Get Your Head Out of the Game: The Past, Present, and Future of Concussion Liability in the NFL

An easily avoidable injury that left a player unconscious during Primetime Thursday Night Football had football fans everywhere shocked, scared, and furious.[1]  On September 29, 2022, Tua Tagovailoa, starting quarterback for the Miami Dolphins, suffered a terrifying injury that sent him off on a stretcher and to the University of Cincinnati Medical Center.[2]  Josh Tupou, a defensive lineman for the Cincinnati Bengals, sacked Tagovailoa, whipping the young quarterback around as he brought him down.[3]  Tagovailoa landed directly on his head and laid on the field in the “fencing response”—when a person’s arms go into an unnatural position in the air after experiencing an impact strong enough to cause traumatic brain injury.[4]  The fencing response is often seen when a player is “knocked down or knocked out during full-contact athletic competitions such as football, martial arts, boxing, rugby, and hockey.”[5]  Later that night, Tagovailoa traveled back to Miami with the team after the hospital discharged him.[6]  It took nearly a month before he would start in his next game.[7]

What makes this injury more egregious is the fact that Tua suffered a concussion just four days prior and team physicians cleared him to reenter the game.[8]  Buffalo Bills linebacker, Matt Milano, hit Tagovailoa which led to a roughing the passer penalty.[9]  Once Tagovailoa got up, he shook his head and stumbled as he tried to jog back to the huddle; and was therefore taken out of the game.[10]  Shockingly, he returned after halftime after a team physician supposedly cleared him from a concussion.[11]  Initially, a lower-back injury suffered earlier in the game—and exacerbated after the hit by Milano—prompted Tagovailoa’s stumbling.[12]  We now know that is not the case.

Neither the National Football League (NFL) nor any medical personnel involved in the incident took responsibility for the misdiagnoses, or even admitted one occurred.  In fact, the NFL in conjunction with the National Football League Players Association (NFLPA), issued a joint statement concluding that based on their joint review of how the Team physician and Unaffiliated Neurotrauma Consultant (UNC), handled concussion evaluation, the “step-by-step process outlined in the [NFL’s] Concussion Protocol was followed.”[13]  The joint statement explained that the Dolphins’ team physician cleared Tagovailoa following consultation with the UNC, and “the steps set forth in the Concussion Checklist were, therefore, conducted.”[14]

Even so, the league decided to promptly take action and modify its concussion protocol, stating that, “the outcome in this case was not what was intended when the Protocol was drafted.”[15]  The league added the diagnosis of “ataxia” to the list of mandatory “no-go” symptoms set forth in the NFL’s concussion protocol that automatically take a player out of the game.[16]  Ataxia is a more all-encompassing term than its predecessor “gross motor instability”, and it is medically defined as “poor muscle control that causes [any] clumsy voluntary movements.”[17]  The NFL’s Chief Medical Officer, Dr. Allen Sills, told reporters that if the league followed the new concussion protocols—specifically, the addition of ataxia to the list of no-go symptoms—Tagovailoa “wouldn’t have been able to return to the game against the Bills.”[18]

But, if everyone involved followed the protocols as they were set, then why was someone fired?  On October 1st, the NFLPA terminated the UNC involved in Tagovailoa’s concussion check during the Dolphins’ Week 3 game against the Bills.[19]  The official reason for the termination listed a failure to understand his role as the UNC and his “hostility during the investigation process.”[20]  The NFL responded to the news of the termination by stating, “[w]e never supported terminating him.[21]  The nature and timing of this termination decision seems if not suspicious, then confusing.

The NFLPA’s decision to fire the UNC suggests Tagovailoa might be a victim of negligence, and may have legal remedies.[22]  Michael McCann, writer for Yahoo! Sports, says the NFL’s recent concussion protocol revision could impact Tagovailoa’s legal options.[23]  Tagovailoa could “claim labor and management negotiated a substandard concussion policy that endangered his health” in addition to highlighting the suspicious act of both the NFL and NFLPA swiftly changing the policy in the aftermath of his injury, as it could show the policy’s deficiency before the change.[24]  

Although the Dolphins organization, the doctors who treated him, the NFL, and NFLPA are all potential defendants, the NFL’s Collective Bargaining Agreement (CBA) poses a significant hurdle to relief.[25]  The CBA is a 456-page labor agreement ratified in 2020 which reflects the results of collective bargaining negotiations between the NFLPA and the NFL.[26]  The CBA attempts to preempt protentional injury and malpractice litigation by requiring many claims to first go through arbitration.[27]  But, Tagovailoa’s case is stronger than most.

