JURIST Guest Columnist Alyssa Lebron of St. John’s University School of Law Class of 2016 is the seventh author in a twelve-part series from the staffers of the Journal of Civil Rights and Economic Development. Lebron discusses the long-term effects of concussions and the need for federal regulation in contact sports… On February 17, 2011, Dave Duerson took his own life by a self-inflicted gunshot wound to his chest. Tactfully choosing to shoot himself in the chest rather than his head, Duerson left a note to his family requesting that his brain be studied for trauma. Dave Duerson was one of many former National Football League (NFL) players who killed themselves because of the severe brain trauma they sustained from their football careers. For decades the NFL lied to its players about these risks by denying any link between concussions on the field and long-term brain defects. That all changed when players and their families fought back and filed suit against the NFL.

In 2011, seventy-five former NFL players, including Dave Duerson’s family on his behalf, alleged that the NFL failed to warn them of the risks of sustaining multiple concussions and repeatedly denied a known link between concussions and degenerative brain disease. The lawsuit was inspired by recent advances in medical knowledge about football and brain trauma. In 2002, Dr. Bennet Omalu performed an autopsy on former NFL player Mike Webster, who died of a heart attack at the age of 50. Upon studying his brain, he noticed a degeneration of brain tissue and other markers of decline usually present only in people decades older. Over the next few years, he was able to study the brains of five other former NFL players and found the same markers of decline. In 2005, he published his findings and suggested that the repeated concussions sustained while playing football caused irreversible brain damage.

With new medical research linking repeated concussions to Chronic Traumatic Encephalopathy (CTE), and the rise of suicide among NFL players, the NFL could no longer deny the link between brain injuries and CTE. The NFL realized that their long-time denial of this link was no longer tenable. In response to the lawsuit, the NFL agreed to settle in late 2013. This historic financial settlement was finally approved [PDF] on April 22, 2015 and is projected to cost the NFL more than $1 billion dollars over 65 years. But will it have a long term impact?

Although it was a hard-fought battle, this lawsuit sadly may not bring about systemic change. More must be done. The use of litigation to seek damages is a tedious and prolonged process which primarily seeks to compensate former players and can take many years to produce a settlement or a trial. In contrast, federal regulation is an alternative strategy to inefficient litigation and to insufficient self-regulation. The objective here is to establish nationwide protocols pertaining to concussion based injuries and return to play guidelines, and thereby prevent long-term harm.

I propose new regulations that will mandate that sporting entities abide by the slogan, “when in doubt, sit them out.” The new regulations would impose minimum protocols for concussion based injuries for not just the NFL, but any professional sports entity found to engage in interstate commerce because the risk of CTE in any contact sport. The new regulations would include baseline testing of all players during preseason. Once a player is suspected to have a concussion, that player must be removed from play and placed in a quiet setting to allow for testing to be conducted. That testing must then be compared to that player’s pre-season baseline testing to gauge whether the player has actually sustained a concussion. The player must not return to play for 24-48 hours to allow for the onset of any symptoms to appear. After the 48 hour waiting period, if no symptoms manifest and the player has not been diagnosed with a concussion, the player will be allowed to return to play. If the player does show symptoms of a concussion, the player must then go through the five gradual steps [PDF] outlined by the US Centers for Disease Control.

The new regulations would further mandate sporting entities to test players for CTE if they are suspected of having more than three concussions. The importance of earlier CTE diagnoses is the availability of earlier treatments that could eliminate or minimize the onset of CTE’s debilitating side effects. Additionally, the new regulations could mandate that before signing a contract, professional and collegiate athletes are advised of the risks involved with concussions. The NFL teaches rookies how to manage their personal lives, inquiries from the media and their newly acquired income. They should also be required to disclose to players the long-term side effects of concussions. The need for regulation among inherently dangerous sports has been an issue throughout the history of sports. However, today no standardized protocols exist dictating the proper steps to take when dealing with a concussion-based injury. Dave Duerson and his fellow players who have either committed suicide or continue to suffer daily, illustrate the need for standardized protocols for professional and collegiate sporting entities. Up to this point, the only regulator of the NFL’s concussion based procedures has been the NFL themselves. The absence of government regulations enabled the NFL to manipulate and conceal important information for years that was crucial to the health of its players.

While government involvement is not always the solution, the need for government regulation concerning concussion-based injuries in professional and college sports is undeniable. In recent years, scores of athletes have faced severe neurological defects and death due to the negligent protocols that are currently in place. These new regulations would ensure that a uniform system of steps are taken before athletes are returned to play and thereby ensure the health of athletes during their season and also during their retirement. Compensating Dave Duerson’s family for his untimely death is not enough. More must be done to prevent athletes from becoming the next Dave Duerson, and federal regulation is the solution.

Alyssa Lebron is a third-year law student at St. John’s University School of Law. She is currently a staff member on the Journal of Civil Rights and Economic Development and Associate Internals Director of the Polestino Trial Advocacy Institute.

Suggested citation: Alyssa Lebron, When in Doubt, Sit Them Out: NFL Concussions and the Need for Federal Regulations, JURIST – Student Commentary, December 16, 2015, http://jurist.org/dateline/2015/12/alyssa-lebron-nfl-concussions.php.