Litigation Leads to Change in NFL

(Editor’s note: What follows is a blog post from attorney Paul D. Anderson at NFLconcussionlitigation.com)

The NFL and NFLPA announced new rules aimed at enhancing player safety. Starting this season, teams will be fined and/or face draft-pick penalties if it is determined that they have failed to follow basic safety principles, i.e. the “NFL Game Day Concussion Protocol.”

Per the NFL, this is how the policy will be enforced:

According to the policy, the NFL and NFLPA will each designate a representative to monitor the implementation of the protocol and investigate potential violations. The investigation will not reach medical conclusions; it will only determine whether the protocol was followed. Following the investigation, the NFL and NFLPA will review the findings to determine if a violation occurred and, if so, to recommend the proper disciplinary response. If the parties are unable to agree, the matter will be brought to a third party arbitrator. After conducting a thorough review, the arbitrator will issue a report to the Commissioner, NFLPA Executive Director and the involved parties.

As jointly agreed to by the NFL and NFLPA, the Commissioner retains absolute discretion in determining penalties for violations of the concussion protocol. Potential disciplinary action includes:

A first violation will require the club employees or medical team members involved to attend remedial education; and/or result in a maximum fine of $150,000 against the club.

Second and subsequent violations of the concussion protocol will result in a minimum fine of $100,000 against the club.

In the event the parties agree that a violation involved aggravating circumstances, the club shall be subject, in the first instance, to a fine no less than $50,000. The Commissioner shall determine appropriate discipline for subsequent violations involving aggravating circumstances.

In the event that the Commissioner determines that the club’s medical team failed to follow the protocol due to competitive considerations, the Commissioner may require the club to forfeit draft pick(s) and impose additional fines exceeding those amounts set forth above.

Though some—like me—should rightfully question why it took so long, the NFL and NFLPA should be applauded (golf claps) for their implementation of this policy.

Coincidentally, this new policy was not implemented until after the NFL’s discredited “medical administrator” and former head of the NFL’s MTBI Committee, Elliot Pellman, was finally sent packing.

Perhaps Pellman, who reportedly was involved with the NFL’s ATC spotter program, was a dissident to implementing an enforcement mechanism, and hence this gave the NFL yet another reason—out of a million—to force him into retirement.

More likely, though, this policy was implemented to bar players from filing malpractice lawsuits against team personnel. By making return-to-play decisions and any subsequent investigations and violations part of the collective bargaining agreement process (e.g., “Commissioner retains absolute discretion”), this will arguably trigger Section 301 preemption, forcing all such disputes to be resolved in arbitration rather than by a jury in state or federal court. Put another way, by agreeing to this policy, the NFLPA may have forfeited a player’s right to seek redress for his injuries in a court of law.

For example, imagine if Casey Keenum would have suffered second-impact syndrome after the Rams failed to follow the concussion protocol. Now, instead of a team (or its medical personnel) facing the threat of a jury verdict for millions of dollars as a result of its failure to abide by the NFL Game Day Concussion Protocol, a team will be subject to a $100,000.00+ fine levied by the owners’ hand-picked judge, Roger Goodell.

That’s quite a windfall: the NFL gets positive press for implementing this policy and the owners get to avoid costly litigation.

Whatever the motivations, one thing is certain: the recent rule changes made in the NFL can be directly tied to the litigation that exposed the NFL’s wrongful conduct and in turn forced other leagues and stakeholders to implement concussion protocols. Undoubtedly, the players today are in a much better working environment than the pre-2011 players.

While I won’t say the NFL has been a leader in this realm, it is fair to say that the majority of leagues look to the NFL when it comes to the implementation of concussion policies.

As a result, other leagues such as the NCAA, should promptly implement association-wide enforcement measures which mirror the NFL’s.

This will ensure that the oft-touted platitude of making player safety a priority is more than mere words.

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