Report draft pg 49
None - Stakeholders in NFL Player Health
THE MEDICAL TEAM
Athletic
Trainers
Neutral
Doctors
Second
Opinion
Doctors
Club
Doctors
Personal
Doctors
Retained by Club
OTHER STAKEHOLDERS
Equipment
Mfrs.
FansMediaOfficials NFL
Business
Partners
THE NFL, NFLPA, and NFL CLUBS
NFLPA NFL
Clubs
NFL
PLAYER ADVISORS
Financial
Advisors
FamilyContract
Advisors
(Agents)
NFL CLUB EMPLOYEES
Club
Employees
Equipment
Managers
Coaches
OTHER INTERESTED PARTIES
Youth
Leagues
Workers’
Comp.
Attys
Govern-
ment
NCAA Health-
related
Companies
Part 6: Other Stakeholders
Protecting and Promoting the
Health of NFL Players:
Legal and Ethical Analysis and Recommendations
Christopher R. Deubert
I. Glenn Cohen
Holly Fernandez Lynch
Petrie-Flom Center for Health Law
Policy, Biotechnology, and Bioethics
Harvard Law School
Part 6 discusses several other stakeholders with a variety of roles in player health, including: Officials;
Equipment Manufacturers; The Media; Fans; and, NFL Business Partners. Additionally, we remind
the reader that while we have tried to make the chapters accessible for standalone reading, certain
background or relevant information may be contained in other parts or chapters, specifically Part 1
discussing Players and Part 3 discussing the NFL and the NFLPA. Thus, we encourage the reader to
review other parts of this Report as needed for important context.
Officials
Chapter 15
Ofcials, as the individuals responsible for enforcing the Playing Rules,
have an important role in protecting player health on the eld.
In order to ensure that this chapter was as accurate and valuable as
possible, we invited the National Association of Sports Ofcials (NASO)
and the National Football League Referees Association (NFLRA), both
described below, to review a draft version of this chapter prior to
publication. NASO provided brief comments but also stated that it did
“not have any changes [it] feel[s] must be made.”
62
The NFLRA declined
ourinvitation.
63
358. \ Protecting and Promoting the Health of NFL Players
( A ) Background
There are seven officials in an NFL game: Referee; Umpire;
Head Linesman; Line Judge; Field Judge; Side Judge; and,
Back Judge.
1
Each official is equally responsible for call-
ing penalties during a game.
2
Each official is positioned
differently on the field and the Referee is in charge of the
officiating crew.
There were 122 officials during the 2015 season, with a
mean of 11.5 years’ experience in the NFL.
3
Most NFL
officials have 10 to 20 years of experience at the high
school and college levels before becoming an NFL official.
4
The NFL typically hires its officials from the best college
football conferences.
5
NFL officials are represented by the NFLRA. The NFLRA
collectively bargains the terms and conditions of the
officials’ employment with the NFL. In fall 2012, the NFL
locked out the officials after the parties were unable to
agree on a new collective bargaining agreement (CBA).
6
The lockout stretched from the preseason through the first
quarter of the regular season, during which time replace-
ment officials made numerous questionable calls, drawing
the ire of players, coaches, and fans.
7
In early September
2012, NFLPA General Counsel Tom DePaso wrote a letter
to the NFL warning that the NFLPA would take “appro-
priate action” if it was determined that the replacement
officials jeopardized the health and safety of the players.
8
The NFLPA may have been concerned that the replacement
officials would miss certain penalties, thereby effectively
allowing riskier and more dangerous play.
In late September 2012, the parties reached a new CBA
running through the 2019 season.
9
The new CBA included
a modified retirement structure through which the offi-
cials would partially contribute, an increase in pay to
$173,000 per year in 2013, rising to $205,000 in 2019,
and the option for the NFL to retain full-time officials
(officials previously only worked during the preseason and
season).
10
The NFL-NFLRA CBA does not address player
health issues.
11
Every NFL official is a member of NASO.
12
The NFLRA
automatically enrolls all of its members as NASO mem-
bers.
13
NASO is a voluntary organization of approximately
22,000 member officials, ranging from the lowest levels
of youth sports to the professionals.
14
NASO provides an
extensive list of services to its members, including educa-
tional programs, legal advocacy, and insurance policies.
15
NASO, however, does not certify officials.
16
Each sports
organization, whether it is a state high school athletic
association, the National Collegiate Athletic Association
(NCAA), or the NFL, judges the qualifications of its offi-
cials during its hiring process.
17
( B ) Current Legal Obligations
a
Sports officials of all levels of play have generally been
held to have the following legal duties: (1) inspect the field
of play to ensure it is safe; (2) keep the playing field free
of spectators and hazards; (3) ensure the game is played
in safe weather conditions; and, (4) enforce equipment
rules.
18
These duties might appear limited but courts are
historically reluctant to consider review of officials’ on-field
decisions during the course of play, such as whether an
official failed to call a penalty or to apply a rule properly.
19
Additionally, if players or other individuals seek to hold
officials liable for a breach of one of the aforementioned
duties, they must generally prove that the official acted with
“gross negligence,” as opposed to simple negligence.
20
The
gross negligence requirement has historically applied to
volunteer officials
21
and thus it is unclear whether the same
standard would apply to professional officials.
Official liability has also been shaped by robust lobby-
ing efforts of the NASO.
22
Sixteen states have passed laws
requiring proof of gross negligence by an official before
liability can be imposed.
23
The application of these laws
is limited to youth sports, amateur sports, or volunteer
officials in 13 states.
24
Three states (Tennessee, Mississippi,
and Nevada) have laws restricting liability against officials
that are not restricted to youth sports, amateur sports, or
volunteer officials, and thus would protect NFL officials.
