A Layman’s review of a Pending Concussion-related Lawsuit against the NFL – Part III – What I would Want to Know as a Juror

There is no getting around the fact that, as we examined in Part I, the potential financial exposure the NFL is facing is quite devastating. Keep in mind however, that for many, many ex-football players, the physical, emotional and financial impact from a career in the NFL is even more devastating, and for the current roster of players, they now have to deal with the grim realities of having spent their youth focused on becoming one of the chosen few, attaining their life’s dream profession, only to come face-to-face with the reality that they might not have much of a life after their playing days are over. It would be easy to blithely write off the economic harm the owners of these 32 teams face, condemning them for being wealthy enough to own such a team, let alone for the wealth such teams bring them. But to take that position would be to hold the game itself in little regard, for at the heart of the matter is the fact that the game of football, on whatever level it is played, from Pop Warner to the NFL, is inherently violently dangerous with real physical repercussions facing these players on the field, and off.

As to the NFL:

As a juror, I would want the NFL to explain to me, and to prove to me, that its Mild Traumatic Brain Injury committee (the “ Committee”) established in 1994 was legitimate; that the various members of the Committee were qualified to fulfill the stated role of the group, and that honest and serious scientific research and analysis was done with no intention to mislead the players, or obfuscate the issue of the potential short-term and long-term risks of concussions on football players.

I would want to know What the NFL knew about Concussion Related injuries, and When the NFL knew it. I would want the NFL to convincingly prove to me false the charge that the Committee and/or its individual members took active roles in trying to quash the publication of any findings that may have directly or indirectly contradicted their own findings.

I would want to know what information/comments/feedback the NFL and/or the Committee received from its own studies and how the NFL and/or the Committee reconciled any differences in the findings between their own studies, and opposing ones.

I would want to know when rules pertaining to the protection of defenseless players were first discussed and how long they were debated, studied and considered before implementing, and what data was used to promote the passage of such rules

I would want to know what issues were raised in objection to such rules, whether there was discussion on reducing, or increasing the range of positions being considered for protection, and why.

I would want to know what alternative helmet designs were available to the NFL to choose from, at what period of time, and what the minimum standards a helmet had to meet to be eligible for consideration.

I would want the NFL and its equipment Defendants to provide a historical timeline of the evolution of the helmets selected for use by the League, and what minimum standards such helmets had to meet to be eligible for consideration.

I would want the NFL to document, and justify, the basis upon which such minimum standards were set, how those standards changed (or didn’t change) over time, what sources of outside information (data, persons, organizations, etc) the NFL consulted with to establish such standards.

I would want the NFL to provide proof that the helmets not selected were inferior to those selected, and how.

As to the Plaintiffs:

As a juror, I would want to know if at any time any of these Plaintiffs did not realize that football was a violent game, with inherent risk of short-term and long-term injuries, up to and including death.

I would want to know how, if knowing the game was as violent and risky as they purport the NFL of having a duty to know, why as a player they not hold themselves to the same standard of knowing, since they are the ones actively engaging in the very activities, voluntarily and of their own free will, that carry such risks.

I would want the Plaintiffs to testify to under oath, calculated in a manner acceptable to both sides, the number of actual and suspected brain trauma inducing incidents each player was exposed to in their entire life.

I would want the Plaintiffs to prove to me how each Plaintiff could claim that the injuries suffered strictly and solely during their time as an NFL player are the ones responsible for the ailments for which they are suing the Defendants.

I would want the Plaintiffs to prove to me that no such actual or suspected brain trauma inducing incident occurred at any time prior to each Plaintiffs’ time as an NFL player, and if any did, how the Plaintiffs can prove that any such brain trauma inducing incident, actual or suspected, in no way contributed towards the harm this Complaint is claiming the Plaintiffs suffered at the hands of the Defendants.

I would want to know, for those Plaintiffs whose playing time occurred when there was a Player’s Union to represent their interests, whether any inquiries, studies, demands for studies were made of or from the Union regarding information pertaining to the concussion issue, and when, if any were done, and what was the result, if any of such studies.

I would want to know from the Plaintiffs why they have not named the NFLPA as a Defendant in this suit; whether they believe the NFLPA had a duty to its members to monitor the NFL’s performance in regards to its duty to protect the health and safety of its member players.

I would want to know what duty the Plaintiffs believe the NFLPA owes to retired players, who were once its members.

Closing thoughts:

The future of football, as we know it, in my humble opinion, comes down to this core issue: Has there been established a balance between preserving the game of football as we now know it (give or take a decade or two of style of play), and providing the players we all love so much to cheer for all the information they need to make rational decisions whether they want to face the risks inherent in the game, and whether the League and its collective membership (the 32 team owners) have provided the players with the best possible equipment with which they may perform their chosen profession.

It would be easy to simply declare “thems the risks you take for the money you earn” if the players were considered equal partners in the profession of football, but they are not.

It would be easy to simply declare “change the rules to protect all the players equally” but the game of football as we know it would cease to exist as a result. Offensive and Defensive linemen would no longer smash into each other play after play, one side trying to impose its dominance and will upon the other. No longer would Isaac Redman crash through the line, seemingly buried under a pile of defenders, only to break free and gallop away, if absolutely no helmet to helmet contact was allowed between any players.

Taken to the extreme, even the ESPN Highlight reels would remain empty of “textbook” kill shots from Defensive Backs against Wide Receivers, because even though there was no helmet-to-helmet contact, the force of the defender’s blow could whipsaw the back of the receiver’s head onto the turf, causing a concussion.

Just as coal mining and King Crab fishing are considered some of the most hazardous occupations, and as such carry with them a bevy of rules and regulations to attempt to protect each person engaged in such activities as much as possible, the risk of injury or death is still quite high.

As long as there are people who love to engage in physical confrontation with other like-minded people, and as long as there are those like us at BTSC who love to witness such confrontations, there will be a supply to meet the demand.

However, in my humble opinion, there is contributory complicity on all sides, the players, the owners, the NFL, the NFLPA, the equipment manufacturers for the existing imbalance between the risks of football, and the nature of the game.

While it is my fervent hope that the game our Steelers excel at so well, the game that we in Steeler Nation love so much will somehow come through the crucible of litigation that currently is boiling around it, I fear it may be some time before the game is as enjoyable or carefree as it is now; that our game day Sundays, playoff filled Januarys and springtime draft hopes and dreams may not be as they have been all these years, until such time as common sense and acceptance of personal responsibility are accepted by all parties involved, and fairness and integrity is restored to the issues at hand.

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