IT S JUST A CONCUSSION: THE NATIONAL FOOTBALL LEAGUE S DENIAL OF A CAUSAL LINK BETWEEN MULTIPLE CONCUSSIONS AND LATER-LIFE COGNITIVE DECLINE

Transcription

1 IT S JUST A CONCUSSION: THE NATIONAL FOOTBALL LEAGUE S DENIAL OF A CAUSAL LINK BETWEEN MULTIPLE CONCUSSIONS AND LATER-LIFE COGNITIVE DECLINE Daniel J. Kain * INTRODUCTION Violent collisions are a primary ingredient behind the incredible success of the National Football League ( NFL ). Unfortunately, player concussions are a common result of such collisions. The debate that currently polarizes the respective football and scientific communities is whether multiple concussions sustained during an NFL player s career cause later-life cognitive problems such as dementia and depression. The NFL s internal Concussion Committee maintains that if multiple concussions are managed properly, 1 the player will not suffer any long-term effects. 2 This stance taken by the NFL represents the minority opinion on the issue. 3 * B.A., West Chester University, 2004; J.D. Rutgers University School of Law Camden, Please be aware that substantive scholarship has not been added to this Note since Super Bowl Sunday of Consequently, the Note does not account for the sea change in NFL concussion policy that occurred after the October 28, 2009 Congressional hearing. I wish to thank my wife Lauren for her patience and support throughout my RUTGERS LAW JOURNAL experience. Special thanks to Lindsay Donn, Geoffrey Stark, John Wixted, Shanin Specter, Chris Nowinski, Andrew Brandt, Professor John Oberdiek, and Dr. Thomas Kain for their helpful comments in review of this Note. Finally, I would like to thank the Kain, Dolan, & Biddle families for their loving support. 1. In 1994, former NFL Commissioner Paul Tagliabue appointed an NFL Committee on Mild Traumatic Brain Injury ( MTBI ). See Paul Tagliabue, Tackling Concussions in Sports, 53 NEUROSURGERY 796 (2003) (explaining that as the league began to inquire about the specific area of concussions, it realized that there were many more questions than answers on the topic). On August 14, 2007, the NFL published the following statement regarding its concussion policy: 697

2 698 RUTGERS LAW JOURNAL [Vol. 40:697 Clinical and neuropathological studies by some of the nation s foremost experts demonstrate that multiple concussions sustained during an NFL player s career cause cognitive problems such as depression and early-onset dementia. 4 Dr. Bennet Omalu, M.D., a forensic pathologist at the University of Pittsburgh, has examined the brain tissue of deceased NFL players Mike Webster, Terry Long, and Andre Waters. 5 All three subjects of Dr. Omalu s studies suffered several concussions during their respective NFL careers. 6 Before their premature deaths, Webster, Long, and Waters presented clinical symptoms of sharply deteriorated cognitive function and psychiatric symptoms such as paranoia, panic attacks, and major depression. 7 Dr. Omalu Current research with professional athletes has not shown that having more than one or two concussions leads to permanent problems if each injury is managed properly. It is important to understand that there is no magic number for how many concussions is too many.... [Players] should not be at greater risk of further injury once [they] receive proper medical care for a concussion and are free of symptoms. Press Release, National Football League, NFL Outlines For Players Steps Taken to Address Concussions (Aug. 14, 2007) (emphases added) (on file with author). 2. Id. 3. See Robert Mitchum, Consensus Difficult to Find; NFL Conclusions Come Under Attack, CHI. TRIB., June 20, 2007, at C2 (explaining how the NFL s conclusion that there is no increase in secondary brain injuries after a second concussion is met with skepticism by NFL players and independent doctors). 4. See Robert C. Cantu, Chronic Traumatic Encephalopathy in the National Football League Player, 61 NEUROSURGERY 223 (2007) (finding that the brain tissue of three dead NFL alumni shared common features of brain damage). See also Kevin M. Guskiewicz et al., Association between Recurrent Concussion and Late-Life Cognitive Impairment in Retired Professional Football Players, 57 NEUROSURGERY 719 (2005) (conducting a survey of over 2,550 former NFL players that indicated a direct correlation between the number of concussions sustained by a player in his NFL career to the probability of his incurring cognitive impairment in later life). 5. See Bennet I. Omalu et al., Chronic Traumatic Encephalopathy in a National Football League Player, 57 NEUROSURGERY 128 (2005) [hereinafter Omalu, CTE Part I] (examining the brain tissue of fifty-year-old Mike Webster); Bennet I. Omalu et al., Chronic Traumatic Encephalopathy in a National Football League Player: Part II, 59 NEUROSURGERY 1086 (2006) [hereinafter Omalu, CTE Part II] (examining the brain tissue of forty-two-yearold Terry Long); Cantu, supra note 4, at 223 (finding that the most recent subject of Omalu s forensic study, forty-four-year-old Andre Waters, exhibited the same type of neurological damage as Webster and Long). 6. See Cantu, supra note 4, at 223. All three athletes were regarded as iron men: hard hitters who rarely took themselves out of a game due to head trauma, and continued to play despite suffering multiple concussions. Id. 7. Id.

