It’s Not Just Football

If recent history is any guide, the National Football League’s AFC and NFC championship games on Sunday afternoon will be viewed by over 60 million people. Viewership for the Super Bowl on February 3 will likely exceed 100 million. When combined with gate receipts and merchandising, the television viewership translates to massive revenues for NFL owners. In 2017 alone the NFL generated $14 billion in revenue, the most of any professional sports league in North America.

But no one can confidently predict what football’s long-term future holds. Yesterday ESPN’s website posted a fascinating and important piece on the disappearing insurance market for football. The article, which is titled For the NFL and all of football, a new threat, is authored by Steve Fainaru and Mark Fainaru-Wada. In 2014 they wrote the book League of Denial: The NFL, Concussions, and the Battle for Truth, which detailed the NFL’s unconscionable campaign to conceal the scale and gravity of the health threat posed by sports-related concussions.  

The ESPN article explains how the rising tide of concussion-related lawsuits has driven insurers to flee the football marketplace. As Fainaru and Fainaru-Wada explain:

“From the NFL to rec leagues, football is facing a stark, new threat: an evaporating insurance market that is fundamentally altering the economics of the sport, squeezing and even killing off programs faced with higher costs and a scarcity of available coverage. . . . Since 2005, when the first case of brain disease was reported in a former NFL player, thousands of concussion-related lawsuits have been filed in the United States, including class-action suits against the NFL, the NHL and the NCAA. Since the NFL settlement, concussion-related lawsuits involving at least 18 sports and activities have been filed in at least 29 states . . . . They target not only professional sports but also youth leagues, school districts, athletic associations, equipment manufacturers, medical providers, coaches and athletic trainers. The result is potentially catastrophic for organizations such as rec departments, youth leagues and school districts, as insurers seek to transfer risk back to those entities, which can least afford a major financial blow.”  

The article is compelling. You can find it here on the ESPN website.

The concussion issue extends far beyond football. It includes all contact sports, including especially soccer and hockey.

Soccer may not seem like a contact sport, but as any fan of it knows, soccer involves frequent collisions, especially in youth leagues. Moreover, at all levels the heading of the soccer ball is an inherently violent act, one that involves using the head to redirect a ball that can move up to 60 or 70 miles per hour. The act of heading inescapably involves significant force being absorbed into the player’s head. As a result, soccer players experience concussions at rates equal to or even greater than football players. For example, a 2017 study by the American Academy of Orthopedic Surgeons found that high school girls soccer players have the highest rate of sports-related concussions, higher than that of football players. 

Most troubling of all, some evidence suggests that even sub-concussive blows may cause long-term damage for athletes in contact sports. An article in the New York Times earlier this year noted that researchers are now examining whether the mere act of heading the soccer ball is dangerous for young brains. In England, the country that invented soccer, some neuroscientists have called for a ban on heading the ball in youth soccer. 

The early evidence is already quite troubling. For example, a 2018 study in the journal Radiology found patterns of brain trauma among soccer players with no evidence or symptoms of head injury. Conducted by a team of researchers at the Albert Einstein College of Medicine using brain scans, the study found the highest rate of brain trauma among players who headed the ball most frequently. Like a number of other studies, it also found a higher degree of brain injury among female soccer players. 

To be sure, we remain in the rudimentary stages of understanding how contact sports affect the human brain. The authors of the Albert Einstein study emphasized that “[f]ully understanding the risk of heading will take a lot more work.” No one knows where this will all lead.

But from a legal vantage point, it seems undeniable that the liability risk is growing for all contact sports, not just football. The insurance companies may ultimately bring this issue to a head faster than parents, athletes, coaches, and owners combined. As one executive quoted in the ESPN article warned, “If you’re football, hockey or soccer, the insurance business doesn’t want you.” 

As a fan of all sports, including football, I will be among the tens of millions of Americans watching the games this weekend. But will there still be contact sports to watch 20 years from now?

Comments

[Anthony Gaughan]

I should also add that two law professors contributed to the ESPN article: Andrew Webber of the Northwestern University Pritzker School of Law, and Adam Conway of the University of California, Berkeley, School of Law. Greg Amante, a producer in ESPN's Enterprise and Investigative Unit, also contributed.

