Joth Bhullar

Abstract
I. What is CTE?
II. Discovery of CTE in Deceased Football Players
A. Dr. Omalus Studies
B. Dr. McKees Studies
C. Ability to Diagnose CTE in Current Players
III. NFLs Response to CTE
A. Decades of Denial
B. Recent Acknowledgment of CTE & NFL Research Efforts
C. Recent NFL Rule Changes
D. Radical Changes to Youth Football
IV. Player and Societal Response to CTE
A. Player Responses
B. Parental & Societal Responses
C. Potential Distributive Justice Effects
D. Technological Responses
V. Legal Fallout from CTE
A. NFL and NCAA Settlements
B. Class Action Suit Against Pop Warner
C. Individual Player Lawsuits
D. Can The Law Adequately Respond To These Issues?
VI. Alternatives and Possible Solutions
A. Following the Tobacco Model: Disclaimers and Warnings
i. Suggested Implementations
B. Rule Changes
i. Youth Sports Recommendations
ii. NFL and NCAA Recommendations
C. Long-Term Investments
i. CTE Research
ii. Investment in Technological Innovation
iii. Investment in Youth Football & Inner Cities
iv. Investment in Retired Players
VII. Conclusion
VIII. Attachments and References
A. Model Guidelines and Proposals
B. Stages of C.T.E
C. Concussion Crisis & Impact on Participation
D. New Return to Play Protocols
 C.T.E. and the Future of Football
Abstract:
Earlier this year, it was reported that the NFL expects to generate fourteen billion

in revenue in 2017, more than any other major sports league in the world. 1 However,

despite the fact the business of the NFL continues to thrive, concerns over the safety of

the game has led to public outcry for the NFL to invest in methods to prevent serious

head injuries. In the year 2002, Mike Webster, who played in the NFL for 17 years and

was inducted into the Hall of Fame, died as the result of a heart attack. 2 Dr. Bennet

Omalu was assigned to perform an autopsy on Webster, and reported that Websters

brain contained a disease that had never before been identified in football players:

Chronic Traumatic Encephalopathy or CTE. This became a pivotal point in the history

of football. For decades the NFL denied any link between football and long term brain

damage, but has recently been forced to acknowledge these issues, thanks in large part

to Dr. Omalu and others who have brought attention to the dangers and effects of

playing football. This paper will provide an expose of the issue of CTE, and how it

relates to the game of football. Additionally, it will document the NFLs decades of

deceptive misinformation, which have led to a number of legal settlements. It will go on

to discuss what the NFL has done to ameliorate the issues, how retired players and

parents of youth football players have responded to the threat of CTE, and whether the

law can be used to tackle these problems. Finally, this paper will provide a framework of

solutions and recommendations that can help curb the threats associated with football.

1
http://profootballtalk.nbcsports.com/2017/03/06/nfl-will-reach-14-billion-in-2017-revenue/
2
http://www.nytimes.com/2002/09/25/sports/mike-webster-50-dies-troubled-football-hall-of-famer.html
I. What is CTE?

CTE stands for Chronic Traumatic Encephalopathy, and is a degenerative brain

disease found most commonly in people who have been exposed to repetitive brain

trauma, such as athletes in contact sports and military veterans. 3 CTE was first

discovered in 1928, and was commonly found in boxers, but Dr. Omalus autopsy was

the first example of a football player being linked to the disease.

Every person who has ever been diagnosed with CTE has a prior history of

repetitive hits to the head.4 For boxers, punches to the head serve as the traumatic

cause, while in football the cause is continuous helmet-to-helmet hits. For offensive and

defensive lineman in football, who clang helmets on nearly every play, the danger of

CTE is even higher. Medical experts have indicated that, in football, it is not necessarily

concussions that cause C.T.E., but rather the repetition and accumulation of several

subconcussive blows to the head over the course of a career that leads to the eventual

disease. 5 For this reason, earlier exposure to the contact sport will increase the risk of

CTE. In football, for example, many kids play Pop Warner, which is a youth contact

football league, as young as seven years old, before their brains have even developed.

As parents become more aware of the risks of football, I find it unlikely that these types

of leagues will continue to exist into the next decade, as the risk of accumulating these

types of hits at such a young age will be too dangerous.

3
https://concussionfoundation.org/CTE-resources
4
Id.
5
Id.
II. Discovery of CTE and Subsequent Studies

A. Dr. Omalus Studies

In 2005, after performing Mike Websters autopsy, Dr. Omalu published a study

entitled Chronic traumatic encephalopathy in a National Football League player, which

concluded that there was the potential for long-term neurodegenerative outcomes in

retired professional National Football League players subjected to repeated mild

traumatic brain injury. 6 Mike Webster was a Hall of Fame player, but after retiring,

Webster suffered from severe dementia, delusion, paranoia and explosive behavioral

patterns according to doctors and family members. 7 During his lifetime, Webster was

diagnosed with a closed-head injury that was the result of multiple concussions

resulting from football. However, even with these diagnoses, the NFL refused Websters

claims for full disability (only awarding a partial claim), despite the fact that he was

known to be living in his car and was living on Pringles and Little Debbie pecan rolls,

and was often in a fetal position for days. 8 This refusal to acknowledge Websters

disability was just one of many attempts by the NFL to refuse to take full responsibility

for the harm that is caused to players as the result of playing football. Mike Webster was

nicknamed Iron Mike and was a symbol of the toughness and physicality that the NFL

came to represent, and yet the league refused to take care of him when the effects of

the game began to take its toll on his body.

6
Bennet I. Omalu, M.D., M.P.H., Steven T. DeKosky, M.D., Ryan L. Minster, M.S.I.S., M Ilyas Kamboh,
Ph.D., Ronald L. Hamilton, M.D., Cyril H. Wecht, M.D., J.D.; Chronic Traumatic Encephalopathy in a
National Football League Player, Neurosurgery, Volume 57, Issue 1, 1 July 2005, Pages 128134,
7
https://www.gq.com/story/nfl-players-brain-dementia-study-memory-concussions
8
Id.
 While Dr. Omalu thought that his discovery would please NFL doctors, and that

he would be celebrated for his breakthroughs, instead, he was met with resistance as

the NFL demanded a retraction of his work. Omalu has stated that at times he wished

he never looked at Mike Websters brain, because It has dragged me into worldly

affairs I do not want to be associated with. Human meanness, wickedness, and

selfishness. People trying to cover up, to control how information is released. I started

this not knowing I was walking into a minefield. That is my only regret." 9 This has been

the history of the NFL for decades: suppress opposing voices and manipulate the public

by injecting falsified narratives into the public discourse. However, Dr. Omalu proved to

be a powerful force, that did not cower in the face of the NFLs pressure. Instead, he

doubled down by publishing a second paper entitled Chronic Traumatic

Encephalopathy in a National Football League Player: Part II," which showed that

C.T.E. had been found in yet another retired NFL player. 10

Omalu continued this work

for years, finding C.T.E. in players who were left bankrupt and alone after their NFL

careers, who reported hearing voices from the evil ones in their latest years, and who

had shot themselves to death after years of symptoms stemming from the disease.

These cases are symbols of what can happen after a career of playing football and

exposing your brain to constant punishment.

In the years since these publications, and especially after Dr. Omalus depiction

by Will Smith in the movie Concussion, the danger of football has become more widely

known. In recent interviews Dr. Omalu claimed that over ninety percent of players who

9
https://www.gq.com/story/nfl-players-brain-dementia-study-memory-concussions
10
Id.
play to the professional level of football have some degree of this disease 11
and even

went on to say that letting anyone under eighteen years old play football should be

considered child abuse.12 Dr. Omalus fearless work in confirming a link between

football and long-term head trauma will be looked back upon as a watershed moment in

the history of the sport.

B. Dr. McKees Studies

In July of 2017, Dr. Ann McKee published a study in the Journal of the American

Medical Association, about her examination of 202 deceased football players. 13

Of

these 202 players, 111 played in the National Football League, and 110 of these 111

ex-NFLers were found to have CTE. 14

However, as Dr. McKee readily admits, there is

a clear bias to these findings, as the only brains that were studied were those submitted

by family members who were concerned about the symptoms of their loved ones. Even

acknowledging the inherent bias, what is clear from these studies is that playing in the

NFL, no matter your position or the length of your career, can potentially lead to CTE.

