symptoms
evidenced in professional football players to those evidenced in professional
boxers.27 Given that both boxers and professional football players often
sustain multiple concussions during their professional careers, it should come
as no surprise that NFL players also incur cognitive decline after
retirement.28
The NFLs Concussion Committee flatly denies any causal link between
concussions sustained in the NFL and the subsequent onset of CTE in NFL
alumni.29 Dr. Cantu questions the NFLs denial of a causal link because the
leagues internal study included only active players between the ages of
twenty and thirty during a short six-year window.30 Dr. Cantu noticed several
other flaws in the NFLs internal studies.31 First, players previous
concussions were not included in the analysis.32 Second, the NFL committee
experienced difficulty collecting data on loss of consciousness.33 Finally, the
studies lacked a uniform method of evaluating concussions.34
damage in boxers). Former world champion boxer Muhammad Ali embodies the paradigm
example of a boxer who presents with early-onset Parkinsons syndrome. Dave Anderson,
Sports of The Times; Ali's Boxing Curse, N.Y. TIMES, July 19, 1987 at 5:1.
26. Cantu, supra note 4, at 224; J. A. Corsellis, Brain Damage in Sport, 1 LANCET 401,
401 (1976) (finding that the brain tissue of fifteen former boxers who sustained multiple head
trauma evidenced neuropathological signs of CTE). See also J. A. Corsellis, The Aftermath of
Boxing, 3 PSYCHOL. MED. 270 (1973) (explaining that eight of the fifteen subjects in
Corselliss study were either world or national champions).
27. See Cantu, supra note 4, at 224. Corsellis also reported CTE in other athletes who
face a high risk of head injury such as jockeys and professional wrestlers. Id. Corsellis located
four different portions of the brain that evidenced signs and symptoms of CTE caused by
multiple head trauma. Id. However, he did not state that all four areas of the brain needed to
be involved in order for a CTE diagnosis to be made. Id.
28. Id.
29. See Press Release, National Football League, supra note 1.
30. Id. at 223. The NFLs internal study on CTE was conducted from 1996 to 2001. Id.
31. Id.
32. Id. When using the term previous concussions, Cantu is referring to those
concussions sustained in the NFL prior to the study or those sustained during players careers
in high school, college, or other levels of football. Id.
33. Id. The initial data sheet did not ask for data regarding loss of consciousness. Id.
34. Id. The studies were conducted in multiple sites using different examiners. Id.
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II. CONCUSSIONS IN THE NFL: DEFINITIONS, SYMPTOMS, DIAGNOSIS, AND

TREATMENT
The medical community lacks a conclusive definition of the term
concussion.35 However, the American Association of Neurological
Surgeons defines a concussion as a clinical syndrome characterized by an
immediate and transient alteration in brain function, including an alteration
of mental status and level of consciousness, resulting from mechanical force
or trauma.36 Scientists might squabble over a precise definition of the term
concussion, but all agree with the notion that there is no such thing as a
minor concussion.37
Concussions in the NFL context are related to translational
acceleration-deceleration with considerable head impact velocity and
velocity changes.38 NFL players suffering from the post-concussive effects
of one or more concussions present with what was formerly called
postconcussion syndrome and what the NFL Concussion Committee now
calls mild traumatic brain injury (MTBI).39 Symptoms of post-concussion
syndrome include, but are not limited to, a loss of consciousness, headaches,
vertigo, lightheadedness, loss of balance, unsteadiness, memory disturbance,
drowsiness, lethargy, decreased vision, and difficulty attending to normal
daily activities.40
Sustaining an isolated concussion will not generally cause death.41
However, suffering repeated concussions raises the danger of secondimpact syndrome (SIS), a potentially fatal condition that occurs when a
player returns to competition before the symptoms of a first concussion
35. See James P. Kelly & Jay H. Rosenberg, Diagnosis and Management of Concussion
in Sports, 48 NEUROLOGY 575, 575 (1997) (discussing the scientific disagreement about the
terminology of concussion and mild traumatic brain injury).
36. American Association of Neurological Surgeons (AANS), Concussion, Nov.
2005, http://www.neurosurgerytoday.org/what/patient_e/concussion.asp (last visited Jan. 25,
2008).
37. Id.
38. Omalu, CTE Part I, supra note 5, at 131.
39. Id. at 128. The NFL Concussion Committee was formerly known as the NFL
Committee on Mild Traumatic Brain Injury. Mihoces, supra note 13. The NFL defined MTBI
as a traumatically induced alteration in brain function manifested by an alteration of
awareness or consciousness, including but not limited to a loss of consciousness. Id.
40. Omalu, CTE Part I, supra note 5, at 131-32. Further symptoms include wooziness,
seizures, amnesic periods, hearing loss, and cognitive dysfunction. Id.
41. Edward M. Wojtys et al., Concussion in Sports, 27 AM. J. SPORTS MED. 676, 681
(1999) (describing a wide range of injuries, exclusive of death, that can be caused by
concussion).
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resolve.42 After sustaining a concussion, brain cells that are not irreversibly
destroyed remain alive, but exist in a vulnerable state.43
In summary, athletes that are not fully recovered from an initial
concussion are significantly vulnerable for recurrent, cumulative, and even
catastrophic consequences of a second concussive injury.44 These injuries
can be prevented if the player presenting with concussive symptoms is
provided sufficient time to recover from a prior concussion and return-toplay decisions are properly made by treating physicians.45 Unfortunately,
most NFL players are unaware of the long-term consequences of concussions
and lack an adequate understanding of concussion symptoms.46
Routine neurological examinations may not detect concussions.47
Traditional neurological and radiologic procedures, such as CTs, MRIs, and
42. Alexander N. Hecht, Legal and Ethical Aspects of Sports-Related Concussions: The
Merril Hoge Story, 12 SETON HALL J. SPORT. L. 17, 24 (2002) (citing RL Saunders & RE
Harbaugh, The Second Impact in Catastrophic Contact-Sports Head Trauma, 252 J. AM. MED.
ASSN 538, 538-39 (1984) (citing James P. Kelly & Jay H. Rosenberg, Diagnosis and
Management of Concussion in Sports, 48 NEUROLOGY 575, 577 (1997)) (describing secondimpact syndrome as when an athlete suffers cerebral auto-regulation, or a loss of cerebral
auto-regulation, leading to malignant brain swelling and marked increase in intracranial
pressure.) See also Robert C. Cantu, Return to Play Guidelines After a Head Injury, 17
CLINICS IN SPORTS MED. 45 (detailing the pathophysiology of second-impact syndrome and
providing cases and illustrations).
43. Wojtys, supra note 41, at 677 (asserting that the concept of injury-induced
vulnerability is a major concern in the management of patients with head injuries). The true
incidence and impact of SIS remains a thorny issue as only 17 cases have been reported in
the literature, and only five cases had confirmed diagnoses of SIS. University of Virginia
Sports
Concussion
and
Second
Impact
Syndrome,
Health
System,
http://www.healthsystem.virginia.edu/internet/neurogram/neurogram1_4_concussion.cfm,
(last visited Jan. 26, 2008).
44. imPACT Test, http://www.impacttest.com/impactbackground.php (last visited
Jan. 30, 2008).
45. Id. The NFL entrusts team physicians with total discretion over return-to-play
decisions. See Press Release, National Football League, supra note 1.
46. See discussion infra Part V.A.1 (explaining the NFLs failure to warn players about
the long-term risks associated with suffering multiple concussions). Troy Vincent, former
NFL defensive back and current president of the NFL Players Association (NFLPA),
explained his lack of concussion knowledge: Im not even sure we athletes know what a
concussion is. . . . Outside of being knocked out, I stayed in the game. Mitchum, supra note
3.
47. AANS, supra note 36. See also Michael W. Collins et al., Current Issues in
Managing Sports-Related Concussions, 282 J. AM. MED. ASSN 2283, 2283 (asserting that the
determination of when a player should return to play after sustaining a concussion is a
significant public health issue).
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EEGs, although helpful in identifying other brain related concerns,48 are not
useful in identifying the effects of a concussion.49 Considering that
concussions are difficult to detect by way of CTs, MRIs, and EEGs, the
diagnosis, evaluation, and treatment of concussions are almost entirely based
on the nature of the incident and the players communication of his
symptoms to a treating clinician.50
NFL athletes should not return to play when post-concussion symptoms
persist and recovery is ongoing.51 Baseline testing is a scientifically accepted
measure of determining when a player should return to the playing field.52
The testing involves a series of quizzes and interviews administered by
athletic trainers that monitor an athletes orientation, memory, vision,
attention span, language, mental flexibility, and coordination.53 Baseline
testing provides a comparison between a players normal brain function
48. Skull fractures, hematomas, and contusions are examples of acute head injuries that
traditional neurological and radiologic procedures are capable of detecting. See imPACT
Test, supra note 44. The reason CTs, MRIs, and EEGs cannot detect even the most serious
concussions is that a concussion is a metabolic rather than structural injury. Id. Thus,
structural neuroimaging techniques are insensitive to the effects of concussion. Id.
49. See id. See also Press Release, University of Pittsburgh Schools of the Health
Sciences, Sports Concussion Research Using Functional MRI Provides Insight (Aug. 8, 2007),
available at http://www.sciencedaily.com/releases/2007/08/070806114252.htm.
50. See imPACT Test, supra note 44. See also discussion infra Parts III.A-B
explaining how the structure of NFL player contracts and the conflicted nature of team
physicians discourage players from disclosing their concussive symptoms to team trainers.
51. imPACT Test, supra note 44. In 1991, former Philadelphia Eagle Andre Waters
experienced a severe concussion in a game against the Tampa Bay Buccaneers. Schwarz,
supra note 12. On the ensuing flight home to Philadelphia, Waters experienced a seizure-like
episode. Id. The team later diagnosed the incident that occurred on the flight as body
cramps. Id. Waters returned to the playing field the following Sunday. Id. This type of
concussion treatment helps explain why Waterss brain tissue resembled that of an
octogenarian Alzheimers patient at the time of Dr. Omalus study. Cantu, supra note 4, at
223.
52. imPACT Test, supra note 44. The NFLs adoption of baseline testing is one of the
changes the league implemented in the wake of the 2007 Concussion Summit. See Press
Release, National Football League, supra note 1. The other substantive change worth
mentioning was the NFLs adoption of a whistle blower program that enables players to
complain anonymously if they feel pressured to return to play too soon after sustaining a
concussion. Id.
53. Hecht, supra note 42, at 50 (quoting Kevin M. Gusk et al., Epidemology of
Concussion in Collegiate and High School Football Players, 28 AM. J. SPORTS MED. 643-650
(2000)).
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tested at the beginning of the season against the players post-concussive