3 2009] IT S JUST A CONCUSSION 699 concluded that Chronic Traumatic Encephalopathy ( CTE ) triggered by multiple NFL concussions represented a partial cause of their deaths. 8 A peer-reviewed clinical study performed by Dr. Kevin Guskiewicz 9 found that retired players who sustained three or more concussions in the NFL had a fivefold prevalence of Mild Cognitive Impairment ( MCI ) diagnosis in comparison to NFL retirees without a history of concussions. 10 In reaching this finding, Dr. Guskiewicz employed a survey of over 2,550 former NFL athletes. 11 In January 2006, the findings of doctors Omalu and Guskiewicz received national exposure when the New York Times featured a front page story about the suicidal death of Andre Waters. 12 Mounting media exposure placed pressure on the NFL to address the long-term effects of NFL concussions. Consequently, the NFL scheduled a Summit on Concussions for June Id. CTE is a neurological disorder first discovered in boxers, jockeys, and wrestlers who sustained multiple blows to the head. Id. at CTE presents clinically as dementia or parkinsonism with symptoms like slight mental confusion, general slowing in muscular movement, hesitancy in speech, and tremors of the hands. Id. The brain tissue of Webster, Long, and Waters all demonstrated trademark signs of CTE, including neurofibrillary tangles, neurtrophil threads, and cell dropout. Id. at 223. See also discussion infra Part I (providing an in-depth analysis of CTE and its scientific history). 9. Dr. Guskiewicz serves as the Research Director of the Center for the Study of Retired Athletes, see Center for the Study of Retired Athletes, Board of Directors, (last visited Aug. 19, 2009), and the Chairman of the Department of Exercise and Science at the University of North Carolina. Alan Schwarz, For Jets, Silence on Concussions Signals Unease, N.Y. TIMES, Dec. 22, 2007, at A Guskiewicz et al., supra note 4, at 722. MCI is a diagnostic classification typically applied to older individuals who exhibit some evidence of cognitive decline (usually in memory), and perform below expected levels on formal neurocognitive testing. Id. at 720. MCI is often conceptualized as a transitional state between the cognitive changes of normal aging and dementia. Id. 11. Id. at 721. Guskiewicz employed another large scale study targeted specifically at the link between multiple NFL concussions and depression in See Kevin M. Guskiewicz et al., Recurrent Concussion and Risk of Depression in Retired Professional Football Players, 39 MED. SCI. SPORTS EXERCISE 903 (2007) (finding that 595, or 24.4% of the former NFL players surveyed sustained at least three concussions suffered from clinical depression). 12. Alan Schwarz, Expert Ties Ex-Player s Suicide To Brain Damage From Football, N.Y. TIMES, Jan. 18, 2007, at A1 (detailing at great length the studies of doctors Cantu, Omalu and Guskiewicz, and the tragic deaths of Mike Webster, Terry Long, and Andre Waters). Dr. Omalu explained that if Waters had lived to the age of sixty, he would have been fully incapacitated. Id. 13. Each team was required to send a team doctor and two trainers to the June summit. See Les Carpenter, Compromise Reigns at Summit on Concussions, WASH. POST, June 20, 2007, at E01. See also Gary Mihoces, NFL Disputes Doctor s Diagnosis of Footballer s Dementia, USA TODAY, June 19, 2007, at 2C (reporting on the central disagreement between

4 700 RUTGERS LAW JOURNAL [Vol. 40:697 Scientists and players were initially hopeful that the NFL s scheduling of the Summit indicated a newfound willingness on the part of the league to revise its concussion policies and procedures. 14 Unfortunately, the NFL s August 14, 2007 press release denying the scientific probability that more than one or two concussions leads to permanent problems indicates that the research of doctors Omalu and Guskiewicz fell on unresponsive NFL ears. 15 Thus, it seems that the Summit served largely public relations purposes for the NFL. 16 This Note will highlight several factors that contribute to the NFL s concussion problem. Additionally, the note will analogize the NFL s denial of a causal link between NFL concussions and cognitive decline to the tobacco industry s denial of the link between cigarette consumption and cancer. In the tobacco context, plaintiffs brought successful negligence and deceit claims against the tobacco industry for knowingly and falsely leading consumer-smokers to believe that smoking was safe. 17 Here, the NFL continues to inform players that multiple concussions will not cause later-life cognitive problems in spite of an overwhelming amount of contrary evidence. If the NFL simply accepted the majority scientific opinion implicating a causal link between concussions and later-life cognitive decline, it could take procedural and legal actions to remedy the situation. 18 However, a continued attempt to raise ambiguity about the long-term consequences of concussions might expose the league to a similar liability that struck the tobacco industry. the NFL s internal Concussion Committee and outside scientists; namely, the NFL s stance that concussions sustained while playing professional football do not cause later-life cognitive decline). 14. Carpenter, supra note 13 (suggesting that the general tenor of the Summit was one of optimism and mutual respect between the NFL Concussion Committee doctors and outside doctors like Omalu, Cantu, and Guskiewicz). 15. See Press Release, National Football League, supra note 1. Upon notice of the NFL s denial of any link between NFL concussions and later-life cognitive decline, Dr. Guskiewicz stated: They re just trying to raise ambiguity when the science is becoming more and more clear... The literature has proven it, [and] we confirmed it in June in the presence of their entire committee.... Schwarz, supra note 9 (emphasis added). 16. See infra Part V.A.2 (discussing a potential misrepresentation claim against the NFL). 17. See, e.g., Philip Morris USA v. Williams, 549 U.S. 346, , 353 (2007) (holding that the Constitution s Due Process Clause forbids a state from using punitive damages to punish a defendant for harm caused to nonparties). 18. The first step in remedying the problem is warning players about the long-term risks associated with suffering multiple concussions. See infra Parts IV, V.A.

5 2009] IT S JUST A CONCUSSION 701 Part I of this Note will track the well documented history of CTE in contact sport athletes from the 1920s to the present. Part II will address the definitions, symptoms, diagnosis, and treatment of concussions. Part III will explore various contributing factors to the NFL s concussion epidemic. Part IV will examine the sole case involving a player suit against an NFL affiliated party for failure to warn about the risks of sustaining multiple concussions. Part V will compare the facts and legal theories of the tobacco litigation to the facts which present a fertile ground for player suits against the NFL. Finally, Part VI will offer several suggestions intended to mitigate the prevalence of cognitive degeneration among NFL alumni. I. LONGSTANDING HISTORY OF CHRONIC TRAUMATIC ENCEPHALOPATHY IN CONTACT SPORT ATHLETES Scientific research indicating a link between multiple concussions sustained by athletes and CTE is hardly a new development. 19 After Dr. Omalu concluded his third study of a former NFL player s brain tissue, 20 he asked rhetorically whether one should be surprised that CTE was evidenced in all three studies. 21 Dr. Omalu answered his own question with a resounding absolutely not. 22 CTE was first described in 1928 as being characteristic of boxers who take considerable head punishment Clinical symptoms of CTE as described in 1928 included slight mental confusion, a general slowing in muscular movement, hesitancy in speech, and tremors of the hands. 24 Degenerative effects of CTE, evidenced as early as 1928, included marked truncal ataxia, Parkinsonian syndrome, and mental deterioration necessitating commitment to an asylum The terms cognitive decline and cognitive degeneration will be used interchangeably throughout the Note as the NFL Concussion Committee and outside scientists employ the terms in like fashion. 20. Cantu, supra note 4, at Id. at Id. Dr. Julian Bailes, medical director of the Center for Retired Athletes and Chairman of the Neurosurgery Department at West Virginia University, responded to Dr. Omalu s findings of CTE in former football players by lamenting: Unfortunately, I m not shocked. Schwarz, supra note Cantu, supra note 4, at 224 (quoting Harrison S. Martland, Punch Drunk, 91 J. AM. MED. ASS N 1103, 1103 (1928)). 24. Id. 25. Martland, supra note 23, at See also A. H. ROBERTS, BRAIN DAMAGE IN BOXERS, 61 (1969) (echoing Martland s earlier findings regarding the dangers of chronic brain