The NFL is not new to liability resulting from concussion related injury from ex-players.  There are currently 20,570 registered settlement class members—85% of which are either retired players or representative claimants—involved in the official NFL Concussion Settlement, In Re: National Football League Players’ Concussion Injury Litigation.[28]  The total payable monetary award is $1,038,447,118, as of October 31th, 2022.[29]  The NFL agreed to an uncapped compensation fund that would cover the over 20,000 claimants in exchange for a release of all concussion-related claims against the league and without admitting to any wrongdoing.[30]

The National Collegiate Athletic Association (NCAA) also faces liability for brain injuries.  Ramogi Huma, the Executive Director of the National College Players Association, commented, “[t]he whole nation saw what happened to Tua.  That happens on the regular in college sports.”[31]  In 1989, USC’s college football team included twelve linebackers in their depth chart.[32]  As of today, six died prematurely due to brain-related injuries, with five under the age of fifty at the time of their death.[33]  The most recent death is Matthew Gee, a USC linebacker from 1989 to 1992.[34]  Gee passed away in 2018 with Chronic Traumatic Encephalopathy (CTE) being the posthumous diagnosis.[35] CTE is a progressive brain condition caused by repeated blows to the head and repeated episodes of concussion.[36]  On November 12th, 2020, Gee’s estate sued the NCAA for wrongful death and negligence, asserting that the NCAA failed to teach Gee about hazards of concussions.[37]  If the NCAA is found liable, it could result in a wave of future lawsuits against the NCAA for similar injuries.[38]

Ultimately, the controversy surrounding proper drafting and enforcement of concussion protocol comes down to safety and protecting the lives of football players.  Both the NCAA and NFL know this is a big issue proven to open them up to billions in liability.  As unfortunate as it is, Tagovailoa’s injury might be the wakeup call the NFL—and NCAA—needed to take more serious action to protect their players.

[1] John Trupin, NFL Tries to Have It Both Ways With Tua Tagovailoa’s Grisly Injury, SFGATE (Sept. 30, 2022), https://www.sfgate.com/sports/article/Thursday-night-football-tua-injury-money-17478471.php.

[2] Jared Schwartz, Dolphins’ Tua Tagovailoa Stretchered Off Field After Scary Blow to Head, N.Y. Post (Sept. 29, 2022, 9:52 PM), https://nypost.com/2022/09/29/dolphins-tua-tagovailoa-stretchered-off-field-after-blow-to-head/.

[3] Id.

[4] Scott Frothingham, What Is Fencing Response and Why Does It Happen?, Healthline (Aug. 24, 2018), https://www.healthline.com/health/fencing-response.

[5] Id.

[6] Schwartz, supra note 2.

[7] Mark Maske, Dolphins’ Tua Tagovailoa Cleared Under NFL’s Concussion Protocols, Wash. Post (Oct. 15, 2022, 12:24 PM), https://www.washingtonpost.com/sports/2022/10/15/tua-tagovailoa-cleared-concussion-protocols/.

[8] Around the NFL Staff, NFLPA Terminates Unaffiliated Neurotrauma Consultant Involved in Tua Tagovailoa’s Concussion Evaluation During Week 3 Game vs. Bills, NFL (Oct. 1, 2022, 3:40 PM), https://www.nfl.com/news/nflpa-terminates-unaffiliated-neurotrauma-consultant-involved-in-tua-tagovailoa-.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] NFL & NFLPA, NFL-NFLPA Joint Statement on Investigation into Handling of Dolphins QB Tua Tagovailoa’s Concussion Protocol, NFL (Oct. 8, 2022, 5:20 PM), https://www.nfl.com/news/nfl-nflpa-joint-statement-on-investigation-into-handling-of-dolphins-qb-tua-tago#:~:text=Mr.%20Tagovailoa%20did%20not%20report,Tagovailoa%20was%20not%20neurologically%20caused.

