The Risk of Chasing that NFL Dream

Yesterday, Sports on Earth columnist Ross Tucker penned an article discussing how some NFL players have hidden concussions from their teams (and their families). As Tucker notes, this issue slid into public view last week, when Tom Brady’s wife, model Gisselle Bundchen, claimed that Brady had suffered numerous concussions over his NFL career. In response, the Patriots insisted that Brady had never reported concussion symptoms to the team. Others, like New Orleans Saints quarterback Drew Brees, have openly admitted that they would not report symptoms. Even Tucker himself, a former NFL player and Princeton grad, conceded that, during his career, he could have foreseen situations where he would not report a concussion. With personal injury lawsuits buzzing through the NFL, admissions like these could impact the league’s assumption of risk defense.

Broadly-speaking, assumption of risk applies when the plaintiff has voluntarily accepted a known risk. It is an affirmative defense — i.e. an argument that the defendant must raise. In the pro football context, some might argue that Lawrence Taylor (or “Luther Lavay”) assumes the risk of playing on excess pain medicine here.

In most concussion cases involving former NFL players, the players sustained the injuries before the public understood all of the consequences from playing football and sustaining hits to the head. As such, when they chose to play football, it is unlikely that the players knew the full extent of their risks. But when a current player hides a concussion in order to keep playing, the calculus changes. These players know the risk inherent in playing with a concussion. Indeed, they know the risk is so great that their teams will bar them from the field if they discover the concussions. So in this circumstance, it is more likely that any subsequent injury occurred while the player assumed a known risk — the risk of grave harm if he sustained another concussion. (Once again, Lawrence Taylor provides an instructive example).

On the other hand, determining whether the player assumed the risk voluntarily could be complicated. Tucker offered the example of a borderline NFL player, who suffers a “minor” concussion in a preseason game. Reporting the concussion, and, thus, entering the concussion protocol and missing time, may devastate the player’s chances of making the roster. In that player’s shoes, Tucker was unsure whether he would report the concussion. So if he played, would this player’s assumption of risk be voluntary? Or would circumstances have coerced him into it? To some extent, this choice resembles those that laborers faced before employee protection laws. If the worker injured himself, he had to keep quiet and continue working, lest the company drop him for a healthier replacement. Even with NFL players earning millions, this form of situational coercion is real. Failure to make an NFL roster could leave some players (though maybe not a Princeton alum like Tucker) with no viable means of support.

These will all be factors that future courts may have to balance in determining whether players should be compensated for their injuries.