6 702 RUTGERS LAW JOURNAL [Vol. 40:697 Seminal neurological studies performed in the 1970s identified the neuropathology of CTE in the brain tissue of fifteen deceased boxers. 26 These studies provided Dr. Omalu with a highly functional template from which he could compare the neuropathological signs and symptoms evidenced in professional football players to those evidenced in professional boxers. 27 Given that both boxers and professional football players often sustain multiple concussions during their professional careers, it should come as no surprise that NFL players also incur cognitive decline after retirement. 28 The NFL s Concussion Committee flatly denies any causal link between concussions sustained in the NFL and the subsequent onset of CTE in NFL alumni. 29 Dr. Cantu questions the NFL s denial of a causal link because the league s internal study included only active players between the ages of twenty and thirty during a short six-year window. 30 Dr. Cantu noticed several other flaws in the NFL s internal studies. 31 First, players previous concussions were not included in the analysis. 32 Second, the NFL committee experienced difficulty collecting data on loss of consciousness. 33 Finally, the studies lacked a uniform method of evaluating concussions. 34 damage in boxers). Former world champion boxer Muhammad Ali embodies the paradigm example of a boxer who presents with early-onset Parkinson s syndrome. Dave Anderson, Sports of The Times; Ali's Boxing Curse, N.Y. TIMES, July 19, 1987 at 5: Cantu, supra note 4, at 224; J. A. Corsellis, Brain Damage in Sport, 1 LANCET 401, 401 (1976) (finding that the brain tissue of fifteen former boxers who sustained multiple head trauma evidenced neuropathological signs of CTE). See also J. A. Corsellis, The Aftermath of Boxing, 3 PSYCHOL. MED. 270 (1973) (explaining that eight of the fifteen subjects in Corsellis s study were either world or national champions). 27. See Cantu, supra note 4, at 224. Corsellis also reported CTE in other athletes who face a high risk of head injury such as jockeys and professional wrestlers. Id. Corsellis located four different portions of the brain that evidenced signs and symptoms of CTE caused by multiple head trauma. Id. However, he did not state that all four areas of the brain needed to be involved in order for a CTE diagnosis to be made. Id. 28. Id. 29. See Press Release, National Football League, supra note Id. at 223. The NFL s internal study on CTE was conducted from 1996 to Id. 31. Id. 32. Id. When using the term previous concussions, Cantu is referring to those concussions sustained in the NFL prior to the study or those sustained during players careers in high school, college, or other levels of football. Id. 33. Id. The initial data sheet did not ask for data regarding loss of consciousness. Id. 34. Id. The studies were conducted in multiple sites using different examiners. Id.

7 2009] IT S JUST A CONCUSSION 703 II. CONCUSSIONS IN THE NFL: DEFINITIONS, SYMPTOMS, DIAGNOSIS, AND TREATMENT The medical community lacks a conclusive definition of the term concussion. 35 However, the American Association of Neurological Surgeons defines a concussion as a clinical syndrome characterized by an immediate and transient alteration in brain function, including an alteration of mental status and level of consciousness, resulting from mechanical force or trauma. 36 Scientists might squabble over a precise definition of the term concussion, but all agree with the notion that there is no such thing as a minor concussion. 37 Concussions in the NFL context are related to translational acceleration-deceleration with considerable head impact velocity and velocity changes. 38 NFL players suffering from the post-concussive effects of one or more concussions present with what was formerly called postconcussion syndrome and what the NFL Concussion Committee now calls mild traumatic brain injury (MTBI). 39 Symptoms of post-concussion syndrome include, but are not limited to, a loss of consciousness, headaches, vertigo, lightheadedness, loss of balance, unsteadiness, memory disturbance, drowsiness, lethargy, decreased vision, and difficulty attending to normal daily activities. 40 Sustaining an isolated concussion will not generally cause death. 41 However, suffering repeated concussions raises the danger of secondimpact syndrome ( SIS ), a potentially fatal condition that occurs when a player returns to competition before the symptoms of a first concussion 35. See James P. Kelly & Jay H. Rosenberg, Diagnosis and Management of Concussion in Sports, 48 NEUROLOGY 575, 575 (1997) (discussing the scientific disagreement about the terminology of concussion and mild traumatic brain injury). 36. American Association of Neurological Surgeons ( AANS ), Concussion, Nov. 2005, (last visited Jan. 25, 2008). 37. Id. 38. Omalu, CTE Part I, supra note 5, at Id. at 128. The NFL Concussion Committee was formerly known as the NFL Committee on Mild Traumatic Brain Injury. Mihoces, supra note 13. The NFL defined MTBI as a traumatically induced alteration in brain function manifested by an alteration of awareness or consciousness, including but not limited to a loss of consciousness. Id. 40. Omalu, CTE Part I, supra note 5, at Further symptoms include wooziness, seizures, amnesic periods, hearing loss, and cognitive dysfunction. Id. 41. Edward M. Wojtys et al., Concussion in Sports, 27 AM. J. SPORTS MED. 676, 681 (1999) (describing a wide range of injuries, exclusive of death, that can be caused by concussion).