brain function.54
Arguably the most respected method physicians employ in making
return-to-play decisions involves what is known as the Cantu grading
system.55 In 1986, renowned neurosurgeon Dr. Cantu created a set of
guidelines to help facilitate clinicians return-to-play decisions.56 His
guidelines divide concussions into three grades.57 A Grade 1 concussion
involves no loss of consciousness and the period of post-traumatic amnesia
(PTA) lasts less than thirty minutes.58 A Grade 2 concussion usually
involves a loss of consciousness lasting less than five minutes and a PTA of
more than thirty minutes, but less than twenty-four hours.59 A Grade 3
concussion is the most severe, involving a loss of consciousness greater than
five minutes and a PTA longer than twenty-four hours.60 According to Dr.
Cantu, a players season should be terminated if he sustains two to three
concussions in one season. Thus, Dr. Cantu would disagree with the NFLs
assertion that there is no magic number for how many concussions is too
many.61
Dr. Cantus return-to-play guidelines and baseline testing reduce the
subjectivity of concussion diagnosis and return-to-play decisions. However,
both tools leave NFL trainers with an inordinate amount of discretion in
diagnosing, managing, and treating concussions. Dr. Cantu, founder of the
renowned grading guidelines, stated himself that [t]here isnt a [scientific]
54. See imPACT Test, supra note 44. The baseline study adopted by the NFL is
referred to as the ImPACT Test. It is a computer based testing program specifically
designed for the management of sports-related concussions. Id.
55. See Cantu, supra note 42, at 45.
56. Id. at 53-55.
57. Id.
58. Id. After one Grade 1 concussion, a player may return to play after one week if
asymptomatic. CHRISTOPHER NOWINSKI, HEAD GAMES: FOOTBALLS CONCUSSION CRISIS 147
(2007). After suffering a second Grade 1 concussion in the same season, a player may return
to play in two weeks if asymptomatic. Id. If a player suffers a third Grade 1 concussion in the
same season, his season should be terminated. Id.
59. Cantu, supra note 42, at 53-55. After a Grade 2 concussion, a player may return
after one week if asymptomatic. NOWINKSI, supra note 58, at 147. After suffering two Grade 2
concussions, a player should sit out for a minimum of one month, and should consider
terminating his season. Id. If a third Grade 2 concussion occurs, the players season should be
terminated. Id.
60. Cantu, supra note 42, at 53-55. When a player incurs a Grade 3 concussion, he
should sit out a minimum of one month. NOWINKSI, supra note 58, at 147. If the player suffers
a second Grade 3 concussion, his season should be terminated. Id.
61. See Press Release, National Football League, supra note 1 (emphases added).
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marker of concussion.62 Rather, Dr. Cantu found that the diagnosis of a

concussion is entirely a clinical judgment call.63
III. FACTORS THAT EXACERBATE THE CONCUSSION EPIDEMIC IN THE NFL
To illustrate how players and trainers disagree about the actual number
of player concussions sustained throughout an NFL season, surveys of
trainers approximate that 5% of players suffer a concussion each season,
while studies relying on symptom reports from players put that figure
between 20% - 50%.64 Given that the NFL specifies that all return-to-play
decisions should be made by [the] team medical staff,65 team trainers hold
the long-term mental health of NFL players in the palm of their hands. In
light of the conflicted interests that burden several NFL trainers,66 the
enormous discretion trainers hold over concussion diagnosis, treatment, and
return-to-play decisions is a scary proposition.67
62. Mitchum, supra note 3.

63. Id.
64. Id.
65. Press Release, National Football League, supra note 1.
66. See discussion infra Part III.A (discussing various conflicts of interest that impede
NFL trainers return-to-play decision-making abilities). The American Medical Association
(AMA) specifically obliges physicians to avoid conflicts of interest: Under no
circumstances may physicians place their own financial interests above the welfare of their
patients. COUNSEL ON ETHICAL AND JUDICIAL AFFAIRS, AM. MED. ASSN, CODE OF MEDICAL
ETHICS 8.03 (2004-2005), available at http://www.ama-assn.org/ama/pub/physicianresources/medical-ethics/code-medical-ethics/opinion803.shtml.
67. Physicians operate under a number of professional codes and regulations that
delineate their professional responsibilities to their patients. Steve Calandrillo, Sports
Medicine Conflicts: Team Physicians vs. Athlete-Patients, 50 ST. LOUIS U. L.J. 185, 188
(2006) (elaborating on the many negative consequences that occur in a system that divides a
medical providers loyalty between patient-athletes and team management). Healthcare
providers are bound not to let any other interest interfere with that of the patient in being
cured. Id. at 189 (quoting Hans Jonas, Philosophical Reflections on Experimenting with
Human Subjects, 1969 DAEDALUS 219, 238). The original version of the [Hippocratic] Oath
stated that physicians must endeavor to prevent harm and injustice to their patients. Id. The
AMA emphasizes that a physicians paramount concern must be the well being of her patient.
See COUNSEL ON ETHICAL AND JUDICIAL AFFAIRS, supra note 66.
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A. Trainer Conflicts
The conflicted interests that burden many NFL trainers exacerbate the
NFLs concussion problem.68 An emerging practice in sports medicine
involves medical providers auctioning off the right to be an NFL teams
official medical provider, hospital, or physician-group.69 The privilege of
being selected comes with the right to advertise in ones promotional
materials that her group has been named the official healthcare provider of
a particular team.70 In return, the team is provided with medical care for free
or at reduced cost.71
NFL players are the victims of this pay-to-play system as they receive
medical care compromised by the financial interests of NFL trainers.72 It is
no secret that the NFL is a business, and an extremely successful one at that.
When trainers are intertwined with team management, their medical
decisions become clouded by the number one money-making criterion in the
NFL business: winning. In order for teams to maximize profit through
winning games, it stands to reason that coaches and management place
incredible pressure on trainers to return their most talented athletes to the
68. The Collective Bargaining Agreement between the NFL and the NFLPA stipulates
that all teams shall provide for a physician to be available to players. NFL COLLECTIVE
BARGAINING AGREEMENT 2006-2012, art. XLIV, 1, at 197 (2006) [hereinafter NFL CBA],
available at http://www.nflpa.org/pdfs/Agents/CBA_Amended_2006.pdf (follow CBA
hyperlink; then follow CBA download hyperlink) (last visited Aug. 9, 2009) (Each Club
will have a board-certified orthopedic surgeon as one of its Club physicians. The cost of
medical services rendered by Club physicians will be the responsibility of the respective
Clubs.).
69. Calandrillo, supra note 67, at 192. Dr. Dan Brock, director of Harvard Medical
Schools Division of Medical Ethics, criticized these arrangements as unseemly and
lamented the clear conflict of interest created. Bill Pennington, Sports Turnaround: The
Team Doctors Now Pay the Team, N.Y. TIMES, May 18, 2004, at A1.
70. Calandrillo, supra note 67, at 193. Methodist Hospital, which provides medical
services to the NFLs Houston Texans, found that their association with the Texans is the
number-one driver of new calls from prospective clients. Id. (citing Pennington, supra note
69).
71. Calandrillo, supra note 67, at 192. These entrepreneurial arrangements began in
1995 with the expansion of the NFL into Jacksonville, Florida and Charlotte, North Carolina.
Id. [I]t is estimated that half of the major sports teams in the United States now have some
kind of financial or marketing arrangement to provide medical services. Id. at 193.
72. Dr. Andrew Bishop, physician for the Atlanta Falcons, threatened to resign if the
team entered a sponsorship agreement with a local hospital. Pennington, supra note 69.
Bishop is worried that if a physician is so desperate to become a trainer that hes willing to
pay to do it, then hes going to do whatever management wants to keep the job he paid for.
Id. This might include returning a player to the field before his concussive symptoms
completely disappear.
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playing field as soon as possible.73 Concussions might represent one of the

