The Twin Tragedies in Football: Injury and Litigation

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During the years 1980, 1981, and 1982, 13 lawsuits involving students who suffered brain damage or paralysis as a result of high-school football injuries were tried against equipment manufacturers, coaches, school districts, and state athletic associations.

Of these 13, the injured player prevailed seven times, obtaining jury verdicts totaling some $32.4 million. The remaining six athletes, four of whom were permanently paralyzed by their injuries, received nothing.

Eleven other players settled out of court for a total in excess of $3 million during the same period. As a result of this litigation, insurers for helmet manufacturers have paid or are faced with paying $25 million for judgments and settlements.

High-school football (and, eventually, all football) will not survive the tremendous financial pressures of this litigation without drastic changes in the way the cases of injured student athletes are handled.

Obviously, something must be done to compensate the athletes and their families for these terrible injuries, regardless of how rare they are. But the current system for recompensing injured high-school football players is grossly unfair and, in the long run, unworkable.

The uncertainties of litigation are unfair to both the injured players and to supporters of football. One player in the Northwest is injured while making a tackle, sustains permanent quadriplegia paralysis, and yet loses his case in court--a second tragedy for him and his family. Another player in the East sustains the same injury in the same way and receives a verdict awarding him $7 million--a tragedy for the game of football.

Furthermore, the system cannot continue to work because the insurance industry simply will not stand for the resulting losses. Industry estimates are that the total premium paid by the helmet manufacturers is approximately $2.5 million per year. Just the cost of defending the suits brought--disregarding the judgments and settlements--is enough to eat up this premium.

Because of the size of the settlements and judgments in these cases, it has become increasingly difficult for helmet manufacturers to obtain insurance coverage at any cost, and within the last year two manufacturers have closed their doors due to their inability to obtain liability insurance.

I have tried cases on behalf of equipment companies and have won every case, but I recognize that litigation is simply destructive for athletics and is not a fair solution.

For many, however, the real argument is whether football is worth saving at all. Is football too dangerous? If so, it is only proper that litigation should drive it out of existence.

Statistically, football is a far safer activity than driving. The ratio of automobile deaths to football deaths was 27 to 1 in 1974. Since then, the football-death rate has decreased while the traffic-death rate has gone up.

Virtually all football deaths and serious injuries occur in the 15-to-24 age group. Fatality figures provide the most telling statistic about the relative dangers of football for males in this group. According to the "Annual Survey of Football Injury Research" [a report sponsored by the American Football Coaches Association, the National Collegiate Athletic Association, and others], the death rate from football injuries between 1980 and 1982 has been approximately .5 per every 100,000 participating 15-to-24 year olds. (About 1,400,000 junior- and senior-high-school and college athletes play football.)

In comparison, 70 of every 100,000 15-to-24 year olds die in automobile accidents. Clearly, the most dangerous part of football practice is driving home.

The rate of all fatal accidents, including automobile accidents, for these young males is 97.5 per 100,000. Comparisons of catastrophic-injury rates between football and other causes of injury follow similar patterns. Therefore, well-supervised football is one of the safer things a young man can do with his fall afternoon, and if football were eliminated, it is certain that the number of deaths among young American males would increase.

Football is also important economically, of course. It provides the financial backbone for interscholastic competition. College football, the success of which depends on strong high-school football programs, provides 75 percent of the funding for all other intercollegiate athletic activities at the major colleges.

Womens' sports, already under close scrutiny because of their high cost and low revenues, simply cannot exist without large contributions from men's athletic programs. Half the funding for womens' sports comes from the revenues from men's sports, and only football (and in some places, basketball) pays for more than itself.

Football is quite simply the major financial source of support for all amateur sports, including Olympic sports, in this country. Its survival is important, but so is the future of athletes injured while playing it.

Unfortunately, though, the solution to the injury problem cannot be found in rule changes or safer protective equipment. Voigt Hodgson, director of the Gurdijian-Lissner Biomechanics Laboratory at Wayne State University in Detroit, has concluded that because of certain changes made in the game in the 1970's--such as the rule making it illegal to ram or butt opposing players with the helmet and the adoption of more rigorous standards for football helmets--the rate of injuries to the head and neck has been reduced as much as can reasonably be expected. He and others believe that catastrophic injury to the neck and brain, resulting in permanent injury, will continue at the approximate rate of 15 to 20 such injuries per year.

These injuries occur in two ways: dislocation of the neck and subdural hematoma. No helmet can fully protect against neck injury, which occurs mostly because of the body's momentum.

Subdural hematomas are poorly understood, but physicians know that the injury often occurs as a result of the tearing of blood vessels in the brain when the player's head undergoes a sudden change of direction that rapidly forces his brain against the skull. Again, the helmet is uninvolved.

Therefore, the injuries will continue to occur, but a "solution" of increasing insurance premiums is not a realistic way to handle the present problem of litigation. There are estimated to be 75 severe-injury cases awaiting trial. The profits from the entire football helmet and face mask industry are estimated at no more than $1 million per year on gross sales of between $25 and $30 million. Were the entire profit of the industry to be paid for insurance, the premium increase could not save football.

We need a system that will guarantee lifetime care and financial independence for every catastrophically injured player, at the same time avoiding the tremendous cost of lawyers' fees and litigation expenses, which usually result in the injured player receiving only about one-third of the sum paid out by the insurance company. It would be so much better to use the same amount of money to provide for three permanently injured young men.

What we need is a sports rehabilitation foundation, funded by a surcharge on every ticket sold for amateur and professional football. Such a foundation should also receive a fair contribution from broadcasting companies and other media that generate huge incomes from football. A realistic goal, according to a plan I have developed, is to accumulate $20 million per year.

Data from the National Football Head and Neck Injury Registry show that in recent years the number of cases of quadriplegia and brain injury requiring lifetime care that occur each year has been less than 20. To purchase an annuity that would pay $40,000 per year for life--together with an "inflation package" that would pay an additional $500,000 over 40 years and buy life insurance--will cost $500,000. At the rate of 20 cases per year, it would cost $10 million to resolve each year's claims.

The injured player and his parents would accept the foundation's annuity plan as an alternative to litigation. The person making the claim would simply ask his doctor to testify to the nature and degree of his injury, and to verify that it was received while playing organized football. The player and family would agree not to bring suit against any coach, school, school district, athletic association, state, equipment manufacturer, or supplier.

The foundation would also have to provide the means to settle and resolve the claims made before it was created. Eventually, the foundation could extend its coverage to students injured in other sports.

Ideally, a fund of $100 million could be accumulated in time, one large enough that interest alone would either fund the annuity purchases or provide the payments directly to the injured players. The surcharge could then be dropped, to be used again only if the need for additional funds arises.

Such a foundation should receive the endorsement of all who believe in the benefits of competitive athletics. Certainly those who have large investments in football or who derive large profits from its existence must see the need to lead in its development.

Vol. 03, Issue 08, Page 24

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