Dr. McKee, and others who have studied brain trauma, have indicated that the

accumulation of many small, repetitive hits to the head, rather than singular big hits

are the probable causes of C.T.E. 15

Dr. McKee cites to a case study done on one

Stanford college football player which indicated that over the course of a game the

player sustained 62 subconcussive hits, which were delivered with the same force as

11
http://time.com/4158140/concussion-film-bennet-omalu-cte-nfl/
12
http://boston.cbslocal.com/2017/08/08/concussion-expert-football-child-abuse-cte-nfl/
13
https://www.nytimes.com/interactive/2017/07/25/sports/football/nfl-cte.html
14
Id.

15
http://www.pbs.org/wgbh/frontline/article/new-87-deceased-nfl-players-test-positive-for-brain-disease/
driving a car into a brick wall at 30 miles per hour. 16
This particular player was an

offensive lineman, and thus was exposed to helmet to helmet contact on nearly every

offensive possession. How can we consciously allow players to be exposed to these

types of repetitive and brutal impacts? The NFL has already failed many of its players,

with players as young as Jovan Belcher (25), to retired players like Junior Seau (43),

taking their own lives after exhibiting symptoms of C.T.E.. 17

The NFL needs to find a

way to mitigate this type of harm, and must continue continue to invest in research

aimed at detecting and preventing CTE.

C. Ability to Diagnose CTE in Current Players

To give an example of how quickly knowledge and understanding of CTE is

evolving, when I originally started researching for this paper in August of 2017, CTE

could not be definitively diagnosed in living players. Instead, CTE was only confirmed by

examining the brain of someone already deceased. This led to a problem for NFL

players who began to suffer from symptoms related to CTE, such as lack of impulse

control and severe depression, but yet could not be sure that they had the disease.

However, in November of 2017, medical researchers seemed to have made a

breakthrough. Dr. Omalu and others have been experimenting with a new diagnostic

exam that attempts to assess whether a living person has C.T.E., through analysis of

brain patterns. 18
This new exam has already been tested with nearly a dozen former

players, and the researchers finally received their first post-autopsy confirmation of their

16

https://www.nytimes.com/interactive/2017/01/09/sports/football/what-happened-within-this-players-skull-fo
otball-concussions.html
17
http://articles.latimes.com/2013/jan/10/sports/la-sp-sn-junior-seau-brain-20130110
18
http://www.cnn.com/2017/11/16/health/cte-confirmed-in-first-living-person-bn/index.html
testing after Fred McNeill passed away and was confirmed to have had C.T.E..

Researchers at Boston University School of Medicine also have had breakthroughs in

developing a test this year, and it seems that both groups are simply waiting on

additional funding to conduct clinical trials and confirm their initial results. 19

If medical professionals can diagnose CTE in current players, this will allow

players suffering from symptoms to seek the care that they need before it is too late. 20

Players who receive a preliminary diagnosis during their careers could choose to stop

playing, and prevent the onset of more serious symptoms. Additionally, this will allow

the NFL to gain insight into the disease, as they will be able to use current case studies

to determine the types of hits that serve as causes to this type of trauma, and can

potentially slow down or stop the onset of disease in other players. 21

III. The NFLs Response to CTE

A. Decades of Denial

Anyone who is a fan of football, likely grew up relishing the physical, high-speed

nature of the sport. However, as the the public has become more educated about the

threat of head injuries, when the average fan now sees a big hit on the field, he or she is

more likely to grimace than to applaud. The publics awareness of C.T.E. has only

recently grown, however there are indications that the NFL had knowledge of these

19

https://www.washingtonpost.com/sports/breakthrough-may-lead-to-ability-to-diagnose-cte-in-living-football
-players/2017/09/26/a6e1e8c4-a2bb-11e7-ade1-76d061d56efa_story.html?utm_term=.33e42fdd74a9
20
https://www.si.com/nfl/2017/09/27/cte-diagnosis-living-patients-concussions-football-players]
21

https://www.theatlantic.com/health/archive/2017/09/football-brain-injury-chronic-traumatic-encephalopathy
/540459/
issues long before Dr. Omalu and Dr. McKees breakthroughs. It is important to recreate

a timeline which compares the medical communitys knowledge of issues with the NFLs

public statements. It seems that the NFL knowingly suppressed the dissemination of

appropriate information, and as a result likely endangered thousands of players.

In 1997, the American Academy of Neurology said that repetitive concussions

can cause brain damage, and advised that players should be removed from games if

they lose consciousness or exhibit any concussion related symptoms 15 minutes

In 2000, the Mild Traumatic Brain Injury Committee refuted the American
post-injury. 22

Academy of Neurologys 1997 guidelines, and claimed that we see people all the time

that get knocked out briefly and have no symptoms. 23

In 2004, this committee even

went on to claim that due to NFL players heightened exposure to contact, they may

have evolved to a point where their brains are less susceptible to injury. The following

year, in 2005, the committee claimed that players who returned to play after a

concussion were not exposed to any additional injury risk, another attempt to refute the

American Academy of Neurologys 1997 guidelines. 24

In 1999, the Mild Traumatic Brain Injury committee in the NFL issued a report
25

that after four years of tracking head injuries in the NFL that brain injuries in football are

relatively uncommon and minor. 26

Dr. Omalu has criticized this committee as a farcical

22
http://www.pbs.org/wgbh/pages/frontline/sports/league-of-denial/timeline-the-nfls-concussion-crisis/
23
Id.

24
Id.
25

http://www.pbs.org/wgbh/frontline/article/nfl-board-paid-2m-to-players-while-league-denied-football-concu
ssion-link/
26
http://www.pbs.org/wgbh/pages/frontline/sports/league-of-denial/timeline-the-nfls-concussion-crisis/
attempt by the NFL used by the entity to feign concern over the safety of the game.

Supporting Omalus belief is the fact that the committee does not even have a

neuropathologist as a member, and furthermore had a rheumatologist (who mainly

deals with joints) head the committee. 27

From 2003 to 2009, the NFL repeatedly claimed that no NFL player had

experienced chronic brain damages from repeat concussions, and that Professional

football players do not sustain frequent repetitive blows to the brain on a regular basis.
28
These types of statements are simply false, and are reflective of the NFLs attempt to

control the narrative around the game by projecting propaganda into the public

discourse. As a lifelong fan of football, it was shocking to discover this deceptive and

repetitive rhetoric promoted by the NFL, even when faced with contrary scientific

findings. The NFL clearly had awareness that football could cause long term head

trauma, and chose to continue to publicly debunk medical research that supports this

conclusion. The leagues denial of these issues undoubtedly endangered thousands of

football players, who believed the NFLs reports that playing football would not cause

long term health risks. I will delve into the legal fallout of the NFLs actions in

subsequent sections, but it seems clear that the NFL knowingly concealed information,

and chose to misrepresent material facts.