injuries that trainers send their patient-athletes back on the field with before
players are completely healed.74
Former New York Jets lineman Peter Kendall efficiently articulated the
conflict-ridden nature of team physicians return-to-play decisions: I see
guys playing in games that I dont think a personal advocate would allow
them to do[.] The doctor who is supposed to be looking out for you is also
the same guy who may put you into a game that the team has to win. Youre
mixing business with medicine.75 Thus, in three sentences, Kendall
summarized the risk involved with trainers practicing medicine under
conflicted financial and medical interests.
The physician-patient dynamic of the New York Jets presents a paradigm
conflict of interest.76 Dr. Elliot Pellman serves as both the Director of
Medical Services for the New York Jets and as NFL Concussion Committee
member.77 Because of Pellmans dual role, the Jets concussion policies and
procedures have drawn heightened scrutiny from outside observers.78
Pellmans management of the concussion Jets wide receiver Wayne
Chrebet sustained on November 2, 2003 triggered significant criticism from
73. In a deposition for a medical malpractice claim by a former player, New York
Giants coach Tom Coughlin candidly admitted that he can and will exert as much pressure on
the player and the doctors to get the player [back] on the field. Selena Roberts, Coughlins
Biggest Risk is Rejection, N.Y. TIMES, May 13, 2004, at D1 (detailing a cause of action
brought by Jeff Novak against the Jacksonville Jaguars and team physician Stephen Lucie).
74. Practicing sports medicine under conflicted interests might subject team trainers to
tort liability. [B]eyond professional regulation, healthcare providers face potential tort
liability for the medical services they render, and therefore must follow the relevant standard
of care in their treatment of athlete-patients. Calandrillo, supra note 67, at 189. [T]eam
physician[s] should perform with the level of knowledge, skill, and care that is expected of a
reasonably competent medical practitioner under similar circumstances, taking into account
reasonable limits that have been placed on the scope of the physicians undertaking. Id.
(quoting Joseph H. King Jr., The Duty and Standard of Care for Team Physicians, 18 HOUS.
L. REV. 657, 692 (1981)).
75. Schwarz, supra note 9 (examining the highly conflicted and scrutinized trainerpatient dynamic of the New York Jets) (emphasis added).
76. See id.
77. Id. Pellman has served as the Jets director of medical services since 1998, and
formerly chaired the NFLs Concussion Committee until February of 2007. Id. Pellman
remains a member of the Concussion Committee, albeit in a lesser role. Id.
78. Id. Dr. James P. Kelly, Chicago Bears neurologist from 1995-2003, claims that
[t]he Jets institutional silence [on concussions] persists because the team is tired of having
people scrutinize what they do[.] They arrogantly assume that theyre doing the right thing
when its obvious to outsiders that they mismanage situations, Chrebet being the prime
example. It looks like they have something to hide. Id.
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both scientists and players.79 In this November 2, 2003 game against the New
York Giants, Chrebets concussion left him face down in an unconscious
state for several minutes.80 Pellman elected to send Chrebet back into contact
during the same game despite Chrebets prolonged state of
unconsciousness.81 Chrebet was subsequently placed on injured reserve for
the remainder of the season.82 Chrebet, 34, has recently acknowledged that
he has bouts of depression and memory problems so severe that he cannot
make the routine drive from his New Jersey home to his Long Island
restaurant without a global positioning system.83
B. NFL Player Contracts Incentivize Players to Withhold Their Concussion
Symptoms
NFL player contracts do not guarantee player payment beyond the
season in which an injury occurs.84 Thus, if a player cannot pass his team
physical at the start of the season subsequent to his injury, the contract is
79. NOWINSKI, supra note 58, at 86-87. Chrebet sustained at least six concussions
during his Jets career from 1995 through 2005. Schwarz, supra note 9.
80. NOWINSKI, supra note 58, at 86-87.
81. Id. Pellman defended his decision to return Chrebet to play in the same game based
on a scientific [and] medical evaluation. Id. This justification lacks merit. As director of the
NFLs Concussion Committee at the time of the collision, Pellman was on constructive, if not
actual, notice of peer reviewed works such as Edward Wojtyss Concussion in Sports article.
See Wojtys et al., supra note 41. Wojtyss article clearly stated that when a player sustains any
period of unconsciousness, he is not to return to the field of play in the same game. Id. at 68081.
82. NOWINSKI, supra note 58, at 87. Pellman further defended his decision to return
Chrebet to play by alleging that he asked Chrebet whether he was okay. Id. at 88. See
contract discussion infra Part III.B (indicating why Pellmans latter defense is even less
credible than his first defense).
83. Schwarz, supra note 9. The most recent example of a Pellman return-to-play
decision scrutinized by players and scientists involved Jets wide receiver Laveranues Coles.
Id. Coles suffered two concussions within the past year. Id. Declining to classify the second
injury sustained by Coles as a concussion, Jets coach Eric Mangini described the injury: He
got hit in the head. Id. Manginis words lack a sense of urgency regarding his concern over
the short and long-term consequences of Coless concussions.
84. Paragraph nine of the NFL player contract provides in relevant part:
If Player is injured in the performance of his service under this contract . . . then
Player will receive such medical and hospital care during the term of his services of
this contract as the Club physician may deem necessary, and will continue to receive
his yearly salary for so long, during the season of injury only and for no subsequent
period covered by this contract, as Player is physically unable to perform the services
required of him by this contract because of such injury . . . .
See NFL CBA, supra note 68, app. c, 9 at 251 (emphases added).
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considered void and the athlete could end up paying medical expenses for a
lifetime of chronic work-related physical problems.85 Player contracts may
also be terminated at will if a team finds that another player can make better
contributions to the teams success.86 Thus, when the injury and at will
termination provisions of player contracts are viewed in conjunction, NFL
players possess negligible job security.
A sad consequence of the NFLs player contract scheme is the tendency
of players to withhold concussion symptoms from their trainers and team
management for fear of losing their jobs. Dr. Kenneth Podell, director of the
Sports Concussion Safety Program at the Henry Ford Health System,
summarizes the problematic situation: The pressure is intense; theres
always someone on the bench waiting to take your place.87
When team management becomes privy to a players concussion history,
the team holds all leveraging power in restructuring a players contract.
Players are faced with the following Hobsons choice: (i) accept a less
lucrative contract or (ii) face employment termination. Dan Morgan, former
Carolina Panthers linebacker, suffered at least five concussions during his
tenure with the Panthers.88 Faced with the alternative of termination, Morgan
agreed to restructure his $2 million roster bonus into payments of $125,000
for each game played. Beyond acknowledging the teams concerns about
subsequent concussions, the contract gave Morgan financial incentive not to
reveal any concussion for treatment.89
Even when a player is confident enough to disclose his concussive
symptoms to a team trainer, he will not likely refuse a coachs orders to
return to play for fear of losing his starting position in the lineup. A recent
example of this situation involved the New England Patriots franchise.90
While playing linebacker for the Patriots in 2002, Ted Johnson sustained a
85. See generally Frederic Pepe & Thomas P. Frerichs, Injustice Uncovered? Workers
Compensation and the Professional Athlete, in SPORTS AND THE LAW 18 (Charles E. Quirk ed.,
1996). The only portion of an NFL players contract that can be considered guaranteed is the
signing bonus. See NFL CBA, supra note 68, at 43 (No forfeitures of signing bonuses shall
be permitted, except that players and Clubs may agree . . . .).
86. See NFL CBA, supra note 68, at 41 ([A]ny Player Contract may be terminated if,
in the Clubs opinion, the player being terminated is anticipated to make less of a contribution
to the Clubs ability to compete on the playing field than another player or players whom the
Club intends to sign or attempt to sign . . . .).
87. E.M. Swift, One Big Headache, SPORTS ILLUSTRATED, Feb. 12, 2007, at 22.
88. Schwarz, supra note 9.
89. Id.
90. See Swift, supra note 87, at 22 (providing an overview of the current concussion
climate in the NFL).
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severe concussion. After Johnson discussed his symptoms with his team
trainer, the trainer advised Patriots coach Bill Belichick not to return Johnson
to contact play until he became asymptomatic.91
Belichick disregarded the trainers advice by continually sending
Johnson back into full contact practices.92 In defending his decision to return
Johnson to play against the trainers orders, Belichick said: If [Johnson]
felt so strongly that he didnt feel he was ready to practice[,] he should have
told me.93 The flaw in Belichicks logic is that it assumes Johnson was
confident enough in his job security to defy his coachs orders. If Johnson
informed Belichick of his inability to return to play, he would have
effectively terminated his own contract with the Patriots.
An additional contractual reason why players fear disclosure of their
concussion symptoms pertains to the grievance hearing process in player
contract disputes. When a player is released from his team because he proves
unable to pass his physical, the NFL CBA allows a player to file a grievance
with the league.94 Here, team management might call the trainer as a witness
to testify against the player filing the grievance.95 One of the special
defenses a team may employ in response to a player contract grievance is
that the player did not pass the physical examination administered by the
Club physician at the beginning of the pre-season training camp . . . . 96
Thus, a player suffering from undisclosed concussion symptoms has a
91. Id.
92. Id. Today, Johnson suffers from depression and cognitive difficulties he attributes to
the multiple concussions he sustained in 2002. Id. An unfortunate consequence of Johnsons
post-concussion syndrome is his addiction to the amphetamines that he takes to alleviate his
symptoms. Id.
93. Id. Ernie Conwell, former NFL tight end, argues that Belichicks defense is nave
because most players would refrain from telling their coach about concussion symptoms for
fear of being labeled soft head. Carpenter, supra note 13 (emphasis added). Conwell lacks
confidence in the NFLs recently implemented anonymous hotline procedure as he finds it
unlikely that player complaints will be kept in confidence. Id. Conwell explains the
fundamental reason why players withhold concussion symptoms: Bottom line, guys are just
thinking about job security. Dave Scheiber, Concussions on Their Minds, ST. PETERSBURG
TIMES, Aug. 5, 2007, at 1C (emphasis added).
94. NFL CBA, supra note 68, art. X, at 16. The NFL CBA defines an injury grievance
as: a claim or complaint that, at the time a players NFL Player Contract was terminated by a
Club, the player was physically unable to perform the services required of him by that contract
because of an injury incurred in the performance of his services under that contract. Id. at 28.
95. See NFL CBA, supra note 68, at 31. At the hearing, the parties to the grievance
and the NFLPA and Management Council will have the right to present, by testimony or
otherwise, any evidence relevant to the grievance. Id. (emphasis added).
96. Id. at 28. The concept of a physician testifying against a former patient-player is a
practice unheard of in any other doctor-patient relationship. Calandrillo, supra note 67, at 195.
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financial incentive to continue to withhold those symptoms from the team

trainer in order to pass the team physical and retain his job.97
IV. NFL CONCUSSION CASE LAW: THE MERRIL HOGE CASE
While concussion cases exist in the contexts of product liability,
insurance coverage, and traditional medical negligence, only one case on
record involves a plaintiff-athlete suing an NFL affiliated party.98 In August
of 2000, Merril Hoge received a successful verdict against his former trainer,
Dr. John Munsell.99 The case was one of first impression in that it
represented the first litigation focusing on an NFL physicians duty to warn
an athlete about the risks and dangers inherent in returning to sports
participation too quickly after sustaining a concussion.100
A. Background
Hoge played in the NFL for eight seasons as a running back with the
Pittsburgh Steelers and Chicago Bears.101 While playing for the Bears in an
August 22, 1994 preseason game against the Kansas City Chiefs, Hoge
97. Calandrillo, supra note 67, at 195. Another special defense to player grievances
provides in relevant part: player failed to make full and complete disclosure of his known
physical or mental condition when questioned during the physical examination. NFL CBA,
supra note 68, at 28. Consequently, it appears that players find themselves in a no-win
situation with regard to disclosure of their concussive symptoms. If they disclose, they will
potentially fail their physical and/or lose their roster spot to a player without a concussion
history; and if they neglect to disclose, their omission may be used as a special defense to their
grievance.
98. Hoge v. Munsell, No. 98 WL 0996 (Ill. Lake County Ct. July 5, 2000). See Hecht,
supra note 42, at 20 (covering the Hoge litigation in great detail and advocating for the
development of a meaningful set of guidelines for the management of sports related
concussions). Hecht argues that the scientific and legal communities should create a singular
set of concussion guidelines that would be admissible in a court of law and used by scientists
as an official standard of care. Id. at 63-64.
99. Hecht, supra note 42, at 29. Hoges trial was conducted before a county court
outside of Chicago, Illinois. Id. at 25 n. 47. Due to the fact there is no appellate record in the
case, much of Hoges story is reconstructed through anecdotal evidence, including newspaper,
magazine, and internet accounts. Id.
100. Hecht, supra note 42, at 30. See also Fred Mitchell, Hoges Suit vs. Ex-Bears
Doctor May Set Precedent, CHI. TRIB., July 18, 2000, at 5.
101. Hecht, supra note 42, at 25-26. Hoge currently works as an NFL game analyst for
ESPN. Tracy L. Ziemer, New Test Helps NFL Teams Detect Concussions, ABC NEWS
ONLINE, Jan. 26, 2009, http://abcnews.go.com/Sports/Story?id=99901&page=3.
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incurred a concussion he described as an earthquake.102 Hoge remained on