25
However, Tennessee is the only one of these states in which
NFL clubs play.
NASO is aware of, and concerned about, the reach of state-
level concussion-related legislation, discussed at length in
Part 7: Other Interested Parties, Section 3: Governments.
26
NASO is concerned that these laws improperly require
lay officials to make medical determinations.
27
NASO is
working to educate officials on the skills to recognize and
report players with suspected medical conditions, and to
always err on the side of caution by requiring players to be
removed from play.
28
a The legal obligations described herein are not an exhaustive list but are those we
believe are most relevant to player health.
Part 6 \ Chapter 15 \ Ofcials 359.
( C ) Current Ethical Codes
NASO also issues a Code of Conduct for Sports Officials,
but none of NASO’s stated principles concern player health
and safety.
29
Moreover, NASO does not itself enforce its
Code of Conduct.
30
Instead, it is NASO’s intention that its
Code of Conduct be adopted and enforced by the athletic
associations and sports leagues that have authority over
the officials.
31
The NFLRA does not have a code of ethics.
32
( D ) Current Practices
Many people have argued that the Playing Rules, and thus
perhaps also the officials, have become overprotective of
players’ health and safety. That is, people often think that
the Playing Rules, and thus also the officials, too frequently
penalize players for certain types of tackles or hits, particu-
larly on quarterbacks.
33
This opinion is held by many mem-
bers of the media,
34
fans,
35
and players,
36,b
among others.
Officials do play some role in the rulemaking process;
they attend NFL Competition Committee meetings and
participate in the discussion on proposed rule changes.
37
Moreover, certain rules do permit the official to take into
consideration the likelihood of injury in determining
whether to call a penalty, including roughing the passer
38
and roughing the holder on a place kick.
39
Nevertheless, the
NFL makes the Playing Rules and it is the officials’ princi-
pal job is to enforce them. On that front, there is generally
no criticism that officials are failing to enforce the Playing
Rules as enacted by the NFL.
In addition to calling penalties, NFL officials are empow-
ered to call an “Injury Timeout” if he or she “determines
a player to be injured.”
40
In recent years, the NFL has
actively encouraged officials to try and pay particular
attention to see if players might be injured and to stop play
accordingly.
41
While it might be challenging for officials to
determine whether a player is actually injured or faking an
injury for competitive reasons, according to NASO, officials
are taught to err on the side of caution.
42
However, the
Playing Rules also direct that the official “should not try to
determine if [a] player is injured.”
43
There are likely con-
cerns about officials attempting to make medical determina-
tions. Nevertheless, these two provisions seem to contradict
and thus clarification may be warranted.
b Current Player 7: “It’s . . . taking away from the game that we’ll all learned how to
play, by being too protective.”
Despite the officials’ ability to prevent play from continu-
ing when a player is injured, during the 2014 season there
were several publicized examples of players who continued
to play in games after suffering concussions.
44
In the case of
San Diego Chargers safety Jahleel Addae, “he looked disori
-
ented and seemed to go into a convulsion while remaining
on his feet, but he stayed in the game while fans on social
media questioned why he was still playing while displaying
such obvious distress.”
45
While the Addae incident caused
the NFL to advise team medical staffs to be more vigilant
about spotting concussions,
46
it also raised concerns about
the officials’ failure to spot Addae’s odd movements and
to stop play as a result. Similar concerns were raised when
New England Patriots wide receiver Julian Edelman looked
“woozy” after suffering a hit in the 2015 Super Bowl.
47
Due
partially to these incidents, in 2015 the NFL approved a rule
that permits an athletic trainer stationed in the press box to
stop play if it appears a player has suffered a head injury.
48
Players that we interviewed seemed to believe that officials
are doing an adequate job in enforcing the current rules
but are not likely to take any other action concerning
player health:
c
Current Player 5: “I think that they’re doing as good
of a job as they can. They’re trying to do their
best. I think with the targeting rules and the head
to head contact, I think they’ve been overly cau-
tious which, when it comes to protecting players,
is probably on the right end. But besides that, I’ve
never seen an official step outside the rule book to
protect a player.”
Former Player 2: “I don’t think they play much role
other than if they see a guy banged up, they’re just
going to make sure he seeks medical attention and
that’s what they’re supposed to do. But I don’t see
them going above and beyond.”
c We reiterate that our interviews were intended to be informational but not represen-
tative of all players’ views.
In recent years, the NFL has
activelyencouraged ofcials to try
and pay particular attention to see
ifplayers might be injured and to
stop playaccordingly.
360. \ Protecting and Promoting the Health of NFL Players
( E ) Enforcement of Legal and
EthicalObligations
d
Neither the CBA nor the Constitution and Bylaws address
officials’ conduct. Thus, it seems that a player would not be
bound to arbitrate a claim against an official.
49
Moreover, litigation against officials seems to be an avail-
able remedy for players. It is unclear whether in any such
litigations the gross negligence standard that has been
applied to volunteer officials would also apply to profes-
sional officials officiating professional sports as research
has revealed almost no cases where a professional official
was sued.
There are only two known litigations concerning NFL offi-
cials, neither of which has clearly articulated a standard for
judicial review of an official’s actions.
In 1972, Baltimore Colts defensive end Charles “Bubba”
Smith was injured during a preseason game when he
collided with an aluminum yardage marker stuck in the
ground on the sideline and which an official had not
removed.
50
Smith was forced to sit out the 1972 season
and sued the official.
51
After a mistrial resulted in the
case being retried, a jury found the official not liable for
Smith’s injury.
52
d Appendix K is a summary of players’ options to enforce legal and ethical obligations
against the stakeholders discussed in this Report.