8 704 RUTGERS LAW JOURNAL [Vol. 40:697 resolve. 42 After sustaining a concussion, brain cells that are not irreversibly destroyed remain alive, but exist in a vulnerable state. 43 In summary, athletes that are not fully recovered from an initial concussion are significantly vulnerable for recurrent, cumulative, and even catastrophic consequences of a second concussive injury. 44 These injuries can be prevented if the player presenting with concussive symptoms is provided sufficient time to recover from a prior concussion and return-toplay decisions are properly made by treating physicians. 45 Unfortunately, most NFL players are unaware of the long-term consequences of concussions and lack an adequate understanding of concussion symptoms. 46 Routine neurological examinations may not detect concussions. 47 Traditional neurological and radiologic procedures, such as CTs, MRIs, and 42. Alexander N. Hecht, Legal and Ethical Aspects of Sports-Related Concussions: The Merril Hoge Story, 12 SETON HALL J. SPORT. L. 17, 24 (2002) (citing RL Saunders & RE Harbaugh, The Second Impact in Catastrophic Contact-Sports Head Trauma, 252 J. AM. MED. ASS N 538, (1984) (citing James P. Kelly & Jay H. Rosenberg, Diagnosis and Management of Concussion in Sports, 48 NEUROLOGY 575, 577 (1997)) (describing secondimpact syndrome as when an athlete suffers cerebral auto-regulation, or a loss of cerebral auto-regulation, leading to malignant brain swelling and marked increase in intracranial pressure. ) See also Robert C. Cantu, Return to Play Guidelines After a Head Injury, 17 CLINICS IN SPORTS MED. 45 (detailing the pathophysiology of second-impact syndrome and providing cases and illustrations). 43. Wojtys, supra note 41, at 677 (asserting that the concept of injury-induced vulnerability is a major concern in the management of patients with head injuries ). The true incidence and impact of SIS remains a thorny issue as only 17 cases have been reported in the literature, and only five cases had confirmed diagnoses of SIS. University of Virginia Health System, Sports Concussion and Second Impact Syndrome, (last visited Jan. 26, 2008). 44. impact Test, (last visited Jan. 30, 2008). 45. Id. The NFL entrusts team physicians with total discretion over return-to-play decisions. See Press Release, National Football League, supra note See discussion infra Part V.A.1 (explaining the NFL s failure to warn players about the long-term risks associated with suffering multiple concussions). Troy Vincent, former NFL defensive back and current president of the NFL Players Association ( NFLPA ), explained his lack of concussion knowledge: I m not even sure we athletes know what a concussion is.... Outside of being knocked out, I stayed in the game. Mitchum, supra note AANS, supra note 36. See also Michael W. Collins et al., Current Issues in Managing Sports-Related Concussions, 282 J. AM. MED. ASS N 2283, 2283 (asserting that the determination of when a player should return to play after sustaining a concussion is a significant public health issue).

9 2009] IT S JUST A CONCUSSION 705 EEGs, although helpful in identifying other brain related concerns, 48 are not useful in identifying the effects of a concussion. 49 Considering that concussions are difficult to detect by way of CTs, MRIs, and EEGs, the diagnosis, evaluation, and treatment of concussions are almost entirely based on the nature of the incident and the player s communication of his symptoms to a treating clinician. 50 NFL athletes should not return to play when post-concussion symptoms persist and recovery is ongoing. 51 Baseline testing is a scientifically accepted measure of determining when a player should return to the playing field. 52 The testing involves a series of quizzes and interviews administered by athletic trainers that monitor an athlete s orientation, memory, vision, attention span, language, mental flexibility, and coordination. 53 Baseline testing provides a comparison between a player s normal brain function 48. Skull fractures, hematomas, and contusions are examples of acute head injuries that traditional neurological and radiologic procedures are capable of detecting. See impact Test, supra note 44. The reason CTs, MRIs, and EEGs cannot detect even the most serious concussions is that a concussion is a metabolic rather than structural injury. Id. Thus, structural neuroimaging techniques are insensitive to the effects of concussion. Id. 49. See id. See also Press Release, University of Pittsburgh Schools of the Health Sciences, Sports Concussion Research Using Functional MRI Provides Insight (Aug. 8, 2007), available at See impact Test, supra note 44. See also discussion infra Parts III.A-B explaining how the structure of NFL player contracts and the conflicted nature of team physicians discourage players from disclosing their concussive symptoms to team trainers. 51. impact Test, supra note 44. In 1991, former Philadelphia Eagle Andre Waters experienced a severe concussion in a game against the Tampa Bay Buccaneers. Schwarz, supra note 12. On the ensuing flight home to Philadelphia, Waters experienced a seizure-like episode. Id. The team later diagnosed the incident that occurred on the flight as body cramps. Id. Waters returned to the playing field the following Sunday. Id. This type of concussion treatment helps explain why Waters s brain tissue resembled that of an octogenarian Alzheimer s patient at the time of Dr. Omalu s study. Cantu, supra note 4, at impact Test, supra note 44. The NFL s adoption of baseline testing is one of the changes the league implemented in the wake of the 2007 Concussion Summit. See Press Release, National Football League, supra note 1. The other substantive change worth mentioning was the NFL s adoption of a whistle blower program that enables players to complain anonymously if they feel pressured to return to play too soon after sustaining a concussion. Id. 53. Hecht, supra note 42, at 50 (quoting Kevin M. Gusk et al., Epidemology of Concussion in Collegiate and High School Football Players, 28 AM. J. SPORTS MED (2000)).

10 706 RUTGERS LAW JOURNAL [Vol. 40:697 tested at the beginning of the season against the player s post-concussive brain function. 54 Arguably the most respected method physicians employ in making return-to-play decisions involves what is known as the Cantu grading system. 55 In 1986, renowned neurosurgeon Dr. Cantu created a set of guidelines to help facilitate clinicians return-to-play decisions. 56 His guidelines divide concussions into three grades. 57 A Grade 1 concussion involves no loss of consciousness and the period of post-traumatic amnesia ( PTA ) lasts less than thirty minutes. 58 A Grade 2 concussion usually involves a loss of consciousness lasting less than five minutes and a PTA of more than thirty minutes, but less than twenty-four hours. 59 A Grade 3 concussion is the most severe, involving a loss of consciousness greater than five minutes and a PTA longer than twenty-four hours. 60 According to Dr. Cantu, a player s season should be terminated if he sustains two to three concussions in one season. Thus, Dr. Cantu would disagree with the NFL s assertion that there is no magic number for how many concussions is too many. 61 Dr. Cantu s return-to-play guidelines and baseline testing reduce the subjectivity of concussion diagnosis and return-to-play decisions. However, both tools leave NFL trainers with an inordinate amount of discretion in diagnosing, managing, and treating concussions. Dr. Cantu, founder of the renowned grading guidelines, stated himself that [t]here isn t a [scientific] 54. See impact Test, supra note 44. The baseline study adopted by the NFL is referred to as the ImPACT Test. It is a computer based testing program specifically designed for the management of sports-related concussions. Id. 55. See Cantu, supra note 42, at Id. at Id. 58. Id. After one Grade 1 concussion, a player may return to play after one week if asymptomatic. CHRISTOPHER NOWINSKI, HEAD GAMES: FOOTBALL S CONCUSSION CRISIS 147 (2007). After suffering a second Grade 1 concussion in the same season, a player may return to play in two weeks if asymptomatic. Id. If a player suffers a third Grade 1 concussion in the same season, his season should be terminated. Id. 59. Cantu, supra note 42, at After a Grade 2 concussion, a player may return after one week if asymptomatic. NOWINKSI, supra note 58, at 147. After suffering two Grade 2 concussions, a player should sit out for a minimum of one month, and should consider terminating his season. Id. If a third Grade 2 concussion occurs, the player s season should be terminated. Id. 60. Cantu, supra note 42, at When a player incurs a Grade 3 concussion, he should sit out a minimum of one month. NOWINKSI, supra note 58, at 147. If the player suffers a second Grade 3 concussion, his season should be terminated. Id. 61. See Press Release, National Football League, supra note 1 (emphases added).

