Despite a global settlement of the vast and complex concussion litigation, the Concussion Conundrum in the NFL and beyond will not fade quietly. Episodes such as Tuesday’s “League of Denial” documentary on PBS and its companion book will continue to shine the interrogative spotlight on the NFL for what it might have known about the science of concussions that potentially could have prevented long-term neurological damage to its product, the players.
As with all things, however, the emotion in the wake of “League of Denial” and the fine work of Mark Fainaru-Wada and Steve Fainaru will soon wane. And when it does, we will still be left with the underlying challenge for the NFL, union, teams, doctors and agents: protecting players from their strong and culturally-ingrained desire to play. Let’s examine, starting with a practical understanding of the settlement of the litigation.
Settlement: the leverage of time
“League of Denial” had a script substantially similar to the complaint filed by thousands of retired players against the NFL regarding concussions. Despite what might have been strong arguments from the plaintiffs, they never had a chance for a full airing of their case due to the glacial pace of litigation. The owners had the resources to force the retired players to litigate—and submit to detailed depositions questioning the cause of their injuries—for the next four, six, eight, even 10 years. Faced with that prospect, the former players made a deal.
Whether in concussion litigation, the CBA or individual player contracts, the owners always have the leverage of time against the players, and they use it. One of the attorneys for the concussion plaintiffs—who in exasperation called Jerry Jones a “hard ass”—had an eye-opening first experience negotiating with an NFL owner who is not used to hearing “no.” The retirees tried to get a settlement in the billions; owners such as Jones negotiated it down to $765 million. And the settlement documents are clear: There is no NFL admission of liability.
NFL owners will take periodic hits such as “League of Denial” while having eliminated the possibility of billions in damages. With record television contracts kicking in next year, with 23 of the 32 NFL franchises recently valued at more than $1 billion by Forbes magazine and with a team-friendly CBA in place for seven more years, these are salad days for NFL owners. What I felt was the only major threat to their continued prosperity—the concussion litigation—has now been resolved.
Taking it to the field
Beyond the global settlement, there remains the basic issue of concussion treatment in the NFL. It has come a long way, but there might be some changes in culture that still are far from being realized.
The tipping point for recent concussion initiatives came during 2009 congressional hearings, where NFL commissioner Roger Goodell and NFLPA head DeMaurice Smith were taken to task about a perceived apathy and callous attitude towards head injuries, even compared to (gasp!) the tobacco industry.
The hearings jump-started a positive trajectory of new measures in the NFL, such as (1) revamping the Mild Traumatic Brain Injury (MTBI) Committee, much maligned both in the concussion litigation and in “League of Denial”; (2) enhanced enforcement and discipline of violent hits; (3) independent neurologists to clear concussed players during the week for return-to-play; (4) independent on-field trainers to monitor game-day head trauma; and (5) new CBA mandates for player time off in the offseason and reduced contact.
Beyond these positive measures, however, I believe there are two fundamental and unresolved issues of concussion treatment and return-to-play: (1) consistent and cautious diagnosis and treatment, and (2) protecting players from themselves.
NFL team medical staffs have decades of experience diagnosing and treating knees, shoulders, hamstrings, ankles, etc. While every injury is unique, the standard protocol for many of these injuries is relatively the same. Not so with concussions.
As seen on the “Concussion Watch” section of Frontline’s website—a page that tracks NFL concussions weekly—most players now suffering concussions are returning to play within a week, even in an NFL environment of greater awareness. In contrast, former Lions’ running back Jahvid Best, whose last concussion was two years ago, never returned to play and was released this summer. What is the right amount of time for each player to sit? The answer: We just don’t know.
Respected and established doctors will have different opinions on return-to-play following concussions, even supposedly “mild” ones. Should it be one week? Two? Four? When I asked Dr. Douglas Smith, respected neurologist and Director of the Center for Brain Injury and Repair at University of Pennsylvania School of Medicine, what length of time he would suggest waiting to return to play after suffering a concussion, his answer, in all seriousness, was: “Fifty years.”
Perhaps the key question to ask team and independent doctors regarding the return from concussions: In what length of time would they clear a concussed player to return if that player were their son?
