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Monday, January 22, 2007
Andre Waters and Concussion Liability for NFL Teams

Last week, the New York Times featured a troubling story about an expert's conclusion that former NFL Player Andre Waters' suicide may have been the result, at least in part, of concussions sustained during his football career.

While I hate to sound like a league defender, I wish the information on which this story was based had come from different sources...

The expert cited in the story is Bennet Omalu. According to the Times,
The neuropathologist, Dr. Bennet Omalu of the University of Pittsburgh, [is] a leading expert in forensic pathology.
This may be a bit of an overstatement, and is clearly misleading in terms of Dr. Omalu's institutional affiliation. According to Pitt's web-site, Omalu's "University Relationship" is that of "Volunteer (with ER)." That is to say, he's not a professor or university employee, as far as I can tell. Dr. Omalu is a "Forensic Expert" for a "Medico-Legal Consulting and Autoposy Service Company" called Neo-Forenxis; according to another Pitt web site, he is an Allegheny County Coroner and a former (2000-2002) clincial fellow. Moreover, Dr. Omalu may have been predisposed to reach the conclusion he did, given his previous conclusions in similar cases. Clearly, the doc has a theory and here was a chance to push it.

The Times story also indicates that Dr. Omalu's investigation was initiated after prodding by former Harvard football player and professional wrestler Chris Nowinski, author of a book called Head Games: Football's Concussion Crisis, as well as this myspace page and this fan page.

This is not to say that Dr. Omalu's conclusions are not based on some interesting developing science linking brain injury and depression. But it looks to me like this is a quasi-professional expert witness whose credentials have been a bit over-hyped by the Times. Moreover, while Nowinski may mean well, he does have a bit of a financial interest (in selling books) that would be served by both this NYT story and allegations that a former player's suicide (already a scandalous matter) resulted from, guess what, the very thing he's writing about. It's also fair to say that the credibility of a professional wrestler is, well, not exactly unimpeachable.

In any event, should Dr. Omalu's concerns be substantiated, the legal issues posed will be intriguing. What liability, if any, would attach to a team, or a team physician, for negligence or other tortious conduct leading to suicide? At one point in time, suicide was considered to be a superseding intervening act that severed the chain of proximate causation between "wrongful act" and "unfortunate result". The modern trend, however, allows suits against those who increase the risk of suicide, fail to prevent suicide or detect suicidal tendencies where suicide was a foreseeable outcome. Typically, these defendants are manufacturers of brain-altering medication or psychologists, psychiatrists and other therapists.

But why not a team, a league, or a team physician? If new science demonstrates a connection betweend depression and mild brain trauma, a team physician (now typically labeled an "independent contractor" to insulate the team from liability) who clears the player to return to play might bear some liability exposure. As one leading scholar explains:
Medical clearance recommendations should be within the bounds of accepted or reasonable sports medicine practice and governed by the team physician's paramount obligation to protect the competitive athlete from medically unreasonable risks of harm. To avoid potential legal liability, the team physician should refuse clearance of an athlete if she believes there is a significant medical risk of harm from participation, irrespective of the team's need for the player or the player's personal motivations.
Matthew J. Mitten, Emerging Legal Issues in Sports Medicine, 76 ST. JOHN'S LAW REVIEW 5 (Winter 2002).

Is it fair to say that Waters would be barred by assumption of risk or other "limited duty" or "no duty" rules applicable in professional sports? As one psychology blogger notes,
Waters seemed to recognize the risks of his position. “Playing strong safety in the NFL, it’s either kill or be killed like ‘Survivor,’” Waters said.
For the plaintiff lawyer's perspective, check out the Brain Injury Blog. HT to Toledo psychology professor and law student John McSweeney for pointing me in this direction.


I am very disappointed with this post. I have come to regard the Sports Law Blog as a valuable resource to find logical, reasoned analysis of LEGAL issues. But this post spends most of its time assuming ulterior motives on the part of the doctor and Chris Nowinski that are pure speculation. Don’t you think the Times (i.e., me) checked out Dr. Omalu's standing among other experts in this field? And Nowinski, a Harvard graduate who has devoted much of his last three years toward researching this area, has forfeited his credibility simply by having been a professional wrestler? By extension, that means that all actors are liars, too. I also find it ironic that you publicly question the knowledge of these principals when, in fact, you have no knowledge of them. This is mostly an analysis of journalism, not law, and a poor/uninformed one at that. Your readers deserve better.
--Alan Schwarz.

Anonymous Alan Schwarz -- 1/22/2007 4:26 PM  


So you basically believe that the Times is above reproach and we should just take your background checks for granted? Do you recall a reported named Blair?

