Evaluating a “Concussion Clause”: Why the NFL’s Assumption of Risk Defense Fares No Better As Time Goes On

Ramsey W. Fisher · 21 Vand. J. Ent. & Tech. 651

Abstract

This Article explores the future of National Football League (NFL) concussion litigation. Currently, hundreds of retired NFL players who previously brought negligence claims against the NFL are seeking compensation under a settlement agreement reached in 2012. With many retired players exempting themselves from the 2012 agreement and current players learning more about the long-term risks of football, the potential for future negligence lawsuits against the NFL is still ripe. In any such suit, a key issue will be the NFLs’ assumption of risk defense. The allure of the defense is intuitive—when one chooses to play professional football for a living, he assumes the risk of injuries associated with the game. Further, as information about concussions and chronic traumatic encephalopathy (CTE) continues to saturate the public dialogue, players will become more informed about the risks of CTE, strengthening the NFL’s potential assumption of risk defense.

This Article challenges that intuition through a hypothetical scenario:
Were the NFL to ask its players to sign a “Concussion Clause”
waiver, much like the waivers skiers are required to sign before getting on a ski lift, would the waiver be enforceable? If not, then why should any assumption of risk defense be successful? To wrestle with this hypothetical scenario, this Article first evaluates tort law doctrine on assumption of risk, laying out the background of express and implied assumption of risk defenses and their historical applications in football.

In applying the assumption of risk doctrine to a hypothetical
Concussion Clause, this Article reaches a peculiar result. While a Concussion Clause would likely violate public policy and, therefore, be unenforceable under current doctrine, the NFL could still prevail using an implied assumption of risk defense. This is largely because tort doctrine places tremendous weight on the distinction between inherent and extraneous risks. While the former can be assumed implicitly and avoid triggering scrutiny on public policy grounds, the latter can only be assumed through an explicit waiver that is consistent with public policy. So long as concussions and CTE are characterized as inherent risks to football, an implied assumption of risk defense could theoretically be upheld, even if an express waiver for the same risks would violate public policy. This Article concludes by challenging this outcome on both doctrinal and policy grounds, and recommends that courts recognize public policy objections to the implied assumption of risk defense.