The NFL & The Problem of CTE

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. However, despite the fact the business of the NFL continues to thrive, concerns over the safety of the game have 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. Dr. Kenneth Omalu was assigned to perform an autopsy on Webster, and reported that Webster’s 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 the issue of C.T.E. to the light.

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. CTE was first discovered in 1928, and was commonly found in boxers, but Dr. Omalu’s 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 history of repetitive hits to the head. 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 of several subconcussive blows to the head over the course of a career that leads to the eventual disease. A case study done on one Stanford college football player, indicates that over the course of a game, this player sustained 62 of these small hits. However, these “small” hits were delivered with the same force as driving a car into a brick wall at 30 miles per hour, according to the Stanford study. This particular player was an offensive lineman, and thus exposed to helmet to helmet contact on nearly every offensive possession. Imagine having over sixty hits per game, at this type of force, over the course of a long career. If CTE is caused by repetitive head trauma, it is clear from the Stanford case study that playing football can expose you to this type of repetition.

One of the largest problems with CTE, is that currently it can only be definitely diagnosed after death through brain tissue analysis. Doctors like Bennet Omalu, who have a specialty in brain diseases, analyze these brains to detect signs of CTE. This creates a massive problem for football players who suffer from symptoms of CTE, such as anxiety, depression, and impulse control issues, however have no ability to test whether they have the disease while they are still alive.

The NFL has denied any links between football and head injuries, and at one point even claimed that players’ heightened exposure to contact has made their brains less susceptible to injury. Only after extreme public backlash, and public class action settlements related to concussions, has the NFL begun to acknowledge the issue. However, even the NFL’s public ‘investments’ in concussion research fall short of addressing the issue of CTE. For example, the NFL made a $100 million pledge to help fund concussion-related initiatives. 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.

In order for the NFL to adequately address these issues, and regain respect in the public eye, they will have to fund independent research into the possible causes and prevention of CTE. Additionally, given that repetitive subconcussive hits are seen as the most prominent cause of CTE, the NFL needs to find a way to reduce these types of impacts over the course of a game, especially for offensive and defensive lineman, who seem to be the most vulnerable players.

This article is a preview of a larger, 30 page Note, that will be published in late December. The Note will discuss how legal principles can be used to compensate players that have suffered from the NFL’s false advertising and failures to make the game safer. Additionally, it will propose rule changes and alternatives that hope to preserve the health and longevity of athletes who play football.

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