11 2009] IT S JUST A CONCUSSION 707 marker of concussion. 62 Rather, Dr. Cantu found that the diagnosis of a concussion is entirely a clinical judgment call. 63 III. FACTORS THAT EXACERBATE THE CONCUSSION EPIDEMIC IN THE NFL To illustrate how players and trainers disagree about the actual number of player concussions sustained throughout an NFL season, surveys of trainers approximate that 5% of players suffer a concussion each season, while studies relying on symptom reports from players put that figure between 20% - 50%. 64 Given that the NFL specifies that all return-to-play decisions should be made by [the] team medical staff, 65 team trainers hold the long-term mental health of NFL players in the palm of their hands. In light of the conflicted interests that burden several NFL trainers, 66 the enormous discretion trainers hold over concussion diagnosis, treatment, and return-to-play decisions is a scary proposition Mitchum, supra note Id. 64. Id. 65. Press Release, National Football League, supra note See discussion infra Part III.A (discussing various conflicts of interest that impede NFL trainers return-to-play decision-making abilities). The American Medical Association ( AMA ) specifically obliges physicians to avoid conflicts of interest: Under no circumstances may physicians place their own financial interests above the welfare of their patients. COUNSEL ON ETHICAL AND JUDICIAL AFFAIRS, AM. MED. ASS N, CODE OF MEDICAL ETHICS 8.03 ( ), available at Physicians operate under a number of professional codes and regulations that delineate their professional responsibilities to their patients. Steve Calandrillo, Sports Medicine Conflicts: Team Physicians vs. Athlete-Patients, 50 ST. LOUIS U. L.J. 185, 188 (2006) (elaborating on the many negative consequences that occur in a system that divides a medical provider s loyalty between patient-athletes and team management). Healthcare providers are bound not to let any other interest interfere with that of the patient in being cured. Id. at 189 (quoting Hans Jonas, Philosophical Reflections on Experimenting with Human Subjects, 1969 DAEDALUS 219, 238). The original version of the [Hippocratic] Oath stated that physicians must endeavor to prevent harm and injustice to their patients. Id. The AMA emphasizes that a physician s paramount concern must be the well being of her patient. See COUNSEL ON ETHICAL AND JUDICIAL AFFAIRS, supra note 66.

12 708 RUTGERS LAW JOURNAL [Vol. 40:697 A. Trainer Conflicts The conflicted interests that burden many NFL trainers exacerbate the NFL s concussion problem. 68 An emerging practice in sports medicine involves medical providers auctioning off the right to be an NFL team s official medical provider, hospital, or physician-group. 69 The privilege of being selected comes with the right to advertise in one s promotional materials that her group has been named the official healthcare provider of a particular team. 70 In return, the team is provided with medical care for free or at reduced cost. 71 NFL players are the victims of this pay-to-play system as they receive medical care compromised by the financial interests of NFL trainers. 72 It is no secret that the NFL is a business, and an extremely successful one at that. When trainers are intertwined with team management, their medical decisions become clouded by the number one money-making criterion in the NFL business: winning. In order for teams to maximize profit through winning games, it stands to reason that coaches and management place incredible pressure on trainers to return their most talented athletes to the 68. The Collective Bargaining Agreement between the NFL and the NFLPA stipulates that all teams shall provide for a physician to be available to players. NFL COLLECTIVE BARGAINING AGREEMENT , art. XLIV, 1, at 197 (2006) [hereinafter NFL CBA], available at (follow CBA hyperlink; then follow CBA download hyperlink) (last visited Aug. 9, 2009) ( Each Club will have a board-certified orthopedic surgeon as one of its Club physicians. The cost of medical services rendered by Club physicians will be the responsibility of the respective Clubs. ). 69. Calandrillo, supra note 67, at 192. Dr. Dan Brock, director of Harvard Medical School s Division of Medical Ethics, criticized these arrangements as unseemly and lamented the clear conflict of interest created. Bill Pennington, Sports Turnaround: The Team Doctors Now Pay the Team, N.Y. TIMES, May 18, 2004, at A Calandrillo, supra note 67, at 193. Methodist Hospital, which provides medical services to the NFL s Houston Texans, found that their association with the Texans is the number-one driver of new calls from prospective clients. Id. (citing Pennington, supra note 69). 71. Calandrillo, supra note 67, at 192. These entrepreneurial arrangements began in 1995 with the expansion of the NFL into Jacksonville, Florida and Charlotte, North Carolina. Id. [I]t is estimated that half of the major sports teams in the United States now have some kind of financial or marketing arrangement to provide medical services. Id. at Dr. Andrew Bishop, physician for the Atlanta Falcons, threatened to resign if the team entered a sponsorship agreement with a local hospital. Pennington, supra note 69. Bishop is worried that if a physician is so desperate to become a trainer that he s willing to pay to do it, then he s going to do whatever management wants to keep the job he paid for. Id. This might include returning a player to the field before his concussive symptoms completely disappear.

13 2009] IT S JUST A CONCUSSION 709 playing field as soon as possible. 73 Concussions might represent one of the injuries that trainers send their patient-athletes back on the field with before players are completely healed. 74 Former New York Jets lineman Peter Kendall efficiently articulated the conflict-ridden nature of team physicians return-to-play decisions: I see guys playing in games that I don t think a personal advocate would allow them to do[.] The doctor who is supposed to be looking out for you is also the same guy who may put you into a game that the team has to win. You re mixing business with medicine. 75 Thus, in three sentences, Kendall summarized the risk involved with trainers practicing medicine under conflicted financial and medical interests. The physician-patient dynamic of the New York Jets presents a paradigm conflict of interest. 76 Dr. Elliot Pellman serves as both the Director of Medical Services for the New York Jets and as NFL Concussion Committee member. 77 Because of Pellman s dual role, the Jets concussion policies and procedures have drawn heightened scrutiny from outside observers. 78 Pellman s management of the concussion Jets wide receiver Wayne Chrebet sustained on November 2, 2003 triggered significant criticism from 73. In a deposition for a medical malpractice claim by a former player, New York Giants coach Tom Coughlin candidly admitted that he can and will exert as much pressure on the player and the doctors to get the player [back] on the field. Selena Roberts, Coughlin s Biggest Risk is Rejection, N.Y. TIMES, May 13, 2004, at D1 (detailing a cause of action brought by Jeff Novak against the Jacksonville Jaguars and team physician Stephen Lucie). 74. Practicing sports medicine under conflicted interests might subject team trainers to tort liability. [B]eyond professional regulation, healthcare providers face potential tort liability for the medical services they render, and therefore must follow the relevant standard of care in their treatment of athlete-patients. Calandrillo, supra note 67, at 189. [T]eam physician[s] should perform with the level of knowledge, skill, and care that is expected of a reasonably competent medical practitioner under similar circumstances, taking into account reasonable limits that have been placed on the scope of the physician s undertaking. Id. (quoting Joseph H. King Jr., The Duty and Standard of Care for Team Physicians, 18 HOUS. L. REV. 657, 692 (1981)). 75. Schwarz, supra note 9 (examining the highly conflicted and scrutinized trainerpatient dynamic of the New York Jets) (emphasis added). 76. See id. 77. Id. Pellman has served as the Jets director of medical services since 1998, and formerly chaired the NFL s Concussion Committee until February of Id. Pellman remains a member of the Concussion Committee, albeit in a lesser role. Id. 78. Id. Dr. James P. Kelly, Chicago Bears neurologist from , claims that [t]he Jets institutional silence [on concussions] persists because the team is tired of having people scrutinize what they do[. ] They arrogantly assume that they re doing the right thing when it s obvious to outsiders that they mismanage situations, Chrebet being the prime example. It looks like they have something to hide. Id.

