Helmet-To-Helmet Contact:Avoiding a Lifetime Penalty by Creating a Duty to Scan Active Nfl Players for Chronic Traumatic Encephalopathy
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Journal of Legal Medicine, 34:425–452 Copyright C 2013 American College of Legal Medicine 0194-7648 print / 1521-057X online DOI: 10.1080/01947648.2013.859969 HELMET-TO-HELMET CONTACT:AVOIDING A LIFETIME PENALTY BY CREATING A DUTY TO SCAN ACTIVE NFL PLAYERS FOR CHRONIC TRAUMATIC ENCEPHALOPATHY Thomas A. Drysdale* [T]his stuff is for real because I’m experiencing it now. I’m scared to death. I have four kids, I have a beautiful wife and I’m scared to death what might happen to me 10 or 15 years from now. Rodney Harrison1 INTRODUCTION On May 2, 2012, Junior Seau, one of the most talented and feared linebackers ever to play in the National Football League (NFL), died of a self-inflicted gunshot wound to the chest.2 Seau was only 43 years old and left behind three teenaged children.3 Less than a year later, in January of 2013, Seau’s family sued the NFL after tissue samples from Seau’s donated4 brain showed that he was suffering from chronic traumatic encephalopathy (CTE), “a degenerative brain disease linked to repeated head hits and brain trauma.”5 The Seau family * Third-year law student at Southern Illinois University. Address correspondence to Mr. Drysdale at Southern Illinois University School of Law, Law Journal Office, Lesar Law Building, Carbondale, Illinois 62901 or via e-mail at [email protected]. 1 Kevin Kaduk, Rodney Harrison Says He’s “Scared to Death” After a Career Filled with Concussions,YAHOO!SPORTS, Jan. 30, 2013, http://sports.yahoo.com/blogs/nfl-shutdown-corner/ rodney-harrison-says-scared-death-career-filled-concussions-015416631-nfl.html. Harrison is a for- mer all-pro safety for the San Diego Chargers and the New England Patriots who has suffered an estimated 20 concussions during his 15 years in the NFL. Id. 2 Greg Bishop & Rob Davis, Junior Seau, Famed N.F.L. Linebacker, Dies at 43; Suicide Is Suspected, N.Y. TIMES, May 2, 2012, http://www.nytimes.com/2012/05/03/sports/football/junior-seau-famed-nfl- linebacker-dies-at-43-in-apparent-suicide.html? r=0. 3 Id. 4 Mary Pilon & Ken Belson, Seau Suffered from Brain Disease, N.Y. TIMES, Jan. 10, 2013, http://www. nytimes.com/2013/ 01/11/sports/football/junior-seau-suffered-from-brain-disease.html. 5 Ken Belson, Junior Seau’s Family Sues N.F.L., N.Y. TIMES, Jan. 23, 2013, http://www.nytimes.com/ 2013/01/24/sports/ football/junior-seaus-family-sues-nfl.html. 425 426 DRYSDALE alleges that the NFL intentionally hid the link between repeated blows to the head and long-term cognitive issues.6 Recognizing that the lawsuit would never bring Junior back, the family hopes it will “send a message that the N.F.L. needs to care for its former players ...and make the game safer for future generations.”7 A little more than a year before Seau’s death, former Chicago Bears star Dave Duerson suffered a similar fate.8 Duerson also shot himself in the chest, presumably so his brain eventually could be examined.9 In the months leading up to his suicide, Duerson had complained of a variety of symptoms, including memory loss, blurred vision, and headaches.10 In May 2011, it was confirmed by Dr. Ann McKee11 that Duerson also suffered from CTE.12 According to DeMaurice Smith, the executive director of the NFL Players Association, “Duerson’s having C.T.E. ‘makes it abundantly clear what the cost of football is for the men who played and the families.”’13 While Duerson was a member of the famed Chicago Bears defense that won the 1985 Super Bowl, he will be remembered for how he apparently came to believe he was suffering from CTE, “acted upon it and requested that his brain tissue be examined for confirmation and contribution to science.”14 As former NFL offensive linemen Pete Kendall said: “[T]he whole issue of C.T.E. is something that players young and old have no choice but to think about.”15 After years of denying the long-term cognitive effects of repeated head trauma in the face of evidence to the contrary,16 the NFL now must accept that CTE is a very real consequence of an NFL career.17 While the NFL, its players, and its fans are coming to grips with the realities of CTE, the efforts to reduce the number of concussions sustained by players have become a focal point in discussions regarding the NFL’s 6 Id. 7 Id. 8 Alan Schwarz, Duerson’s Brain Trauma Diagnosed, N.Y. TIMES, May 2, 2011, http://www.nytimes. com/2011/05/03/sports/football/03duerson.html? r=0. 9 Id. 10 Id. 11 Dr. Ann McKee is a Professor of Neurology and Pathology at Boston University School of Medicine. She is a Co-Director of the Center for the Study of Traumatic Encephalopathy and “Chief Neuropathologist for the National VA ALS Brain Bank.” Ann McKee, MD, BU CENTER FOR THE STUDY OF TRAUMATIC ENCEPHALOPHY, http://www.bu.edu/cste/about/leadership/ann-mckee-md/ (last visited Jun. 19, 2013). 