the field for the ensuing two plays, but eventually pulled himself out of the
game due to his concussive symptoms.103 Six weeks after sustaining the
August 22, 1994 concussion, Hoge suffered a second concussion in a
competition against the Buffalo Bills.104
Ten days after incurring the second concussion, Hoge continued to suffer
from post-concussion symptoms such as headaches, dizziness, lethargy,
drowsiness, and memory deficiency.105 As Hoge sat out several games
awaiting the results of his neurological exams, Bears management responded
to questions regarding Hoges mental health. According to this quote from
Coach Dave Wannstedt, Hoges concussive condition warranted little
concern from the organization: There is no damage or anything. Its just a
concussion.106 On October 14, 1994, Hoge retired from the NFL at the age
of twenty-nine due to post-concussion syndrome.107 In August of 1996, Hoge
filed suit against Bears team physician John Munsell for returning Hoge to
play prematurely.108
B. Hoges Claim
Hoge alleged that Dr. Munsell failed to warn him about the dangers and
risks of sustaining subsequent and more severe concussions, and negligently
allowed Hoge to return to competition without a follow-up exam.109 Hoge
102. Hecht, supra note 42, at 26.
103. Id. Hoge played in the following preseason game, but sat out for the final
preseason game due to persisting post-concussive symptoms. Id. Hoge had just signed a
lucrative $2.4 million free agent deal with the Bears after coming off a Super Bowl season
with the Steelers the prior year. Id.
104. Id. The concussion Hoge incurred against the Bills resulted from his execution of
a block. Id. As a bruising running back that stood six-foot-two inches and weighed 230
pounds, Hoge was used by both the Steelers and Bears to deliver crushing blocks against
rushing defensive linemen, linebackers, and defensive backs. These types of blocks often
result in violent collisions. Id. at 25-26. Although every player position is at risk of brain
concussion, quarterbacks, wide receivers, tight ends, and defensive backs have the highest
relative risks of sustaining a concussion. See Omalu, CTE Part I, supra note 5, at 131 (noting
that the relative risk of brain concussion in NFL players is associated with player position).
106. Hecht, supra note 42, at 27 (emphasis in original). See supra Title of Note.
108. Id. Hoge asserts that the films showed I was stumbling like I was drunk. Id.
109. Id. The exact language of the complaint alleges that Dr. Munsell was negligent
because he:
(a) Did not perform a neurological or other medical evaluation of the plaintiff prior to
allowing him to return to full contact football; (b) Did not provide medical care,
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maintained that Dr. Munsell breached a duty to exercise the skill and care of
a physician for a professional football team who undertakes the return-toplay decision authority for a player who has sustained a concussion . . . .110
Finally, Hoge argued that if he had been adequately apprised of his postconcussion condition, he would have refrained from returning to play until
he had completely recovered from the first concussion.111
C. Dr. Munsells Assumption of the Risk Defense
A majority of jurisdictions hold that athletes generally assume the risk of
sports injuries that are known, apparent, and reasonably foreseeable
consequences of athletic participation.112 However, injuries which result
from conduct on the playing field that are not reasonably foreseeable are of a
different nature.113 The conduct of a coach, trainer, or member of team
treatment, and evaluation of the plaintiff following the plaintiffs injury . . . ; (c) Did
not diagnose the continuing post-concussion signs and symptoms . . . resulting from
[Hoges] concussion; (d) Did not assure that a mental status exam and cognitive
testing was performed . . . following the concussion . . . and prior to allowing [Hoge]
to return; (e) Did not instruct the plaintiff about post-concussion signs and symptoms
to watch for from his second concussion . . . ; (f) Did not instruct the plaintiff of the
risk of sustaining another and more severe concussion by returning to play contact
football while suffering post-concussion symptoms; and (g) Did not refer [Hoge] to a
neurologist or other physician for a neurological evaluation following the injury.
Id. at 27 n.60 (quoting Plaintiffs First Amended Complaint at 3-6, Hoge v. Munsell, No. 98
WL 0996 (Ill. Lake County Ct. July 5, 2000)).
110. Id. (quoting Plaintiffs First Amended Complaint at 3, Hoge v. Munsell, No. 98
WL 0996 (Ill. Lake County Ct. July 5, 2000)). See also Tony Gordon, Bears Doctor Failed to
Provide Information, CHI. DAILY HERALD, July 20, 2000, at 5.
111. Id. (quoting Plaintiffs First Amended Complaint at 7, Hoge v. Munsell, No. 98
WL 0996 (Ill. Lake County Ct. July 5, 2000)). If Hoge was afforded an opportunity to fully
recover from his first concussion, he alleges that it would have enabled him to remain active
as a salary-earning NFL player. Id.
112. See Morgan v. State, 685 N.E.2d 202, 219 (N.Y. 1997) (holding that defendants
had a continuing duty to players to keep a playing net in good repair and that a torn net is
not sufficiently interwoven into the assumed risk category.).
113. Darryll M. Halcomb Lewis, An Analysis of Brown v. National Football League, 9
VILL. SPORTS & ENT. L.J. 263, 286 (2002). [T]his foreseeability is dependent upon factors
such as the nature of the sport involved, the rules and regulations which govern the sport, the
customs and practices which are generally accepted and which have evolved with the
development of the sport, and the facts and circumstances of the particular case. Id. at 28687 (quoting Hanson v. Kynast, 526 N.E.2d 327, 333 (Ohio 1987)) (emphasis added).
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management may amount to such careless disregard for the safety of others
as to create risks not fairly assumed.114
With regard to voluntary participation in a sport, the assumption of risk
doctrine imports a knowledge and awareness of the particular hazard that
caused the injury.115 Thus, if a player lacks adequate knowledge of the risks
attendant to returning to play before his concussion symptoms have subsided,
he cannot be considered to have knowingly and voluntarily assumed the
short and long-term risks of such injury. Dr. Munsell argued that [t]he
patient must assume part of the responsibility for his own recovery.116
Testifying for the defense, Dr. Michael Schafer stated that Hoge withheld
from the Bears the headache symptoms he experienced after his first
concussion.117 When asked why he withheld his concussion symptoms from
management, Hoge responded that he was afraid [the team] would not let
him play.118
D. Injuries Sustained, Damages Requested, and Jury Verdict
Hoge alleged that he was unable to fully attend to his ordinary duties for
nearly one year after the concussion and continues to suffer from permanent
post-concussion symptoms.119 He explained the most frightening aspect of
the injuries he sustained: The scary part . . . is worrying about becoming
114. Id. at 287.

115. Dillard v. Little League Baseball, Inc., 390 N.Y.S.2d. 735, 737 (N.Y. App. Div.
1977) (holding that a participant umpire assumed the risk inherent in playing a game with
youthful and inexperienced participants without wearing a protective cup.).
116. Hecht, supra note 42, at 28 (quoting Tony Gordon, Jury to Continue its
Deliberations Today in Hoge Case, CHI. DAILY HERALD, July 21, 2000, at 6). Dr. Munsell
added that Hoge had the duty to tell people he was not feeling well and [he] did not. Id.
117. Hecht, supra note 42, at 28. If the NFL contract system afforded Hoge greater
contractual security in the event of injury, he would have likely informed team management of
his symptoms after his first concussion.
118. Id. See also NFL Player contract discussion supra Part III.B.
119. Id. at 29 (citing Plaintiffs First Amended Complaint at 6-7, Hoge v. Munsell, No.
98 WL 0996 (Ill. Lake County Ct. July 5, 2000)). Hoges permanent damage includes
headaches, light sensitivity, and anger management problems. Id. at 29. Hoge claims that he
experiences difficulty reading two paragraphs of a newspaper without losing his
concentration. Id. For an entire year after Hoges second concussion, he was forced to carry a
slip of paper with his address and phone number on his person at all times. Id. See also
Outside the Lines: Concussions: What Doctors and Players Know and Dont Know (ESPN
television broadcast Oct. 27, 2000) (presenting a roundtable discussion regarding the risks and
ethical questions surrounding sport-related concussions and high-profile athletes).
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senile at 45 or 50. The doctors told me that I may have sped up something
that normally might happen at 75 or 80.120
Hoge requested $2.2 million as an estimate for lost earnings he incurred
as a result of his premature retirement from the NFL.121 The jury found in
favor of Hoge, awarding him $1.45 million for the two years remaining on
his Bears contract, and an additional $100,000 for pain and suffering.122
E. Implications of the Hoge Verdict
The Hoge casecoupled with the evidentiary link between multiple
concussions and cognitive declineprovides players with an incentive to
tackle the NFLs concussion policies through litigation. If a collection of
judgments begins to accrue, concussion leverage might shift in favor of
players. Such case law might enable players to openly disclose their
concussion symptoms and receive proper treatment for same without fear of
employment termination.
V. TOBACCO LITIGATION PROVIDES POTENTIAL TEMPLATE FOR PLAYERS
TO STRUCTURE CLAIMS AGAINST THE NFL
The similarity between the tobacco industrys efforts to downplay the
adverse health effects of cigarettes and the NFLs attempt to raise ambiguity
about the long-term cognitive consequences of multiple concussions is
striking. The most important similarity between these factual scenarios is that
the NFL and the tobacco industry both formed research committees to refute
the mounting evidentiary load that threatened the vitality of their products.123
120. Hecht, supra note 42, at 29 (emphases added).

121. Id.
122. See Rummana Hussain, Hoge Wins Lawsuit Against Doctor, CHI. TRIB., July 22,
2000, at 5. In reaching its verdict, the jury was unaware of the fact that Hoge collected $1
million from a personal insurance policy and $250,000 from a workers compensation claim.
Id. See also Hecht, supra note 42, at 29-30. A new trial was ordered upon appeal because
Hoges trial attorney violated discovery rules by failing to provide the defendant with a letter
from one of Hoges doctors. Calandrillo, supra note 67, at 199 n.95. See also $1.55M Verdict
Against a Football Doctor Reversed, NATL L.J., Apr. 2001, at A12.
123. See Cipollone v. Liggett Group, Inc., 683 F. Supp. 1487, 1490-91 (1988)
(explaining that several large scale cigarette manufacturers formed the Tobacco Industry
Research Committee (TIRC) in January 1954 to carry out their conspiracy to refute,
undermine, and neutralize information coming from the unbiased-scientific and medical
communities). See also Tagliabue, supra note 1 (discussing the formation of the NFL
committee on concussions in 1994).
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The NFL has proceeded in the same manner as the cigarette industry by
denying a causal link exists and discrediting the work of independent
scientists. Given the tremendous success plaintiffs realized in the tobacco
litigation,124 the NFL Concussion Committee should disclose the findings of
independent scientists that indicate a causal link between multiple
concussions and later-life cognitive decline. If such disclosure is made, the
potential litigation listed below can hopefully be avoided.125
A. Causes of Action Employed in the Cigarette Litigation Context
Most plaintiff complaints against the tobacco industry allege several
bases of recovery, relying on theories of strict liability, negligence, express
warranty, and intentional tort.126 These claims divide into five categories: (1)
design defect claims,127 (2) failure to warn claims,128 (3) express warranty
124. See, e.g., Philip Morris USA v. Williams, 549 U.S. 346 (2007). Punitive damage
awards as large as 79.5 million dollars were not uncommon in tobacco suits. Id. at 350. The
Court left the constitutionality of these massive damage awards unresolved, and remanded the
case to the Oregon Supreme Court to resolve a procedural question. Id. at 357-58. The damage
award was ultimately upheld by the Oregon Supreme Court. Williams v. Phillip Morris, Inc.,
176 P.3d 1255 (Ore. 2008), cert. granted, 128 S. Ct. 2904 (2008), and cert dismissed, 129 S.
Ct. 1436 (2009).
125. See infra Part V.A.2 for a discussion of the potential misrepresentation claim
NFL players might plead against the NFL for withholding the work of outside scientists from
its August 14, 2007 press release.
126. See Cipollone v. Liggett Group, Inc., 505 U.S. 504, 508-09 (1992) (holding that
various state-law damages actions against the tobacco industry were not preempted by a
federal statute).
127. Id. The design defect claims allege that cigarettes were defective because the
manufacturers failed to use a safer alternative design for their products, and because the social
value of their product was outweighed by the dangers it created. Id.
128. Id. The failure to warn claims allege both that the product was defective as a
result of [the industrys] failure to provide adequate warnings of the health consequences of
cigarette smoking and that [the industry was] negligent in the manner that [it] tested,
researched, sold, promoted, and advertised its cigarettes. Id. (emphases added) (citation
omitted).
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claims,129 (4) misrepresentation claims,130 and (5) conspiracy to defraud

