The Super Bowl is over for this year, but two highly significant football contests rage on. A federal judge in Pennsylvania set aside the $764 million settlement between the National Football League and its retired players to cover costs associated with head trauma. Judge Anita Brody was concerned the sum would not be sufficient to cover all future claims. Meanwhile, a National Labor Relations Board panel in Chicago is weighing arguments over whether playing college football is a job. Northwestern University football players, led by former quarterback Kain Colter, are arguing that football players are university employees who should have the right to bargain collectively.
Football is a huge business, at both the college and the professional levels. But there is increasing evidence — not yet conclusive — that football is also dangerous to the people who play it, which prompts me to ask two related questions:
- Why does any college or university have a football program?
- When will the first lawsuit be successfully brought against a major college football program over head trauma?
We know that football exposes players to significant head trauma. A concussion researcher at the University of North Carolina installed sensors on the inside of the helmets of North Carolina football players. According to his data, players routinely receive blows to the head with a force equivalent to hitting the windshield in a car crash at 25 miles per hour. We also know that professional football players suffer dementia and other forms of cognitive impairment at a much higher rate than the general population.
Is head trauma, such as repeated concussions, causing depression and dementia in football veterans? The causality is not ironclad. The kind of people who are attracted to football may be more prone to these maladies. Or perhaps steroid use or some other activity related to football is causing the harm. Or maybe the disproportionate number of NFL veterans suffering from depression and dementia is just a coincidence.
Still, there is strong reason to suspect that head trauma causes subsequent brain disorders. To me, the relationship between playing football and suffering long-term cognitive impairment feels a lot like smoking and cancer in the 1950s: It just kept getting harder and harder to argue that it is a harmless activity.
In light of all that, now suppose that you are the president or a trustee at any college or university with a football team. It can only be a matter of time before a former player (or a group of players, as was the case with the NFL) sues for football-related damages. When that inevitable lawsuit arises, any good plaintiff’s attorney is going to make some combination of the following arguments:
- At the time University X was running a football program, there was clear evidence that football causes head trauma. There was also mounting evidence that such head injuries lead to long-term health problems, such as dementia and depression. (Ironically, universities are the places that have generated much of this evidence.)
- The core mission of a university is to educate students and conduct research. Football is not essential to either of those undertakings. Thus, a reasonable leader should have erred on the side of eliminating any non-essential activity that puts students at risk. (This is radically different than the NFL, where football is the sole purpose of the organization.) Think of it this way: Suppose colleges were passing out free cigarettes to students in 1950, when the cigarette-cancer relationship was still in dispute. Responsible institutions would have ditched the free cigarettes when it became plausible that cigarettes cause cancer, because it’s just not that important for colleges to be giving students free cigarettes.
- The NCAA has acted as a monopoly to deny college football players the protections and bargaining rights that they would have been guaranteed just about anywhere else in the economy. College athletes have far fewer protections than professional athletes, and University X, as a member of the NCAA, has worked very hard to keep it that way.
Now at this point you are thinking, “But I love watching college football.” Many in the jury box will be thinking the same thing. But a smart lawyer is going to frame that popularity in a radically different way.
First, he is going to share all the e-mails and other documents showing how much money University X makes from the football program and how popular it is with alumni. Then he is going to ask: Should college athletes suffer brain injuries in order to generate university revenue and entertain middle-age men on Saturday afternoons?
I like football. My son plays (at the pee wee level) and I’m an enthusiastic fan at Dartmouth College, where I teach. But if I were at a college or university where football is relatively unimportant, such as the University of Chicago, I would ask, “What’s the point of maintaining this program?” If I were at an elite institution like Princeton or Harvard or Stanford, where football has a long, proud tradition, I would ask, “Is exposing our students to this risk consistent with our educational mission?” And if I were at a major football powerhouse like Alabama or Ohio State, I would ask, “Are we prepared for the inevitable and expensive lawsuits?”
Maybe there is a way to change football (and other sports
like hockey and lacrosse) to minimize head injuries. If so, colleges ought to
lead the way. If not, I suspect it will get harder and harder for
institutions dedicated to filling students’ heads with knowledge to be in a
business that smashes those heads against a car window at 25 miles per hour.