The National Football League (“N.F.L.”) has been around for over one hundred years, and fans worldwide have watched their favorite football players win, lose, and get injured. On September 29, 2022, the Miami Dolphins quarterback, Tua Tagovailoa, suffered a major head injury while being sacked in the second quarter.[i] Although injuries are inevitable in the game of football, this injury left fans in shock. Not solely because of the severity and nature of the injury, but also because just four days earlier, Tua appeared to suffer a prior head injury in a game against the Bills.[ii] This sequence of events has undoubtedly left most fans and players wondering whether the first and then, second concussion was “just a part of the game” or if there was negligence on behalf of the N.F.L.[iii]

In its history, the N.F.L.’s culture on concussions has been that players had to “play through it,” and it’s “just a part of the game.”[iv] Although lawsuits against the National Football League and its teams regarding concussions are not new to the sport today, they are relatively new in comparison to the League’s history.[v]

The very first concussion lawsuit was brought in 1996, by Merril Hoge, a former running back for multiple N.F.L. teams.[vi] Hoge filed suit claiming medical malpractice against his former team the Chicago Bears team practitioner, Dr. John Munsell.[vii] The lawsuit alleged that Dr. Munsell was negligent by failing to diagnose post-concussion symptoms, failing to provide proper care, treatment, and evaluation, failing to inform Hoge of the risk of sustaining another concussion by returning to play while suffering post-concussion symptoms, and failure to refer Hoge to a neurologist or other physician for neurological evaluation.[viii] After a two-week trial where multiple doctors and team officials testified, the jury awarded Hogue $1.55 million, finding that his team physician was negligent because he did not, and should have, conducted a return-to-play examination.[ix] The Hoge case, was the first case to open the door for future negligent claims against the N.F.L., which subsequently lead to alterations in the game, on and off the field.

            The post-Hoge era of football has since changed in multiple ways, most importantly professional football players finally broke through the wall and were able to obtain previously withheld information on concussions and sue for their injuries caused by the N.F.L.’s negligence.[x] Independent doctors had taken action and began to analyze the brains of former football players in a series of studies and determined that sustaining multiple N.F.L. concussions can cause cognitive problems such as depression, early-onset dementia, Alzheimer’s, and other issues.[xi] Beginning in 2007, after years of bad media attention the N.F.L. held its first concussion summit to revise its out-of-date concussion policy.[xii]Ultimately the League’s concussion policy that year stayed the same.[xiii] The N.F.L. only started to make changes in the wake of a Congressional hearing, which compared the causal connection between concussions sustained and cognitive decline, to the highly litigated tobacco industry’s denial of the link between cigarette consumption and ill-health effects.[xiv] The League since then has made multiple changes, including that each team must have an independent local doctor available to examine players and determine whether a player should return to play after sustaining a concussion.[xv]

             As Congress suggested, major litigation arose subsequent to the N.F.L.’s new changes. On July 19, 2011, Attorney Jason Luckasevic filed the first major class action complaint against the N.F.L. on behalf of 75 players. As the case gained traction in the media, he filed another suit on behalf of 48 more players, and many more complaints were filed all over the country by different lawyers.[xvi] The lawsuits revolved around the N.F.L’s mishandling of concussions and overall negligence on the issue for many years.[xvii] The class actions were consolidated and resulted in a collective bargaining agreement that allowed for benefits to former players who developed medical evidence of dementia, Parkinson’s Disease, ALS, and some Chronic Traumatic Encephalopathy deaths for decades to come.[xviii] Since the settlement, the N.F.L. has paid over a billion dollars to players who suffered from long-term cognitive issues as a result of their sustained concussions while playing in the League.[xix]

The new issue is whether Tua Tagovailoa’s injuries have opened a new hole in seeing the truth of the N.F.L.’s concussion policies, after playing in two games in four days with visible signs of brain injuries. The National Football Players Association (“NFLPA “) initiated an investigation into how exactly Tua was let back on the field.[xx] Since the start of the investigation, the NFLPA exercised its right to fire the neurologist who was involved in handling his injury.[xxi] Subsequently, the NFL and NFLPA released a joint statement indicating that the League’s concussion protocol will finally be strengthened in the wake of the controversy surrounding the handling of Tagovailoa’s injuries.[xxii] Currently, the investigation is still ongoing.

            Unfortunately for Tua and many other players alike, these events have caused spectators and players to question whether the N.F.L. has truly made any significant difference. Although some rule changes, concussion policies, and settlement money has been distributed to players, have the N.F.L. taken any meaningful steps to protect players who suffered concussions? Many spectators, players, and doctors since the Tua injury believe that the League’s failure to demonstrate the N.F.L.’s negligence could potentially cost him his career, and, perhaps, his quality of life.[xxiii] This will untimely spark new litigation in the future, as the “godfather” of N.F.L. concussion litigation, Jason Luckasevic, stated that Tua should “call him if he wants to file a lawsuit.”[xxiv] It would not be surprising if other players’ concussion issues rose to the media’s attention or if new lawsuits get filed. The N.F.L. should be held accountable for its actions as in its history, the League has only made minor changes to its concussion protocols after major lawsuits were filed and massive amounts of negative media attention.

