Tackling the Concussion Issue: Can the NFL Protect Both Its Players and Its Product?

Football historians report that President Theodore Roosevelt called representatives from Harvard, Princeton and Yale to the White House in 1905 and said he would ban the game of football if they didn’t stop the brutality which, in that year alone, had caused 18 deaths and more than 150 severe injuries. He was especially outraged by a tactic called “the flying wedge,” in which 10 football players on the receiving team locked their arms together and created a V formation that would barrel down the field and crush anyone in its way.

Although players now wear much more sophisticated protective helmets and padding, and a host of rules are in place that prevent the routine slugfests and gang tackles of 100 years ago, football is still a violent game. Even more than that, of course, it is big business — The National Football League’s (NFL) revenues this year are projected at $8 billion.  

So what happens when the NFL’s main product — the game — comes under scrutiny for the very violence that makes it appealing to so many fans? Collisions between players have always caused visible injuries, ranging from broken bones to dislocated shoulders, that are considered the unavoidable byproducts of a rough sport. Now the invisible injuries — most notably, concussions — are getting attention as well. According to the latest medical research, concussions can trigger long-term consequences — including depression, cognitive dysfunction, dementia and Alzheimer’s disease — that often don’t show up for years after the initial hit. Furthermore, research is demonstrating that concussions are common not just among pros, but among college and high school players and even those as young as 12.

The issue gained enormous traction after three NFL players on October 17 sustained concussions from tackles so brutal that even hard-boiled game announcers were shocked. Two days later, the NFL fined three players a total of $175,000 for what it said were illegal hits to the head (although penalties were not called at the time) and said it would begin suspending players for helmet-to-helmet hits starting immediately.  

For the NFL, these health and safety concerns raise a number of questions: Was their response to the rash of concussions last week an over-reaction, or too little too late? How does the resulting publicity affect the long-term viability and popularity of the game? What legal issues are raised when players are paid to risk their long-term cognitive health?

Staying Number One

Relative to other sports, says Kenneth Shropshire, director of the Wharton Sports Business Initiative (WSBI), “the NFL has been a bit more agile in responding to recent events. That was part of [NFL Commissioner Roger] Goodell’s mission when he came on board” in 2006. Most of the issues he dealt with early on, Shropshire notes, were “off-the-field problems,” such as drug usage, assault and public intoxication. “Goodell developed a reputation for responding forcefully and quickly to crises. With the concussion issue, he basically said, ‘I don’t want to wait for a long study before taking action.’ It’s what crisis management experts say you should do: Respond truthfully, powerfully and then move on.” 

The NFL, however, has not always been ahead of the issue. For example, up until July 2010, a poster distributed by the NFL to its 32 member teams stated that the research so far “has not shown that having more than one or two concussions leads to permanent problems if each injury is managed properly,” according to an article by the Associated Press. The new poster has a different message: Traumatic brain injury “may lead to problems with memory and communication, personality changes as well as depression and the early onset of dementia … [which] can change your life and your family’s life forever.” An NFL physician acknowledges in the article that research in “just the last few months influenced the changes in wording.”

Derrick Heggans, managing director of the Wharton Sports Business Initiative, was employed by the NFL from 1998 to 2005, including a position as in-house counsel. “Like any company, the NFL is constantly looking at its product and at ways to improve it,” he says. “This is no different with regard to head trauma issues…. There are constant adjustments to the rules. For example, the mandatory inclusion of face masks to the helmets several decades ago was based upon what the NFL was seeing with respect to injuries.” Because players tend to be faster, bigger and stronger these days, “you are seeing more head trauma. So now, based on getting new information, the NFL has to adjust the rules to protect, not just the pro players, but college, high school, all the way down to Little League.”