In 1999, Cleveland Browns offensive lineman Orlando
Brown was injured when an official threw a penalty flag
(weighted with the standard BB pellets) into the air, which
struck Brown in the eye.
53
The incident left Brown partially
blind in the eye and seemingly unable to continue his foot-
ball career.
54
Brown sued the NFL (but not the official) in a New York
state court alleging that the NFL had failed to hire and
employ competent officials and to properly train and super-
vise the officials.
55
In addition, Brown sought to hold the
NFL vicariously liable for the official’s alleged negligence.
56
The NFL sought to remove Brown’s case to federal court
and have it dismissed by asserting that his claims were
preempted by the Labor Management Relations Act
(LMRA) and the terms of the CBA.
57
The United States
District Court for the Southern District of New York dis-
agreed, holding that Brown’s claims were state law claims
which did not require interpretation of the CBA so as to
trigger preemption.
58
The case was remanded to New York state court and
reportedly settled for $15 million to $25 million in 2002.
59
Brown nevertheless actually returned to the NFL in 2003
and continued playing through 2005.
60
There are only two
known litigations
concerning NFL
offi cials, neither of
which has clearly
articulated a standard
for judicial review of
an official’s actions.
Recommendations Concerning Ofcials – continued
Part 6 \ Chapter 15 \ Ofcials 361.
( F ) Recommendations ConcerningOfcials
Indications are that officials are generally performing their jobs well concerning player health and safety and thus we have
no formal recommendations for them. Officials should be praised for their efforts, particularly considering the high level
of scrutiny around these issues. While officials should continue their solid work, they must always be diligent and open
to change for additional ways to protect player health. In particular, it has been established that players who suffer brain
injuries are at risk of serious aggravation of their conditions if they are injured again shortly after the first injury.
61
While
the athletic trainers designated for spotting injuries from the press box can help, officials should exercise their discretion
to stop play liberally to ensure, as much as possible, that injured athletes do not remain on the field where they can be
exposed to further injury.
Endnotes
1 E-mail from Barry Mano, President, National Association of Sports Of-
cials, to author (Mar.23, 2016, 2:28 PM) (on le with authors).
2 E-mail from Michael C. Arnold, Arnold, Newbold, Winter & Jackson P.C.,
to author (Apr.22, 2016, 10:58 AM), (on le with authors).
3 Ofcial Playing Rules of the National Football League (NFL Playing
Rules), Rule 15, Art. 2.
4 Id. at Art. 6–7.
5 NFL Ofcials, Nat’l Football League, http:// operations .n .com /the
-ofcials /ofciating -development /scouting -the -next -n -ofcials /2015
-n -ofcials/ (last visited Sept.23, 2015), archived at http:// perma .cc /
K36J -W9LY.
6 Gary Mihoces, Path To Becoming NFL Referee Is Usually Long, USA
Today, Sept.19, 2012, http:// usatoday30 .usatoday .com /sports /n /story
/2012 /09 /19 /path -to -becoming -n -referee -is -usually -long /57809626 /1,
archived at http:// perma .cc /R6EG -HB7N.
7 Id.; see Josh Katzowitz, NFL releases list of all ofcials for 2014 season,
CBSSPORTS.COM (May 22, 2014, 11:38 AM), http:// www .cbssports .com
/n /eye -on -football /24569855 /n -releases -list -of -all -ofcials -for -2014
-season, archived at https :/ /perma .cc /A2ZW -F2GY (discussing that the
12 newest ofcials previously refereed in the Pac-12, SEC, Big 10, Big
12 and ACC).
8 Judy Battista, N.F.L. Reaches Labor Deal With Referees, N.Y. Times,
Sept.26, 2012, http:// www .nytimes .com /2012 /09 /27 /sports /football /n
-and -referees -reach -labor -deal .html ?_r =0, archived at https :/ /perma .cc
/XTZ8 -WWYT ?type =pdf.
9 Id.
10 Mike Florio, NFLPA Threatens “Appropriate Action” Over Replacement
Ofcials, ProFootballTalk (Sept.9, 2012, 7:49 PM), http:// profootballtalk
.nbcsports .com /2012 /09 /09 /npa -threatens -appropriate -action -over
-replacement -ofcials/, archived at http:// perma .cc /X887 -RPKF.
11 NFL, NFLRA Reach Eight-Year Agreement, NFL (Sept.27, 2012 12:34
AM), http:// www .n .com /news /story /0ap1000000066739 /article /n
-nra -reach -eightyear -agreement, archived at http:// perma .cc /4C9Z
-CZLR.
12 Id.
13 Interview with Jim Quirk, Executive Director, NFLRA (March 25, 2015).
14 Interview with Barry Mano, President, National Association of Sports
Ofcials (Oct.29, 2014).
15 Id.
16 Id.
17 Id. For more information on NASO, see its website at http:// www .naso
.org.
18 Interview with Mano, supra note 14.
19 Id. The Commissioner and the Supervisor of League Game Ofcials are
responsible for selecting ofcials. See NFL Constitution and Bylaws
(2012), § 8.7.
20 Glenn M. Wong, Essentials of Sports Law, § 4.7 (4th ed. 2010) (discuss-
ing duties of ofcials and gathering cases); Eric T. Gilson, Sports Ofciat-
ing and the Law: A Survey of Risks and Protections, 7 Willamette Sports
L.J. 32 (2009) (same).
21 See Alan S. Goldberger, Sports Ofciating: A Legal Guide, 206–210
(2007) (stating “[t]he American legal system is traditionally reluctant to
become involved in second guessing decisions of referees” and collect-
ing cases); Order, Ind. School Dist. No. I-89 of Okla. County, Okla. v. Okla.