B. Recent Acknowledgment of CTE & NFL Research Efforts

After years of continual denial, and refutation of the findings of medical experts,

in December of 2009 an NFL spokesman publicly stated that It is quite obvious from

27
https://www.gq.com/story/nfl-players-brain-dementia-study-memory-concussions
28
http://www.pbs.org/wgbh/frontline/article/new-87-deceased-nfl-players-test-positive-for-brain-disease/
the medical research that has been done that concussions can lead to long-term

In that same year, the NFL announced stricter return-to-play rules and
problems. 29

even donated $1 million dollars toward Dr. McKees brain bank, after refuting her

research for years. 30

Additionally, the NFL began to put posters in locker rooms that

say concussions can change your life forever, and pledged $30 million dollars to the

National Institutes of Health (NIH) for research into brain trauma. 31

Last year, the NFL

initiated a Play Smart. Play Safe campaign, which promises that the league will pledge

a total of $100 million dollars to fund concussion-related initiatives, such as new

technologies and research into brain trauma. 32

However, as great as these initiatives seem on their face, both the $30 million

grant to the NIH and the $100 million pledge, have received serious public criticism. The

$30 million grant was initially given as an unrestricted gift to the NIH, with no strings

attached, however the record shows that the NFL attempted to pull this funding when a

portion of the money was awarded to a researcher known to be critical of the league. 33

According to a Congressional report, the NFL attempted to strongarm the NIH into

rescinding a $16 million grant that was given to fund research to find CTE in living

29

http://www.espn.com/espn/otl/story/_/id/14972296/top-nfl-official-acknowledges-link-football-related-head-
trauma-cte-first
30
http://www.npr.org/2017/07/25/539198429/study-cte-found-in-nearly-all-donated-nfl-player-brains
31

http://www.nfl.com/news/story/0ap1000000058447/article/nfl-donates-30-million-to-national-institutes-of-h
ealth
32

http://www.espn.com/espn/otl/story/_/id/20509977/nfl-takes-control-brain-research-100-million-donation-al
l-ending-partnerships-entities
33

http://www.espn.com/espn/otl/story/_/id/20175509/nfl-donation-brain-research-falls-apart-nih-appears-set-
move-bulk-30-million-donation
 Additionally, the report goes on to say that the NFL attempted to persuade
patients. 34

the NIH to assign this funding to another group of researchers who were associated

with the league. It was after this congressional report became public that the NFL

committed $100 million to guide concussion related research.

After an article published in August of 2017, this $100 million investment has also

become a point of controversy. In a year since the program was announced, the NFL

has only funded one study to examine CTE, and even that study is not targeted towards

football players, but rather aims to discover why high concussion rates in horse racing

does not create CTE issues for jockeys. 35

The NFL has come under fire, because many

feel that the league has given more attention to publicity stunts than substantive

research into head trauma stemming from football. This feeling has been compounded

by the fact that this $100 million is not going towards independent researchers, but

rather is an internal investment by the NFL. Given that the NFL does not have a

financial incentive to uncover links between football and CTE, it is difficult to trust the

findings stemming from this research. Unfortunately for the NFL, after years of denials,

the public seems to have a great deal of mistrust for any statements or research efforts

spearheaded by the league. In order for the NFL to regain credibility, it will likely have to

cede these efforts to independent scientists, without attempting to influence the

outcomes.

34
Id.
35

http://www.espn.com/espn/otl/story/_/id/20509977/nfl-takes-control-brain-research-100-million-donation-al
l-ending-partnerships-entities
C. Recent NFL Rule Changes

In addition to funding research into these issues, the NFL, and other football

entities have begun to implement rule changes in an attempt to curb the risks of head

trauma. Since 2002, the NFL has made 47 rule changes in order to make the game

safer, and reduce hits to the head. 36

In the past few years, the NFL has placed a

significant emphasis on reducing hits to defenseless players, as new rules require that

players be allowed to gain the ability to protect themselves before they can be hit.

Perhaps the most violent play in the course of a football game is when a team kicks off

to another, as this consists of players from both teams running full speed from opposite

ends and meeting at the ball carrier. The NFL has implemented new rules in order to

disincentivize players from returning these kicks, and instead opting to take a

touchback, which is an automatic grant of yardage without the need to expose yourself

to any harm.

In addition to these modifications of the game, the NFL has also introduced a

new concussion protocol in recent years, in order to ensure that teams properly aid

players who may have suffered from head injuries. When a potential concussion is

identified during the course of a game, the player shall be removed immediately from

the field, and will be assessed by both a team physician and an independent

neurotrauma consultant. If the player is eventually diagnosed with a concussion, they

will be ruled out for the remainder of the game and will have to go through a five-step

process before they can return to play in subsequent games. Any team that is found to

36
https://www.playsmartplaysafe.com/newsroom/videos/goal-changing-rule-make-game-safer-fair/
have attempted to circumvent these rules will be subject to fines of up to $150,000 or

the forfeiture of draft picks. 37

Finally, in an attempt to reduce the amount of physical

contact that players face throughout a given season, the NFL now has banned

two-a-day practices and reduced the total number of padded practices teams can go

through during the course of a season. 38

These protocols and rule changes are all a direct result of the growing

awareness of head injuries in football. It is the leagues hope that reduced exposure to

contact during the practice week, combined with more strictly banning hits to the helmet

during game days will significantly reduce the propensity for head injuries in football

players. However, one significant problem with these rule changes are that they fail to

adequately address the dozens of subconcussive hits that players like offensive

lineman are exposed to throughout the course of a game. The Stanford case study cited

earlier indicated that the average offensive lineman faced over sixty of these types of

hits throughout the game, and yet the rule changes do nothing to curb these

problematic occurrences. Additionally, while an improved concussion protocol is a

positive step, fans of football know that many times players become doozy and shaken

during a game, and while they pass a concussion test they are clearly not healthy. The

NFL must ensure that assessment of players health goes beyond simply testing for

concussions.

37
https://www.nytimes.com/2016/07/26/sports/football/nfl-concussion-protocol-new-rules.html
38

https://www.bloggingtheboys.com/2015/9/4/9226351/the-collective-bargaining-agreement-has-really-mad
e-it-tough-on-nfl
D. Radical Changes to Youth Football

The NCAA rules now largely reflect the NFLs, and thus also fail to mitigate the

amount of these subconcussive hits. However, the youth football circuit has proposed a

radical change to the game. USA Football serves as the governing body for youth and

high school football, and has proposed creating a smaller playing field with fewer

players and less direct contact. 39

In this model there would be no three point stance,

which is what offensive and defensive lineman use to gain leverage at the initial points

of contact, and instead this modified game would require players to lean more on their

speed and athleticism than their physicality. 40

Additionally, under this proposed model,

players would be required to rotate in and out of the game, and would only be matched

up against players of similar sizes. This seems to be a fascinating solution, and if it is

executed correctly it would preserve the nature of the game of football while removing

the constant head to head contact that occurs at the line of scrimmage, and thus will

reduce the number of subconcussive hits that players are exposed to during the course

of a game.

It is highly unlikely that the NFL would adopt a proposal as extreme as the one

proposed by USA Football, however it is encouraging that these types of novel solutions

have been introduced into the pipeline of football. In order to truly make the game safer

for players, in addition to funding independent research into concussion issues, the NFL

must also create new protocols and rules in order to reduce the amount of harm that

39

http://www.npr.org/sections/thetwo-way/2017/02/01/512835175/big-rule-changes-could-make-youth-footb
all-games-a-whole-lot-smaller
40
Id.
players face at the initial point of contact. Perhaps the evolution of youth football will

also catalyze a change in the NFL, where the league places less emphasis on

physicality and force and more on speed and athleticism.

IV. Player and Societal Responses to CTE

The response of current and recently retired players in reaction to new research

regarding CTE has been fascinating, and indicates that players were largely unaware of

the long term risks of playing football. Thirty four players under the age of 30 have

retired from the NFL in the past two years, many of whom were all-star caliber players

without injuries. 41
Some are leaving the league even earlier, such as Chris Borland who

retired at age 24, after only one year in the NFL, saying that he did not want to have

any neurological diseases or die younger. 42

A. Player Responses

What has been most damning for the NFL, is that legendary players, who were

once the most celebrated athletes of the game, have publicly made statements warning

of the dangers of football. For example, Brett Favre, who was considered one of the

toughest quarterbacks of his era, publicly stated that he would likely not allow his own

son to play football, because of the physical toll that it could take. Favre has reported

scary memory issues since retiring, such as forgetting recent events and details about

his children. 43
Bo Jackson, who is the only man to ever be an All-Star in both baseball

41
https://twitter.com/AdamSchefter/status/890628258835726337
42

https://www.huffingtonpost.com/entry/dbrickashaw-ferguson-nfl-early-retirement-no-surprise_us_5707c4d
5e4b0c4e26a2273fa
43
https://www.cbssports.com/nfl/news/brett-favre-reiterates-he-wouldnt-want-son-to-play-football/
and football, is considered one of the greatest all-around athletes in history. Earlier this

year, he spoke to USA Today regarding recent revelations about CTE and said that If I

knew back then what I know now, I would have never played football. Never. I wish I

had known about all of those head injuries, but no one knew that. And the people that

did know that, they wouldnt tell anybody. This quote comes off as particularly bad for

the NFL, as it makes clear that some former players feel manipulated by the lack of

information they were given regarding the potential of head injuries. 44

In addition to

these public comments, some players, such as Warren Sapp who was also a Hall of

Famer, have pledged donations of their brains to the Concussion Legacy Foundation for

research into concussions and head injuries after their death, and have proposed

banning tackle football until high school, in order to reduce the number of hits players

face over the course of their careers. 45

These comments and actions are only a small sample of what has happened in

recent years, but the influence of these great players will likely have a massive impact

on the future of the game. If those who played at the highest level and as a result likely

benefited the most from the game financially choose to denounce the safety of the

sport, it seems that this would eventually affect the number of players enrolling in youth

football.