12 Schwarz, supra note 8. Dr. McKee stated, after examining Duerson’s brain, that indisputable evidence of CTE was found and that he was not suffering from any other disorders. Id. 13 Id. 14 Id. 15 Id. 16 Michael Farber, The Worst Case: Doctors Warn That Repeated Concussions Can Lead to Per- manent Brain Dysfunction,SIVAULT, Dec. 19, 1994, http://sportsillustrated.cnn.com/vault/article/ magazine/MAG1006087/index.htm. 17 See Les Carpenter, CTE Is a Real Risk for Football Players,WASH.POST, Oct. 28, 2009, http:// www.washingtonpost.com/wp-dyn/content/article/2009/10/27/AR2009102703547.html. CHRONIC TRAUMATIC ENCEPHALOPATHY SCREENING 427 future. Since 2010, alone, the NFL has changed the length of kickoffs,18 imposed new rules to limit head and neck contact with defenseless players,19 and even required teams to consult with independent neurologists whenever a head injury occurs to a player,20 all in an attempt to reduce the number of head injuries and the effects therefrom suffered during the season. The NFL continues to consider new options each season, in an effort to solve this ongoing and potentially life-threating situation. Despite the NFL’s best efforts, however, football is an extremely physical and violent game, in which concussions and head injuries are inevitable. Players continue to hide concussion symptoms from coaches and trainers to avoid being taken out of a highly contested game21 and possibly even losing their starting positions permanently.22 Some players openly admit that they will continue to play violently de- spite the new rules,23 while others still deny that the NFL even has a concussion problem.24 Furthermore, the inconsistencies in concussion reporting protocol in the NFL shows that the NFL lacks a “reliable way to account for concus- sions all season long,” and, thus, the statistics showing a drop in concussions since the new rules were put in place demonstrate, at best, conflicting data.25 Because concussions are inevitable despite the efforts by the NFL, play- ers who are exposed to repeated blows to the head will continue to develop CTE as their playing years come to a close. In addition, until very recently, CTE only could be detected once an athlete died and his brain tissue could be examined under a microscope.26 It was impossible to tell whether an athlete with a history of concussions was at risk for CTE while still playing football.27 18 Dustin Fink, NFL Kickoff Change,THE CONCUSSION BLOG, Mar. 23, 2010, http://theconcussionblog. com/2011/03/23/nfl-kickoff-change/. 19 New NFL Rules Designed to Limit Head Injuries, NFL.COM WIRE REPORTS, http://www.nfl.com/news/ story/09000d5d81990bdf/article/new-nfl-rules-designed-to-limit-head-injuries (last updated July 26, 2012). 20 Id. 21 See Jason M. Breslow, NFL Concussions: The 2012-2013 Season in Review,FRONTLINE CON- CUSSION WATCH, Feb. 1, 2013, http://www.pbs.org/wgbh/pages/frontline/sports/concussion-watch/ nfl-concussions-the-2012–13-season-in-review/. 22 Gary Mihoces, NFL Concussions: Your Job or Your Health?, USA TODAY, Dec. 3, 2012, http://www. usatoday.com/story/sports/nfl/2012/12/03/alex-smith-nfl-concussions/1741691/. 23 Michael Klopman, Channing Crowder, Dolphins Linebacker: “They Give Me a Helment, I’m Going to Use It,” HUFFINGTON POST, Oct. 21, 2010, http://www.huffingtonpost.com/2010/10/21/channing- crowder-miami-do n 771215.html. 24 Kevin Kaduk, Deion Sanders Doubts NFL’s Concussion Problem, Says Former Players Are Look- ing for Payday,YAHOO!SPORTS, Feb. 3, 2013, http://sports.yahoo.com/blogs/nfl-shutdown-corner/ deion-sanders-doubts-nfl-concussion-problem-says-former-225011441–nfl.html. 25 Mark Fainaru-Wada & Steve Fainaru, NFL Reports Remain Inconsistent, ESPN OUTSIDE THE LINES, http://espn.go.com/espn/otl/story/ /id/8706409/nfl-concussion-program-marked-inconsistencies- making-difficult-assess-whether-league-making-progress-issue (last updated Dec. 13, 2012). 26 Terry Zeigler, CHRONIC TRAUMATIC ENCEPHALOPATHY (CTE), SPORTSMD.COM, Feb. 1, 2012, http://www. sportsmd.com/Articles/id/44.aspx. 27 Id. 428 DRYSDALE A recent breakthrough, however, has allowed scientists at UCLA to detect signs of CTE in living brains through the use of positron emission tomography (PET) scans.28 This discovery has been heralded as “the first step, the first glimpse, the first hope” in managing future head exposure and providing access to healthcare to those players at risk for and in the early stages of CTE.29 If the NFL is serious about providing for the long-term health of its players, it is necessary to impose a legal duty to scan players who have suffered serious head injuries during their career, while they are still playing the game.