Secondary School Activities Ass’n, 2014-cv-2235 (Okla. Cnty. Dec.11,
2014) (dissolving temporary injunction after high school sued to replay
state playoff game based on erroneous application of a rule: “it borders
on the unreasonable, and in some respects extends far beyond the pur-
view of the judiciary, to this Court more equipped or better qualied than
Defendant to decide the outcome or any portion of a high school football
game.”); Georgia High School Ass’n v. Waddell, 285 S.E.2d 7 (Ga. 1981)
(holding that Courts do not possess the authority to review the decisions
of high school football referees).
22 See Marc T. Wolin, Robert D. Lang, Legal Liability for Sports Referees
in Today’s Litigious World – If You Can’t Kill the Ump Then Sue Him, 15
U. Den. Sports & Ent. L.J. 83, 85 (2013); John Cadkin, Sports Ofcial
Liability: Can I Sue If the Ref Missed a Call? 2008 Den. U. Sports & Ent.
L.J. 51, 52 (2008).
23 Id.
24 See Gilson, supra note 20, at 41 (discussing NASO’s lobbying efforts);
Cadkin, supra note 22, at 56–57 (same).
25 Sports Ofcials Legislative Scorecard, Nat’l Ass’n Sports Ofcials,
http:// www .naso .org /Resources /Legislation /LegislationStatus /
SportsOfcialsLegislativeScorecard .aspx (last visited Aug.7, 2015),
archived at http:// perma .cc /JV5L -98PD.
26 See M.G.L.A. 231 § 85V (Massachusetts statute restricting liability
against volunteer ofcials and those working in youth sports); 745 ILCS
80/1 (Illinois statute restricting liability against volunteer ofcials and
those working in youth sports); 42 Pa.C.S.A. § 8332.1 (Pennsylvania
statute restricting liability against volunteer ofcials and those working in
youth sports); Gen.Laws 1956, § 9-1-48 (Rhode Island statute restricting
liability against ofcials in youth sports); R.C. § 3707.511 (Ohio statute
restricting liability against ofcials in youth sports); NDCC, 32-03-46
(North Dakota statute restricting liability against volunteer ofcials);
LSA-R.S. 9:2798 (Louisiana statute restricting liability against volunteer
ofcials); N.J.S.A. 2A:62A-6.1 (New Jersey statute restricting liability
against youth sports ofcials); N.J.S.A. 2A:62A-6 (New Jersey statute
restricting liability against volunteer ofcials); 16 Del.C. § 6836 (Delaware
statute restricting liability against volunteer ofcials); Ga. Code Ann.,
362. \ Protecting and Promoting the Health of NFL Players
§ 51-1-41 (Georgia statute restricting liability against ofcials for ama-
teur sports); A.C.A. § 16-120-102 (Arkansas statute restricting liability
against ofcials for amateur sports); V.T.C.A., Civil Practice & Remedies
Code § 84.004 (Texas statute restricting liability against volunteers of
youth sports organizations); MD Code, Courts and Judicial Proceed-
ings, § 5-802 (Maryland statute restricting liability against ofcials of
amateur sports).
27 See T. C. A. § 62-50-202 (Tennessee statute restricting liability against
ofcials “at any level of competition”); Miss. Code Ann. § 95-9-3
(Mississippi statute restricting liability against ofcials “at any level of
competition”); N.R.S. 41.630 (Nevada statute restricting liability against
ofcials “at any level of competition”).
28 Interview with Barry Mano, President, National Association of Sports
Ofcials (Oct.29, 2014).
29 Id.
30 Id.
31 See Code of Conduct for Sports Ofcials, Nat’l Ass’n Sports Ofcials,
http:// www .naso .org /Portals /0 /downloads /code _of _conduct .pdf (last
visited Aug.7, 2015), archived at https :/ /perma .cc /35SA -8C6H ?type
=pdf.
32 Interview with Mano, supra note 14.
33 Id.
34 Interview with Jim Quirk, Executive Director, NFLRA (March 25, 2015).
35 See Kevin Seifert, NFL Nation Says: Too Much QB Protection? ESPN
(Nov.21, 2013), http:// espn .go .com /blog /nnation /post /_ /id /102074 /n
-nation -says -too -much -qb -protection, archived at http:// perma .cc /J5YP
-V78Y.
36 Mark Kiszla, NFL Appears to Prefer Two-Hand Touch, Denver Post,
Aug.8, 2014, available at 2014 WLNR 21946260; Marshall Faulk,
Stupid rule endangers running backs’ well-being, NFL (March 20, 2013,
11:04 PM) http:// www .n .com /news /story /0ap1000000152312 /article /
crownofhelmet -ban -n -rule -draws -criticism -understanding, archived at
http:// perma .cc /WW22 -6HHJ.
37 Mike Florio, On Concussions, Players and Fans Can’t Have it Both Ways,
ProFootballTalk (May 6, 2012, 10:15 AM), http:// profootballtalk .nbcsports
.com /2012 /05 /06 /on -concussions -players -and -fans -cant -have -it -both
-ways/, archived at http:// perma .cc /9KRW -TJGA.
38 Michael David Smith, Vinny Testaverde Thinks the NFL is Overprotective
of Quarterbacks, ProFootballTalk (Nov.20, 2012, 10:45 AM),
http:// profootballtalk .nbcsports .com /2012 /11 /20 /vinny -testaverde
-thinks -the -n -is -overprotective -of -quarterbacks/, archived at
http:// perma .cc /W6NQ -586T; Kevin Seifer, Tim MacMahon, The
Associated Press, Critics Blast Kickoff Rule Change, ESPN (Aug.24,
2011), http:// espn .go .com /n /story /_ /id /6887856 /donnie -nickey
-formerly -tennessee -titans -latest -rip -new -n -kickoff -rule, archived
at http:// perma .cc /ZVB8 -WG36; Gregg Rosenthal, Woodley upset that
football is “turning soft”, ProFootballTalk (May 25, 2011, 4:32 PM),
http:// profootballtalk .nbcsports .com /2011 /05 /25 /woodley -upset -that
-football -is -turning -soft/, archived at http:// perma .cc /2722 -L2ZX.