44

https://www.usatoday.com/story/sports/mlb/columnist/bob-nightengale/2017/01/12/bo-jackson-football-cte
-mlb/96492338/.
45
https://www.si.com/nfl/2017/06/20/warren-sapp-brain-research-concussion-legacy-foundation
B. Parental & Societal Responses

A poll done by HBO last year found that forty percent of adults, and forty four

percent of parents with a son under 18 are less likely to let him play football. These

numbers are up seven, and eight points, respectively from four years ago. 46

In California, youth football participation at the high school levels has decreased by over

three percent in two consecutive years, and approximately ten percent in the past

Nationally, the number of participants in high school football has dropped by

decade. 47

twenty five thousand participants, and has slowly declined over the last decade.

C. Potential Distributive Justice Effects

While these numbers are not enough to hurt the NFLs bottom line anytime soon,

if this trend continues, and parents and kids continue to gravitate towards other sports,

the NFL could face a dearth of talent in the next decade. Additionally, there has been

some indication that those who have chosen to steer away from football, are often those

in affluent areas, where the communities are more tuned into recent research into brain

injuries. For example, one of the largest areas of decline in football participation has

been in the Bay Area, where some high schools have struggled to even find enough

players to field a full team. 48

Dr. Harry Edwards, who is a sociologist that has done

extensive research on the intersection of race and sports, claimed that in the future the

NFL will consist largely of athletes culled from impoverished backgrounds. 49

This

46

http://www.nydailynews.com/sports/football/parents-reluctant-kids-play-football-poll-finds-article-1.288562
8
47
http://bleacherreport.com/articles/2726124-report-shows-continuing-drop-in-high-school-football-players
48
http://www.sfchronicle.com/sports/article/High-school-football-participation-dropping-in-11736944.php
49
Id.
sentiment has been echoed by some former players, such as Cris Carter, who has said

that With all this information, I wouldnt want to change anything. Football gave me a

sense of purpose. Not a whole lot of options for a black man, sports gives you that

opportunity. Im willing to suffer the consequences because of what it has done for me.
50

These types of comments indicate a disturbing future for the NFL, where the

league may become a vehicle for distributive injustices against those athletes who have

grown up without access to adequate information or alternatives to the sport. In order to

prevent this, the NFL needs to be actively investing in the inner cities and communities

that contribute so greatly to the product on the field. These investments should cover

education regarding the sport, implementation of increased safety protocols, and career

counseling for the youth enrolled in the game from an early age. If the NFL wants to

continue to succeed, transparency about the nature of the game, and investment into

the pipeline of youth sports will be imperative to rebuilding the image of the sport.

D. Technological Responses

Technology often becomes the avenue we turn to when human efforts can no

longer fix the problems we are presented with. So, is it possible that technology can

save the game of football? In recent years, there have been many attempts to solve the

issue of concussions in football, by revamping helmet technology, improving

mouthguards, and increasing the efficiency of player padding. Part of the problem with

the current helmets used in the NFL, is that they were built with the purpose of

50

http://ftw.usatoday.com/2017/09/cris-carter-makes-emotional-statement-about-why-hed-still-play-football-
despite-fears-about-cte
preventing dangerous injuries such as skull fractures and hemorrhages, but were not

effectively designed to prevent concussions. 51

A new helmet called the Zero1 has sought to address this problem, and is

designed in a way that mitigates impact forces and slows them before they can reach

the head and brain. 52

This helmet ranked number one on the NFLs annual Helmet

Laboratory Testing Performance Results, and NFL players who have test-driven the

helmet have said they don't feel the impact as much when they are tackled. 53
While it is

encouraging that companies are attempting to innovate in this way, even the CEO of the

company that designs this helmet concedes that no helmet can prevent concussions,

but the aim is to simply reduce the severity and frequency of such injuries. Additionally,

given that this helmet is $1500, it will be difficult for players in high school and below to

afford this innovation.

In addition to revamping the designs of player helmets, another innovation aims

to address concussions through the use of a neck collar. The product is called the

Q-Collar, and it wraps around a users neck in order to increase blood flow to the skull

and help stabilize the brain when its impacted by sudden movement. 54
This device is

still in its experimental stages, and has not been approved by the FDA, however early

tests of high school players show that the collar helps to maintain the structure of

51
https://www.digitaltrends.com/health-fitness/vicis-zero1-lab-nfl/
52

http://www.foxnews.com/tech/2017/08/08/revolutionary-new-zero1-football-helmet-may-help-nfl-players-re
duce-concussions.html
53
Id.
54
https://www.digitaltrends.com/outdoors/neuroshield-q-collar-protects-brain-from-concussions/
players brains. 55
Luke Kuechly, who has suffered from multiple significant concussions

in the past, is the only NFL player who has currently adopted the collar, and he suffered

a concussion this season while wearing the collar. 56

The dangers of apply pressure to

ones neck whilst playing football seem to be too dangerous for this device to ever gain

widespread adoption or F.D.A. approval, but it serves as an example of how the

industry is attempting to respond to this complex problem.

Another technological innovation aims to address the problem of concussions

from a numbers and metrics perspective. Engineers at Brigham Young University are

developing and testing a nano composite smartfoam that is to be placed within

helmets and pads to measure the impacts and effects of a hit in realtime. 57
This design

is capable of measuring the severity and location of an impact with 90 percent accuracy,

which would greatly improve the ability to diagnose concussions and other injuries. This

type of tool may be useful for the league to have as a self-assessment tool that allows

teams to generate a better understanding of the types of hits that cause injuries.

While objectively these new innovations should help to reduce and prevent

concussions, the reality seems to be that due to the frenetic and unpredictable nature of

football, no one technology will fix the larger issue. Football is an inherently dangerous

sport that exposes players to head to head contact, and in order to address this issue

technology alone likely can not fix the problem, but rather it seems that the game must

be fundamentally changed.

55

http://www.espn.com/blog/carolina-panthers/post/_/id/27367/how-a-200-device-is-providing-hope-in-reduc
ing-brain-injury
56
Id.
57
https://www.digitaltrends.com/health-fitness/smartfoam-football-concussions/
V. Legal Fallout from CTE

The NFL, NCAA, and Pop Warner have all faced legal repercussions related to

the suppression of information about concussions and long term head trauma resulting

from football. It seems that most lawsuits against these entities have either settled out of

court, or are still pending a final verdict. I find that it is unlikely for parties to have

significant success litigating against these financial and legal powerhouses, and instead

it seems that public pressures and bad publicity about the sport will be the largest

drivers of change.

A. NFL and NCAA Settlements

As a result of the brutal impact of repetitive head injuries, many retired players

have suffered severe symptoms after retirement. Recently, a class action lawsuit on

behalf of all retired NFL players was settled with the NFL for a total of $1 billion, to be

paid out over the next 65 years. This settlement will pay each retired NFL player an

average of about $190,000, and a given player may receive up to $5 million depending

on certain factors. 58
The problem is that in this agreement the NFL did not have to

acknowledge any fault, and since this case settled before trial, the league may never

have to disclose what it knew about the risks of repeated concussions in the NFL. If the

NFL were exposed to discovery and depositions, the decades of denials would have

likely been highly scrutinized, leading to a more lucrative settlement.