claims.131
B. Distinctions Between Tobacco Litigation and Potential Player Suits
Against the NFL
While some of the facts and legal arguments employed in the tobacco
litigation might apply to a potential player suit against the NFL, several
critical distinctions must be addressed from the outset. First, the sizes of the
respective plaintiff pools differ enormously. If all current and former NFL
players merged to form one plaintiff class, its size would be dwarfed by the
number of plaintiffs that brought suit against the tobacco industry. Second,
plaintiff suits in the tobacco context are largely governed by product liability
concepts due to the consumer/manufacturer relationship between consumersmokers and cigarette manufacturers.132 Here, NFL players are neither
employees nor consumers of the NFL. Rather, players are third parties in
relation to the NFL.133
C. NFLs Assumption of a Duty to Take Reasonable Care
Once a defendant begins to render voluntary assistance, it undertakes a
duty to proceed with reasonable care.134 Thus, the defendant must make
129. Id. at 509-10. The express warranty claims allege that respondents had
expressly warranted that smoking the cigarettes which they manufactured and sold did not
present any significant health consequences. Id.
130. Id. at 510. The misrepresentation claims allege that the industry had willfully,
through their advertising, attempted to neutralize the federally mandated warning labels, and
that they had possessed, but had ignored and failed to act upon medical and scientific data
indicating that cigarettes were hazardous to the health of consumers. Id. (emphases added).
131. Id. The conspiracy to defraud claims alleged that the tobacco industry conspired
to deprive the public of such medical and scientific data. Id.
132. Because NFL players are not consumers of the NFL product, the design defect
and express warranty claims would prove inapplicable in a player suit against the NFL. See
supra notes 127, 129 and accompanying text.
133. The NFL has unsuccessfully argued that it is a single entity for antitrust purposes.
See generally Radovich v. NFL, 352 U.S. 445, 448-49 (1957) (suggesting in dicta that the
NFL violated antitrust acts by monopolizing and controlling organized professional football).
Instead, courts have held that NFL teams are separate economic entities engaged in a joint
venture. See, e.g., N. Am. Soccer League v. NFL, 670 F.2d 1249, 1252 (2d. Cir. 1982)
(drawing comparisons between football and soccer teams). Consequently, courts have held
that NFL players are employees of their respective teams, not the league. Id.
134. RESTATEMENT (THIRD) OF TORTS 43 (Tentative Draft No. 4, 2004). This
proposed section provides in relevant part:
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reasonable efforts to keep the plaintiff safe while the plaintiff is in the
defendants care.135 The NFL assumed a duty to proceed with reasonable
care in its dealings with league players when it voluntarily created its internal
committee on concussions. One could argue that the NFL breached this duty
of care when it failed to warn NFL players about the long-term cognitive
risks associated with multiple concussions.
1. Failure to Warn
A duty to warn arises when one should realize through special facts
within ones knowledge or a special relationship that an act or omission
exposes another to an unreasonable risk of harm through the conduct of a
third party.136 The NFLs voluntary creation of its internal Concussion
Committee created a special relationship between the NFL and NFL players.
When the NFL became aware of empirical evidence indicating a causal link
between multiple concussions and cognitive decline, it had a duty to disclose
these special facts/risks to players. Players justifiably rely on the NFL to
warn them of any and all risks found by the Concussion Committee during
the course of its research, because the committee arguably holds itself out as
the foremost authority on the matter.137
The NFL might argue that empirical evidence spanning from the 1920s
to the 1970s failed to put it on notice that multiple concussions cause later-
An actor who undertakes to render services to another that the actor knows or should
know reduce the risk of physical harm to the other has a duty of reasonable care to the
other in conducting the undertaking if: (a) the failure to exercise such care would
increase the risk of harm beyond that which existed without the undertaking, or (b)
the person to whom the services are rendered or another relies on the actor's
exercising reasonable care in the undertaking.
Id. (emphasis added).
135. Id.
136. See, e.g., RESTATEMENT (SECOND) OF TORTS 302B (1965) (A negligent act or
omission may be one which involves an unreasonable risk of harm to another through . . . the
foreseeable action of the other, [or] a third person . . . . ). Id. If a defendants relation to the
damage stems primarily from the fact that he could have prevented it or rescued the victim by
doing something rather than nothing, he is not held to a duty to take reasonable care, absent
special circumstances. RESTATEMENT (SECOND) OF TORTS 314 cmt. a (1965). Here, the
special circumstance is the duty the NFL assumed when it voluntarily created the NFL
committee on concussions.
137. By creating the committee in 1994, one could argue that the NFL created an
impression that it was taking ownership of the concussion problem on behalf of the players.
2009]
721
life cognitive decline.138 However, the NFL cannot escape the duty to warn
that was triggered at the 2007 Summit on Concussions.139 There, doctors
Omalu, Cantu, and Guskiewicz delivered face-to-face presentations to the
Concussion Committee about the causal link between multiple concussions
and cognitive decline.140 Thus, the NFL was put on actual notice about the
foreseeable risks of sustaining multiple concussions when the first
independent scientist presented his findings at the 2007 Summit.
Players could argue that, for a period of at least two years,141 the NFL
and its internal Concussion Committee not only failed to warn players about
the risks of sustaining multiple concussions, but potentially suggested that
incurring multiple concussions was safe and harmless.142 The NFL contends
that its assertions are supported by current research.143 Players might argue
that the NFLs material omission of facts144 and arguably false assertions
138. See supra Part I (discussing decades of scientific findings demonstrating a link
between multiple concussions and cognitive decline). The NFL might argue that head trauma
sustained by boxers and steeplechase jockeys is an unlike comparison to the concussions
sustained by NFL players.
139. See supra notes 13-16 and accompanying text.
140. Id. In sum, the NFL cannot plead ignorance as a defense to its failure to warn.
The NFLs response to this failure to warn claim will likely be an assumption of the risk
defense. This defense would likely prove unsuccessful because players must be aware of a risk
before they can assume the consequences. If the NFL denies the existence of risks associated
with multiple concussions, how could it logically defend that players assume these risks?
141. In 2005, Guskiewicz and Omalu published their first clinical and
neurolopathological studies on the causal link between concussions and cognitive decline. See
Guskiewicz et al., supra note 4; Omalu, CTE Part 1, supra note 5. Thus, the Concussion
Committee has been on constructive notice of this work for at least two years.
142. See Press Release, National Football League, supra note 1. The NFLs August 14,
2007 press release on concussions contained a question and answer section in which this
critical language was provided:
Am I at risk for further injury if I have had a concussion? Current research with
professional athletes has shown that you should not be at greater risk of further injury
once you receive proper medical care for a concussion and are free of symptoms.
If I have had more than one concussion, am I at increased risk for another injury?
Current research with professional athletes has not shown that having more than one
or two concussions leads to permanent problems if each injury is managed properly.
It is important to understand that there is no magic number for how many concussions
is too many.
Id. (emphases added). When asked for a response to this question/answer section of the NFL
press release, Dr. Guskiewicz responded: The first half of their statement is false . . . . And
the second part, if theyre managed properly? What does that mean? Schwarz, supra note 9.
144. The omission of the clinical and neuropathological studies of Guskiewicz, Omalu,
and Cantu is material because these studies all demonstrate that players are at a greater risk of
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transcend the boundaries of a failure to warn claim,145 and enter the

actionable territory of a misrepresentation claim.
2. Misrepresentation
The predicate of a misrepresentation claim is a duty not to make false
statements of material fact or to conceal such facts.146 In an action alleging
misrepresentation, a plaintiff must in general prove: 1) either a
misrepresentation or material omission of a fact by defendant,147 2) the fact
asserted was known by defendant to be false, 3) defendants assertion was
made intending that plaintiff rely on it, 4) plaintiff justifiably relied on the
misrepresentation or omission, and 5) plaintiff was injured as a result.148
further injury (i.e. cognitive decline) after suffering more than one concussion. See supra
notes 4, 5, 11, 23, 35, 42 and accompanying text.
145. The NFL Concussion Committee is aware that current research does not
categorically find that there is no magic number for how many concussions is too many.
Press Release, National Football League, supra note 1 (emphases added). Dr. Cantus wellrespected return-to-play guidelines explicitly state that players should terminate their season
after suffering between two to three concussions. See supra notes 58-60 and accompanying
text.
146. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 527 (1992). It is a fundamental
principle of tort law that fraud or deceit resulting in damages will give rise to a cause of
action. See, e.g., RESTATEMENT (SECOND) OF TORTS 525 (1977).
147. False representation is the most important element of a claim of common law
fraud. See, e.g., Noved Realty Corp. v. A.A.P. Co., 250 A.D. 1, 6 (N.Y. App. Div. 1937)
(suppression of a fact, coupled with a false impression, transcended shrewd trading and
entered the actionable domain of fraud). Essentially, fraud means deliberately producing a
false impression in the mind of an aggrieved party. Id. Express assertions are not the only
manner in which fraud can be perpetrated. Schemes and concealments may also constitute
actionable fraud. See, e.g., Hall v. Naylor, 18 N.Y. 588, 589 (1859) (concealing insolvency
with a design of procuring goods and not paying for same is fraud which renders a sale void).
A partial disclosure accompanied by a willful concealment of material and qualifying facts
can constitute a misrepresentation. See, e.g., Coral Gables v. Mayer, 241 A.D. 340, 341-42
(N.Y. App. Div. 1934) (failure to disclose vital facts may lead a jury to believe that fraud has
been committed). If a party speaks at all, it is obliged to make a full and fair disclosure. See,
e.g., Downey v. Finucane, 205 N.Y. 251, 264 (N.Y. 1912) (fraudulent intent on the part of an
author and publisher of a prospectus may be inferred from the falsity of the statements therein
contained and that alone).
148. See, e.g., Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 421 (1996). If
any of these elements are missing, plaintiffs claim fails. See McClurg v. State, 204 A.D.2d
999, 1000 (N.Y. App. Div. 1994) (a special relationship giving rise to a duty to impart
correct information could not be discerned from an arms length dealing between the parties
listed in the complaint).
2009]
723
NFL players could argue that the league misrepresented and omitted
material facts regarding the risks of sustaining multiple concussions.149 It
could be argued that the NFL omitted from its August 14, 2007 press release
the findings of Omalu, Cantu, and Guskiewicz that demonstrate a direct
correlation between concussions sustained in the NFL and later-life cognitive
decline.150 This concealment might have duped players into believing that
sustaining multiple concussions is safe, and that the NFLs committee
represents the only authoritative opinion on the matter.151 Players might
argue that what is worse than the NFLs concealment of material facts is its
arguably false statement that there is no magic number for how many
concussions is too many.152 Dr. Cantus authoritative return-to-play
guidelines clearly specify that a players season should be terminated when
he suffers between two to three concussions.153
149. American fraud theory can be summed up in its simplest form: [i]t is sufficient
to show that the defendant knowingly uttered a falsehood intending to deprive the plaintiff of
a benefit and that the plaintiff was thereby deceived and damaged. Channel Master Corp. v.
Aluminium Ltd. Sales, Inc., 4 N.Y.2d 403, 406-07 (N.Y.1958) One who fraudulently makes
a misrepresentation of [intention] for the purpose of inducing another to act or refrain from
action in reliance [thereon is liable for the harm caused by the others] justifiable reliance
upon the misrepresentation. RESTATEMENT (SECOND) OF TORTS 525 (1977).
150. See Press Release, National Football League, supra note 1; Cantu, supra note 4,
at 223; Guskiewicz et al., supra note 4, at 719; Guskiewicz et al., supra note 11, at 903;
Omalu, CTE Part I, supra note 5, at 128; Omalu, CTE Part II, supra note 5, at 1086.
151. This tactic is similar to the tobacco industrys campaign to create doubt in the
minds of the consumer as to smoking dangers. Cipollone v. Liggett Group, Inc., 683 F.Supp.
1487 (1988). Dr. Guskiewicz voiced his frustration about the NFLs stall and delay technique:
Theyre just trying to raise ambiguity when the science is becoming more and more clear.
Schwarz, supra note 9.
152. Press Release, National Football League, supra note 1 (emphases added). The
Cipollone court held that fraud claims in the tobacco context presented genuine issues of
material fact:
A jury might reasonably conclude [that the tobacco industry] intentionally and
willfully ignored [known health consequences]; that their so-called investigation into
the risks was not to find the truth and inform their consumers, but merely an effort to
determine if they could refute the adverse reports and maintain their sales.
Cipollone, 683 F.Supp. at 1491 (emphases added).
153. See supra notes 56-60 and accompanying text. This hypothetical litigation would
likely hinge on a courts determination of the expert methodologies at issue. Here, the players
might argue that the methodologies employed by the NFLs Concussion Committee lack
general acceptance by the scientific community. [A]n expert . . . may testify . . . in the form
of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the case. FED. R. EVID. 702 (emphasis
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Dr. Guskiewiczs studies indicate that the number of concussions

