Professors Joy Delman and Rod Smith discussed the legal and economic impact of concussion litigation for players, sports leagues, and uniform equipment manufacturers at a brown bag MCLE event on “Recent Developments in Concussion Litigation” on Thursday May 23.
TJSL event was held at the San Diego County Bar Association's Bar Center located at 401 West A Street.
The event also discussed how survivors of traumatic brain injury (TBI) like former NFL players Junior Seau and Dave Duerson are often left with significant cognitive, behavioral, and communicative disabilities from repeated head trauma and repeated concussions that lead to long term brain injuries.
"My presentation is based on an article that I have written for the Thomas Jefferson Law Review entitled, 'Solving the Concussion Problem and Saving Professional Football,' said Professor Smith. "In that article, I examine the historical approach of the NFL regarding the medical evidence of CTE (at first they were defensive and of late have funded major studies with the NIH and the Harvard Medical Studies to better deal with the medical realities. In search of a solution to a very major problem, I then assess various strategies: Litigation, Administrative relief (OSHA, workers comp), Legislative action (Congress has held significant hearings in the area), and Associational action by the NFL and NFLPA. I argue that associational action is the preferred strategy and argue that the NFL and NFLPA could do much to strengthen their brand (keeping football from faltering among consumers as boxing has due to head injuries) and can direct funds to dealing with the problem. I argue that a workers compensation-like strategy would be best, building on a current small program that is in place. I also argue that changes in the rules must be forthcoming, particularly in the area of enforcing strong protocols for head trauma, in order to overcome two cultural impediments in professional football -- 1. win at all cost; and 2. play through injury.
"I close with these words: "The flourishing and perhaps survival of the NFL brand and possibly football itself depends on the NFL and NFLPA doing the right thing. . . . Acting decisively to implement an association-based game plan may . . . save 'America's game,' football." "I discussed the epidemic of concussions and traumatic brain injury, as well as post-concussion syndrome, which has been linked to various illnesses, including chronic traumatic encephalopathy, Alzheimer's, Parkinson's, learning and memory deficiencies, and suicides," said Professor Delman. "I talked about the symptoms of concussions, why they are often undiagnosed, the current diagnostic and treatment modalities, and the prevalence of concussions and sub-concussions in youth sports. I also discussed new laws that require medical clearance before a high school athlete, who is suspected of having suffered a concussion, can return to play. The incidence of concussions in girl's soccer and cheerleading will also be addressed. I also posed the question of whether contact sports are appropriate at all for youngsters since they are more prone to concussion and often suffer more severe consequences, particularly from second impact syndrome."