Additionally, while ALS and Alzheimers are recognized diseases under the

settlement, retired players are not awarded damages for symptoms related to CTE

58
http://www.cnn.com/2015/04/22/us/nfl-concussion-lawsuit-settlement/index.html
during their lives. Instead, families of players can only receive compensation if CTE is

discovered in the player after they have died. 59

The hope for players is given that there

are now signs that CTE can be discovered during someones life, that this disease will

be retroactively included in the coverage of this settlement. However, even if players

were able to achieve that, for a league that generates $14 billion in revenue annually,

having to pay $1 billion over the course of 65 years seems to almost be a slap on the

wrist. Some players have even claimed that the NFL is obstructing access to this

settlement money by stalling the claims process with unreasonable demands, and is

attempting to get players to drop their claims or settle for smaller amounts. 60
This is the

reality of this settlement, as the NFL essentially gets to eliminate hundreds of legal

claims by simply throwing money at the issue, and manipulating the process in a way

that players are not even given the marginal amounts agreed upon. Many of these

players are debilitated and suffering from symptoms that are a direct result of playing in

the NFL, yet they are being forced to go through an arduous claims process to receive

the money that they rightfully deserve.

Last year, former college football players brought a class action suit against the

NCAA, claiming that the organization was negligent and breached its duty to protect all

current and former student-athletes by failing to adopt appropriate rules regarding

The legal theories in this case were similar to the ones made by retired
concussions. 61

players against the NFL, with a focus on claiming false advertising and a lack of

appropriate mechanisms in place to prevent and identify head injuries. This case also

59
https://www.si.com/nfl/2017/08/15/new-cte-study-effect-nfl-concussion-settlement
60
https://www.nytimes.com/2017/11/13/sports/football/nfl-concussion-lawsuit.html
61
https://www.sportsblog.com/jeffnixon/ncaa-70-million-concussion-settlement/
settled (for $75 million), without the NCAA having to admit any guilt, and without having

to be exposed to discovery requests and depositions. which will be directed towards

research and medical monitoring programs for college athletes. 62

From these two

settlements, it is clear that despite having adequate legal cases, it will be difficult for

players to litigate to completion against these wealthy corporations.

B. Class Action Suit Against Pop Warner

Parents of current and former players in Pop Warner, which is a youth football

organization with players from the ages of 5 to 16, have sued the league claiming that

the league mismanages head injuries. One of the lead plaintiffs in this suit is Kimberly

Archie, who says that she wants the term CTE to be placed on all youth football

helmets, as a disclaimer regarding the dangers of the game. 63

Archie is attempting to

expand the claims into a class action against Pop Warner, with the class covering all

persons who played Pop Warner, or parents who enrolled children in Pop Warner, from

1997 to the present. The central contention of this legal claim is that Pop Warner failed

to properly train coaches, staff, and players on the risks of brain injuries, and to

adequately identify and prevent these injuries. Archie and her co-plaintiff claim that

because the participants in Pop Warner are all under the age of 16, Pop Warner

voluntarily assumed a duty to protect the health of these participants. 64

Additionally,

the plaintiffs claim that the organization consistently engaged in false and deceptive

advertising, by claiming that the youth program facilitated a safe environment where

62

https://www.usatoday.com/story/sports/ncaaf/2016/07/14/college-football-concussions-lawsuit-ncaa/8709
7982/
63
https://www.si.com/nfl/2016/09/01/pop-warner-youth-football-lawsuit-concussions-cte
64
Id.
children would be trained with the appropriate tackling techniques necessary to reduce

injury rates. In October of 2017, a U.S. District Court Judge in California allowed this

class-action lawsuit against Pop Warner to proceed after agreeing that the league

increased danger to youth football participants by failing to institute league-wide safety

protocols and guidelines. 65

It will be fascinating to see how this case progresses.

Although this suit is not against the NFL, if this case goes to trial, it will provide valuable

precedent as to how a court would respond to claims against a football entity accused of

suppressing information regarding the safety of the sport. The problem of CTE in

football is larger than just the NFL, and a solution to the problem will require

modifications of the game at all levels of the sport. So, a successful class action against

an Pop Warner, which is the entity at the heart of youth football, would hopefully lead to

significant changes as to how the game is played at the youth level and advertised

towards children and families.

C. Individual Player Lawsuits

In addition to large class action lawsuits, individual players not covered under

these classes have also taken aim at these large entities. Aaron Hernandez, for

example, who committed suicide at the age of 27 in prison was recently found to have

had CTE by Dr. McKee. Additionally, Hernandez brain showed that he had such a

severe case of CTE, that his brain looked like that of a player who was in his 60s. 66

These findings raise questions as to whether Hernandez erratic behavior, subsequent

convictions of murder, and eventual suicide were in anyway caused by C.T.E.

65
https://deadspin.com/report-california-class-action-lawsuit-against-pop-war-1819751848
66
http://www.cnn.com/2017/11/09/health/aaron-hernandez-brain-cte/index.html
Hernandez lawyer filed suit against the NFL, claiming that the entity knew of the danger

of repeated hits to the head, but did not do enough to protect players from this damage.

This lawsuit is based on the same premise as the ones against Pop Warner and

the NCAA, however the problem in all these cases is that it is extremely difficult to prove

causation. For players like Hernandez, who have played football since their youth, it

would be nearly impossible for a court to pin liability on a single entity for the result of

C.T.E. Additionally, this difficulty becomes compounded by the fact that C.T.E. is known

to be the result of several small, repetitious hits over the course of a career, and not

single large impacts. A legal case revolving around C.T.E. might require lawyers to

piece together a players past in order to pinpoint instances which may have caused

significant damage. The football entities often deflect and claim that the damage either

occurred after the football career, or due to the players own negligence. Clearly, this

will be difficult to rebut for most lawyers, as many players have been playing football

since they were young, and it is unclear when and how their brain became damaged.

If the medical researchers and scientists who claim to have found an ability to

test players for C.T.E while they are still living can confirm their findings, this has the

potential to change the dynamics completely. If we have access to this information

during the course of a players career, this would allow lawyers and players to have a

much stronger ability to understand when they are being exposed to excessive head

trauma. The player could then bring a more verifiable claim against his team, if it can be

shown that the team had knowledge of these signs of C.T.E. and failed to address

them. In the past the NFLs strategy has been to feign ignorance, and put the burden on
players to prove that they were falsely advertised to and exposed to excessive dangers.

However, if signs of C.T.E. could be discovered during the course of a players career,

this would provide objective data that would put the onus on teams to address these

issues. 67

D. Can The Law Adequately Respond To These Issues?

We have seen many parties attempt to sue football entities, whether it be through

class action or individually, however it is difficult to find even a single case in which a

court entered into a judgement in favor of the plaintiffs in these cases. Instead, as has

been discussed, often plaintiffs who dont have the financial capital to pursue such a

large litigation are coerced into agreeing to settlements outside of court. To compound

the issue, these settlements have shown to be extremely favorable to the defendant

parties, as they are often for financial figures much lower than what a court would likely

award, and typically grant defendant parties an ability to suppress access to these

funds. I find that even if we were to receive a definitive court judgment on this issue

eventually, this would not necessarily require the game of football to be changed at a

fundamental level, and instead the party being sued would likely only have to

compensate the complaining parties. In this situation, many of the problems related to

the head trauma resulting from football will continue to occur in the next generation of

players. Case law and class action settlements may help to bring attention to these

issues, and compensate injured players, but I am skeptical that these will bring about

67
https://www.nytimes.com/2017/09/21/sports/aaron-hernandez-cte-brain.html
substantive changes to the sport itself, which will be necessary to prevent injuries in the

future.

i. Would Self Regulation Work?