Anonymous Anonymous -- 1/22/2007 10:23 PM  

I'm sorry to have to join the party of those who are criticizing you, but there is precedent for Waters' case. Please go here:

There, at the Pittsburgh Post-Gazette, you will find an article titled, "Wecht: Long Died from Brain Injury," about former (and deceased) Pittsburgh Steeler lineman Terry Long.

Anonymous D-Wil -- 1/23/2007 4:00 AM  

It's nice to see that the author of comment No. 2 was so confident of its worthiness as to keep his or her name anonymous. But far more disturbing, any interpretation of my post as claiming, suggesting or intimating that I "believe that the Times is above reproach" is not just patently ludicrous, but a sign that the logic and reasoned thought that once reigned in this space has degenerated into the same knee-jerk, presumptuous crapola that fuels other blogs. When you get back to law, please let me know.
--Alan Schwarz.

Anonymous Alan Schwarz -- 1/23/2007 7:11 AM  

Alan - I hope you agree with me when I say that this blog is subject to the same problems (and strengths) of any other open forum on the internet - sometimes you'll have anonymous individuals engaging in the "knee-jerk crapola" that you discuss.

I'm willing to discuss Dr Omalu's qualifications, but I agree we shouldn't discredit him or his research without some more evidence of his ulterior motives first.

A quick and dirty search reveals that he has 17 citations in PubMed (unfortunately not being at a University, I can't access the full-texts), and two appear to be related to the study this post is discussing.

I think a better way to say that he's trying to "push a theory" is to say that Dr. Omalu has a documented interest in the intersection of law, medicine and forensics. Which is not surprising, given his field of study. Nor do I believe it is enough to discredit him.

On the legal matter, from what I understand about assumption of risk, football players take the field with the understanding that their bodies will be subjected to strains that are unique to their sport.

Many players talk about guaranteed money on their contracts with the understanding that their careers will be shorter than that of other athletes for example.

I read several opinions that applauded Jeff Samardizja's decision to stick to baseball due to the opinion that football is simply a more damaging sport and reduces the both the active playing time and lifespan of the player.

But on the matter of repeated concussions, there may be something there. I believe there was a study a few months ago that showed that NFL players don't get enough off-time after sustaining a concussion, and that the rapid return to the field (with or without medical clearance) increases their risk of further injury. Are the players capable of assuming that risk without proper consultation?

Anonymous Anonymous -- 1/23/2007 8:54 AM  

Alan, while I appreciate your comment (and very much enjoyed reading your article) I think your critique is a bit unfair. Your write that "most of the post" concerns the motives of Nowinski & Omalu -- but to my eye, an equal amount of space in the post is actually about the potential legal issues raised by the case. As for your general attack on this blog--please keep in mind that this blog has multiple contributors, and this post is my reaction alone. I take full responsibility for the arguments I've made; I don't think it's fair of you to attribute anything I've said to my fellow contributors who have neither edited nor contributed to my post, or to slander "this space" as a whole.

As for Dr. Omalu, I'm still not sure I understand how being a "volunteer" at a university makes one "of the university". It would have been more accurate to describe him as a county coroner, if that is in fact his main employment. In any event, my point isn't that he's not qualified, just that your article does seem to overstate his credentials or at least his professional affliation. If an argument is sound, it should stand on its own and shouldn't require questionable characterization.

As for Nowinski...As a Harvard graduate, I guess I'm qualified to say that being a Harvard graduate alone is not much of a qualification. The fact that he clearly has a horse in the race matters and SHOULD affect our reaction to his efforts.

In any event, my point about Dr. Omalu & Nowinski's involvement is that both of them were predisposed to reach the conclusion they reached here. That makes the claims less persuasive. Good science and good research explores a question without a "desired" or predetermined answer; that doesn't seem to have been done here.

That's not to say your article hasn't brought attention to a meaningful developing issue in science. I am told that there is exciting work being done to try to document the connection between concussions and mental disorders. But that research is still ongoing -- it may very well substantiate Dr. Omalu's claims but I think it's a bit too soon too soon to draw reliable conclusions about individual cases, including that of Waters.

Blogger Geoffrey Rapp -- 1/23/2007 11:56 AM  

Alan, there are some worthy legal issues in the article. Maybe you do not have the proper legal background to understand them.
Just about all media outlets have credibility issues in one way or another, even the Times.

Anonymous tommie -- 1/23/2007 3:32 PM  

tommie - I'm not sure I understand your comment - why are you assuming Alan doesn't understand the legal issues and potential discussion behind the article he wrote?