14 710 RUTGERS LAW JOURNAL [Vol. 40:697 both scientists and players. 79 In this November 2, 2003 game against the New York Giants, Chrebet s concussion left him face down in an unconscious state for several minutes. 80 Pellman elected to send Chrebet back into contact during the same game despite Chrebet s prolonged state of unconsciousness. 81 Chrebet was subsequently placed on injured reserve for the remainder of the season. 82 Chrebet, 34, has recently acknowledged that he has bouts of depression and memory problems so severe that he cannot make the routine drive from his New Jersey home to his Long Island restaurant without a global positioning system. 83 B. NFL Player Contracts Incentivize Players to Withhold Their Concussion Symptoms NFL player contracts do not guarantee player payment beyond the season in which an injury occurs. 84 Thus, if a player cannot pass his team physical at the start of the season subsequent to his injury, the contract is 79. NOWINSKI, supra note 58, at Chrebet sustained at least six concussions during his Jets career from 1995 through Schwarz, supra note NOWINSKI, supra note 58, at Id. Pellman defended his decision to return Chrebet to play in the same game based on a scientific [and] medical evaluation. Id. This justification lacks merit. As director of the NFL s Concussion Committee at the time of the collision, Pellman was on constructive, if not actual, notice of peer reviewed works such as Edward Wojtys s Concussion in Sports article. See Wojtys et al., supra note 41. Wojtys s article clearly stated that when a player sustains any period of unconsciousness, he is not to return to the field of play in the same game. Id. at NOWINSKI, supra note 58, at 87. Pellman further defended his decision to return Chrebet to play by alleging that he asked Chrebet whether he was okay. Id. at 88. See contract discussion infra Part III.B (indicating why Pellman s latter defense is even less credible than his first defense). 83. Schwarz, supra note 9. The most recent example of a Pellman return-to-play decision scrutinized by players and scientists involved Jets wide receiver Laveranues Coles. Id. Coles suffered two concussions within the past year. Id. Declining to classify the second injury sustained by Coles as a concussion, Jets coach Eric Mangini described the injury: He got hit in the head. Id. Mangini s words lack a sense of urgency regarding his concern over the short and long-term consequences of Coles s concussions. 84. Paragraph nine of the NFL player contract provides in relevant part: If Player is injured in the performance of his service under this contract... then Player will receive such medical and hospital care during the term of his services of this contract as the Club physician may deem necessary, and will continue to receive his yearly salary for so long, during the season of injury only and for no subsequent period covered by this contract, as Player is physically unable to perform the services required of him by this contract because of such injury.... See NFL CBA, supra note 68, app. c, 9 at 251 (emphases added).

15 2009] IT S JUST A CONCUSSION 711 considered void and the athlete could end up paying medical expenses for a lifetime of chronic work-related physical problems. 85 Player contracts may also be terminated at will if a team finds that another player can make better contributions to the team s success. 86 Thus, when the injury and at will termination provisions of player contracts are viewed in conjunction, NFL players possess negligible job security. A sad consequence of the NFL s player contract scheme is the tendency of players to withhold concussion symptoms from their trainers and team management for fear of losing their jobs. Dr. Kenneth Podell, director of the Sports Concussion Safety Program at the Henry Ford Health System, summarizes the problematic situation: The pressure is intense; there s always someone on the bench waiting to take your place. 87 When team management becomes privy to a player s concussion history, the team holds all leveraging power in restructuring a player s contract. Players are faced with the following Hobson s choice: (i) accept a less lucrative contract or (ii) face employment termination. Dan Morgan, former Carolina Panthers linebacker, suffered at least five concussions during his tenure with the Panthers. 88 Faced with the alternative of termination, Morgan agreed to restructure his $2 million roster bonus into payments of $125,000 for each game played. Beyond acknowledging the team s concerns about subsequent concussions, the contract gave Morgan financial incentive not to reveal any concussion for treatment. 89 Even when a player is confident enough to disclose his concussive symptoms to a team trainer, he will not likely refuse a coach s orders to return to play for fear of losing his starting position in the lineup. A recent example of this situation involved the New England Patriots franchise. 90 While playing linebacker for the Patriots in 2002, Ted Johnson sustained a 85. See generally Frederic Pepe & Thomas P. Frerichs, Injustice Uncovered? Workers Compensation and the Professional Athlete, in SPORTS AND THE LAW 18 (Charles E. Quirk ed., 1996). The only portion of an NFL player s contract that can be considered guaranteed is the signing bonus. See NFL CBA, supra note 68, at 43 ( No forfeitures of signing bonuses shall be permitted, except that players and Clubs may agree.... ). 86. See NFL CBA, supra note 68, at 41 ( [A]ny Player Contract may be terminated if, in the Club s opinion, the player being terminated is anticipated to make less of a contribution to the Club s ability to compete on the playing field than another player or players whom the Club intends to sign or attempt to sign.... ). 87. E.M. Swift, One Big Headache, SPORTS ILLUSTRATED, Feb. 12, 2007, at Schwarz, supra note Id. 90. See Swift, supra note 87, at 22 (providing an overview of the current concussion climate in the NFL).

