That’s a question that several legal bloggers have been positing over the last few weeks. The concerns largely stem from studies suggesting that the long-term effects of concussion injuries (which are quite common in football players, including those at the age level of high school and younger) may be far more severe than anybody thought. This is focused around the revelation that suffering large numbers of very minor concussions (which are extremely common in football) significantly increases the long-term risk of severe brain disorders, such as Parkinson’s disease.
There have also been a few high-profile suicides committed by athletes, including a few very promising young football and hockey players. Autopsies revealed that some of these athletes suffered from chronic traumatic encephalopathy (CTE), which is a degenerative brain disorder caused by sustaining multiple concussions over a long period of time. The symptoms of this disorder include severe depression and dementia, which would partially explain the suicides.
As one might expect, there is some fear that this new information might lead to tort lawsuits, which would cost the defendants a large amount of money in judgments and settlements. It’s conceivable that several years of this could become so costly that insurance companies would stop offering liability insurance to football organizations, which would effectively prevent them from operating.
And even if the NFL manages to deflect these lawsuits, or absorb their costs, high school and college football programs may not be so lucky. If a large majority of these programs were shut down, the NFL would have a much smaller pool of new talent, which could bleed it dry in the long run.
Personally, I think that these fears about lawsuits destroying football are pretty overblown. It’s currently the most popular sport in the United States, and generates billions of dollars in economic activity. Furthermore, football players (at least at the college and professional level, where they’re adults) can be said to have assumed the risk of injury by voluntarily playing football.
However, at the high school level, the legal and moral issues become far less clear. After all, most high school students are under the legal age of consent, so it’s hard to claim that they knowingly and intelligently assumed the risk of brain injury. In most situations, a child’s parents can give consent for them. But if you assume that a child cannot make decisions with enough maturity to legally give consent for something (and that’s the assumption that underlies laws that establish an age of majority), and the risk they incur in playing football is permanent brain injury that follows them for the rest of their lives, it’s not really fair for their parents to make that decision for them, either.
Generally, however, I don’t think that football fans have anything to worry about. In fact, a few successful and costly lawsuits against football programs may actually improve its long-term prospects, as counterintuitive as that sounds.
After all, if a few football organizations were sued because some players suffered long-term brain injuries, they would probably have a good incentive to invest in better safety equipment, especially improved helmets. If this equipment significantly reduces the risk of CTE, football clubs will have far less to worry about in the lawsuit department.
Some commentators, while remaining hopeful about the future of football, raise a rather unsettling possibility: the NFL will simply use its substantial lobbying clout to persuade state legislatures to either ban lawsuits against them for CTE, or make such lawsuits so difficult for the plaintiffs that they aren’t worth the effort.
This might save football, but it’s arguably the worst possible outcome – even worse than football being sued out of existence. If personal injury lawsuits against football organizations are effectively banned, they will have no incentive to invest in safer equipment, or improve their safety rules.
This will mean another generation of young people suffering from chronic brain injury.
Basically, that illustrates the problem with the arguments made by many advocates of “tort reform.” We don’t face a choice between lawsuits destroying a beloved sports institution (or the entire economy), and making it impossible for victims of negligence who have suffered real injuries from receiving compensation from those injuries. But that’s how tort “reformers” often frame the debate.
In a legal system that guards against frivolous lawsuits, the civil justice system and the litigation process can be a force for positive change. If football clubs face lawsuits over brain injures, and these lawsuits become too costly, it will be in their economic self-interest to take steps to make the sport safer, either through investments in better safety equipment, or modifying the rules of the game to minimize head injury, or both.
There is historical precedent for this, as well. In 1905, football had just established itself as a popular sport in America. As more people played the game, more players began dying from injuries sustained on the field. It got to the point that there were serious proposals in Congress and state legislatures to ban the sport altogether. President Roosevelt persuaded the NFL to change the rules to eliminate certain plays that were responsible for most of these injuries. And thus, the sport was saved.
I’m sure a lot of people complained back then that these changes destroyed the spirit of the game. But over 100 years later, the sport of football is doing just fine. I think this is simply an example of history repeating itself. Football will adapt. And, hopefully, they won’t find it necessary to make it impossible for people who have been injured to recover compensation for their injuries.