[Anthony Gaughan]

A quick correction to my comment above. Andrew Webber and Adam Conway are law students, not law professors (at least not yet!).

[Steve L.]

If it were possible, I would take a short position on NFL futures. There might be a book (and movie) in it.

[Joe]

"If it were possible, I would take a short position on NFL futures. There might be a book (and movie) in it."

You could always short Riddell or some other company that primarily makes football equipment.

[Steve L.]

"You could always short Riddell or some other company that primarily makes football equipment."

Good idea, but it would require a 20 year futures contract.

[Ellen Wertheimer]

The New York Times published an article a couple of days ago about another huge health problem that many football players confront: morbid obesity. Their athletic scholarships and jobs, particularly certain positions, require that they be hugely overweight, an attribute that it is extremely difficult to overcome upon graduation and/or retirement. As we all know, obesity brings with it enormous adverse health consequences.

So here we have a sport for which obesity is a job requirement and in which concussions are inevitable. Certainly other professions are risky. But outside the sports arena, how many carry the same kinds of risks as job requirements?

Short of abolishing sports such as football, perhaps there is a way to fund the health consequences demanded by fans of the sport. The health consequences, like exploding Coke bottles, are an inevitable result. Some sort of cost-sharing by those who watch football might work. How about pay-per-view football, with the money going to health care for those who damage themselves in the name of providing enjoyment for those of us to sit and watch them do it?

[Hon. Alexxander Octsoc, Retired Justice Supreme Soviet Judical Courts, USSR]

^^^^Need I remind you that this is AMERICA! While traveling through Grand Island, Nebraska several years ago, I saw a restaurant marquee that read: 4th of July Special. Buffett $6.99, Eat 'till you Explode. If you people had your way, all AMERICANS would wear Birkenstocks and Baja hoodies, drive Volvo Station Wagons, making soap COLLECTIVELY living on commune.

[anymouse]

"Some sort of cost-sharing by those who watch football might work. How about pay-per-view football, with the money going to health care for those who damage themselves in the name of providing enjoyment for those of us to sit and watch them do it?"

How about no.

[The Law Offcies of Kavanaugh Thomas, LLC, PC, LTD, Chartered, AV Rated]

anymouse,

Let's extend your analysis. No cost sharing or risk sharing. Then let's do away with auto insurance, worker's comp, unemployment benefits. Workers engage in many dangerous pursuits for the enjoyment and benefits of elites like you and me. From the copper who patrols the dangerous interstate to the farmer who blows himself up in grain bin...so I can have an Egg McMuffin on my way to court... The hell with them. That's what you are saying here.

[Anthony Gaughan]

Ellen,

The NFL player's union wants something very similar to what you propose. When the current Collective Bargaining Agreement expires in 2021, the NFL Players Association is expected to insist that the NFL provide health insurance for retired players. But thus far the owners have adamantly refused to do so. The issue is so contentious that the 2021 NFL season could be cancelled amid a league-wide work stoppage, along lines similar to the lost 1994 Major League Baseball season.

[Patrick S. O'Donnell]

I hope someday to be watching flag football and ultimate frisbee on television as routinely as baseball games (the latter being my favorite sport).

[Hon. Alexxander Octsoc, Ret. Justice, Supreme Soviet Judicial Courts, USSR]

How nice. Do you really believe Pepsi, Doritos and Ford will spend millions on Superbowl FLAG Football Sunday? When I watch NASCAR, I want to see a wreck or driver's bash each other. Hockey Game, a bloody brawl aka Slapshot and football players pummel each other. This ain't Sweden. This is AMERICA!!!!

[anon]

"in 2021, the NFL Players Association is expected to insist that the NFL provide health insurance for retired players."

Hasn't the ACA solved that problem for all of us?

[Anon 2]

^^^^Anom, Well no. That's why we need Medi-Care for all. Universal health care. Our current Dear Leader has attacked and destabilized, through Executive Order the ACA simply because it was from Kenyan born" Presdent Obama. So, the answer to your question is, you exactly correct. Thank you for pointing that out.