39 NFL Comments and Corrections (June 24, 2016).
40 NFL Playing Rules, § 2, Art. 9.
41 NFL Playing Rules, § 2, Art. 11.
42 NFL Playing Rules, § 5, Art. 2.
43 Interview with Jim Quirk, Executive Director, NFLRA (March 25, 2015).
44 E-mail from Barry Mano, President, National Association of Sports
Ofcials, to author (Mar.23, 2016, 2:28 PM) (on le with authors).
45 NFL Playing Rules, § 5, Art. 2.
46 Mike Florio, Giants LB Played Nearly Three Quarters with Concus-
sion, ProFootballTalk (Nov.13, 2014, 8:30 PM), http:// profootballtalk
.nbcsports .com /2014 /11 /13 /giants -lb -played -nearly -three -quarters
-with -concussion/, archived at http:// perma .cc /LM4Z -YQJG; Lions’
Michael David Smith, Laadrian Waddle Returned to Game After Concus-
sion, ProFootballTalk (Oct.23, 2014, 10:41 AM), http:// profootballtalk
.nbcsports .com /2014 /10 /23 /lions -laadrian -waddle -returned -to -game
-after -concussion/, archived at http:// perma .cc /27UM -X5BJ.
47 Michael David Smith, Chargers Now Admit Jahleel Addae Had a Concus-
sion, ProFootballTalk (Oct.25, 2014, 6:45 AM) http:// profootballtalk
.nbcsports .com /2014 /10 /25 /chargers -now -admit -jahleel -addae -had -a
-concussion/, archived at http:// perma .cc /S96G -CKRW.
48 Mike Florio, Doctors Advise Team Medical Staffs to Be More Vigi-
lant About Concussions, ProFootballTalk (Oct.30, 2014, 4:42 PM),
http:// profootballtalk .nbcsports .com /2014 /10 /30 /doctors -advise -team
-medical -staffs -to -be -more -vigilant -about -concussions/, archived at
http:// perma .cc /QFB8 -JSX7.
49 Darin Gantt, Injury Timeout Proposal Unanimously Approved by NFL
Owners, ProFootballTalk (Mar.24, 2015, 1:38 PM), http:// profootballtalk
.nbcsports .com /2015 /03 /24 /injury -timeout -proposal -unanimously
-approved -by -n -owners/, archived at http:// perma .cc /4C5W -ULP9.
50 Id.
51 See 2011 CBA, Art. 43, § 1 (Non-Injury Grievances are the exclusive
method for resolving claims concerning “any provision of [the CBA],
the NFL Player Contract, the Practice Squad Player Contract, or any
applicable provision of the NFL Constitution and Bylaws or NFL Rules
pertaining to the terms and conditions of employment of NFL players”).
52 Marc T. Wolin, Robert D. Lang, Legal Liability for Sports Referees in
Today’s Litigious World – If You Can’t Kill the Ump Then Sue Him,
15 U. Den. Sports & Ent. L.J. 83, 88 (2013); Byron Rosen, Denver
Baseball Flame Brightens, Wash. Post, Feb.2, 1978, available at 1978
WLNR 229812.
53 Id.
54 Id.
55 Brown v. Nat’l Football League, 219 F. Supp. 2d 372, 376
(S.D.N.Y. 2002).
56 Id.
57 Id. at 376.
58 Id.
59 Id. at 377.
60 Id.
61 Daniel Slotnik, Orlando Brown, Who Sued N.F.L. Over Errant Flag, Dies
at 40, N.Y. Times, Sept.23, 2011, http:// www .nytimes .com /2011 /09 /24 /
sports /football /orlando -brown -who -sued -n -over -errant -ag -dies -at -40
.html ?_r =0, archived at https :/ /perma .cc /32U3 -C4SS ?type =pdf.
62 Id.
63 Ruben Echemendia et al., Developing guidelines for return to play:
consensus and evidence-based approaches. 29 Brain Inj. 185 (2015)
(“Risk for recurrent concussion was greater for individuals with
prior concussions and appeared greatest in the rst 10 days after a
sports-relatedconcussion.”).
One major strategy for protecting and promoting player health is to offer
them the appropriate type and amount of injury-reducing equipment.
For this reason, equipment manufacturers play an important role in
player health.
In order to ensure that this chapter was as accurate and valuable as
possible, we invited two leading equipment manufacturers, Riddell and
Schutt, as well as the National Operating Committee on Standards
for Athletic Equipment (NOCSAE), described below, to review a draft
version of this chapter prior to publication. All three reviewed the
chapter and provided comments.
Equipment Manufacturers
Chapter 16
364. \ Protecting and Promoting the Health of NFL Players
( A ) Background
The football equipment market is dominated by Riddell
and Schutt, each of which hold at least a 45 percent share
of the football equipment market,
1
across all levels of
football. Riddell and Schutt offer all pads necessary for
the game of football, including but not limited to helmets,
faceguards, chin straps, mouth guards, shoulder pads,
hip pads, thigh pads, knee pads, and rib pads.
2
Adams,
another manufacturer of football equipment, was sold to
Schutt’s parent company, in 2014.
3
Additionally, Rawl-
ings, also once a manufacturer of football equipment,
announced in 2015 that it was leaving the market.
4
Xenith
is seemingly one of the lone competitors left to Riddell
and Schutt, though it only manufactures helmets and
shoulder pads.