16 712 RUTGERS LAW JOURNAL [Vol. 40:697 severe concussion. After Johnson discussed his symptoms with his team trainer, the trainer advised Patriots coach Bill Belichick not to return Johnson to contact play until he became asymptomatic. 91 Belichick disregarded the trainer s advice by continually sending Johnson back into full contact practices. 92 In defending his decision to return Johnson to play against the trainer s orders, Belichick said: If [Johnson] felt so strongly that he didn t feel he was ready to practice[,] he should have told me. 93 The flaw in Belichick s logic is that it assumes Johnson was confident enough in his job security to defy his coach s orders. If Johnson informed Belichick of his inability to return to play, he would have effectively terminated his own contract with the Patriots. An additional contractual reason why players fear disclosure of their concussion symptoms pertains to the grievance hearing process in player contract disputes. When a player is released from his team because he proves unable to pass his physical, the NFL CBA allows a player to file a grievance with the league. 94 Here, team management might call the trainer as a witness to testify against the player filing the grievance. 95 One of the special defenses a team may employ in response to a player contract grievance is that the player did not pass the physical examination administered by the Club physician at the beginning of the pre-season training camp Thus, a player suffering from undisclosed concussion symptoms has a 91. Id. 92. Id. Today, Johnson suffers from depression and cognitive difficulties he attributes to the multiple concussions he sustained in Id. An unfortunate consequence of Johnson s post-concussion syndrome is his addiction to the amphetamines that he takes to alleviate his symptoms. Id. 93. Id. Ernie Conwell, former NFL tight end, argues that Belichick s defense is naïve because most players would refrain from telling their coach about concussion symptoms for fear of being labeled soft head. Carpenter, supra note 13 (emphasis added). Conwell lacks confidence in the NFL s recently implemented anonymous hotline procedure as he finds it unlikely that player complaints will be kept in confidence. Id. Conwell explains the fundamental reason why players withhold concussion symptoms: Bottom line, guys are just thinking about job security. Dave Scheiber, Concussions on Their Minds, ST. PETERSBURG TIMES, Aug. 5, 2007, at 1C (emphasis added). 94. NFL CBA, supra note 68, art. X, at 16. The NFL CBA defines an injury grievance as: a claim or complaint that, at the time a player s NFL Player Contract was terminated by a Club, the player was physically unable to perform the services required of him by that contract because of an injury incurred in the performance of his services under that contract. Id. at See NFL CBA, supra note 68, at 31. At the hearing, the parties to the grievance and the NFLPA and Management Council will have the right to present, by testimony or otherwise, any evidence relevant to the grievance. Id. (emphasis added). 96. Id. at 28. The concept of a physician testifying against a former patient-player is a practice unheard of in any other doctor-patient relationship. Calandrillo, supra note 67, at 195.

17 2009] IT S JUST A CONCUSSION 713 financial incentive to continue to withhold those symptoms from the team trainer in order to pass the team physical and retain his job. 97 IV. NFL CONCUSSION CASE LAW: THE MERRIL HOGE CASE While concussion cases exist in the contexts of product liability, insurance coverage, and traditional medical negligence, only one case on record involves a plaintiff-athlete suing an NFL affiliated party. 98 In August of 2000, Merril Hoge received a successful verdict against his former trainer, Dr. John Munsell. 99 The case was one of first impression in that it represented the first litigation focusing on an NFL physician s duty to warn an athlete about the risks and dangers inherent in returning to sports participation too quickly after sustaining a concussion. 100 A. Background Hoge played in the NFL for eight seasons as a running back with the Pittsburgh Steelers and Chicago Bears. 101 While playing for the Bears in an August 22, 1994 preseason game against the Kansas City Chiefs, Hoge 97. Calandrillo, supra note 67, at 195. Another special defense to player grievances provides in relevant part: player failed to make full and complete disclosure of his known physical or mental condition when questioned during the physical examination. NFL CBA, supra note 68, at 28. Consequently, it appears that players find themselves in a no-win situation with regard to disclosure of their concussive symptoms. If they disclose, they will potentially fail their physical and/or lose their roster spot to a player without a concussion history; and if they neglect to disclose, their omission may be used as a special defense to their grievance. 98. Hoge v. Munsell, No. 98 WL 0996 (Ill. Lake County Ct. July 5, 2000). See Hecht, supra note 42, at 20 (covering the Hoge litigation in great detail and advocating for the development of a meaningful set of guidelines for the management of sports related concussions). Hecht argues that the scientific and legal communities should create a singular set of concussion guidelines that would be admissible in a court of law and used by scientists as an official standard of care. Id. at Hecht, supra note 42, at 29. Hoge s trial was conducted before a county court outside of Chicago, Illinois. Id. at 25 n. 47. Due to the fact there is no appellate record in the case, much of Hoge s story is reconstructed through anecdotal evidence, including newspaper, magazine, and internet accounts. Id Hecht, supra note 42, at 30. See also Fred Mitchell, Hoge s Suit vs. Ex-Bears Doctor May Set Precedent, CHI. TRIB., July 18, 2000, at Hecht, supra note 42, at Hoge currently works as an NFL game analyst for ESPN. Tracy L. Ziemer, New Test Helps NFL Teams Detect Concussions, ABC NEWS ONLINE, Jan. 26, 2009,

18 714 RUTGERS LAW JOURNAL [Vol. 40:697 incurred a concussion he described as an earthquake. 102 Hoge remained on the field for the ensuing two plays, but eventually pulled himself out of the game due to his concussive symptoms. 103 Six weeks after sustaining the August 22, 1994 concussion, Hoge suffered a second concussion in a competition against the Buffalo Bills. 104 Ten days after incurring the second concussion, Hoge continued to suffer from post-concussion symptoms such as headaches, dizziness, lethargy, drowsiness, and memory deficiency. 105 As Hoge sat out several games awaiting the results of his neurological exams, Bears management responded to questions regarding Hoge s mental health. According to this quote from Coach Dave Wannstedt, Hoge s concussive condition warranted little concern from the organization: There is no damage or anything. It s just a concussion. 106 On October 14, 1994, Hoge retired from the NFL at the age of twenty-nine due to post-concussion syndrome. 107 In August of 1996, Hoge filed suit against Bears team physician John Munsell for returning Hoge to play prematurely. 108 B. Hoge s Claim Hoge alleged that Dr. Munsell failed to warn him about the dangers and risks of sustaining subsequent and more severe concussions, and negligently allowed Hoge to return to competition without a follow-up exam. 109 Hoge 102. Hecht, supra note 42, at Id. Hoge played in the following preseason game, but sat out for the final preseason game due to persisting post-concussive symptoms. Id. Hoge had just signed a lucrative $2.4 million free agent deal with the Bears after coming off a Super Bowl season with the Steelers the prior year. Id Id. The concussion Hoge incurred against the Bills resulted from his execution of a block. Id. As a bruising running back that stood six-foot-two inches and weighed 230 pounds, Hoge was used by both the Steelers and Bears to deliver crushing blocks against rushing defensive linemen, linebackers, and defensive backs. These types of blocks often result in violent collisions. Id. at Although every player position is at risk of brain concussion, quarterbacks, wide receivers, tight ends, and defensive backs have the highest relative risks of sustaining a concussion. See Omalu, CTE Part I, supra note 5, at 131 (noting that the relative risk of brain concussion in NFL players is associated with player position) Hecht, supra note 42, at Hecht, supra note 42, at 27 (emphasis in original). See supra Title of Note Hecht, supra note 42, at Id. Hoge asserts that the films showed I was stumbling like I was drunk. Id Id. The exact language of the complaint alleges that Dr. Munsell was negligent because he: (a) Did not perform a neurological or other medical evaluation of the plaintiff prior to allowing him to return to full contact football; (b) Did not provide medical care,