Anonymous Anonymous -- 1/23/2007 4:02 PM  

I have a pretty good non-attorney's understanding of the legal matters, but I'm truly looking forward to reading this forum's analysis of the issues -- class action, liability, indemnity, assumption of the risk, etc. Consulting your blog has always been a useful resource for me, and I'm hoping it can be here.
--Alan Schwarz.

Anonymous Alan Schwarz -- 1/23/2007 4:43 PM  

I was not referring to the article he wrote, I was referring to the blog.
However, as for the article, anytime there is a serious problem in the medical world, most people get at least a second opinion on the issue. Just because someone is a doctor and conducts a so called "study" does not make his study right or wrong. There clearly needs to be more research done in this area and this is only preliminary findings.
The article was hyped up and beefed up to put down the NFL. The player never reported the concussions to the team. If all these players in the past played through concussions without telling anyone, how can the NFL be held liable?
The article also calls Nowinski a star, he was not a star in WWE.

Anonymous tommie -- 1/23/2007 6:29 PM  

tommie - We can debate the semantics of one being a WWE "star," but that's not really what this site is about.

I don't know that the article is "hyped up . . .to put down the NFL" - the article does fairly state that Dr. Omalu's claims "have not been corroborated and reviewed."

It does points out the potential criticism in the NFL study that looked at active players in a relatively short window of time, but this is hardly a new criticism, and I believe it's a valid one.

While Dr. Omalu's claims are not supported by new research, the Center For the Study of Retired Athletes research does appear to show that TBI (Traumatic Brain Injury) and concussions have a significant effect on post-retirement life for NFL players.

I don't see how the evidence presented by Alan is inherently biased against the NFL.

Speaking to your point about players reporting concussions, I believe that while some players do not report them and go on to play, and put themselves at risk, there is a vocal community of individuals that faults the NFL for

a) underestimating the time of recovery for concussions

b) downplaying the immediate and long term effects of traumatic brain injury that athlete absolutely do sustain on the field of play

While the players' desire to "play through it" must certainly be taken into account, I believe the NFL does need to take a closer look at their medical evaluation policies which may put athletes in more risk than they are aware.

Isn't that one of the key legal issues we're talking about? If a team doctor allows a player to keep playing, or only keeps them out for a week, when to lower risk, they should be out for longer, who is responsible when the player gets injured again?

Is there a threshold to be reached? As I understand it, there is increasing risk with every concussion - it may not be fair to the NFL to expect them to sit players until their risk for future injury has returned to pre-concussion levels.

If the NFL is at fault for this, can they be found liable for the risks associated with say, players over a certain weight limit, or players attempting to return after a serious injury (say, Teddy Bruschi after his stroke, or, if he's lucky, David Pollack after his vertebral fusion)?

Anonymous Anonymous -- 1/23/2007 8:18 PM  

i just hate to see the NFL getting blamed for other people's mistakes. Even if you do not report one concussion, that could throw off the doctors. It just seems like the media in general, not just this article, is trying to blame the NFL for much of this. If a player had that many concussions, and kept playing through them, how could you righteously blame the NFL or its doctors.

The players also know the risk they are up against every week and the chance they take playing football. Some players are smart enough to call it quits before the concussions build up too much. As for the the serious injuries and tragic outcomes, some have to be expected in a sport of football. Considering all of the players who have played football over the years, this is not a major problem. It is definitely something the NFL wants to limit, however look at how many games are played between different teams and players and it is surprising there have not been more concussions.

Also I am sure the NFL has changed some rules over the years that have lightened up on concussions. There are new rules in place that offer great protection to players that older players never had.
I do not know much about Andre Waters, but all the talk about him being a notoriously hard hitter makes me wonder if he used his helmet when hitting while playing? That would not have been beneficial for preventing head injuries.

Anonymous tommie -- 1/23/2007 10:57 PM  

Legal issues aside, I think it's fair to point out that Omalu and Nowinski are not alone in criticizing the NFL's position on concussions. And there are just as many questions surrounding the qualifications of Elliot Pellman, who heads up the league's committee on concussions. See the article from ESPN The Magazine (linked).

I don't have the medical expertise to judge the merits of any of these studies, but given the obvious conflict of interest of the NFL's committee and how uncooperative they apparently have been with outside researchers in the medical community, it's difficult not to think of the research institute funded by the tobacco industry.