5
The equipment manufacturers have not surprisingly had
important interactions with the NFL. In 1988, the NFL
and Riddell entered into an agreement without duration
whereby Riddell provided free helmets, pads, and jerseys to
all NFL clubs in exchange for Riddell receiving the exclu-
sive right to display its logo on NFL helmets.
6
Players were
still nonetheless free to wear a helmet from any manufac-
turer, provided it met NFL standards.
7
Schutt unsuccessfully
challenged the NFL-Riddell agreement as a violation of
antitrust laws.
8
After litigation was initiated against both
the NFL and Riddell concerning concussions (see Chap-
ter 7: The NFL and NFLPA), the NFL renegotiated the
agreement to conclude with the 2013 season.
9
Following
the expiration of NFL’s deal with Riddell, the NFL said it
would no longer have an official helmet sponsor.
10
Simi-
larly, the NFL does not have an official equipment spon-
sor. Players are permitted to wear whatever equipment
they like, provided it meets NOCSAE standards, as will be
discussed below.
For many years, the helmet manufacturers have attempted
to develop helmets that reduced the risks of concussions —
and market them accordingly — even though it is question-
able to what extent helmets can actually reduce the risk
of concussions.
11
In comments provided after reviewing
a draft of this chapter, Schutt CEO Robert Erb described
the challenges of reducing the incidence of concussion
as follows:
[W]hat is happening inside the skull, with the
brain suspended in cerebrospinal fluid, is an
extraordinarily complex event. There is an infinite
array of possible trajectories and circumstances at
the point of impact in a game of football, including
field conditions, position played, girth and length
of neck, medical history, whether one saw the hit
coming, temperature, altitude, genetic make-up,
area struck, type of turf, helmet implements and
accessories, mass, speed, velocity of impact, fit of
the helmet, etc., etc.
Indeed, the competition in the equipment manufacturer
industry and the concerns about concussions have made the
equipment manufacturing industry a challenging landscape.
Riddell’s development and marketing of the Revolution
football helmet is a helpful example.
In 2002, Riddell provided a grant to be used to partially
fund a study at the University of Pittsburgh Medical
Center (UPMC) of Riddell’s recently released Revolution
helmet.
12
The study was designed to compare the concus-
sion rates and recovery times for athletes wearing Riddell’s
Revolution helmet compared to athletes wearing older
model helmets manufactured by both Riddell and its com-
petitors.
13
The study was conducted by Micky Collins and
Mark R. Lovell, co-owners of ImPACT, the leading concus-
sion diagnostic tool which was used to measure recovery
time from concussion during the study.
14
The study took three years and examined 2,141 high school
football players: 1,173 using Revolution helmets and 968
using other helmets.
15
The authors found 5.3 percent of
players using Revolution helmets suffered concussions as
compared to 7.6 percent of players using other helmets.
16
The authors described the difference as “statistically signifi-
cant” and said the results “demonstrated a trend toward
a lowered incidence of concussion” but that the “limited
sample size precludes a more conclusive statement of find-
ings at this time.”
17
The study also highlighted that there
was a 31 percent decreased relative risk for athletes wearing
the Revolution helmet, comparing the 5.3 percent and 7.6
percent concussion rates.
18,a
Riddell seized on that last statistic and began to advertise
that the Revolution helmet reduced the risk of concussion
by 31 percent.
19
Although this percentage improvement is
technically accurate, the more relevant number in practice
(or to players) is likely the absolute reduction in concussion
rates, which was only 2.3 percent. Riddell also expanded
the claim to all of its helmets even though they had not
been a part of the study.
20
As part of a patent lawsuit brought by Riddell against
Schutt, Schutt counterclaimed, alleging Riddell had violated
state and federal false advertising laws by claiming that
a When providing comments for this Report, Riddell highlighted the fact that the UPMC
study authors extrapolated that, if 1.5 million high school students participate in
football each year, the risk reduction found with the Revolution helmet could theo-
retically mean 18,600–46,500 less concussions per year. Letter from Brian P. Roche,
General Counsel, Riddell, Inc., to authors (Apr.28, 2016) (on le with authors).
Part 6 \ Chapter 16 \ Equipment Manufacturers 365.
Revolution helmets decreased the risk of concussion by 31
percent.
21
The United States District Court for the Western
District of Wisconsin ultimately granted Riddell summary
judgment,
b
finding that Riddell’s claim that “technology”
used in its helmets had been “shown to reduce the incidence
of concussion” was not “literally false” as required to state
a claim.
22
The 31 percent statistic has also been the subject of other
litigation. In at least three cases brought by consumers
(none of whom were NFL players), the plaintiffs alleged
that Riddell’s use of the 31 percent figure was misleading.
23
All three cases are ongoing as of the date of publication.
24
In two court decisions thus far, courts found that the 31
percent statistic could be considered misleading if it was
used in advertising helmets that were not involved in the
UPMC study.
25
However, Riddell’s claims also caught the attention of the
Federal Trade Commission (FTC). The FTC investigated
Riddell and concluded that the UPMC study “did not prove
that Revolution varsity football helmets reduce concussions
or the risk of concussions by 31%.”
26
The FTC neverthe-
less did not sanction Riddell since the company had already
discontinued using the 31 percent statistic in marketing.
27
According to Riddell, it ceased using the statistic because it
was no longer relevant — the helmets that the Revolution
helmet had been compared to in the UPMC study “had
largely been phased out of the market.”
28
Notwithstanding the FTC’s conclusion about Riddell’s
characterization of the UPMC study, the Revolution helmet
has in other research been shown to reduce the risk of
concussions as compared to older model helmets. A 2014
study determined that 2.82 percent of a population of col-
lege football players wearing a Revolution helmet suffered
a concussion, as compared to 4.47 percent of players using
an older Riddell model.
