NFL Head Injury Funding A Savvy Move, Even Amid Doubts
By Zachary Zagger
Law360, New York (September 16, 2016, 12:00 AM EDT) -- The NFL's decision to commit $100 million toward research to better diagnose, treat and prevent head injuries better positions the league to handle future legal issues over head trauma, experts said, though questions remain about where the money will go and how much good it will do.
NFL Commissioner Roger Goodell announced the commitment Wednesday, pledging $60 million for engineering research and $40 million for medical research, primarily to further examine the incidence of a well-publicized degenerative brain condition, chronic traumatic encephalopathy, or CTE, among former players. The funding is part of a broader “Play Smart. Play Safe” initiative, which also aims to look at medical protocols, rule changes and other efforts to make the game safer.
The initiative follows several steps the league has already taken to protect players and comes just months after the Third Circuit approved an uncapped settlement to end class litigation with former players. That settlement could pay out close to $1 billion. And while experts said the new funding may bring good will, they wondered how the funding will be used and whether it can be effective.
“It definitely takes away some of the stink of willful ignorance, because there is this quick response and it is the type of thing that a jury in the future will look at. It is the type of thing that can create a mantra that, ‘We were being proactive,'" said Timothy O'Brien, a product liability and personal injury attorney with Levin Papantonio Thomas Mitchell Rafferty & Proctor PA.
“Overall, from a PR perspective and a legal perspective, it was a really wise move, and an affordable one,” O'Brien said, noting that it works out to be a little over $3 million per team — not much more than an above-average player's salary for one season.
In April, the Third Circuit upheld the NFL’s uncapped settlement with retired players who alleged the league didn't do enough to warn players and protect them from the long-term harmful effects of the repeated head trauma they experienced during their football careers.
Several players had argued that despite the high total payout, the settlement fails to do enough for many former players who suffered some of the most serious degenerative conditions, such as CTE. They questioned whether the settling class members and the league adequately looked at the science linking football head trauma to the conditions in setting the payout structure and a cutoff date for those suffering from CTE, which currently can only be diagnosed post-mortem.
One player is asking the Supreme Court to weigh in, but many have said it is a long shot, meaning the Third Circuit decision is likely to stand.
Experts said the timing of the announced research funding is no coincidence, though the league had probably been planning to do it long before the settlement decision came down.
“The NFL now has a more accurate estimate of what they are going to be out of pocket in that settlement,” said Brooklyn Law School professor Jodi Balsam, a former in-house counsel with the NFL.
“They know how much they are going to have to spend on that bucket, [but] I think that this is something that the NFL had planned to do, so I think the connection is a more innocent and natural one,” she said.
Still, experts questioned how the money will be spent. Earlier this year, a congressional report alleged that the NFL intervened to block part of a $30 million donation to the National Institutes of Health from going toward a study by Dr. Robert Stern at Boston University, who has been vocal about the connection between football and brain damage and who filed an objection to the NFL’s concussion settlement.
"We have seen efforts like this before where an industry will put a lot of money behind a study and then have a heavy hand toward drafting the protocol that is designed to find a null result," O'Brien said.
"The public and the players union should really look at how the study protocol is drafted,” he added, referring to the new funding initiative.
In his open letter announcing the initiative, Goodell said the medical research funding will be used for “independent medical research” conducted by “pre-eminent experts and institutions to advance progress in the prevention, diagnosis and treatment of head injuries.”
“Our primary interest is in keeping our players and the public informed about these important health issues,” Goodell wrote. “As we gain new insights or discover new challenges, we will share them, so you will know them as well.”
A spokesman for the NFL did not respond to a request for further comment Thursday.
“One would hope that this is sort of a pure science and unrestricted grant and that whatever benefits the NFL gets from this would be the legitimate benefits of having funded important scientific research," Balsam said.
The funding commitment follows a number of changes the NFL has announced this year aimed at making the game safer. Goodell pushed out former NFL medical adviser Dr. Elliot Pellman, a rheumatologist who had downplayed the risk of concussions in football, and opened a search for a new full-time chief medical officer.
Also, in July, the league said it had developed a new concussion protocol with the NFL Players Association, mandating a review process for head injuries and discipline for teams that do not follow that process. The NFLPA sent out a video to the players just prior to the season urging them to report head injuries.
But the new protocol has already come under fire. In the opening game of the NFL season last week, Carolina Panthers quarterback Cam Newton, the reigning most valuable player, stayed on the field despite appearing to take several hits to the head.
Players for the Denver Broncos were later fined for some of the hits, and the NFL opened a review of whether the protocol had been followed. But the league told Law360 on Wednesday that the review is not an indication that there's evidence the protocol had not been followed.
And when it comes to the new funding commitment, the lion’s share is going toward engineering, not medical research. That could be because helmet maker Riddell Inc. is still facing claims in the concussion litigation, as well as other suits from youth football players.
“The commitment of funds from the NFL seems to go towards relief on the helmet or product liability side of the litigation,” said sports and entertainment litigator Timothy L. Epstein of Duggan Bertsch LLC. “Maybe this is a way for the deeper pocket, the NFL, to, outside of litigation, help out its necessary partners in producing professional football: the equipment manufacturers.”
The league's focus on equipment left experts wondering whether the money will be used in the most effective way — and whether it's even possible to invent a helmet that can prevent concussions.
"That will be what is really interesting to watch, to see what, if any, technology in terms of player protective equipment they can come up with through this effort," O'Brien said. "That is what from a sustainability perspective … most fans, as well as players, should be interested [in].”
There are also ongoing lawsuits from youth players and college players over head injuries and concussions, threatening the game of football at the lower levels, which experts said is the NFL's real concern.
Even beyond those lawsuits, the NFL wants to ensure young athletes continue to play football in order to maintain a stream of players into the league.
“Providing better, safer equipment, techniques and rules to keep those players on the field and maintain interest for a pipeline of players coming up from youth football to high school to college is most certainly worth the investment being made here," Epstein said.
--Additional reporting by Matthew Perlman. Editing by Mark Lebetkin and Philip Shea.