Now that the NFL has somewhat acknowledged the issue of C.T.E., after years

of outright denial, it seems that the league would like to adopt a self-regulation

framework. However, given the NFLs history of deception, and their lack of an incentive

to unearth more discovery of problems relating to football, it is difficult to trust this

proposal. The NFLs approach to concussion research has been consistently compared

to the tobacco industries attempt to inject fabricated research into the public discourse.
68
It has even been discovered that the NFL and the tobacco industry share a good

number of lobbyists, lawyers and consultants in common, which raises more questions

as to whether the NFLs strategy of deception has been deliberate. In recent years, as

the NFL has shifted gears and begun to acknowledge the issue of C.T.E, the league

has attempted to implement rule changes and has funded research into the problems of

concussions. However, given that the NFL has attempted to influence the process and

outcomes of these research efforts, and that players are still dangerously exposed to

harm during games, it is difficult to trust that the NFL could ameliorate the issues

surrounding the game simply through self-regulation.

VI. Alternatives and Possible Solutions

So, if case law and self-regulation likely will not be sufficient to address the

issues of long-term head trauma in football, what can be done? It seems that in order

68
https://www.nytimes.com/2016/03/25/sports/football/nfl-concussion-research-tobacco.html
for the NFL to address these problems, there has to be a multifaceted solution, that

aims to address the dangers of the game at all levels. I propose that the NFL establish

new methods of advertising the game, especially to the youth, that includes disclaimers

and warnings regarding C.T.E.. Additionally, the NFL must continue making

self-assessments regarding the game, in order to establish new rules that will prevent

players from being exposed to repetitive, subconcussive hits. Finally, the NFL, NCAA,

and Pop Warner must make dedicated efforts to invest into the safety of football, with

specific efforts to fund education programs about the dangers of football, medical

research regarding C.T.E., and technological innovations aimed at suppressing

concussions. While no single solution can ameliorate the inherent risks of a contact

sport like football, a multifaceted solution may be able to curb some of the more

problematic concerns.

A. Following the Tobacco Model: Disclaimers and Warnings

The story of the NFL is closely parallel to the tobacco industry, another product

which was a significant part of society, and was subsequently forced to adjust after

public awareness of the dangers began to grow.

Initially the negative effects of tobacco were not known, and many even claimed

that it could be used as an effective medicine. However, my the mid 1940s, the

American Cancer Society and medical researchers began to warn of the ill effects of

Just like in the early days of concussion research, at this time there was no
smoking. 69

explicit evidence to link smoking with lung cancer, but merely warnings of potential

69
http://edition.cnn.com/2009/POLITICS/06/19/tobacco.decline/
risks. In the 1960s, the tobacco industry faced a publication akin to Dr. Omalus initial

finding of CTE, when the Surgeon General unequivocally concluded that smoking is

causally related to lung cancer in men. 70

This would be the bombshell discovery that

would require the tobacco industry to permanently change their practices. For years, the

tobacco industry was depicted in television, and even served as a sponsor for family

game shows and cartoons. However, after this report, Congress required that all

cigarette packages carry warning labels and television and radio advertisements

became banned. 71

It remains to be seen whether the Federal government will enact regulations on

the game of football, but the NFL would be wise to implement their own system of

disclaimers and warnings. One possibility would be to do as the plaintiffs in the Pop

Warner lawsuit have recommended, by emblazoning the words CTE on all youth

football helmets, much like the smoking industry has been required to label their

products with usage warnings. Currently, most helmets already contain standard

warnings, indicating that no helmet can prevent against concussion or brain injuries. 72

However, the purpose of having a larger and more discrete warning would be to remedy

the concern of parents, many of whom have claimed that they were completely unaware

of the nature of the risks. This may help to alleviate some concerns, but it is clearly not

a solution that will remedy all the issues. At the NFL level, the largest problem was that

70
Id.

71
Id.
72

http://www.nytimes.com/2013/08/05/sports/football/warning-labels-on-helmets-combat-injury-and-liability.
html
for years the NFL was allowed to promote junk science, and disclaim medical

consensus that indicated links between football and head trauma. The players in the

NFL knew that football could cause concussions, and that their helmets likely could not

prevent all of them, but what they were deceptively led to believe is that there would be

little to no long term consequences. 73

74

i. Suggested Implementations

For football leagues which consist of players under the age of 18, I would

recommend adding a disclaimer on players helmets indicating that Playing football can

expose you to long-term brain damage and debilitating diseases such as C.T.E,

Alzheimer's, Amyotrophic Lateral Sclerosis (ALS), and Parkinson's. Additionally, I think

the proposal of having C.T.E. specifically marked on helmets would immediately

heighten awareness regarding the dangers of football. I find it unlikely that the NCAA or

NFL would adopt this proposal, given the great importance these entities give to the

branding and logos placed on their helmets, but I think it is feasible to implement at the

youth levels. Additionally, disclaimers and warnings can be used to change the way the

game is currently being advertised. Within the football stadiums themselves, teams

should be required to place signs similar to tobacco warnings, which say: This Facility

Facilitates Playing Tackle Football. Tackle Football is Known To Cause C.T.E. And

Other Long Term Debilitating Injuries. 75

On television, football entities should be

73
https://betobaccofree.hhs.gov/laws/index.html
74
https://www.cdc.gov/tobacco/data_statistics/sgr/2000/highlights/labels/index.htm
75

https://www.mscdirect.com/browse/tnpla/83733865?cid=ppc-google-New+-+Safety+-+PLA_sE38L82Oo_
__164124449663_c_S&mkwid=sE38L82Oo|dc&pcrid=164124449663&rd=k&product_id=83733865&gclid
=EAIaIQobChMIk9vV6on01wIVUjyBCh1kYAk8EAQYAyABEgJ6DvD_BwE
prevented from running advertisements when the ad space desired surrounds a show

whose audience is predominantly persons under the age of 18. Additionally, if a football

entity aims to advertise on television outside of these restraints, the channel should

have the right to sell concurrent ad space to researchers and corporations aiming to

promote awareness about the dangers of football. Finally, all major cable networks that

broadcast NFL games (Fox, CBS, NBC, ESPN, NFL Network), should work in

conjunction with the NFL to develop an advertisement that warns viewers of the

dangers and consequences of playing football. This advertisement would be played

immediately before the kick off of every game, much like how other shows are required

to issue content warnings for graphic violence or strong language.

Beyond advertising, I propose that all football entities, from Pop Warner to the

NFL, should require that all players go through a day long training on the dangers of

football, every year before they be allowed to participate. At the youth level, parents of

players would be required to also go through this training, and would have to give their

consent before players could participate. This training should be structured like an

academic conference, and the speakers and content should be curated by independent

entities with no affiliations to the NFL, NCAA, or any organization benefiting from the

business of football, such as helmet manufacturers or sporting good retailers. I envision

that this day long training would consist of presentations by medical researchers, such

as Dr. Omalu and Dr. McKee, and that players and parents would be shown objective

findings regarding the violence and dangers of the sport. Additionally, this training would

have players such as Warren Sapp and Bo Jackson, who played at the highest level
and are now suffering, to discuss their stories. This combination will provide players and

parents a combination of statistics and first hand narratives that will hopefully make

clear the dangers of football. Part of the problem with football, is that there exists an

entire generation of parents who played football in their youth, and currently do not have

any symptoms of damage, who perpetuate the notion that football is safe. This training

would hope to educate these parents, and remove these false perceptions from public

discourse.

Additionally, even with the rise in knowledge about the dangers of football, many

players seem to still think that the dangers of football are only limited to injuries. For

example, Mike Mitchell, a safety for the Pittsburgh Steelers said in response to the

NFLs attempts to modify the game to make it safer that This is a combat, contact

sport. There is going to be injuries, if you dont want to get injured, dont come out here.

This is for real men. 76

What these types of statements fail to understand, is that in

addition to causing short term bodily injuries, playing football is permanently damaging

the brains of players. It is not simply the players who suffer from concussions who are

harmed, but all players who have played the game for any extended period of time.