29
The study, like the UPMC study,
found this difference to be statistically significant.
30
Perhaps counterintuitively, there has been an ongoing
debate about whether the best way to improve player
health is for players to wear less equipment. Coaches, com-
mentators and others have long lamented that the helmet
and shoulder pads are often used as a weapon by would-be-
tacklers, offering the first and hardest blow to ball carri-
ers.
31
Although the NFL has recently increased the penalties
for plays on which a player delivers a forcible blow with
the top or crown of the helmet,
32
the helmet arguably still
b Summary judgment is “[a] judgment granted on a claim or defense about which
there is no genuine issue of material fact and on which the movant is entitled to
prevail as a matter of law.” Black’s Law Dictionary (9th ed. 2009).
provides players with a level of protection that enables
them to play the game with a degree of reckless abandon.
33
A recent rule changes provides a relevant example. In 2013
the NFL reinstated a rule requiring players to wear thigh
and knee pads.
34
One might then have expected a reduc-
tion in contusions to the hips, thighs and knees that season.
However, no such reduction occurred. During the 2013
season, there were 61 reported contusions to these areas.
35
In the four prior seasons, there was a mean of 55.75 contu
-
sions to these areas.
36
To be fair, this change was taking
place simultaneously with other changes, confounding any
strong causal inference, but it does give a reason to resist
the assumption that more equipment necessarily equals
fewer injuries.
Also of note, the NFL does not mandate the use of mouth
guards,
37
despite some but still disputed evidence that
mouth guards can help prevent concussions.
38
Attached as Appendix J is a timeline of equipment-related
events and policies in the NFL.
( B ) Current Legal Obligations
c
The principal source of equipment manufacturers’ legal
obligations is products liability law.
39
Products liability is
an area of tort law, which can vary from state to state. The
American Law Institute publishes “Restatements of the
Law,” which are useful summaries of general principles
about various areas of law. According to the Restatement
of the Law Third, Torts: Products Liability, a manufacturer
of consumer products, such as sports equipment, has a duty
not to cause personal injury as a result of:
1. selling or distributing products which contain
manufacturingdefects;
40
2. selling or distributing products which are defective
indesign;
41
3. selling or distributing products without adequate instructions
or warnings;
42
4. misrepresenting a material fact concerning the product;
43
5. failing “to provide a warning after the time of sale or distribu-
tion of a product if a reasonable person in the seller’s position
would provide such a warning”;
44
and
6. failing to recall harmful products.
45
c The legal obligations described herein are not an exhaustive list but are those we
believe are most relevant to player health.
366. \ Protecting and Promoting the Health of NFL Players
While the above list addresses an equipment manufacturers’
principal legal obligations concerning player health, it is not
an exhaustive list. For example, equipment manufacturers
could potentially be subject to liability for common law
fraud claims, for violating consumer protection statutes, or
for misrepresenting their products.
Although every state legislature has passed a law concern-
ing the treatment of concussions in youth athletes (see
Part 7: Interested Parties, Section 3: Governments), there
are no federal or state laws directly governing athletic
equipment standards.
46
The safety standards for athletic equipment that currently
exist are almost exclusively determined by the National
Operating Committee on Standards for Athletic Equipment
(NOCSAE). NOCSAE is a non-profit organization with
the stated purpose of improving athletic equipment and
reducing injuries through equipment standards.
47
NOCSAE
was formed in 1969 in response to more than 100 high
school and college football players killed by skull fractures
and acute brain bleeding during the 1960s.
48
NOCSAE’s
Board of Directors consists of representatives from the
American Academy of Pediatrics, American College
Health Association, American College of Sports Medicine,
American Football Coaches Association, American Medical
Society for Sports Medicine, American Orthopaedic
Society for Sports Medicine, Athletic Equipment Managers
Association, National Athletic Equipment Reconditioners
Association, National Athletic Trainers Association, and
the Sports & Fitness Industry Association.
49
Today, NOCSAE sets general safety standards for equip-
ment in all sports while also providing specific guidance
for baseball, softball, football, hockey, lacrosse, polo, and
soccer.
50
Equipment manufacturers themselves and not
NOSCAE are responsible for testing their equipment and
evaluating compliance with the NOSCAE standards.
51
Compliance with NOCSAE standards must then
be confirmed by the Safety Equipment Institute, an
independent organization that specializes in testing and
certifying personal protective equipment.
52
If the equip-
ment complies, the equipment manufacturer may place a
NOCSAE trademarked logo on the equipment indicating
that it meets NOCSAE standards.
53
NOCSAE’s funding is derived from manufacturers’ use of
the NOCSAE logo as a symbol of certification.
54
NOCSAE
enters into licensing agreements with sports equipment
manufacturers whereby the manufacturers are permit-
ted to place the NOCSAE logo on its equipment provided
the equipment meets NOCSAE’s standards.
55
The licens-
ing agreements also impose ongoing quality control and
assurance requirements on the manufacturers.
56
If the
equipment does not meet NOCSAE standards, then the
manufacturer cannot use the NOCSAE logo, and presum-
ably, NOCSAE does not receive any licensing money from
the manufacturer.
d
Certainly a significant portion of NOCSAE’s work has
been related to football helmets and concerns about con-
cussions. In reviewing a draft of this chapter, NOCSAE
made three points it identified as framing its approach to
these matters:
1. There is no concussion specic helmet standard in the world,
in ANY activity, sport or otherwise.
2. There is no scientic consensus as to what a concussion
performance standard should incorporate as a pass/fail
injurythreshold.
3. Ethical standards for personal protective equipment must be
based on consensus science, must be feasible and effective,
and must not create a new risk of injury or increase the risk
of injury in other areas.