[14] Id.

[15] Id.

[16] Id.

[17] Mayo Clinic Staff, Ataxia, Mayo Clinic (Apr. 9, 2022), https://www.mayoclinic.org/diseases-conditions/ataxia/symptoms-causes/syc-20355652.

[18] Around the NFL Staff, NFL, NFLPA Agree to Modify Concussion Protocols Following Completion of Tua Tagovailoa Investigation, NFL (Oct. 8, 2022, 6:43 PM), https://www.nfl.com/news/nfl-nflpa-agree-to-modify-concussion-protocols-following-completion-of-tua-tagov.

[19] Id.

[20] Id.

[21] Id.

[22] Michael McCann, Tua Faces Limited Legal Options Beyond NFLPA’s Doctor Dismissal, Sportico (Oct. 3, 2022, 10:00 AM), https://www.sportico.com/law/analysis/2022/tua-tagovailoa-legal-1234690303/.

[23] Michael McCann, NFL Concussion Protocol Revision Could Impact Tua’s Legal Option, Yahoo! Sports (Oct. 13, 2022), https://sports.yahoo.com/nfl-concussion-protocol-revision-could-040100818.html.

[24] Id.

[25] Id.

[26] NFL Collective Bargaining Agreement, Wikipedia, https://en.wikipedia.org/wiki/NFL_collective_bargaining_agreement#:~:text=The%20NFL%20collective%20bargaining%20agreement,the%2032%20teams%20team%20owners (last updated Jun. 28, 2022, 9:35 PM); see generally Nat’l Football League Players Ass’n, Collective Bargaining Agreement (2020), https://nflpaweb.blob.core.windows.net/media/Default/NFLPA/CBA2020/NFL-NFLPA_CBA_March_5_2020.pdf.

[27] NFL Concussion Protocol Revision Could Impact Tua’s Legal Option, supra note 23.

[28] NFL Concussion Settlement, NFL Settlement Program Summary Report 1 (2022), https://www.nflconcussionsettlement.com/Docs/10_17_22_report.pdf.

[29] Report & Statistics, NFL Concussion Settlement, https://www.nflconcussionsettlement.com/Reports_Statistics.aspx (last updated Oct. 31, 2022).

[30] J. Balsam, NFL Concussion Settlement Five Years Later, Brooklyn Sports & Ent. L. Blog (Jun. 7, 2021), https://sports-entertainment.brooklaw.edu/nfl-concussion-settlement-five-years-later/#:~:text=Without%20admitting%20wrongdoing%2C%20the%20NFL,would%20ultimately%20exceed%20%241%20billion.

[31] LaDarius Brown, Ex-USC Linebacker’s CTE Lawsuit Could Force NCAA to Cough Up “Hundreds of Millions” in Damages, Sportskeeda (Oct. 9, 2022), https://www.sportskeeda.com/college-football/news-former-ncaa-lb-cte-lawsuit-cost-millions.

[32] Michael Rosenberg, In 1989, USC Had a Depth Chart of a Dozen Linebackers. Five Have Died, Each Before Age 50, Sports Illustrated (Oct. 7, 2020), https://www.si.com/college/2020/10/07/usc-and-its-dying-linebackers.

[33] Id.

[34] Brown, supra note 31.

[35] Id.

[36] Chronic Traumatic Encephalopathy, NHA (Apr. 17, 2019), https://www.nhs.uk/conditions/chronic-traumatic-encephalopathy/#:~:text=Chronic%20traumatic%20encephalopathy%20(CTE)%20is,are%20based%20on%20ex%2Dathletes.

[37] Gee v. NCAA, No. 20 STCV 43627 (CA Super. Ct. Aug. 24, 2022) (Order denying Summary Judgment); Brown, supra note 31.

[38] Id.