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Catastrophic Injury Suits Threaten the Future of Football

This article originally appeared in the March 1983 issue of AB with the title, “Will Catastrophic Injuries Spell the End of Football?”

 

Football is being sued into extinction and the problem up to this point is that interested and informed individuals appear to have been “fiddling while Rome burns.”

In analyzing the total problem, it’s clear that football is a relatively safe sport. The number of total catastrophic sports injuries in the last decade ranges from an average of 8 to 20 annually, with at least half of those being involved with the sport of football.

When you see that there are more than 15 million participants in the sport of football, the catastrophic injury number pales in severity.

However, the resulting litigation does not pale in severity. To the contrary, it sends forth a broad message that football, the income generating arm of most high school and collegiate athletic programs, is indeed in jeopardy of being sued into extinction.

 

The Only Winner Is the Plaintiff’s Attorney

We are faced with a problem where literally no one wins, except the plaintiff’s attorney. In head and neck injury lawsuits, the plaintiff’s attorney will normally take on a case for up to 40 percent of the potential award. While all of us understand litigation can serve to achieve justice in many situations, it now appears that the contrary is true.

Witness the following scenario: prior to the fall of 1980, very few plaintiff’s won lawsuits. The loser here, and it is indeed a tragic loser, is the impaired athlete.

Currently there are somewhere between 75 and 95 lawsuits in process. The primary target is and has been the helmet manufacturer: Rawlings, MacGregor, Wilson, Riddell, Bike (although the Bike helmet has yet to lose a lawsuit, it is currently involved in several suits). The helmet manufacturers have been the losers here.

However, the real loser is still the sport of football because the increased costs for insurance are passed along to the purchaser of the helmet, the schools themselves. The helmet manufacturing base has entered into a demise from 17 helmet manufacturers in the mid-1970s to five manufacturers today. There is a legitimate concern that all helmet manufacturers may cease to function in the U.S.

A 1981 verdict involving a football player who participated in the Seattle, Washington school district and became a paraplegic from an injury, cost that district $6.3 million. The school is the loser here.

We are obviously slow learners. There must be an answer to this dilemma where the losers are the impaired athletes, the helmet manufacturers and school districts.

We can no longer continue to justify the position of the winner, the plaintiff’s attorney. There are answers to the dilemma!

Sport has an obligation to the impaired athlete. Sport has an obligation to make sure that sound manufacturers produce excellent head protection. Sport has an obligation to school districts and organizations to make absolutely certain that this particular dilemma is solved.

It is not possible to eliminate all catastrophic injuries in football. The football helmet basically is the innocent victim that is normally at the scene of the accident.

If we could cast an analogy, the football helmet might be likened to a truck and the body of the player would be the trailer. The neck would be the trailer hitch. If there is an impaction, the whiplash effect between the “trailer” and the “truck” would cause the neck to be fractured, and paraplegia or quadriplegia can result.

Further, we do not fully understand the situation of subdural hematomas. Why does one player suddenly develop a subdural hematoma and more than a million other players sustain blows of equal or greater force many times each day without sustaining injury? This is a question without answer. We are probably at least five years away from devising a test for subdural hematomas, much less being able to devise preventative equipment.

 

What Is the Price of Football’s Survival?

The time for deciding the fate of football in America is at hand. The sport will not survive the tremendous financial pressures imposed upon it by today’s litigations without drastic changes.

Are the schools, athletic organizations, team owners and the fans willing to pay the price for its survival?

Let us briefly consider whether football (among other sports) is worth saving. If litigation exists because football is too dangerous then it is only proper that litigation should drive it out of existence.

Virtually all deaths and serious injuries directly due to football occur within the 15-24-year old group. The most accurate figures affecting this age group are fatality figures. In football, the direct death rate, according to the annual survey of football injuries, has been less than .75 for every 100,000 persons playing football in each of the last five years.

Approximately 1.4 million high school and college athletes play football. This figure of less than 1 per 100,000 compares with the fatality rate of 72.5 per 100,000 for 15-24-year old boys in motor vehicle accidents. On a time-risk exposure, Dr. Kenneth Clark has concluded the ratio of auto deaths to football deaths was 27 to 1 in 1974. Since 1974 the football death rate has gone down. By far the most dangerous part of football practice is driving home.

Getting home is no guarantee of safety. The accidental death rate while at home for this age group is 2.5 persons per 100,000. In the realm of illness, the cerebrovascular disease death rate, predominantly stroke, is between 1 and 2 per 100,000.