According to Wharton management professor Lawrence Hrebiniak, thinking about the concussion issue strategically and long-term poses “a dilemma of sorts for the NFL. They should focus on the safety of the game, but by doing that, they could negatively impact the business side. The game’s major stakeholders — the fans — love violence. They are looking for the big hit. What is the NFL going to do? Hire slower players?” The bottom line is that “the NFL is doing the right thing by building in safety as much as possible,” Hrebiniak adds. 

In some sense, suggests Wharton marketing professor Eric Bradlow, the concussion issue “could be good press for the NFL because it reinforces that it’s a physical game, one that a lot of people watch because of its violent nature.” Recent injuries “emphasize the NFL as a set of pro athletes who are risking their livelihood. I don’t think this [controversy] is a game changer for the NFL. It’s another opportunity for them to say, ‘Look, here are some norms.’” General rules, he says, “don’t work because football is a subjectively regulated sport. So if you want to impose some sort of norms, then keep showing the players examples of which actions are unacceptable and which aren’t, and tell them why. Everyone learns by example.” 

Star Power

The rules announced last month by the NFL “are as much about business as anything else,” says Andrew Brandt, a lecturer in sports business at Wharton and president of the interactive site nationalfootballpost.com. “The rules are about keeping the most enhanced product possible out there. When you have your star players unavailable [because of injury], you are not only hurting the brand of the specific team, but the brand of the entire NFL. It is something that started years ago with rules added to protect the quarterback and to limit downfield contact on receivers, and now with this harsher application of existing rules about violent hits.” The renewed emphasis on safety, states Brandt, “is an added measure to try to keep your marketable stars in the game.”

Scott Rosner, Wharton practice professor of legal studies and business ethics and a WSBI affiliated faculty member, expands on this point: “I think about the issue along two different and related dimensions. First, the League obviously needs to address player health and safety, especially if they want to follow through on their idea to expand the regular season from 16 to 18 games. Second, health and safety as they pertain to concussions are directly related to the League’s business, in the sense that fans like to see offense; they like to see the best players on the field. That usually means the offensive players, who are more vulnerable to these types of concussive hits than defensive players. Nobody wants to watch a boring product. So this is sound business practice — to keep your product interesting. If the NFL is serious about minimizing these types of hits, and I think it is, then it can happen.”

The NFL has always made rules that benefit the offense in terms of protecting them and also allowing them to score more points, Rosner adds. “You used to be able to push and hit wide receivers all the way down the field. Now you have five yards in which you can hit them, and that’s it. The idea is to open up more vertical passing” and keep the game interesting.

The same thing happened with boxing, he says. “Inherently, [boxing promoters] are selling two people trying to beat each other up. But you still have to protect the athlete, and so they have gone to more padded gloves, 12 rounds vs. 15 rounds, and [changes are] usually in response to someone dying. Another example is the mixed martial arts Ultimate Fighting Championship. The sport is so violent that it is hard to get mainstream advertisers to support the product. So what [its promoters] have done is change the rules to make the sport safer, and more popular among a bigger fan base. Who wants to be associated with what John McCain called ‘human cock fighting?’”

In the case of football, will the NFL lose fans if it takes take away the violence? DVDs and videos are marketed as “the greatest hits,” and until recently, an image of smashing helmets appeared on screens at the beginning of pre-game shows, says Brandt. “So you have that dichotomy about protecting players yet also selling the violence. My sense is there is enough violence in the game — without the excessively violent hits [added in] — that people aren’t going to be turned away because they think it’s not violent enough. I know that football is not a contact sport; it’s a collision sport … a series of 120 train wrecks per game.”

That’s hardly news to the medical community.

The other name for concussion, says Douglas H. Smith, director of The Center for Brain Injury and Repair at the University of Pennsylvania, “is ‘mild traumatic brain injury,’ but it’s not mild in any way. It’s only mild compared to an injury for which someone is hospitalized.” The publicity of the last few weeks, he adds, “has already had a huge effect. Before, what was considered a rite of passage — being hit so hard that you get a concussion — is now seen as dangerous. People realize that after getting a concussion, a player may not be as fast in his mental reasoning or speed of processing. Although parents might want their son to be a football hero, now they are thinking, ‘Yes, but I also want him to go to college.’”

