This was a guest post from Paul Anderson’s NFL Concussion Litigation Blog and is re-posted here with permission of Paul Anderson and Brad Sohn. I remember reaching out to Harvard a couple of years ago when they first announced this study, thinking that this might be an objective outside study. Now I know why they never got back to me…
Paul Anderson invited me to share the following critique of the Football Players Health Study at Harvard University (the “Report”). This newly published Report claims to analyze legal and ethical obligations facing Pro Football as an industry. The Report proclaims independence in offering a total of 76 recommendations in areas bearing on Pro Football stakeholder experience, along with a handful of stated abstentions in other areas. As with just about everything related to the industry of Pro Football, the devil lies in the details, and those details point to opposite conclusions. A close analysis of this Report reveals its true nature: it is a tour de force of litigation avoidance, and one that seeks to strip retired players of their rights through illusory “enhancements” of the broken collective bargaining system.
II. The Report’s Claim of Independence Deserves Scrutiny.
Numerous examples in recent times — even without looking to the merits of this study — necessitate heavy scrutiny of any claims of “independence” by Pro Football. Consider: Neither the NFL, its labor arm the NFL Management Council (the “NFLMC”), nor the NFLPA have performed a longitudinal study of CTE, yet Pro Football’s industry benefited from the lack of information such a credible study would have provided; both camps rely on “independent” experts on player safety that, at varying times, each side has jointly and also individually compensated. Independence as generally defined by Pro Football is a very fluid concept.
This Report, in particular, raises my eyebrows for the following reasons: It had a closed peer-review process in which it paid seven hand-picked reviewers between $5,000 and $10,000 for opinions on this work; the majority – if not all – of the hired “peer-reviewers” support arbitration and medical malpractice tort-reform; its advisory committee contains appointees whose biases raise issues in my mind, including (notably) the wife of NFLPA president Dominique Foxworth. Though each lacked editorial control, the NFLPA and NFLPA, both had the opportunity to propose revisions to this report; and, at least one of the three authors (hired by the NFLPA) to write this has made attempts to dissuade opt-outs from the NFL Concussion MDL and would gain professionally by the advocated outcomes.
III. The Report’s Recommendations Bolster The “Pro Football-Industrial Complex.”
The Report highlights ten “top” recommendations, all of which contain a common theme:
- A CBA-created medical staff for players to be jointly appointed by the NFL and NFLPA;
- A carefully-crafted recommendation that acknowledges “collective bargaining is the principal method by which changes are made to NFL health policies,” yet opaquely advocates for removal of player health issues from ADVERSARIAL collective bargaining (i.e. – not a removal of this issue altogether from collective bargaining);
- An improvement and CBA-enforcement of various codes of ethics;
- A CBA-prescribed scientific study of Pro Football’s health risks;
- A CBA-prescribed continuation of and enhancement to the already “robust” injury-related data collection;
- An enhancement to the already “robust” measures regarding player health in CBA Article 39 (“Players’ Right to Medical Care”);
- Joint Club and staff support for second opinion medical evaluations;
- An obligation on clubs to place concussed individuals on a short-term injured reserve list, which would be created by the CBA;
- Greater Player familiarization with their collectively bargained for rights; and
- Player treatment with individual doctors who are jointly approved (based on a new CBA measure.)
Indeed, one struggles to find even one, single recommendation that does not involve existing CBA provisions, a call for CBA-driven enhancements, or means through which damaged players would need to assume greater legal responsibilities themselves (as opposed to the league or the union.) These recommendations are disingenuous, self-serving and dangerous.
These recommendations – each of them – embolden a union that has drawn widespread criticism for its ineffectiveness and all-too-cozy relationship with its theoretical adversary: the NFL. All of the Report’s “recommendations” would erect even stronger barricades to the courthouse doors and make it nearly impossible to ever rectify an injustice. The key here is not what the study identifies as the ethical/legal problems in Pro Football. Those problems have been well established for a decade if not longer. One can watch movies all the way back in time to the 1970s like North Dallas Forty and see Pro Football doctors depicted as treating players like NASCARs.
At the heart of the problem lies procedural failings inherent in the “Pro Football industrial complex”: The players eat at the behest of owners and have assented, through misaligned union representation, to a labor agreement that is already unfair and overbroad. These recommendations amplify the problem: This Report makes no recommendations redressable outside the boundaries of the CBA. Giving up even more rights to sue is a serious decision treated lightly (if treated at all) by this Report. And my opinion is that it has been designed this way.
IV. The Report Materially Misconstrues and Misrepresents the CBA.
This Report leads readers to two false conclusions: that tort-style damages are available under the CBA’s grievance procedures; and that the CBA “shop law” permits arbitration of state law tort claims. Neither of these assertions are true. Period. Pro Football entities have tried to avoid any liability whatsoever when sued by claiming (falsely) that players must arbitrate grievances. In fact, two final, non-appealable orders from CBA arbitrations make unambiguously clear that this is false: Henderson v. Dolphins (Jan. 1988 – Kasher) and Sampson v. Oilers, (Jul. 1988 – Kagel) each expressly show that the CBA does not provide remedies at all for claims such as medical malpractice, gross negligence, and product liability. The only available money damage awards that players can receive under the non-injury grievance provision are where they dispute matters pertaining to their NFL player contract and monies owed under it. Finally, and most damning, is the Reports admission that “[t]here have been no Non-Injury Grievances concerning Article 39 decided on the merits, suggesting either clubs are in compliance with Article 39 or the Article has not been sufficiently enforced.”
