NFL Concussion: Current Situation and Policy Implications
The National Football League (NFL) is currently at a crossroads, facing a master complaint (“the Master Complaint”) consolidating 85 suits involving over 3,400 former NFL players and their families with claims ranging from negligence, fraud, and wrongful death to civil conspiracy, all related to head trauma suffered while playing professional football.
The NFL is actually a conglomeration of the thirty-two teams that play in the league. The NFL exists for the sole purpose of managing the mutual efforts of the teams. The NFL is unincorporated and has federal nonprofit status despite generating $9.5 billion in revenue. Any liability assigned to the NFL would presumptively be assumed jointly by the thirty-two teams that comprise it but could be distributed to individual teams in alternative fashions.
An example of contracting to distribute liability includes allocating liability based on revenue generation of each team.
Three terms have frequently been associated with head injuries in the NFL: mild traumatic brain injury (mTBI), concussion, and, most recently, chronic traumatic encephalopathy (CTE). The modern public discussion of head trauma revolves around the term “concussion,” the short-term brain injuries of mTBI cause by a bump, blow, or jolt to the head, but the discussion implicitly includes the long-term symptoms of CTE. Dissimilarly, the Master Complaint draws attention to the long-term “pathological and debilitating effects” of repeated head trauma but distinguishes sub-concussive, or minor, hits from major, concussive hits.
The traditional view of the person in law and public policy is rooted in dispositionism, the conception of the human being as a rational actor who uses thoughts and preferences to act in a manner that serves those preferences.
Until recently, media coverage of football was predominantly dispositionist, positing that football players are aware of and assume the risk of concussion, head trauma, and injury when choosing to play the sport. The alternative view is situationism, which holds that individuals are more influenced by external factors and situations than naive psychology may assume. Though not a majority view,the situationist view of football has gained some prevalence in the concussion discourse. Rather than looking to the players, the situationist view focuses on the owners, the NFL, and the sport as a whole in trying to understand the situation regarding concussions and possible policy implications.