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Matthew J. Mitten, JD


Director of the National Sports Law Institute and the LL.M. in Sports Law, Marquette University Law School in Milwaukee, Wisconsin

What Injury and Health Risks Do Professional Athletes Assume?

NFL football clearly is a very aggressive, violent game and players assume the inherent risk of injury that is part of the game. This includes a wide spectrum of injuries, including knee or ankle injuries, concussions, separated shoulders, broken bones, and many others. Indeed, numerous minor and serious injuries are a known or foreseeable part of professional football, which frequently occur. 

 

By the time a player has made it to the NFL he’s played football for many years and knows that the frequency and severity of injuries increase as the game gets more competitive from Pop Warner to middle school to high school to college to the NFL. The players get bigger, stronger, and faster; even though they are well-conditioned athletes using the best available protective equipment, serious injuries still occur. They are an inherent part of the game that may be reduced, but not completely eliminated.

 

There is a distinction, though, between inherent risks that players assume and those they do not. A broken leg caused by a hard tackle within the rules of the game is a risk of injury that would be assumed. And courts generally have ruled that players assume the risk of injury caused by another player’s negligent conduct during a game or practice (for example, violating a safety rule such as the prohibition against clipping during a football game). But players don’t assume the risk of another player’s deliberate efforts to injure them or reckless conduct, which is often defined as deliberate disregard of a high probability of harm (for example, tackling a player by the facemask with both hands).

 

Hackbart v. Cincinnati Bengals, the landmark case establishing the foregoing legal principles, occurred 35 years ago. In this case, Dale Hackbart, a Denver Broncos player, was on one knee watching a play down the field when an opposing player, the Cincinnati Bengals’ Charles Clark, clubbed him in the back of the head with his forearm, which caused Hackbart to suffer a serious neck injury. That is something that’s clearly not part of the game; it’s at least reckless conduct if a big strong player intentionally clubs an opposing player in the back of the helmet with his forearm. Risks of those types of injuries, which result from any kind of deliberate effort to injure someone, are not risks that are assumed. See: Hackbart v. Cincinnati Bengals 601 F.2d 516 (10th Cir. (Colo.) Jun 11, 1979).

 

An NFL player assumes the risk of a concussion resulting from an injury occurring in the normal course of play. For example, a wide receiver suffers a concussion when his head strikes the ground while being tackled hard after catching a pass. The risk of this initial concussion, which results from playing NFL football in the normal course of a game, is an assumed risk of injury. However, a player does not assume the risk of an aggravated or advanced injury from improper medical treatment of a concussion, or a second concussion if a player is negligently returned or cleared to play too soon. NFL players do not assume the risk of aggravated or enhanced injuries that could have been prevented by the exercise of appropriate medical care and treatment. That is the key distinction here. The initial concussion might be something that results from the inherent risks of playing football at any level of competition. But a player doesn’t assume the risk of negligent or improper medical treatment that either aggravates the initial concussion, or results in a second concussion if the player returns to play too soon before being fully healed.

 

A long-term injury, chronic traumatic encephalopathy (CTE), has been discussed in the news recently, and much more is becoming known about that type of injury. It’s important for everyone connected with the NFL, particularly team physicians, athletic trainers, players, and coaches, to be aware of CTE and take appropriate steps to prevent its occurrence. It’s even more important to err on the side of caution in treating players who’ve suffered concussions because now we’re becoming aware that cumulative low-impact head injuries may cause serious, long term harm to football players. Certainly continuing medical research on concussions and CTE going forward is also really important. 

 

The recent new steps the NFL is taking when a player suffers a concussion are significant. There has to be an independent neurologist that clears players. The NFL has athletic trainers up in the press box now keeping an eye on players to make sure someone who has a head injury is promptly removed from the game. It really takes a collective effort to protect players. 

 

The players also have to be educated; they need to be aware of the symptoms of a concussion. And they really must be truthful with the athletic trainers and team doctors when they suffer a head injury. Some NFL players, like Brian Urlacher, publicly have stated they would not disclose a head injury to avoid being removed from a game. Players view themselves as warriors, and they want to play even if they are hurt, but they’ve got to take responsibility for protecting their health and safety.

 


 

Matthew J. Mitten is the Director of the National Sports Law Institute and the LL.M. in Sports Law program for foreign lawyers at Marquette University Law School in Milwaukee, Wisconsin.  He has served as a visiting lecturer in sports medicine at The University of Tennessee Graduate School of Medicine.

 

Professor Mitten has authored Sports Law in the United States (Wolters Kluwer 2011) and co-authored a textbook, Sports Law and Regulation: Cases, Materials, and Problems (Aspen Publishers, Inc. 2009), which is currently in its second edition. A leading sports law scholar, he has published articles in several of the nation’s leading law reviews as well as in medical journals such as The New England Journal of Medicine. He formerly chaired the National Collegiate Athletic Association’s Committee on Competitive Safeguards and Medical Aspects of Sports

 

Professor Mitten testified before a Congressional joint subcommittee regarding proposed federal regulation of ephedrine in August 2003. He has discussed a wide variety of sports law topics at numerous conferences and seminars throughout the United States as well as in Australia, China, England, the Republic of Korea, and Turkey.

 

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