19 2009] IT S JUST A CONCUSSION 715 maintained that Dr. Munsell breached a duty to exercise the skill and care of a physician for a professional football team who undertakes the return-toplay decision authority for a player who has sustained a concussion Finally, Hoge argued that if he had been adequately apprised of his postconcussion condition, he would have refrained from returning to play until he had completely recovered from the first concussion. 111 C. Dr. Munsell s Assumption of the Risk Defense A majority of jurisdictions hold that athletes generally assume the risk of sports injuries that are known, apparent, and reasonably foreseeable consequences of athletic participation. 112 However, injuries which result from conduct on the playing field that are not reasonably foreseeable are of a different nature. 113 The conduct of a coach, trainer, or member of team treatment, and evaluation of the plaintiff following the plaintiff s injury... ; (c) Did not diagnose the continuing post-concussion signs and symptoms... resulting from [Hoge s] concussion; (d) Did not assure that a mental status exam and cognitive testing was performed... following the concussion... and prior to allowing [Hoge] to return; (e) Did not instruct the plaintiff about post-concussion signs and symptoms to watch for from his second concussion... ; (f) Did not instruct the plaintiff of the risk of sustaining another and more severe concussion by returning to play contact football while suffering post-concussion symptoms; and (g) Did not refer [Hoge] to a neurologist or other physician for a neurological evaluation following the injury. Id. at 27 n.60 (quoting Plaintiff s First Amended Complaint at 3-6, Hoge v. Munsell, No. 98 WL 0996 (Ill. Lake County Ct. July 5, 2000)) Id. (quoting Plaintiff s First Amended Complaint at 3, Hoge v. Munsell, No. 98 WL 0996 (Ill. Lake County Ct. July 5, 2000)). See also Tony Gordon, Bears Doctor Failed to Provide Information, CHI. DAILY HERALD, July 20, 2000, at Id. (quoting Plaintiff s First Amended Complaint at 7, Hoge v. Munsell, No. 98 WL 0996 (Ill. Lake County Ct. July 5, 2000)). If Hoge was afforded an opportunity to fully recover from his first concussion, he alleges that it would have enabled him to remain active as a salary-earning NFL player. Id See Morgan v. State, 685 N.E.2d 202, 219 (N.Y. 1997) (holding that defendants had a continuing duty to players to keep a playing net in good repair and that a torn net is not sufficiently interwoven into the assumed risk category. ) Darryll M. Halcomb Lewis, An Analysis of Brown v. National Football League, 9 VILL. SPORTS & ENT. L.J. 263, 286 (2002). [T]his foreseeability is dependent upon factors such as the nature of the sport involved, the rules and regulations which govern the sport, the customs and practices which are generally accepted and which have evolved with the development of the sport, and the facts and circumstances of the particular case. Id. at (quoting Hanson v. Kynast, 526 N.E.2d 327, 333 (Ohio 1987)) (emphasis added).

20 716 RUTGERS LAW JOURNAL [Vol. 40:697 management may amount to such careless disregard for the safety of others as to create risks not fairly assumed. 114 With regard to voluntary participation in a sport, the assumption of risk doctrine imports a knowledge and awareness of the particular hazard that caused the injury. 115 Thus, if a player lacks adequate knowledge of the risks attendant to returning to play before his concussion symptoms have subsided, he cannot be considered to have knowingly and voluntarily assumed the short and long-term risks of such injury. Dr. Munsell argued that [t]he patient must assume part of the responsibility for his own recovery. 116 Testifying for the defense, Dr. Michael Schafer stated that Hoge withheld from the Bears the headache symptoms he experienced after his first concussion. 117 When asked why he withheld his concussion symptoms from management, Hoge responded that he was afraid [the team] would not let him play. 118 D. Injuries Sustained, Damages Requested, and Jury Verdict Hoge alleged that he was unable to fully attend to his ordinary duties for nearly one year after the concussion and continues to suffer from permanent post-concussion symptoms. 119 He explained the most frightening aspect of the injuries he sustained: The scary part... is worrying about becoming 114. Id. at Dillard v. Little League Baseball, Inc., 390 N.Y.S.2d. 735, 737 (N.Y. App. Div. 1977) (holding that a participant umpire assumed the risk inherent in playing a game with youthful and inexperienced participants without wearing a protective cup. ) Hecht, supra note 42, at 28 (quoting Tony Gordon, Jury to Continue its Deliberations Today in Hoge Case, CHI. DAILY HERALD, July 21, 2000, at 6). Dr. Munsell added that Hoge had the duty to tell people he was not feeling well and [he] did not. Id Hecht, supra note 42, at 28. If the NFL contract system afforded Hoge greater contractual security in the event of injury, he would have likely informed team management of his symptoms after his first concussion Id. See also NFL Player contract discussion supra Part III.B Id. at 29 (citing Plaintiff s First Amended Complaint at 6-7, Hoge v. Munsell, No. 98 WL 0996 (Ill. Lake County Ct. July 5, 2000)). Hoge s permanent damage includes headaches, light sensitivity, and anger management problems. Id. at 29. Hoge claims that he experiences difficulty reading two paragraphs of a newspaper without losing his concentration. Id. For an entire year after Hoge s second concussion, he was forced to carry a slip of paper with his address and phone number on his person at all times. Id. See also Outside the Lines: Concussions: What Doctors and Players Know and Don t Know (ESPN television broadcast Oct. 27, 2000) (presenting a roundtable discussion regarding the risks and ethical questions surrounding sport-related concussions and high-profile athletes).