Hopefully, the severity of Tua’s injuries will catapult another change to the legality of the N.F.L.’s policies regarding concussion protocols. Given the ongoing nature of the issue, it will be compelling to watch how the law shapes the game’s future, making concussions not “just a part of the game.”

[i] Drew Weisholtz, NFL quarterback Tua Tagovailoa suffers frightening head and neck injury during game, Today (Sep. 30, 2022, 9:09 AM) https://www.today.com/news/sports/miami-dolphins-quarterbac-tua-tagovailoa-suffers-scary-head-neck-injur-rcna50140.

[ii] See Austin Nivison, Tom Brady sounds off on concussions in the NFL following Tua Tagovailoa’s injury, CBS Sports (Oct. 5, 2022, 2:20 PM) https://www.cbssports.com/nfl/news/tom-brady-sounds-off-on-concussions-in-the-nfl-following-tua-tagovailoas-injury/.

[iii] Morin M. Kevin, Negligence By the Miami Dolphins Could’ve Cost Tua His Career, Or Even His Life, fanbuzz (Sep. 30, 2022) https://fanbuzz.com/nfl/tua-head-injury-miami-dolphins/.

[iv] Burkhart L. Nicholas, Concussions, Class Actions, and the 2011 Collective Bargaining Agreement: A Look at Concussions and the Response of the National Football League in the 2011 NFL Collective Bargaining Agreement, (Feb. 14, 2013) http://dx.doi.org/10.2139/ssrn.2217587.

[v] See Sheila B. Scheuerman, The NFL Concussion Litigation: A Critical Assessment of Class Certification, 8 FIU L. Rev. 81, 83 (2012).

[vi] Hussain Rummana, Hoge Wins Lawsuit Against Doctor, Chicago Tribune (Jul. 22, 2022, 12:00 AM) https://www.chicagotribune.com/news/ct-xpm-2000-07-22-0007220191-story.html.

[vii] Id.

[viii] Plaintiff’s First Amended Complaint at 3-6, Hoge v. Munsell, No. 98 L 0996 (Ill. Lake County Ct. July 5, 2000).

[ix] Burkhart, supra note iv.

[x] Id.

[xi] See Joseph M. Hanna, Daniel Kain, NFL’s Shaky Concussion Policy Exposes the League to Potential Liability Headaches, 21 FALL Ent. & Sports Law. 33, 33 (2010).

[xii] Id. at 33.

[xiii] Id. at 34.

[xiv] See Legal Issues Relating to Football Head Injuries (Part I): Hearing Before the H. Comm. on the Judiciary, 111th Cong. 113 (2010) (statement of Rep. Sanchez, Member, House Comm. on the Judiciary).

[xv] Hanna et. al., supra note xi, at 34.

[xvi] Luckasevic Jason, The NFL Concussion Lawsuit from the Eyes of the Pittsburgh Lawyer who Originated the Case, Jurist (April 3, 2017, 5:45 PM) https://www.jurist.org/commentary/2017/04/the-nfl-concussion-lawsuit-from-the-eyes-of-the-pittsburgh-lawyer-who-originated-the-case/.

[xvii] Burkhart, supra note iv.

[xviii] NFL Collective Bargaining Agreement, Art. 65: Neuro-Cognitive Disability Plan, 247 (Aug. 4, 2011).

[xix] See Luckasevic Jason, The NFL Concussion Lawsuit from the Eyes of the Pittsburgh Lawyer who Originated the Case, Jurist (April 3, 2017, 5:45 PM) https://www.jurist.org/commentary/2017/04/the-nfl-concussion-lawsuit-from-the-eyes-of-the-pittsburgh-lawyer-who-originated-the-case/.

[xx] Carr Garrett, The NFLPA Has Shockingly FIRED The Doctor Who Allowed Tua Tagovailoa To Return To Sunday’s Game, Highly Clutch (Oct. 1, 2022) https://highlyclutch.com/tua-doctor-fired/.

[xxi] DeArdo Bryan, Dolphins’ Tua Tagovailoa to speak to NFL, NFLPA as part of ongoing investigation, CBS Sports (Oct. 4, 2022, 2:22 PM) https://www.cbssports.com/nfl/news/dolphins-tua-tagovailoa-to-speak-to-nfl-nflpa-as-part-of-ongoing-investigation/

[xxii] Id.

[xxiii] See Morin, supra note iii.

[xxiv] Bullock, supra note xxiii.