sustained in the NFL directly correlate to the probability of incurring
depression and/or cognitive decline.154 Again, the NFL cannot deny
knowledge of Dr. Guskiewiczs studies because he presented his work to the
NFLs Concussion Committee at the June 2007 Summit on concussions.155
Players relied on the information contained in the August 2007 press
release to represent a complete and accurate synopsis of the current
research on the topic.156 The language used in the press release likely
created player reliance on the NFL Concussion Committees findings: [w]e
want to make sure all NFL players . . . are fully informed and take advantage
of the most up-to-date information and resources as we continue to study the
long-term impact of concussions.157 If the NFL Concussion Committee
wanted players to be fully informed about the long-term impact of
concussions, why would it conceal from players the most up-to-date
information on the issue?158
The NFLs concealment and potential misrepresentation of the long-term
consequences of multiple concussions potentially exposed players to a
greater risk of incurring brain damage. By fostering a conception in the
minds of players that there is no magic number for how many concussions
is too many,159 the league possibly encouraged players to treat their
concussive conditions with less than due care. Rather than considering
retirement due to multiple concussions sustained in 2007 and subsequent
seasons, players likely dismissed the thought of retirement due to their
reliance on the NFLs assertion that multiple concussions cause no
permanent problems.160 Thus, several players might have aggravated their
concussive injuries by returning to play in reliance on the NFLs arguably
false assertions.
added). See also supra notes 30-34 and accompanying text (citing various methodological
flaws in the NFLs internal studies regarding the long-term consequences of concussions).
154. See supra notes 4, 11 and accompanying text. In response to the NFLs denial of
a link between multiple concussions and later life cognitive degeneration, Dr. Guskiewicz
made the following comment: The literature has proven it, we confirmed it in June in the
presence of their entire [concussion] committee, and I was flabbergasted that [the] statement
showed up in their literature. Schwarz, supra note 9.
155. See supra notes 13, 15 and accompanying text.
157. Id. (emphases added) (quoting NFL Commissioner Roger Goodell)
158. Id.
159. Id. (emphases added).
160. Id.
2009]
725
3. NFL Concussion Committee

Upon its creation, the NFL Concussion Committee was highly publicized
as the NFLs attempt to search for the truth, learn the risks of sustaining
multiple concussions, and report its findings to the general public, players,
and NFLPA.161 However, it appears that a central objective of the committee
is to refute the mounting proof implicating a causal link between multiple
concussions and later-life cognitive decline.162
The NFL Concussion Committee denies knowledge of a link between
concussions and cognitive decline and claims that several more years of
research are required to reach a definitive conclusion on the issue.163 When
the Concussion Committee anticipates studies and/or reports that will
implicate a causal link between concussions and cognitive degeneration, it
promptly publishes articles producing contrary findings.164 This combative
publishing technique was evidenced when the committee caught wind of Dr.
Guskiewiczs clinical studies, and immediately attempted to undermine his
findings.165 Similarly, the committee sought to refute Dr. Omalus
161. See supra note 1 and accompanying text.

162. See discussion supra note 142.
163. See Schwarz, supra note 12. Dr. Andrew Tucker, committee member and
Baltimore Ravens trainer, argues that [t]he picture is not really complete until we have the
opportunity to look at the same group of people over time. Id. NFL Spokesman Greg Aiello
articulates the Concussion Committees tobacco industry-like stall tactic: We are conducting
research on long-term effects of concussions that we hope will clarify this important issue.
Schwarz, supra note 9 (emphasis added). Aiello did not specify how many independent
scientific studies will definitively prove the long-term effects of concussions. Id.
164. The NFL, through its agent Dr. Pellman, published at least three articles denying
scientific results adverse to its position. See Elliot J. Pellman et al., Concussion in
Professional Football: Injuries Involving 7 or More Days Out Part 5, 55 NEUROSURGURY
1100 (2004) (finding that only 1.6% of concussions involved a prolonged post-concussion
syndrome); Elliot J. Pellman, et al., Concussion in Professional Football: Neuropsychological
Testing Part 6, 55 NEUROSURGURY 1290 (2004) (finding that NFL players did not
demonstrate evidence of neurocognitive decline after multiple [concussions] . . . in those
players out 7+ days); Elliot J. Pellman et al., Concussion in Professional Football: Recovery
of NFL and High School Athletes Assessed by Computerized Neuropsycholgical Testing
Part 12, 58 NEUROSURGURY 263 (2006) (finding that NFL players did not demonstrate
decrements in neuropsychological performance beyond one week of concussion).
165. Committee member Dr. Mark Lovell attacked Dr. Guskiewiczs clinical studies
by saying: We want to apply scientific rigor to this issue to make sure that were really
getting at the underlying cause of whats happening. . . . You cannot tell that from a survey.
Schwarz, supra note 12; supra notes 4, 11 and accompanying text.
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neuropathological findings rather than consider his work as valuable insight

into the causal link between concussions and cognitive decline.166
Dr. Ira Casson, co-chair of the NFLs Concussion Committee, suggested
that the studies of doctors Guskiewicz, Omalu, and Cantu lacked peer review
by asking, [w]hat medical journal or scientific journal [are their works]
published in? . . . If Dr. Omalu and his colleagues want to be taken seriously,
they should publish this information.167 Cassons attack is either confused
or uninformed as doctors Guskiewicz, Omalu, and Cantu have published at
least five articles in peer reviewed medical journals such as Neurosurgery. 168
4. Section 88
Players might argue that Section 88 of the 2006 NFL CBA serves as
the NFLs constructive admission that multiple concussions do, in fact, cause
later-life dementia. The Section 88 amendment provides that former
players may receive payment of up to $88,000 per year for their medical
claims specifically related to dementia.169 Section 88 is funded by the
various NFL Clubs,170 and jointly administer[ed] by the NFLPA and the
NFL.171
Prior to the adoption of Section 88, the late NFLPA executive director
Gene Upshaw denied a connection between concussions and cognitive
decline.172 In one instance, Upshaw responded to the complaints of former
166. Pittsburgh Steelers trainer and Concussion Committee member Dr. Joseph
Maroon argues that steroids, drug abuse, and other substances caused the damaged brain tissue
of former NFL players Webster, Long, and Waters. Carpenter, supra note 13; supra notes 4, 5,
12 and accompanying text. Committee member Dr. Ira Casson also attempted to undermine
Omalus studies, but on a different basis. Mihoces, supra note 13. Casson argued that suicide
is unfortunately one of the major causes of death. . . . Just because it happened to a few
football players doesnt mean its linked to football. Id.
167. Mihoces, supra note 13.
168. See supra notes 4, 5, 11, 42 and accompanying text. Dr. Omalu was taken aback
by the combative nature of the NFL Concussion Committee: I am not an adversary [of the
NFL or the Concussion Committee]. . . . I am simply reporting the scientific truth. Mihoces,
supra note 13.
169. NFL CBA, supra note 68, at 163 (Article XLVIII-D 88 Benefit) (emphasis
added). The Plan will reimburse . . . certain costs related to dementia. In no event will the
total payments to . . . an eligible player exceed $88,000 in any year. Id.
170. NFL Clubs will make advance contributions to the 88 Plan in an amount
sufficient to pay benefits and all administrative expenses approved by the 88 Board which are
not paid by the NFL Player Benefit Committee under Article XLVIII-E. NFL CBA, supra
note 68, at 163.
171. Id.
172. See Schwarz, supra note 12.
2009]
727
players suffering from dementia by saying that brain-damaged old-timers did

not pay his salary and can complain about me all day long for not
championing their cause.173 However, in response to the passage of Section
88 and mounting reports of NFL retirees suffering from dementia, Upshaw
changed his tone. 174 While speaking in front of the Alzheimers Association
of New York, Upshaw noted that he would probably be afflicted with
Alzheimers disease because of his playing days in the NFL.175 When
Upshaw smiled at the crowd after making this statement, he saw straight
faces and heard only silence.176
Section 88 is named for the number worn by John Mackey, a tight end
for the Baltimore Colts from the late 1960s to the early 1970s and a
member of the Professional Football Hall of Fame.177 In May of 2006,
Mackeys wife Sylvia wrote a three-page letter to former NFL commissioner
Paul Tagliabue explaining her husbands mental decline, the financial ruin it
would cause her, and how the Mackeys were not the only couple facing such
a crisis.178 She wrote that dementia is a slow, deteriorating, ugly, caregiverkilling, degenerative, brain-destroying tragic horror, and appealed to former
commissioner Tagliabue to help.179
Mrs. Mackeys own words demonstrate that Section 88 appears to
achieve a goal of limited liability: I have been approached many times by
lawyers who wanted to use me in a lawsuitI turned them all down. . . .
[Section 88] is better.180 These lawyers most likely approached Mrs.
Mackey because of her regular contact with about twenty wives of former
173. See Swift, supra note 87, at 22.

174. See Schwarz, supra note 12.
175. Id.
176. Id.
177. Alan Schwarz, Wives United by Husbands' Post-N.F.L. Trauma, N.Y. TIMES,
Mar. 14, 2007, at A1.
178. Id.
179. Id.
180. Schwarz, supra note 177, (emphasis added). NFL spokesperson Greg Aiello said
that the League would be aggressive in providing NFL families affected by dementia with
information about Section 88. See id. However, Aiello continues to deny the link between
concussions suffered in the NFL and later-life dementia by describing dementia as a condition
that affects many elderly people rather than only former NFL players. Id. Aiello is correct in
stating that NFL players are not the only demographic who suffer from dementia. However,
why would the NFL create a medical provision in the CBA specifically designed to remedy
the dementia problem in the NFL alumni base if the condition was not directly related to NFL
injuries?
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players also suffering from dementia,181 and probably recognized that Mrs.
Mackeys support would prove critical in forming a potential class-action
pool.182
What makes the implementation of Section 88 even more significant is
that prior to 2006, the NFL Plan (a medical plan for retired NFL players),
made only four payments in its entire history on medical claims related to
dementia.183 Since the adoption of Section 88, the NFL has distributed $5.5
million to 107 players pursuant to the plan.184
VI. RECOMMENDATIONS
This Note paints a bleak picture of the NFLs concussion crisis. In order
to configure potential solutions, several factors contributing to the problem
must be isolated. Violent collisions will always play an integral role in the
game of professional football. In turn, player concussions will inevitably
occur within the confines of NFL games. However, the methods in which
player concussions are diagnosed, managed, and treated can certainly be
revised. The following recommendations are intended to create a shift in
concussion policy leverage. If these critically needed changes are
implemented, NFL players and the game of professional football can only
benefit.
A. Remove Return-to-Play Decisions from Team Trainers
At present, the NFL entrusts team trainers with total discretion over
return-to-play decisions.185 Given the conflict-ridden nature of many NFL
181. Id. (detailing the contact Mrs. Mackey maintains with other retired NFL players
wives whose experiences are united by their husbands cognitive decline).
182. See FED. R. CIV. P. 23(a) (providing a list of the requirements needed to certify a
class for a class action suit).
183. See Oversight of the NFL Retirement System: Hearing Before the S. Comm. on
Commerce, Sci., & Transp., 110th Cong. (2007) (statement of Daryl Johnston, FOX Sports
Broadcaster
and
former
NFL
Player,
Dallas
Cowboys)
available
at
http://commerce.senate.gov/public/index.cfm?FuseAction=Hearings.Testimony&Hearing_ID
=453a85ee-b12c-41cf-ae6c-f3235655bc75&Witness_ID=7eada200-9db3-4da4-8e95b3fa278b08f9 (last visited Sept. 2, 2009).
184. Michael OKeeffe, Healing Begins for Ex-NFLers, NY DAILY NEWS, Sept. 6,
2009, at 8.
185. Press Release, National Football League, supra note 1. After a concussion, all
return-to-play decisions should be made by your team medical staff. See also RESTATEMENT
(SECOND) OF TORTS 308 (1965):
2009]
729
trainers,186 return-to-play decisions should be made by independent

