The film “Concussion” tells the shameful story of the National Football League’s mishandling of a pervasive and serious medical issue among its players. Lawsuits by former players alleging that the NFL hid the full medical risks of concussions from players have been or are being resolved. But now that the medical risks have been disclosed, does that mean football players at any level assume the risk of any long-term effects from sports-related concussions and cannot sue an employer or league organizer for negligence?
We assume the risk of many dangerous activities and give up the right to sue others if we are injured. For example, if you buy a ticket to a baseball game and are struck by a foul ball or even a bat that slips out of the batter’s hands, you cannot file a claim for personal injuries against the team, the league or the owner of the stadium. By attending the game, you are assuming the risk of this sort of injury.
Similarly, if you are playing high school, college or recreational sports and are injured as part of the game, you cannot sue the player who caused your injury. By playing the game, you are assuming the risk of certain injuries.
However, as I instruct my students while teaching part-time at Montclair State University and at Ramapo College, “assumption of risk” is an idea that is not favored in the law. In general, the law allows those who are wrongfully injured to sue for monetary damages.
The primary exception to the idea of “assumption of risk” is simply that no one should be allowed to make a known risk greater than it already is. For example, a hockey player can be checked by another player because it is part of the game. Fights sometimes occur. Injuries that result are generally accepted as being a part of the game. But if a player loses his or her temper and viciously assaults another player (or a referee or a fan, for that matter) with a hockey stick, then the player may be held responsible because that sort of behavior is outside the normal conduct in the game of hockey and is not the type of risk that a hockey player assumes.
I have handled sports cases where injured participants were able to overcome the “assumption of risk” hurdle. For instance, where a softball player slid into second base and injured her leg due to a dangerous condition under the surface of the infield, she did not assume that sort of risk. How can someone assume a risk that is hidden under the infield dirt?
As for the NFL players who have sustained concussions and will suffer the long-term effects of that type of injury years after they retire, at this point their best remedy is to negotiate a favorable compensation plan through their union. For everyone else, including those of us who are “weekend warriors,” the right to sue will be determined by the circumstances of each case.
[For more sports law viewpoints, go to sportstalkflorida.com, type my name in the query box, and check out host 1040 AM Tampa sports talk host Jenna Laine’s interviews with me on a variety of college and sports issues.]
This is a great article. Just read this as we awaited a computer in class professor. This is a very interesting topic, since all of the players are aware of how dangerous football may be by now. The fact that all of the stats are coming out about how serious CTE can be, in my opinion should not give football players any sort of advantage in such cases about their health. Aren’t they ‘assuming the risk’ when they sign their contract to play in the NFL? If they do not want to risk their own health then they simply must forfeit their right to play and of course all of the money that comes with it, which is why many players ignore the long term health risks. This was an awesome read and I would love if their was a class just related to these situations. Have a great day.
Thanks Quentin. FYI, Chris Borland, a fellow Wisconsin alumnus and star with the 49ers, made headlines last year by retiring after just one year due to concerns about head injuries. I assume he had another career lined up, but few players believe they can do anything else and make a good living. A co. in Seattle is working on a safer helmet which, hopefully, will change the game.
I will be teaching a Law of Sports, Entertainment and Tourism course in the business school this Fall.
Prof. C