Where are the NFLPA and the agents?
Beyond the focus on the NFL and its team medical personnel, there are questions on the other side of the labor-management equation regarding inadequate concussion treatment and protocol. Aside from Leigh Steinberg, the fiduciaries that represent the players—the NFL Players Association and their agents—received nary a mention in “League of Denial” and have been strangely silent on the issue. Indeed, when the massive concussion settlement was announced, the NFLPA issued only a bland, neutral one-sentence statement. And despite a reported inquiry into Terrelle Pryor’s re-entry into a Raiders game after being concussed, we have not seen the union or player agents stand up and demand answers about concussed players returning within same week of injury, or even within the same game!
There might be a practical reason for the curious silence from the NFLPA and player agents, and it is the ultimate problem with proper and prudent concussion treatment and protocol: The players don’t want them to protest.
Protecting players from themselves
Players at all levels want to play; it is what they do, and often what defines them. They focus on the next practice, the next game, the next season and the next contract, more interested in protecting their short-term job security than their long-term health. I have heard of many players intentionally performing poorly in preseason baseline testing so as to not appear concussed later and assuring team doctors they are fine when they are not. They know that if they are unable to practice or play, someone else is, at their expense.
And then there is the case of Alex Smith.
After being concussed while with the 49ers last season, quarterback Alex Smith did everything we want NFL players to do as part of the “culture change”: proceed with caution, sit out and take time to heal. While Smith sat, backup Colin Kaepernick wrestled the job away, and Smith never played another down for the 49ers. While Smith has ended up in a good place, his high-profile experience of losing his job while resting a brain injury unfortunately has resonated with players.
We need to somehow exact a culture change where players are encouraged and empowered to do what Alex Smith did, even with the inherent risk of losing their jobs. Guaranteed contracts would be one way to improve the situation, but that is not happening in the current labor environment. Absent financial security from sitting out, players need to be protected by others, as they too often fail to protect themselves.
How then? Perhaps mandatory two-week “suspensions from play” for any player who is concussed, no matter the player; perhaps the use of helmet sensors—already in use in the college ranks—that measure concussive impacts and compel team doctors to replace players after threshold measurements; perhaps true empowerment of independent doctors not only during the week but also on game day. These are just a couple of ideas; but all are measures that require buy-in from the teams, the leagues, the union and, most importantly, the players.
It is the enforced protection of players from themselves—more than any concussion litigation, book, documentary or public relations embarrassment—that is perhaps the only true answer to the concussion conundrum, one that is harder to manage than any of these external factors. Ultimately, players know my mantra about the business of football: so many players, so few jobs.
Five Things I Think Heading Into Week 6
1. I think as I wrote last week, the divorce between Josh Freeman and the Buccaneers was inevitable. Freeman, who will earn his full $8.43 million salary from the Bucs, is now a Viking. He and his agent were able to wrangle $2 million, their magic number, from Minnesota, meaning Freeman will make close to $10.5 million in combined compensation for 2013.
2. I think Matt Flynn’s release from the Raiders is more curious than Freeman’s from Tampa Bay. Upon acquiring him from the Seahawks in March, the Raiders actually increased his guaranteed salary from $5.25 million to $6.5 million! His $8 million from the Seahawks last year combined with the Raiders earnings means Flynn made $14.5 million off of his record-setting day filling in for Aaron Rodgers against the Lions in a meaningless game on New Year’s Day 2012. I wrote about Flynn and Kevin Kolb here.
3. I think the Cowboys and Eagles—with two of the most explosive offenses in the league—will emerge with records better than most believe in the much-maligned NFC East. As to the Giants and Redskins, not so much.
4. I think Calvin Johnson proved his enormous value while wearing sweats last weekend in Green Bay. The Lions’ offense was anemic without him. Even with one of the highest-paid quarterbacks in the league, the Lions are not good enough to compete without his presence.
5. I think that while the marquee game of the week was the Broncos and Cowboys, the future of the NFL was on display in the Seahawks-Colts game. Russell Wilson and Andrew Luck have the right stuff on and off the field to be signature players of both their franchises and the NFL as a whole for years to come.