Smith says he hopes the scrutiny lasts because “traumatic brain injury is the number one risk factor for developing Alzheimer’s disease. Approximately 1.3 million people every year suffer a concussion or mild traumatic brain injury. Fifteen percent of that total have persistent cognitive dysfunction. That’s a big number.”

Acknowledging that you can’t “put a bubble around young people playing football,” Smith says you can still “teach them how to hit [safely], and you can consider using more advanced helmets. Some football players have helmets equipped with accelerometers which measure the rate the head is moving. If somebody has a peak head acceleration during play at levels known to induce concussion, they can be brought out of the game. These and additional prevention and treatment techniques are coming on line. But it’s happening slowly.”

Concerns over the most violent aspects of football are reinforced by an ongoing study at Boston University, where researchers have analyzed the brains of deceased football players and found traces of CTE (chronic traumatic encephalopathy), a degenerative brain disease that is caused by repeated blows to the head. As if to drive home the point, the chairman of the American Academy of Neurology’s sports neurology section recommended last week that a certified athletic trainer always be present at games and practices that involve both youth and adult players. The recommendation is a recognition of the fact that not only are the pro players bigger, stronger and faster than ever before, but college and high school players are as well.

Vicious, Violent and Legal?

Not surprisingly, the NFL and the NFL Players Association (NFLPA: the union representing the NFL players) see recent events differently. “The NFL has been addressing the concussion issue for years, going back to the mid-1990s when Commissioner [Paul] Tagliabue created a committee to study this,” says NFL spokesperson Brian McCarthy. “And Commissioner Goodell has led the way with research, advocacy among youth football” and studies on safer types of helmets. The response, he adds, “has continued to evolve as we learn more from the medical community.”

McCarthy acknowledges that some players were critical of the League’s actions last month. “They felt that the intent was to change the game. But the intent was to protect the players from themselves and to insure that they were simply playing by the rules…. We are not fining players for making hits that are within the rules. We are fining players for going outside the rules.”

Kevin Mawae, president of the NFLPA, isn’t buying it. In an interview with ESPN late last month, he stated that he would not support Goodell for “fining our players for making hits that are within the legal rules in the NFL game,” according to a report on nbcsports.com. “For the commissioner and for the NFL to say they are going to increase fines because hits seem to be vicious or violent — I think it’s ridiculous and I think the skirts needs to be taken off in the NFL offices.” 

Reaction from the players themselves to the NFL’s announcements of fines and suspensions ranged from concerns that the NFL is acting too aggressively to concerns that it is doing too little. Some players, for example, state that the League should only levy fines for hits that are intentional, while others point out that players who fail to come up with hard hits on receivers could be criticized by their coaches for not doing their job. Yet within the NFLPA, the issue is whether the League has at times turned a blind eye to player safety. “I think what you are seeing is a tremendous amount of frustration on the part of the players with what seems to be the NFL’s late arrival to the party when it comes to concern about concussions,” says Thom Mayer, medical director of the NFLPA.

For example, “for a long time, the official party line was that there was no relationship between concussions and depression,” he notes, referring to the revised poster acknowledging the link that was distributed in July. “My mantra has always been [to view] players as patients, not players as players or as property,” states Mayer, adding that the medical arms of both the NFL and NFLPA “have a very close relationship when it comes to making sure we are protecting the players to the maximum degree possible.”

Mayer says he doesn’t think “the players are anything other than concerned when it comes to health and safety, but there is frustration when it comes to the enforcement of rules that have been around for quite a while and haven’t been enforced.” At the time of the uproar a few weeks ago, for example, the NFL was selling pictures of some of the more violent hits on its web sites. (The pictures have since been taken down.) “It’s a culture of tremendous athleticism but also a culture of violence. Our job as physicians is to make sure our players are protected.”

