Solving the Concussion Problem and Saving Professional Football

64 Pages Posted: 19 Dec 2013


The recognition of serious head injuries in football is not new. Paul Barrett recently noted that "[i]n 1903, before the NFL existed, the New York Times compared college football, then the top of the line, to 'mayhem and homicide.'" In 1905, responding to the tragic deaths of eighteen college football players, President Theodore Roosevelt intervened and asked college leaders to attend a White House Conference to curb the violence by promulgating safety rules. New safety rules were adopted, and those initial reform efforts "led to the formation of a Rules Committee and the formation of the Intercollegiate Athletic Association, which in 1910 was renamed the National Collegiate Athletic Association [NCAA]." With these rule changes and the formation of the NCAA, a major crisis that threatened the very existence of football was averted. In the second decade of the 21st century, we face a new crisis fueled by litigation and sobering scientific revelations regarding the devastating potential impact of head injuries in football at all levels. Unless handled well, this crisis will again threaten the existence — or at a minimum, the prominence — of professional football as we know it.

In 2012, concerns and calls for further research gained a new and well known face when Junior Seau committed suicide. Seau was an All Pro football player who played for the San Diego Chargers for most of his career. His family responded by requesting that his brain be donated to the National Institute of Neurological Disorders and Stroke (NINDS) of the NIH to be studied and assessed as to whether Seau had suffered major brain trauma. NINDS asked a number of nationally recognized neuropathologists to analyze Seau's brain tissue. The consultants were unanimous, as reported by the NIH, in concluding that "on initial examination the brain looked normal, but under the microscope, with the use of special staining techniques, abnormalities were found that are consistent with a form of chronic traumatic encephalopathy." The NIH findings regarding Mr. Seau's brain have also been found in autopsies of other deceased athletes who played contact sports involving repeated trauma to the head. It is widely conceded that the problem of head injuries experienced by present and former players in the NFL is quite serious. The economic costs of dealing with those issues will be high but are secondary to the emotional and physical costs to the players themselves — costs that must be meaningfully and promptly addressed.

This article addresses what can be done, in a legal and policy sense, to deal with the serious problem of brain injuries suffered in professional football. Dealing with these issues from legal and policy perspectives — not merely a medical perspective — this article examines the role of (1) litigation, (2) administrative and legislative action, and (3) associational action by the NFL and the NFLPA in dealing with these issues. Each possible means of addressing this problem will be examined in terms of its strengths (benefits) and weaknesses (costs).

Keywords: sports law, football, head injuries, brain trauma, professional sports, National Football League, National Football League Players Association, National Collegiate Athletic Association

JEL Classification: K13, K23, K31, K32

Suggested Citation

Smith, Rodney K., Solving the Concussion Problem and Saving Professional Football. Thomas Jefferson Law Review, Vol. 35, No. 2, p. 127, 2013, Available at SSRN:

Rodney K. Smith (Contact Author)

Thomas Jefferson School of Law ( email )

701 B Street
Suite 110
San Diego, CA 92101
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(619) 961-4389 (Phone)

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