Statements like the one Mitchell made reflect antiquated notions of toxic masculinity that

have been perpetuated by the NFL for decades. Coaches and players have proliferated

an ethos that football is a combat sport, and that only the real men will survive on the

field. This training program hopes to provide players like Mitchell a new perspective on

the game, and help inject a new dialogue into the minds of players and coaches. Yes,

76
https://twitter.com/SportsCenter/status/938544338191175681
football is a combat sport, but what must be understood is that the harms of the game

create long-term risks for the health of players. After being exposed to the research and

first hand narratives of real men, like Bo Jackson and Warren Sapp, who are suffering

from the effects of football, hopefully players like Mitchell will begin to understand the

type of life that awaits if one continues to play football as it is currently constructed.

B. Rule Changes

In addition to implementing disclaimers, warnings, and training programs the NFL

needs to also look to how other sports have reduced the risks of head trauma, in order

to establish new rules.

The Canadian equivalent of the NFL, the CFL, recently adopted a new rule which

eliminated all padded practices during the season. 77

Currently, the NFL allows for

fourteen padded practices, where players practice at full speed and can tackle,

throughout the course of the regular season. The current NFL collective bargaining

agreement is set to expire at the end of the 2020 season, and it is likely that the NFL

players association will push for a similar rule to implemented in the NFL. While some

coaches and players have expressed concern that these lack of padded practices will

harm the quality of play, the health benefits from removing these practices should

outweigh these concerns. Given that CTE is caused by the repetition of subconcussive

hits, any rules aimed at lessening the total number of hits a player faces will be

beneficial.

77

http://www.espn.com/blog/nflnation/post/_/id/248397/what-nfl-coaches-and-players-are-saying-about-cfl-e
liminating-padded-practices
 In other sports, such as Soccer and Hockey, where athletes are exposed to

impact to the head, the response has been to ban these forms of contact until a certain

age. For example, in soccer, heading the ball has been banned until the age of 11 and

in hockey body checking was banned for players younger than 13 years old. 78
I would

argue that the NFL, and football in general would need to implement even more

stringent policies, given that football exposes players to head to head contact far more

than soccer and hockey.

i. Youth Football Recommendations

The rule changes would have to be implemented from the bottom up, with the

most drastic changes to the game relating to the youth circuit. I would propose that

traditional tackle football, of any kind, be banned until the high school level. Instead,

parents and athletes interested in the game of football, would enroll in flag football

leagues that cultivate fundamentals, athleticism, and skills without exposing players to

the trauma of head to head contact. In youth tackle football as it stands today, we are

exposing kids whose brains are still in early stages of development to incredible

dangers. These kids often are still learning the proper techniques and methods, and yet

are slamming head first into each other at a crucial point of their development.

Transitioning to flag football, would allow athletes to still partake in the game of football,

but completely remove the accumulation of hits to the head that they may face at such a

ripe age.

78

https://www.reuters.com/article/us-health-injuries-youth-hockey/canadian-youth-hockey-injuries-cut-in-half
-after-national-policy-change-idUSKBN16S1XL
 My proposal would also alter traditional high school tackle football. I would

recommend that High Schools implement a transition sport akin to USA Footballs

proposal, so that players are not directly placed within tackle football. This transition

sport would be a requirement for freshman and sophomore high school students

interested in playing varsity football. USA Footballs proposal includes shrinking the size

of the field in-half to forty yards, reducing the number of players on each side to seven,

and banning the three point stance which lineman use to gain leverage against each

other at the point of attack. Flag football would teach players the fundamentals of the

game, and this transition sport would begin to expose players to the physicality of

traditional football in a more controlled environment.

Finally, when players have reached their junior and senior years, they will be

allowed to play traditional tackle football, with additional safety protocols implemented. I

would recommend that High School tackle football follow the model laid out by the CFL,

by banning padded practices, in order to reduce unnecessary head trauma to players.

Additionally, given that many high school football teams severely lack funding, I would

urge the NFL to provide monetary support for these teams, so that they can hire

adequate coaches and medical professionals. The NFLs support in building this new

system will be imperative, as they are the entity best situated to understand the

long-term impacts of this issue. With this new transition system, players would still be

taught the fundamentals of the sport, but would not be exposed to the type of repetitive

hits that are known to cause CTE. Additionally, this type of drastic change would require

parents and athletes to understand the risks of football, given that they would have to go
through years of non-tackle football to even become eligible for the sport. This new

system would reduce youth exposure to repetitive head trauma, and coupled with a

more robust system of public disclaimers and warnings, would lead to a more well

educated society regarding the dangers of football.

ii. NFL and NCAA Recommendations

At the NCAA and NFL level, I would urge these entities to continue implementing

rules to promote player safety, and would emphasize the necessity to invest into

independent research regarding concussion related issues, and into technologies aimed

at suppressing concussion rates. One proposal to lessen the number of subconcussive

hits that lineman face during the course of a game, would be to implement a rotation

system that would require players to come out of the game every few plays. Lineman

clang helmets on nearly every play, and thus the NFL should make it a priority to figure

out ways to reduce the damage they face during gameday. It is unlikely that the NFL

would adopt a model like USA Footballs, where the three point stance is eliminated

altogether, but perhaps the NFL could find an intermediate solution which preserves the

nature of the game while making it safer. One proposal may be to only allow three point

stances on certain downs. As a football fan, I feel that this would likely greatly reduce

enjoyment and aesthetic of the game, as it would evolve into a much less physical

game at the point of attack. However, it is imperative that the league find a way to

reduce head-to-head contact, and thus this is one area where rule changes must be

focused on.
 In addition, another area of football which exposes players to heightened

vulnerability, is special teams. In punts and kickoffs, players run at full speed from

opposite ends of the field, and as a result the ball carriers become exposed to

dangerous impacts. I would propose eliminating this aspect of the game completely,

and instead, when a team punts or kicks the ball it would be declared dead where it

lands. While this would clearly lessen the excitement of these plays, and remove some

strategy from the game, it would eliminate the types of devastating impacts that come

from this aspect of football.

Finally, the third area where players seem to heightened danger, is when players

are exposed to hits from defenders while they are in a defenseless position. These

types of plays typically occur when a wide receiver attempts to catch a ball, and is

immediately exposed to contact whilst still in the process of completing the catch. The

NCAA has attempted to create rules that prevent these occurrences through the

targeting rule, which indicates that no player shall target and make forcible contact to

the head or neck area of a defenseless opponent with the helmet, forearm, hand, fist,

elbow or shoulder. 79
In practice, this rule has been difficult to enforce, and often fans of

the game have been upset that players have been prematurely ejected for hits that

seemed legal. However, I find that safety of players trumps these concerns, and if a few

players are wrongfully ejected in order to make the overall game safer, then it is

worthwhile creating a rule similar to this in the NFL. Football fans for decades have

relished in the violence of the sport, however the aesthetic and sound of the game is

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going to have to change in order to make it safer. We have seen in the NBA and MLB,

that speed and versatility have begun to proliferate team sports. In order for the NFL to

survive, and rebuild its public image, it will need to adopt a similar approach in crafting

new rules and guidelines that promote the incredible athleticism of its players rather

than the brutal physicality of the game. With these rule changes, the game will likely

evolve towards more spread-offense concepts, and will deemphasize the role of

offensive and defensive lineman. Playmakers and speedsters who play wide receiver

and running back will serve as the crux of the new generation of football. This recrafting

of the NFLs brand will allow the sport of football to survive, while eliminating many of

the long-term risks associated with the game.