The NFL’s ‘Workplace Environment’

Discussions about health and safety in the workplace — and about who is liable, or responsible, for injuries that employees receive while on the job — usually arise with regard to protections provided by OSHA, the Occupational Safety and Health Administration. “Looking at the words ‘safe’ and ‘healthy,’ ‘safe’ is the more old-fashioned concern about injuries that occur, for example, in industrial accidents. ‘Healthy’ is the idea that there could be conditions in the workplace that could cause an illness later on,” says Wharton professor of legal studies and business ethics Janice Bellace, citing carcinogens as an example.

The issue with football and concussions is that the state of medical knowledge is constantly improving, including the recent findings about concussions’ long-term impact on cognitive functions. In any discussion of liability, “the NFL would say they have always taken appropriate action based on the standard of care at the time,” Bellace notes. “The League would say they can’t be held responsible when it wasn’t known that injury was being caused by cumulative activity. I think that would be a sufficient defense.”

Could there be cases where a player might have a claim against the team or the NFL? “Only if the player could show he was not alert when he went back into the game,” Bellace suggests. If teammates testified, for example, to that condition and to the fact that a player was pressured to return to the field, this might be a line of argument — i.e., that it wasn’t a voluntary action and that it wasn’t an informed decision to go back in.” But in this instance, Bellace adds, “it seems that rather than try litigation or regulation, the best way forward is” the union and the League’s joint committee. “It needs to study this issue and set standards, especially given the competitive situation with League play. One team can’t do it on its own.”

Dan T. Moore sees the issue from a different perspective — the equipment. He is owner of a company called TeamWendy — started after the death of his daughter in a ski accident — that makes the insides of all U.S. Army and Marine Corps helmets. “Pro football is a public health cost,” he states. In most respects, the government deals with workplace injuries through OSHA, “and that has dramatically reduced injuries and illness, such as black lung disease. But for some reason, pro football is unregulated, which means a high percentage of pro football players are injured for life.” The NFL, he says, “has to decide what is a good helmet and what is a bad helmet. We need to have more of a dialogue.”

That brings up the subject of standards-setting organizations — groups like ASTM (originally known as the American Society for Testing and Materials) and NOCSAE (National Operating Committee on Standards for Athletic Equipment) — that decide on the specifications for everything from the leather on shoes to the helmets worn by football and hockey players. “These organizations are supposed to have consumer representation but, in fact, they have become top heavy with industry people,” especially manufacturers and manufacturers’ representatives, says Moore. “NOCSAE has specifications for newly manufactured football helmets, but they don’t really respond to what causes concussions.” 

Helmets are indeed in the news. The day before the three pro players were injured on October 17, a Rutgers football player was paralyzed from the neck down as he tried to make a routine tackle, leading with his helmet, in the fourth quarter against Army. And on November 7, DeSean Jackson, the Philadelphia Eagles player who was knocked out during one of the October 17 games, wore a new helmet designed to better absorb on-field impacts. Jackson, like some other players, had been wearing a helmet manufactured in the 1990s and later discontinued.

In Moore’s mind, there is room for a new kind of organization, “one that is made up of the customers, the medical community, scientists and, in the case of youth sports, mothers. Then you would see a change in the culture of football, a change in some of the rules, and a change in how helmets are made — not just the helmets but the face guard, the lubricity of the shell, the shoulder pads and so forth. NOCSAE has to be customer-oriented…. There is no reason that a lineman should wear the same helmet as a linebacker or a running back. The lineman should have a thicker helmet, and it shouldn’t be uniformly thick,” but should have more padding in some places than others. “A group has to think outside the box on this, and that group should be made up of people who do not have conflicts of interest.”

His advice to the NFL, after “I congratulate them for how well they have attacked this issue relative to anybody else, is to establish an independent group that understands football and has a broad base of people who can do injury analysis. You don’t want to ruin the game, but you want to make sure it doesn’t become a public health risk and expense.” 

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