The fatal accident rate overall is 97.5 per 100,000 population of these young males. The U.S. Department of Commerce statistical abstract of the U.S. reports the death rate for males 15-24 due to accidents and violence to be: White—135.4 per 100,000; and Black & Other—157.6 per 100,000.

Catastrophic injury comparisons between football and other causes are consistent with death rate comparisons. Supervised football is one of the safer things a young man can do on fall afternoons. And if football were to be eliminated it is an absolute that the number of deaths of young men in America would increase.

While these statistics are indeed impressive the problem still remains.

One need not discuss the strength of character improvement, discipline and leadership developed by football. These qualities of the game are well known. Of equal importance to the game itself, however, is the fact that football is the financial backbone of intercollegiate and to some degree interscholastic competition. School activities have never been more important to the American public. yet, in these times of greater demand for every tax dollar, sports—while important to the morals and health of our young people—must be more financially self-supporting than ever. Programs relying heavily on government and/or institutional funding support will be eroded and some sports eliminated.

Football provides 75 percent of the funding for all other intercollegiate athletic activities at the major college level. Women’s sports, already under scrutiny because of the high cost and low revenues, simply cannot exist without large contributions from the men’s athletic programs. Recent articles discussing Title IX have stated that 50 percent or more of the funding for women’s sports comes from revenues derived from their male counterparts.

In summary, football is the major financial supporting arm for all amateur sports, including many Olympic developmental sports in this country.

 

Litigation ‘Explosion’ Started in Early 1980

Football litigation, while sporadic in the past (a $5.3-million verdict against a helmet manufacturer in Miami in 1976 for example), did not really become extensive until early 1980. Since early 1980, many suits involving brain injury or paralysis from neck injury have been tried against manufacturers of football protective equipment, including helmets and face masks, as well as coaches, school districts and state athletic associations. A number of other cases were settled without litigation.

Specifically, of the eight cases tried up through 1981, the injured player prevailed four times, obtaining damages totaling $13.8 million. Four permanently paralyzed players received nothing at the hands of the jury. Some 11 players settled their cases for a total in excess of $3 million. Insurers for helmet manufacturers have paid or are faced with paying more than $12.5 million for this period alone.

The effect of this system of recompense is, as we have seen, grossly unfair. One player in the northeast is injured while making a tackle, sustains permanent quadriplegia paralysis and yet loses his case in court. The family suffers its second tragedy. Another player in the east is paralyzed while tackling and receives damages of $7 million. A tragedy occurs for the sport of football. Another player receives a verdict against the so-called “deep pocket” of the helmet manufacturer and consequently dries many manufacturers out of business and severely impairs the improvement of the product through research. A tragedy occurs for the manufacturers and this tragedy passes on to football.

The insurance industry simply will not stand for the resulting loss ratio. Industry estimates are that the total premium paid by helmet manufacturers is approximately $2.5 million per year. The cost of defending the suits brought, disregarding paying the judgements and settlements, eats up the premium.

Unfortunately, the solution is not safer protective equipment. Dr. Voight Hodgson, director of the Gurdjian-Lissner Biomechanics Laboratory, Department of Neurosurgery at Wayne State University, in his paper “How Safe Can Football Be Played?” concluded that with the event of rules changes against using the helmet to ram an opposing player and the requirement that all helmets be NOCSAE approved, the head and neck injury rate has been reduced as much as can be expected.

It is believed that catastrophic injuries to the neck and brain resulting in permanent paralysis would continue at the approximate rate of 15 to 20 per year for all sports.

The injuries occur because of two mechanisms: dislocation/fracture of the neck and subdural hematoma of the brain. In the case of neck injuries, the helmet cannot protect against the situation when the player is in motion, his head comes to a sudden stop in a ramming or butting configuration and the body mass continues forward, dislocating or fracturing the bones of the neck as the bones compress. Subdural hematomas are poorly understood, but we do know that the injury occurs with the tearing of blood vessels in the brain when the head is moved aside or rotated rapidly. Again, the helmet remains unchanged and uninvolved.

Similarly, there doesn’t appear to be a more practical financial solution to handle our present system of litigation. As previously indicated, there are estimated to be 75 severe injury cases waiting to be tried. The profits from the entire football helmet and face mask industry are estimated to be no more than $1 million on gross sales of between $25 and $30 million. If the entire profits of the industry were to be paid for insurance, the premium increase could not save football.