physicians so that a players long-term cognitive health is not compromised
by a trainers short-term financial interests. Rather than merely granting
players the right to receive second medical opinions after sustaining a
concussion,187 the NFL should give independent medical providers sole
discretion over return-to-play decisions.
B. Enhanced Contractual Security
The NFL must provide enhanced contractual security to players in the
event of injury. The NFLs current player contract scheme maximizes the
risk of players incurring permanent cognitive problems because it
incentivizes players to withhold their concussion symptoms and play through
multiple concussive injuries.188 If players could disclose their concussive
symptoms without fear of losing their jobs, concussions could be treated
properly by allowing symptoms to completely disappear before returning-toplay.
C. Litigation
Potential player suits against the NFL and affiliated parties represents
another method in which players might effectuate a shift in concussion
policy leverage. The expert opinions of Guskiewicz, Omalu, and Cantu,
coupled with the Hoge case,189 might instill confidence in plaintiff attorneys
to file claims against the NFL. The Hoge and tobacco litigation provide
plaintiff attorneys functional blueprints from which they might craft possible
It is negligence to permit a third person . . . to engage in an activity which is under

the control of the actor, if the actor knows or should know that such person intends or
is likely to use the thing or to conduct himself in the activity in such a manner as to
create an unreasonable risk of harm to others.
Id. (emphases added).
186. See discussion supra Part III.A. At least one commentator feels that the NFL
should also ban physicians from advertising their affiliation with teams. This would alleviate
the problem of doctors engaging in bidding wars to service athletes at below market rates. See
Calandrillo, supra note 67, at 195. If doctors are separated from the conflicts and distractions
associated with gaining a PR edge on their medical competitors, they could provide better
care for players suffering from concussions and other injuries. See id. at 195-96.
187. See NFL CBA, supra note 68, at 197 (A player will have the opportunity to
obtain a second medical opinion.).
188. See discussion supra Part III.B.
189. See supra notes 4, 5, 11, 42 and accompanying text. See also supra Part IV.D.
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failure to warn190 and misrepresentation191 claims. However, such litigation

might be avoided altogether if the NFL Concussion Committee simply
informs players of the link between multiple head impacts and later-life
cognitive decline.
D. Congressional Action
Congress has invested significant time and resources into professional
sports investigations. Examples of recent Congressional oversight into the
sports arena include an investigation into steroid use in Major League
Baseball,192 and more recently, a proposed investigation into spying
techniques employed by the New England Patriots coaching staff.193
The cognitive decline of former NFL players presents an issue
warranting at least as much attention as steroids in baseball and Super Bowl
cheating schemes. While litigation might allow the leverage pendulum to
sway in favor of players, Congressional oversight will be required to enforce
the implementation of revised concussion procedures.194
190. See supra Parts IV.B, V.A.1.
191. See supra Part V.A.2.
192. In October 2004, Congress passed the Anabolic Steroid Control Act of 2004
amending the Controlled Substances Act of 1970 to provide increased penalties for anabolic
steroid offenses near sports facilities. See generally Comprehensive Drug Abuse Prevention
and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236 (1970) (codified as amended in
scattered sections of 21 U.S.C.); Anabolic Steroid Control Act of 2004, Pub. L. No. 108-358,
118 Stat. 1661 (2004) (codified at 21 U.S.C. 802, 811(g)). See also Restoring Faith in
Americas Pastime: Evaluating Major League Baseballs Efforts to Eradicate Steroid Use:
Hearing Before the H. Comm. on Govt Reform, 109th Cong. 307 (2005) (statement of Dr.
Kirk Brower); Press Release, Report to the Commissioner of Baseball of an Independent
Investigation into The Illegal Use of Steroids and Other Performance Enhancing Substances
by Players in Major League Baseball (Dec. 13, 2007) (on file with author) available at
http://files.mlb.com/mitchrpt.pdf; Dana Milbank & Thomas Heath, McCain Threatens
Baseball Over Drugs, WASH. POST, Dec. 5, 2004, at A12 (in the wake of a widening steroid
scandal in professional baseball, Arizona Senator John McCain lobbied for the
implementation of a stricter steroid policy).
193. See Greg Bishop & Pete Thamel, Evidence of Discontent, N.Y. TIMES, Feb. 1,
2008, at D1 (reporting that Senator Arlen Specter asked NFL Commissioner Roger Goodell to
explain why the league destroyed evidence related to spying tactics utilized by the New
England Patriots).
194. Congressional enforcement of NFL concussion procedures will not only benefit
NFL players, but rather, American football as a whole. Organized football leagues from Pop
Warner to the NCAA will likely follow the rules and regulations imposed by the nations
foremost football organization. Merril Hoge stresses the importance of concussion awareness
at all levels of football: [A]ll playersfrom retirees to active players to those in youth
leaguesneed better education about the risks of brain trauma. Schwarz, supra note 12.
2009]
731
CONCLUSION
Professional football is a phenomenal sport that showcases the skills and
abilities of the worlds most talented athletes. The appeal of watching the
games best players collide at full speed has been central to the NFLs
mushrooming into a multi-billion dollar business. Unfortunately, concussions
are an inevitable consequence of many NFL collisions. Well respected
studies by the nations foremost experts demonstrate a causal link between
concussions sustained in the NFL and later-life cognitive decline. These
studies indicate that long-term damage associated with concussions is
mitigated if players allow their concussive symptoms to fully heal before
returning to play.
Players might argue that the league not only fails to warn players about
the causal link between multiple concussions and cognitive decline, but also
conceals scientific studies demonstrating same. If the NFL and its internal
Concussion Committee continue to assert arguably false facts, and conceal
the findings of outside scientists; players might target the league with a
comparable suit that struck the tobacco industry. However, litigation can
hopefully be avoided if the league simply informs players of the long-term
risks associated with concussions, revises the structure of player contracts,
and strips team trainers of return-to-play decisions. Finally, Congressional
oversight will be required to police the hopeful implementation of new
concussion procedures.
POSTSCRIPT
In 2008, Boston University Medical School and the Sports Legacy
Institute (SLI) created the Center for the Study of Chronic Traumatic
Encephalopathy (CSTE).195 The CSTE project is a living brain donation
program for college and professional athletes who agree to donate their
postmortem brain tissue to neuropathological analysis.196 Subjects of the
195. Boston University Alzheimers Disease Center: The Center for the Study of
Chronic Traumatic Encephalopathy (CSTE) Homepage, available at http://www.bu.edu/
alzresearch/research/encephalopathy/index.html (last visited Jan. 29, 2009). The non-profit
Sports Legacy Institute (SLI) was founded by Mr. Nowinski and Dr. Cantu in an effort to
advance the health and wellness of athletes, and the safety of athletic endeavors. Id.
196. Id. CSTEs research will include the following studies: CTEs neuropathology
and pathogenesis, CTEs clinical presentation, genetic and other risk factors for CTE, and
methods of preventing CTE. Id. Brent Boyd, former Minnesota Viking offensive lineman,
recently sent a letter to 2,000 retired NFL players imploring them to donate their brain tissue
to CSTE upon death. See Bob Hohler, Major Breakthrough in Concussion Crisis: Researchers
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study will complete a yearly interview with study staff during their lifetime
describing their athletic concussion history, educational, occupational, and
medical history, and current cognitive symptoms.197 As of Super Bowl
Sunday 2009, at least ten NFL alumni agreed to donate their brain tissue to
the CSTE project.198
On the morning of February 6, 2008, the NFL community received
troubling news regarding the accidental death of one of its alumni.199
Responding to a 911 call, Missouri City police found the body of former
Houston Oiler linebacker John Grimsley.200 Detective Steve Glave described
the gunshot cause of death as follows: This does not appear to be a crime of
violence. [Rather, ] [i]t appears to be a very tragic accident.201
When reports of a potential link between multiple concussions and the
early onset of cognitive decline began to surface in the media; Grimsleys
widow, Virginia, discussed the troubling topic with her husband.202 During
these conversations, Grimsley told his wife that he sustained at least nine
concussions during his nine season NFL career.203 Approximately five years
before Grimsleys death, he began to exhibit the irritability and short-term
memory problems that are considered early behavioral manifestations of
CTE.204
Find Signs of Degenerative Brain Disease in an 18-Year-Old High School Football Player,
BOSTON GLOBE, Jan. 27, 2009, available at http://www.boston.com/sports/other_sports/
articles/2009/01/27/major_breakthrough_in_concussion_crisis/ (last visited Jan. 29, 2009).
Boyd, 51, played six seasons for the Vikings in the 1980s, and suffers from post-concussion
disability. Id.
197. Boston University Alzheimers Disease Center, supra note 201. CSTE recently
received a $250,000 grant from the National Operating Committee on Standards for Athletic
Equipment, which aims in part to improve helmet safety. Hohler, supra note 196.
198. Alan Schwarz, 12 Athletes Leaving Brains To Researchers, N.Y. TIMES, Sept. 24,
2008, at D1. Some of the players agreeing to leave their brain tissue to science include: Joe
DeLamielleure, Willie Wood, Dan Pastorini, Ken Gray, Harry Jacobs, Mel Owens, Chad
Levitt, Willie Daniel, Wayne Hawkins, and Ralph Wenzel. Hohler, supra note 196.
199. Ex-Houston Oiler dies in shooting accident, WFAA.com, Feb. 6, 2008, available
at www.wfaa.com/sharedcontent/dws/wfaa/latestnews/stories/wfaa080206_mo_formeroiler.
97e82ea8.html.
200. Id.
201. Id. Grimsley is survived by his wife and two college-age sons. Id.
203. Id. Grimsleys NFL career spanned from 1984 through 1993. Id.
204. Id. See supra note 8 and accompanying text (providing a brief historical sketch of
CTE, as well as some of the clinical and neuropathological symptoms of CTE). Virginia
Grimsley cites the following example as one of Grimsleys short-term memory problems: I
would tell him what to get at the store two miles away, and hed forget and have to call me
from there to ask. Id.
2009]
733
Virginia Grimsley agreed to donate her husbands brain tissue to CSTE