Anonymous Jim A -- 1/23/2007 11:11 PM  

If your in a position, say medical advisor to the NFL and you know a product of procedure is working with one team, your statistics indicate thst and you don't investigate why. You repel requests from doctors to grant money to study the procedure. All the while the rest of the league is kept in the dark about a device that is responsible for preventing concussion on a scale never before seen. Yet other teams are reporting betweenn 16-25 concussions a year, the Patriots 2.

ESPN "See no Evil"
"NFL won't bite"

"There is the potential for bankrupting the league pension and disability plan if the NFL had to honor claims of disability brought by players who have concussions," says Michael Kaplen, a New York lawyer who specializes in brain injuries.
Some doctors and former players have long suspected that the NFL has always intended to use the MTBI committee's work as a bulwark against just such liability. One of the scientists who reviewed the committee's work for Neurosurgery told ESPN The Magazine: "They're basically trying to prepare a defense for when one of these players sues. ... They are trying to say that what's done in the NFL is OK because in their studies, it doesn't look like bad things are happening from concussions."
But as the concussion committee's studies turn out to be flawed or incomplete and outsiders are linking concussions to serious illness and even death, the NFL is going to need a new strategy. Its same old dismiss-and-wait statement on Andre Waters shows it's still looking for one.
Peter Keating writes about sports business for ESPN The Magazine.

Anonymous Anonymous -- 1/23/2007 11:16 PM  

Tommie - I agree completely that concussions are hard to judge because they're not, say, a twisted ankle or a broken bone. And players can probably suffer low grade concussions and assume that it's just "part of the game" and that they should "shake it off" when medically speaking, they should be taking precautions or sitting out.

This also makes me wonder if we might not see liability claims go further back. Even if they aren't getting hit as hard, are children more or less likely to sustain sports related concussions? Is there any correlation between age and future exhibition of permanent brain damage as a result of sports related TBI?

Can someone with more knowledge of policies speak about NCAA (or youth sports league) concussion rules vs. NFL policy? Is anyone being proactive in being more protective of players?

Anonymous Anonymous -- 1/24/2007 12:29 AM  

It seems more people are working with impact testing, a way of telling you how bad a concussion is but the NCAA and the NFL have been hesitant to examine any positive data on mouth guard protection because the NFL has had its focus on developing a helmet for Riddell. The put the mouth guard aside because it would have interfered with the data or grant cash flow, take your pick. The NFL's own stats indicated the Patriots were doing something right and failed to be proactive in investigating why.
The NCAA takes all its ques from the NFL and their tenticles are far reaching. The problem is, the example they set, trickles down to the pop warner level and kids are told to toughen up. Thats very dangerous. Its been suggested kids do suffer more long term problem from concussion, nobody really knows execept the head and neck specialist for the Patriots. He is dead set on his procedure and the statistics prove it. Riddell developed their new helmet because they found 70% of concussions originate at the jaw level. The U.S. Marines regimental surgeon feels the chin strap relationship to the jawbone is worth looking into further. Yet when the military hospital looked to the NFL for advice they were not told of the Patriots success for the past two decades. It would be an admission of having withheld information from the players like Wayne Crebet. Who has had four concussion since the NFL was formally told of the mouth guard. He is now retired and is now waiting to see what hid future will bring. When you know something and you don't tell others, thats bad.

Anonymous Anonymous -- 1/24/2007 7:32 AM  

Good points, I also think we need more experts to speak about concussions in general. Besides children I am sure some adults are more prone to concussions than others. It is also interesting to see the differences between minor v. major and low grade v. high grade concussions, and all of the different types and symptoms for these. It must be hard for the doctors to make these judgement calls as I am sure there is a fine line often crossed when diagnosing.

Anonymous tommie -- 1/24/2007 4:03 PM  

These impact tests are a good way of getting the kid to tell the trueth about how bad the concussion is. They put the kid in front of a computer and have them answer some orchestrated questions. The bone on bone contact a "glass Jaw" produces will result in minor dizziness, the sensation of seeing stars, headache, things usually refered to as dings. These are cumulative and are connected to producing white spots on the top of the brain. The retired NFL research at UNC has now found to be precursers to Parkisons and more.

Anonymous Anonymous -- 1/24/2007 6:44 PM  

Is there anyone familiar with an NFL player's standard contract? I'm assuming the contracts have been negotiated to include provisions regarding injuries and the NFL's liability. Is this a correct assumption? Do the players sign waivers to release the NFL from liability for certain injuries that would bar suit in addition to the general assumption of risk? If so, this brings us back into the old realm of freedom of contract vs. negligence/providing a safe environment.

Anonymous Erick Thomson -- 1/25/2007 11:56 AM  

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