 

The Answer? A Self-Insurance Program

Is there any answer? We believe there is. Actually, one answer that jumps out as a solution to the problem is a self-insurance program similar to workmen’s compensation. It guarantees lifetime care and financial independence for every catastrophically injured player. At the same time, it avoids the tremendous cost of attorney’s fees and litigation expense which, on the average, results in the injured players receiving only approximately one half of the sums paid out by the insurance company. How much better it would be to use the same amount in funds to provide lifetime financial support for three permanently injured young men.

Again, sport should take care of its own! This plan envisions the creation of a “catastrophic injury foundation” to be funded by a surcharge on every football ticket sold, including high school playoffs, and college and professional in-season contests. In addition, the “foundation” would receive a fair share contribution from broadcasting companies and other media who receive huge incomes from the sport of football.

The realistic goal is to accumulate funds at the rate of $20 million per year to handle pre-existing and future injuries. The annual national football head and neck injury data provided by Fred Mueller and Carl Blythe shows that in the past five years, since the blocking and tackling rules changes, the rate of quadriplegia and brain injuries per year needing lifetime care has been less than 10 (in all sports, less than 20).

The cost to purchase an annuity to pay $40,000 per year for life together with an “inflation package” which will pay an additional $500,00 over 40 years plus life insurance for a player’s life will cost $500,000. At the rate of 20 per year the cost would be $10 million to resolve each year’s claims.

The injured player and his parents would accept the foundation annuity plan as an alternative to litigation. The person making the claim would simply establish, through his physician, the degree and nature of his injury and that it was received while participating in organized football and/or other forms of athletics (such as trampoline injuries in gymnastics, and diving and basketball injuries involving paraplegia and quadriplegia). The school and the family would agree to bring no suit against any coach, school, district, athletic association, state, or equipment manufacturer supplier. In short, litigation would be aborted!

The foundation would in addition be faced with providing the means to settle and resolve the claims which predate its creation. Thus a goal of $20 million per year is the minimum. In addition, the need for extending the program to include the severely injured from organized wrestling, gymnastics, baseball, basketball and other sports has already been voiced.

The consciousness of many school districts might possibly limit the effectiveness of such a foundation undertaking. Therefore, a comprehensive lifetime medical insurance program needs to be explored as a second major thrust to the solution of the problem.

Adequate insurance coverage by all high school districts, colleges and universities should be able to adequately handle the problem in the future. Some people would persist that we should not be paying insurance agent commissions but that problem again pales in comparison with the magnitude of not doing anything. An insurance program can resolve future injuries. An insurance program in reality cannot take care of pre-existing injuries.

 

NCAA, Federation Advance Recommendations

A third possible solution would be to provide insurance company coverage for future injuries and a foundation to take care of preexisting injuries. With this in mind, a meeting was held in late September 1982 at the High School Federation headquarters in Kansas City involving representatives of the NCAA Insurance Committee and representatives from the High School Federation. The following recommendations were developed for NCAA Council consideration and will be distributed to the various high school associations for their consideration.

1. That the NCAA encourage the nation’s school/college community to obtain insurance to provide adequate lifetime support for student athletes incurring catastrophic injuries while participating in organized athletic competition; further, such coverage should consist of an unlimited broad major medical policy, including provisions for rehabilitation, an annuity policy to cover the loss of lifetime earnings and suitable liability coverage for the institution.

2. That the Insurance Committee be directed to investigate possible catastrophic injury insurance programs to provide adequate coverage for NAA member institutions and student athletes and that a specific plan be made available to the membership by the 1983-84 academic year.

3. That the NCAA join with the school/college community in considering membership in a sports rehabilitation foundation, contingent upon a majority of the foundation’s board of directors being from the school/college community and the direction of the proposed foundation being to explore the possibility of raising funds to adequately provide for existing cases of injured athletes with a legal statute of limitations.

The high schools are already acting in this area. The state of Washington, following the $6.3-million lawsuit against the Seattle School District, has initiated a comprehensive insurance plan to handle the situation.

In the writers’ collective judgement, the combination of the two approaches will be a solution to the problem. If we take at face value that football is being literally sued into extinction, all institutions including age group teams, high schools, colleges and professional teams need to act on the above solutions promptly. The time for action has to be now!

An informed populace needs to support minimally the recommendations that came from the joint NCAA and High School meetings to expedite the above solutions to the catastrophic injury problem. In essence, sport indeed has taken the moral position that it will take care of its own past, present and future.

 

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