Junior Seau is dead. The Pro-Bowl linebacker committed suicide Wednesday morning at his home in Oceanside, California. Seau shot himself in the chest, not the head, in an effort, it is believed, to preserve his brain for research. Former Chicago Bears defensive back Dave Duerson did the same thing in February 2011. Atlanta Falcons safety Ray Easterling killed himself just a few weeks before Seau did after suffering for years from depression and mental impairment that was diagnosed as dementia in the year before his death.
Duerson believed he was suffering from chronic traumatic encephalopathy (CTE), a degenerative brain condition that can lead to memory impairment, loss of impulse control, depression, and dementia. Doctors and researchers believe that CTE is caused by repetitive closed-head injuries, a fancy term for concussions. On his death, Duerson left specific instructions that his brain be donated to Boston University's Center for the Study of Traumatic Encephalopathy. The Center confirmed the diagnosis of CTE after studying Duerson's brain. Another twenty deceased former NFL players also have been diagnosed with CTE post-mortem.
At the time of his death, Easterling was a plaintiff in a lawsuit against the NFL, seeking damages for the brain injuries he claimed to have suffered as result of repeated blows to the head during his football career. Easterling was joined in his lawsuit by seven other former NFL players and some of the players' wives. More than sixty similar lawsuits by former NFL players are pending in courts around the country.
The basic factual outline of the lawsuits claims that the NFL knew for years that repeated blows to the head led to concussions and that repeated concussions led to severe cognitive impairment including depression and dementia. And it's not just that the NFL knew of the dangers and did nothing. The former players charge the NFL with actively suppressing information linking concussions to permanent and disabling brain impairment. The NFL agreed to study the issue in 1994 and set up the Mild Traumatic Brain Injury Committee. The lawsuits claim that the MBTI Committee ignored studies showing a connection between concussions and permanent brain injury, thereby providing false and misleading information to players for years. Specifically, the lawsuits charge:
The NFL MTBI Committee published its findings in 2004 showing "no evidence of worsening injury or chronic cumulative effects" from multiple concussions. In a related study, the Committee found "many NFL players can be safely allowed to return to play" on the day of a concussion if they are without symptoms and cleared by a physician.
According to the retired players, the NFL issued concussion guidelines for the first time in 2007, directing that players be kept off the field after suffering a concussion until they passed certain neurological tests. But it wasn't until June 2010 that the NFL publicly acknowledged that concussions can lead to dementia, memory loss, depression, and CTE. Even still, the players allege, the NFL isn't doing enough to prevent permanent brain injuries and provide care for those players already suffering brain impairments.
There are a variety of procedural issues to be resolved before any court addresses the merits of the players' claims. The most significant procedural hurdle for the players is the NFL's argument that the players' claims are governed by the collective bargaining agreement in place at the time of the injuries, and thus must be dealt with in arbitration as provided for by the CBA and the federal Labor Management Relations Act.
Assuming the players overcome the league's arguments under the CBA, the crux of their case boils down to whether the NFL did, in fact, actively suppress information and otherwise mislead players about the dangers of repetitive concussions. In other words: Did the league commit fraud? The fraud allegation is pivotal because the NFL has strong defenses to the claims that the NFL was negligent in the way it educated and protected players. Most states have laws that say a person who participates in organized sports either consents to, or assumes the risk of injury from, rough physical contact. Some legal analysts have likened the players' strategy to the success ultimately achieved in lawsuits against Big Tobacco: once it was shown that cigarette manufacturers had concealed information and lied to the public about the dangers of smoking, the question of whether smokers should have known better fell away.
If the retired football players ultimately succeed in their lawsuits against the NFL, are we likely to see similar claims against Major League Baseball for concussion-related injuries?
I don't think so, even assuming baseball players could bring claims in court not covered their collective bargaining agreement.
Baseball players can suffer concussions in a variety of ways. I want to focus on potential claims by players who suffer concussions from pitches to a batter's head. Why? Because MLB knows that players can suffer serious head injuries from balls to the head and yet has done little to keep those types of injuries from occurring. Sure, MLB rules prohibit pitchers from intentionally throwing a player's head. But the penalties for breaking the rules are so minimal -- usually a five-game suspension -- they hardly act as a deterrent.
Indeed, intentionally throwing at a batter is so much a part of baseball that the California Supreme Court issued a decision a few years ago rejecting a claim for damages by a college player who was hit in the head during a regularly-scheduled inter-collegiate game. The Court wrote:
Being intentionally hit is likewise an inherent risk of the sport, so accepted by custom that a pitch intentionally thrown at a batter has its own terminology: "brushback," "beanball," "chin music." In turn, those pitchers notorious for throwing at hitters are "headhunters." Pitchers intentionally throw at batters to disrupt a batter's timing or back him away from home plate, to retaliate after a teammate has been hit, or to punish a batter for having hit a home run. (See, e.g., Kahn, The Head Game (2000) pp. 205-239.) Some of the most respected baseball managers and pitchers have openly discussed the fundamental place throwing at batters has in their sport.
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For better or worse, being intentionally thrown at is a fundamental part and inherent risk of the sport of baseball. It is not the function of tort law to police such conduct.
The NFL is vulnerable to its former players in a way that MLB is not because the NFL tried to control the dialogue on player concussions by forming the MBTI Committee. When that Committee ignored study after study showing a strong connection between repeated blows to the head and long-term mental impairment and then lied to players about the risks, its actions moved from negligent to fraudulent.
All of this is not to suggest that MLB should ignore the current medical consensus on the dangers of concussions. Baseball should take steps to protect players from serious injuries. That means tougher penalties on pitchers who throw intentionally at a batter's head and on the managers who order such retaliation. It also means revisiting rules on home plate collisions.
Whether or not MLB faces liability for damages for past injuries, the league should move in this direction because it's better for the players and the game as whole. And because it's the right thing to do.