C. Long-Term Investments

Advertising and rule changes will clearly not fix the issues alone, and must be

accompanied by a long-term strategy aimed at prevention and treatment of head

injuries.

i. CTE Research

Given that the NFL seems to currently only be investing towards internal

research, I would urge the entity to shift courses, and instead help fund independent

studies. Specifically, I would recommend that the NFL push for increased research into

testing for CTE while players are still living. Dr. Omalu and the researchers who claim to

have made a breakthrough in testing for C.T.E in the living have said that before the

tests can be approved by the FDA for widespread diagnostic use, the tracer will have to

be tested in a phase III clinical trial, requiring researchers to confirm hundreds of

CTE-positive scans through autopsy. 80
This clinical trial will apparently require $5

million in funding, a number that the NFL could easily provide to these researchers. If

research can continue to develop upon what already exists, then players will be able to

gauge, during their careers, when they have reached a point where their long term

health is at risk. This would allow players to take precautions, and would make it easier

to stymie the onset of long-term diseases. Additionally, from the NFLs perspective, this

would allow the league to adopt a strategy of transparency that makes the risks of the

game readily apparent at all times, and would actually shift the assumption of risk onto

players who are willing to expose themselves to this harm. From both a legal and

publicity standpoint, investing into independent research would greatly benefit the

league and players alike.

ii. Investment in Technological Innovation

The NFL must also continue to build partnerships with the tech industry, in order

to develop safer helmets, and create products that can ameliorate the risks of football.

Currently there seems to be an influx of new helmets, mouthguards, and paddings that

all claim to suppress the frequency of head injuries. However, many of these products

seem to be early in their development phases, and could benefit from the NFLs

support. The NFLs equipment was never designed to prevent concussions, but instead

was only built to prevent traumatic injuries like skull fractures. This is an area that is ripe

for innovation, and the league could greatly benefit from these new developments.

Additionally, I would also direct a large portion of funding to independent consultants

80
https://www.sporttechie.com/scientists-claim-confirm-cte-first-living-person/
who will analyze the game of football, and propose particular adjustments that can be

made to the game to reduce impact to the head. Given how advanced sports science,

and the collection of biometrics has become, it is imperative for the NFL to leverage

these data points in order to create a game that is safer for players.

iii. Investment in Youth Football & Inner Cities

One of the problems that I foresee, is that in the future the NFL will consist of

mostly athletes from impoverished communities where there is little access to education

regarding the dangers of the sport, and where there are little other opportunities to

improve ones life. Cris Carters quote that there are Not a whole lot of options for a

black man and that he was willing to suffer the consequences [of playing football]

because of what it has done for me, is a scary reality for many in America. 81
Despite

the fact the game has become a landmine for injuries and long-term trauma, rookie

players still make millions of dollars coming out of college. For those athletes who come

from poor backgrounds, and are looked upon as the only hope for the entire family to

rise above their circumstances, how can these players make the decision to forego a

career in the NFL? The reality is that many will be pushed towards the game, and will

have to suffer from the consequences of having a career as a football player.

Knowing this possibility, the NFL would be wise to heavily invest into the youth

football circuit, to ensure that all communities have access to the newest equipment,

medical expertise, and education regarding the long-term impacts of the game. Many

schools barely have enough funds to field a team, and will likely not be able to

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despite-fears-about-cte
implement new rules and safety protocols, that larger, more well funded areas will have

access to. The NFL should leverage its influence, resources, and partnerships in order

to ensure that the game is played safely at all levels and in all communities. If it fails to

take action, the NFL will essentially become a vehicle for distributive injustices, where

players from impoverished communities are exposed to much higher long-term risks.

iv. Investment in Retired Players

Finally, I would recommend that the NFL establish a more robust retirement plan

for retired players. After the NFLs one billion dollar settlement, many former players will

be eligible to receive benefits from the league if they have recognized issues such as

Alzheimers or ALS. However, this settlement was a class action covering former and

retired players, so it remains to be seen if the next generation of football players will

also look to bring litigation against the NFL. Additionally, even the previous settlement

does not provide for monetary relief for retired players suffering from the symptoms of

CTE, such as anxiety, depression and impulse control. This newly revamped retirement

plan should cover CTE related issues, and provide counseling for former players who

are suffering. Also, players such as Mike Webster, have become homeless years after

retirement, in part due to the fact that their symptoms cause them to be erratic and thus

become ostracized by those around them. The NFL would be wise to address this

issue, by improving efforts to stay connected with those who have played in the league,

in order to ensure that they are receiving the type of treatment they require. The NFL

has the capability of building a database of all retired players, and building a pipeline of

employment within the league, to ensure that former players are never left without help.
VII. Conclusion

The NFL has compounded the issue of head trauma in football, due to the fact

that the league attempted to deny the issue for decades. For years, the game of football

was marketed as a gladiator sport, where only the toughest could succeed on the

gridiron. Parents and future players romanticized the game as a platform to assert

ones masculinity. The league promoted junk science, and created a public discourse

about the game of football that failed to warn about the long-term dangers of football.

Only after Dr. Omalus findings and increased public pressures about these issues did

the league even acknowledge the risks that exist. The NFLs failure to act in a timely

manner has had an irreversible impact on an entire generation of athletes. Many players

who are in the league now, or just retired, will suffer from symptoms of C.T.E later in

their lives, largely due to the NFLs inability to make players aware of these risks.

Unfortunately for these players, any changes that the league makes now will be

too little too late, however there is still hope that the NFL can make the game safer for

the next generation of athletes. The NFL can not continue to run from this issue, but

instead would be wise to confront these problems directly. In order for the NFL to stave

off a decline in popularity over the next few years, the league will have to be transparent

in its efforts to promote a safer game. While the solution will not be singular, and the

results likely will not be seen for at least a decade, the NFL must ensure that they be

proactive in their efforts.

The NFL will have to rehaul their brand strategy, and must evolve away from a

hyper-masculinized game that incentivizes brutality to one that emphasizes speed and
athleticism. This can be done by modifying the game to reduce repetitive head-to-head

contact at the line of scrimmage, and preventing hits against defenseless ball carriers in

the open field. In addition, the league will have to be transparent in their attempts to

advertise the game, and must provide viewers, parents, and potential players with

objective statistics and information regarding the dangers of the game. Part of what can

be done to improve public perception of the NFL, is to invest into independent medical

research efforts, rather than promote internal research, as the league has a history of

producing junk science. Coupled with these strategies, the NFL will have to develop a

long-term investment plan into youth football that aims to ensure that all communities

and football leagues have access to improved equipment and education about the

dangers of football.

It is indisputable that the NFL engaged in false advertising and deception the

public for decades. However, the league still has a chance to stave off a total decline,

but must be earnest in their attempts to create a safer, more sustainable game for the

next generation of athletes.

 VIII. Attachments and References

A. Model Guidelines & Proposals

Disclaimers and Warnings

1) The following text shall be added to the general warning disclaimer on helmets:
Playing football can expose you to long-term brain damage and
debilitating diseases such as C.T.E, Alzheimer's, Amyotrophic Lateral Sclerosis
(ALS), and Parkinson's.
2) C.T.E. shall be emblazoned on the back of all helmets.
3) Stadiums required to post signs stating that: This Facility Facilitates Playing
Tackle Football. Tackle Football is Known To Cause C.T.E. And Other Long Term
Debilitating Injuries.
4) Football entities should be prevented from running advertisements when the ad
space desired surrounds a show whose audience is predominantly persons under the
age of 18
5) Advertisement played immediately before the kick off of every game, warning
viewers of the dangers of the game

Training Protocol
1) MANDATORY day long training on the dangers of football, every year before
they be allowed to participate.
a. At the youth level, parents would be required to attend, and would have to
give consent after the training to allow their kids to play.
b. Content would be curated by independent medical researchers, and
ex-NFL players.

Rule Changes
1) Elimination of padded practices during season (in all levels of football)
2) Tackle football completely eliminated until High School
3) USA Football model of hybrid flag football leagues adopted throughout youth
circuit
i. First two years of high school used as transition years and training in
proper methods of tackle football
4) At NFL & NCAA levels
i. Implement Targeting Rule to protect defenseless players
ii. Limit three point stances to only third downs
iii. Eliminate special teams
Long-Term Investments
1) Fund clinical trial to validate testing for C.T.E. in living players
2) Investment in new helmets and technologies aimed at suppressing head-trauma
i. Related investment in technology and consulting efforts regarding the
game which can be used to formulate new rule changes
3) Investments into youth football and underprivileged communities to ensure
access to equipment, education and resources.
4) Investment focused on building a pipeline of youth sports
B. Stages of C.T.E.
C. Concussion Crisis & Impact on Participation
D. New Return to Play Protocols