in the hope that current athletes and their families might avoid similar
problems.205 Grimsleys brain tissue confirmed the pathological signs of
extensive CTE, such as neurofibrillary tangles.206 The central significance of
this is that Grimsley represents the fifth NFL player out of six studied to
present with neuropathological signs of CTE.207
Three months after the NFL community received the sad news of
Grimsleys death, grim news of another tragedy surfaced in the national
media. Former Cornell University and Tampa Bay Buccaneer offensive
lineman Tom McHale died on May 25, 2008, of an accidental combination
of oxycodone and cocaine.208 McHales death shocked many former
teammates and players who remembered him as an intelligent and
responsible man.209
According to McHales widow, Lisa, her husbands chronic shoulder and
joint pain prompted his consumption of improperly large doses of the
painkiller OxyContin.210 McHales OxyContin consumption exacerbated his
preexisting lethargy and depression.211 In an effort to offset the lethargy and
205. Schwarz, supra note 198. Virginia explained her reasoning in donating her
husbands brain tissue as follows: John helped people his whole life. . . . Even though hes
gone, hell still be helping people. Id.
206. Jamie Talan, New Report Links Sports Concussion to Chronic Traumatic
Encephalopathy: Athletes Pledge to Donate Tissue for Brain Bank, 8 NEUROLOGY TODAY 12,
12-13 (2008), available at http://www.aan.com/elibrary/neurologytoday/?event=home.show
Article&id=ovid.com%3A%2Fbib%2Fovftdb%2F00132985-200810020-00008 (explaining
that Grimsleys postmortem tissue showed extensive evidence of CTE, and describing that
investigators at Boston University linked the condition to his past history of concussions).
207. Schwarz, supra note 198. Former Philadelphia Eagle Andre Waters, and former
Pittsburgh Steelers Mike Webster, Terry Long and Justin Strzelczyk were the first four NFL
alumni whose postmortem brain tissue presented signs of CTE. See supra notes 5-8 and
accompanying text. The only former player whose brain tissue did not show signs of CTE
upon examination was former NFL running back Damien Nash. Schwarz, supra note 198. Mr.
Nash died last year at 24 after collapsing while playing basketball. Id.
208. Alan Schwarz, Sixth N.F.L. Players Brain is Found to Have Damage, N.Y.
TIMES, Jan. 28, 2009, at B11. McHales NFL tenure spanned from 1987 through 1995. Id.
209. Id. McHale was 45 years of age at the time of his death, and was survived by his
wife and three sons, ages 14, 11, and 9. Hohler, supra note 196.
211. Id. McHale did not inform his wife whether he sustained any concussions in the
NFL. Id. However, McHales depression and lethargy might represent clinical manifestations
of CTE. See supra note 11 and accompanying text (detailing Dr. Guskiewiczs 2007 study
targeting the link between multiple NFL concussions and depression). Dr. McKee stated that
McHales drug use could not have caused the neuropathological signs of CTE evidenced in
his brain tissue. Schwarz, supra note 208.
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depression, McHale resorted to cocaine.212 Unfortunately, McHales drug use

spiraled downward, necessitating three tours through drug rehabilitation.213
Lisa McHale donated her husbands brain tissue to CSTE in the hope
that the study would turn peoples heads, and create greater awareness
about the significant brain injury that casts huge implications on NFL
players health. Dr. Ann C. McKee, an associate professor of neurology and
pathology at Boston University Medical School, and co-director of CSTE,
performed the post-mortem studies on both Grimsley and McHale.214 McKee
found that McHales brain tissue showed distinctly similar signs of CTE to
those discovered in Grimsleys brain tissue.215 The director of
neuropathology at Massachusetts General Hospital, Dr. E. Tessa HedleyWhyte, confirmed McKees findings.216
As a physician who has conducted postmortem exams on thousands of
brain samples, Dr. McKee claims that she has never seen [CTE] in the
general population.217 Instead, McKee claims that she has only discovered
CTE findings in these [NFL] athletes.218 Consequently, McKee is
convinced that the six NFL brain samples constitute unequivocal evidence
that on-field impacts are the primary cause of the [players brain] damage.219
Dr. Daniel Perl, director of neuropathology at Mount Sinai Medical School
in New York,220 agrees with Dr. McKee about the medical significance of the
Grimsley and McHale studies: I think with a sixth case identified, out of six,
for a condition that is incredibly rare in the general population, there is more
212. Id.
213. Id.
214. Peter Keating, Autopsy Reveals Sixth NFL Player Suffered From Head TraumaRelated Brain Damage, ESPN.com, available at http://sports.espn.go.com/espnmag/story?
id=3864380. Dr. McKee will publish a paper detailing her studies of Grimsley and McHale.
Schwarz, supra note 208. McKee estimates that this piece could appear in peer reviewed
journal by May, 2009. Id.
215. Hohler, supra note 196.
216. See Schwarz, supra note 208. CSTE researchers informed Lisa McHale that CTE
likely aggravated her husbands attempt to overcome his addiction to painkillers. Hohler,
supra note 196.
217. Hohler, supra note 196.
218. Id. All six NFL players diagnosed with CTE died in a disturbing manner: (i)
McHale, 45, accidental drug overdose, (ii) Grimsley, 45, accidentally shot himself, (iii)
Waters, 44, self-inflicted gunshot, (iv) Webster, 50, dogged by depression, drug abuse, and
homelessnessheart attack, (v) Long, 45, committed suicide by drinking antifreeze, and (vi)
Strzelczyk, 36, driving at a high rate of speed collided head-on with a truck as police pursued
him after he left the scene of a previous accident. Id.
220. Schwarz, supra note 208. Dr. Perl is not affiliated with the Boston University
group. Id.
2009]
735
than enough evidence that football is . . . strongly related to the presence of

[CTE] pathology.221
In response to this recent flurry of independent studies, the NFL
characterized each study as an isolated incident from which no conclusion
can be drawn. Dr. Ira Casson, NFL Concussion Committee member and
Long Island Jewish Medical Center neurologist, stated he would not react to
the McHale and Grimsley studies until CSTEs findings appear in a peerreviewed scientific journal:
Its very hard to react to . . . case studies that are not presented in
appropriate, scientific form and have not gone through peer review. . . . I
think that there are many questions that still are out there as to whether there
is a . . . traumatic encephalopathy associated with football. I think we dont
know. I think that there is not enough scientific evidence to say that there
222
is.
Perhaps Casson will respond to the McHale and Grimsley studies in 2009
when McKees forthcoming paper is published in a peer-reviewed scientific
journal.
In defense of the NFLs attempt to raise ambiguity about the link
between multiple concussions and later-life cognitive decline, Jeff Pash, NFL
executive vice president for labor, made the following comment: There are .
. . many people who have played football and other contact sports for many
years [who] do not appear to have suffered these types of deficits. Whether
its President Ford or major business leaders, [or] people on television.223
Dr. Perl criticizes Pashs logic on the basis that many members of a group
not having a condition is irrelevant to the question of how many do have it,
and why.224
The NFL is currently conducting its own internal study to determine if
there are any long-term effects of concussions on NFL athletes. NFL
221. Id.
223. Id. In response to the Grimsley findings and the brain-donation program at
Boston University, NFL spokesperson Greg Aiello made the following statement: [T]here
continues to be considerable debate in the medical community on the precise long-term effects
of concussions and how they relate to other risk factors. See Schwarz, supra note 198.
224. Schwarz, supra note 208. Dr. Perl supported his logic with the following
hypothetical: Lets say 20 percent are susceptible to something80 percent are not going to
show anything. . . . But if 20 percent have what should otherwise be a very rare condition, and
that could be the case here, you cant rely on the 80 percent to suggest there is no problem.
Id.
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[Vol. 40:697
spokesman Greg Aiello estimates that the findings will be published in 2010,
but Pash pushed Aiellos estimate back to roughly 2011 or 2012.225 If
previous NFL publications on this issue serve as any indication, the
Concussion Committees forthcoming article will likely attempt to
undermine the studies of independent scientists as lacking scientific rigor,
and refute any causal link between multiple concussions and cognitive
decline.226
Researchers at Boston University Medical School question the NFLs
forthcoming study on the basis that it lacks proper independence. Dr. Robert
Stern, a neurologist and co-director of the BU brain study center articulates
this inherent conflict of interest: Its hard for the NFL to do its own research
because they have an implicit conflict of interest. . . . Thats not to say I
dont trust them, but its like trusting the tobacco industry to do its own
research on the link between cigarettes and lung cancer.227 Thus, in two
sentences, Dr. Stern crystallizes the central message of this Note.
225. Schwarz, supra note 198; Schwarz, supra note 208.

226. See supra notes 163-168 and accompanying text (explaining that when the NFL
and its Concussion Committee anticipate studies and/or reports that will implicate a causal
link between concussions and cognitive degeneration, they promptly publish articles
producing contrary findings).
227. Hohler, supra note 196 (emphases added). See also supra notes 123-126 and
accompanying text (analogizing the tobacco industrys efforts to downplay the adverse health
effects of cigarettes and the NFLs apparent attempt to raise ambiguity about the long-term
cognitive consequences of multiple concussions).

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ITS JUST A CONCUSSION: THE NATIONAL FOOTBALL

LEAGUES DENIAL OF A CAUSAL LINK BETWEEN

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Clinical and neuropathological studies by some of the nations foremost

ITS JUST A CONCUSSION

concluded that Chronic Traumatic Encephalopathy (CTE) triggered by

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ITS JUST A CONCUSSION

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Seminal neurological studies performed in the 1970s identified the

ITS JUST A CONCUSSION

II. CONCUSSIONS IN THE NFL: DEFINITIONS, SYMPTOMS, DIAGNOSIS, AND

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ITS JUST A CONCUSSION

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tested at the beginning of the season against the players post-concussive

ITS JUST A CONCUSSION

marker of concussion.62 Rather, Dr. Cantu found that the diagnosis of a

62. Mitchum, supra note 3.

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playing field as soon as possible.73 Concussions might represent one of the

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ITS JUST A CONCUSSION

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ITS JUST A CONCUSSION

financial incentive to continue to withhold those symptoms from the team

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incurred a concussion he described as an earthquake.102 Hoge remained on

ITS JUST A CONCUSSION

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114. Id. at 287.

ITS JUST A CONCUSSION

120. Hecht, supra note 42, at 29 (emphases added).

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ITS JUST A CONCUSSION

claims,129 (4) misrepresentation claims,130 and (5) conspiracy to defraud

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ITS JUST A CONCUSSION

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transcend the boundaries of a failure to warn claim,145 and enter the

ITS JUST A CONCUSSION

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Dr. Guskiewiczs studies indicate that the number of concussions

ITS JUST A CONCUSSION

3. NFL Concussion Committee

161. See supra note 1 and accompanying text.

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neuropathological findings rather than consider his work as valuable insight

ITS JUST A CONCUSSION

players suffering from dementia by saying that brain-damaged old-timers did

173. See Swift, supra note 87, at 22.

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trainers,186 return-to-play decisions should be made by independent

It is negligence to permit a third person . . . to engage in an activity which is under

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failure to warn190 and misrepresentation191 claims. However, such litigation

ITS JUST A CONCUSSION

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ITS JUST A CONCUSSION

Virginia Grimsley agreed to donate her husbands brain tissue to CSTE

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