Indeed, this process of holding teams and the league accountable has been such a smashingly successful endeavor that no individual player has ONCE benefited from it! Some courts have even held that retired players lack standing to pursue these sorts of (illusory) claims. Regardless, arbitration is a forum that favors those who hire the arbitrators time and again. And while the NFLPA and NFLMC/NFL are seemingly adversaries, neither has an interest in having arbitrators award damages for breached joint responsibilities – another focus of this Report. Thus, the only way players can be compensated for tort-damages is through tort litigation. As imperfect a system as that is, it is the only one with “teeth” capable of holding wrongdoers responsible for doing things like concealing (intentionally) the dangers of repetitive head trauma, dispensing drugs in contravention of the law, or committing medical malpractice.
Finally, and disturbingly, notwithstanding the recommendation to remove “player health” from adversarial bargaining, this Report also advocates for letter-amendments to the CBA. There are significant questions as to whether labor council for the NFLMC and NFLPA can even amend the CBA without a formal, full-scale renegotiation. =Notably, this has only occurred in the context of heavily tort-litigated arenas of the CBA, and, in the minds of some, for the purpose of bolstering a CBA/LMRA-preemption defense to a lawsuit. (For example, counsel will exchange letters to suggest a CBA amendment for the purpose of attempting to defeat a court’s jurisdiction over a conflict).
Both the NFLMC/NFL and the NFLPA would prefer to handle disputes “in house” and “behind closed doors.” There is a reason why the New York Times published a multi-part series on the dangers of arbitration, and further, a reason why Congress and many courts have receded from their previously unqualified deference to the arbitral forum. CBA arbitration — which frequently provides zero remedy for the wrongs identified in this report — is procedurally and substantively unfair, stacking the deck in favor of industry and against the aggrieved. In fact, it is for this purpose that I believe the entire Report may have been created: to be admissible as a “learned treatise” in litigation as a means of bootstrapping Harvard’s name to the CBA defense.
V. The Report’s Treatment Of Protective-Equipment Issues Shocks The Conscience.
This Report presents a number of issues in warped fashion and omits key facts, nowhere more apparent than in its presentation of equipment-related issues. It is remarkable and alarming that the Report praises these manufacturers — one of whom was investigated recently by the Federal Trade Commission for lying, and who also participated in the infamous MTBI Committee’s research — for doing a good job, and as such, defers on recommendations to this entire arena. In technical legal terms: Huh?
Problems with equipment safety are profound as well as circular, and all of the key institutional parties have blood on their hands: the National Operating Committee on Standards for Athletic Equipment (“NOCSAE”); ImPACT Applications, LLC; helmet manufacturers; helmet-testing labs; and both labor camps (the NFLMC and NFLPA.) NOCSAE sets the standards for protective equipment (notably helmets.) There is an incestuous relationship between these groups that allows innovation on protection standards to stagnate, and that also makes liability more difficult.
Pro Football recognizes it needs helmets and has sought to limit its own liability by remaining at arms-length with companies like Riddell. In addition, Pro Football recognizes that latent brain injury is a virtually certain result from its game. So how can Pro Football avoid responsibility? This is accomplished through requirements that helmet companies rely on “independent” standard-making and testing. Enter NOCSAE, a self-regulating body (responsible to no one) and comprised – at least in part and at one time by majority – of helmet industry executives.
NOCSAE safety standards expressly do not apply to concussion. Essentially, NOCSAE crash-tests helmets and determines if equipment can withstand impacts applicable to skull fracture and brain bleed. ONLY. In a study paid for by Riddell and the NFL, even the NFL’s experts could not avoid the conclusion that “no helmet can prevent concussion. Full Stop.” Yet Pro Football uses – and in fact insists – on standards that have materially remained in place for close to a half-century. Moreover, NOCSAE receives large amounts of money from Pro Football, and though it does not test itself, its technological minds have been employed by the helmet industry’s two principal helmet-testing labs such as the Southern Impact Research Center. Lab principals at SIRC have testified numerous times as expert witnesses for the defense in helmet-death lawsuits. Football literally uses people paid to say “it wasn’t the helmet’s fault” to develop its warnings and safety standards.
So long as NOCSAE certifies a helmet (based on its outdated standards) the NFL permits use of that helmet. This includes products such as those cited in the Report, like the Riddell Revolution line. As studied haphazardly in the Report, Riddell relied on skewed data and statistics to claim its helmet – designed to reduce concussion – was effective. Riddell’s experiments for this purpose relied on a neurocognitive assessment called “ImPACT.” ImPACT was created by Pittsburgh Steelers-affiliated neuropsychologists and neurologists, and has more than a 20% false positive AND negative rate. In other words, the NFL places certification in the hands of a conflicted certification body, which has certified products licensed by the NFL directly, which make claims based on conflicted science. Yet this report says these entities are making progress. Toward what?
We need the right to sue. It is the easy (but wrong) choice to take the Report at face value. Indeed, on its face, this Report seems reasonable. But it is more of the same, and it takes advantage of people’s lack of time to investigate the source of facts. In the tradition of Big Tobacco, Pro Football has – especially in the past decade-plus – advanced its agendas on important issues through the “third-party technique.” That is what I believe is at work here. Check out information on the Third Party Technique on Wikipedia at:
And in the meantime, don’t fall for the head fake!
Brad R. Sohn, Esq. of The Brad Sohn Law Firm graduated cum laude from Harvard University and the University of Miami School of Law. He handles cases nationwide on behalf of the severely injured, frequently litigating against NFL entities.