57
NOCSAE has two standards relevant to football helmets.
First, NOCSAE has a standard that governs helmets in
sports generally, known as the ND001 standard.
58
Second,
NOCSAE has a standard governing football helmets specifi-
cally, known as the ND002 standard.
59
The ND002 stan-
dard is subject to any changes made to the broader ND001
standard.
60
While some have suggested that NOCSAE’s
standards have not meaningfully changed over time,
61
in
reviewing this chapter, NOCSAE strongly disagreed.
62
d According to NOCSAE, since 1996 it has funded more than $8 million of independent
research at universities concerning equipment safety. Letter from Mike Oliver,
Executive Director/General Counsel, NOCSAE, to authors (Apr.28, 2016) (on le
withauthors).
The safety standards for athletic
equipment that currently exist are
almost exclusively determined by
the National Operating Committee
on Standards for Athletic
Equipment(NOCSAE).
Part 6 \ Chapter 16 \ Equipment Manufacturers 367.
Indeed, a review of the relevant standards demonstrates
that the ND001 standard has been substantively revised
16 times since it was first published in 1973, and the
ND002 standard has been revised 3 times since it split
from the ND001 standard in 1998.
63
Nevertheless, we are
not engineers or scientists and thus we cannot opine on
the significance of these revisions. Finally, it is important
to understand that NOCSAE’s standards are performance
standards — they measure the helmet’s ability to withstand
certain physical forces — they do not specify materials
or design.
64
Under NOCSAE’s standard, the football helmet is
placed on a synthetic head model that is filled with
glycerin and fitted with various measuring instru-
ments. The head model fitted with the helmet is
then dropped sixteen times onto a polymer anvil
with two of the drops from a height of sixty inches
onto six different locations of the helmet at vary-
ing temperatures determined by NOCSAE to simu-
late different potential game temperatures. After
each drop a “Severity Index,” which measures
the severity of the impact absorbed by the head
model at the moment of impact, is determined.
Helmets are graded on a pass-fail basis, and the
helmets that pass are those meeting an acceptable
Severity Index.
65
In June 2014, NOCSAE proposed a new standard that
would include rotational forces into the analysis for
football helmets.
66
The proposed standard was open for
comment through June 2015 with NOCSAE scheduled to
vote on its adoption in 2016.
67
Again, we lack the scientific
expertise to opine on the appropriateness of NOCSAE’s
standards.
e
Nevertheless, a report by the National Acad-
emy of Sciences on youth concussions, citing NOCSAE’s
research into rotational forces, suggested that NOCSAE’s
standards are at the forefront of the science in evaluating
the efficacy of helmets.
68
The Consumer Product Safety Commission (CPSC), the
federal agency responsible for regulating the safety of thou-
sands of consumer products,
69
does not have any standards
for football helmets.
70
Indeed, in 1980 the CPSC denied
a petition requesting it set standards for football helmets
“to reduce the risks of head, neck, and spinal injuries,”
citing voluntary standards and purported decreasing injury
e In reviewing a draft of this chapter, NOCSAE stated that its standards for football
helmets, including third-party certication, exceed those set by the Consumer Prod-
uct Safety Commission for bicycle helmets and by the Department of Transportation
for motorcycle helmets. Letter from Mike Oliver, Executive Director/General Counsel,
NOCSAE, to authors (Apr.28, 2016) (on le with authors). We lack the scientic
expertise to evaluate NOCSAE’s statement.
rates.
71
In 2011, New Mexico Senator Tom Udall proposed
the Children’s Sports Athletic Equipment Safety Action that
would have required the CPSC to develop standards for
football helmets, mandate third-party testing of youth foot-
ball helmets, and instruct the Federal Trade Commission to
regulate the manner in which helmet manufacturers adver-
tise the safety specifications of their products.
72
However,
the bill was never enacted.
73,f
( C ) Current Ethical Codes
There are no known codes of ethics for sports
equipment manufacturers.
( D ) Current Practices
Equipment manufacturers have seemingly altered their
behavior due to the increased litigation and scrutiny, as
discussed above in the background to this chapter. For
example, in touting its new SpeedFlex helmet in 2014,
Riddell’s senior vice president for research and product
development was careful not to claim that the helmet could
help reduce concussions:
We’ll let the medical researchers weigh in on the
medical data around concussions, because that’s
kind of a moving target right now because of all
the things that are being learned[.] But what we
can do is try to reduce the forces of impact to
the player’s head. I think reducing those forces is
unequivocally a good thing.
74,g
f There is also the possibility (albeit unlikely) that football equipment, helmets in
particular, could be regulated by the Food and Drug Administration (FDA). The FDA
regulates “medical devices,” which includes, among many other things, “an instru-
ment, apparatus, implement, machine, contrivance, implant, in vitro reagent, or
other similar or related article, including a component part, or accessory which is . . .
intended for use . . . in the cure, mitigation, treatment, or prevention of disease, in
man[.]” What is a Medical Device?, U.S. Food and Drug Admin., http://www.fda.gov/
aboutfda/transparency/basics/ucm211822.htm (last visited Aug.7, 2015), archived
at http://perma.cc/VJ9Q-GCUH, quoting Federal Food Drug & Cosmetic Act (FDCA)
§ 201(h), 21 USC 321(h). To the extent that football equipment and helmets are
intended to prevent injuries and diseases, they appear to t within the denition of a
medical device. If the FDA chose to regulate football equipment, the manufacturers
would be subject to a variety of regulatory requirements, likely including registering
the product with the FDA, providing information to the FDA before the product can be
sold publicly, and providing accurate and descriptive labeling and literature concern-
ing the product. Overview of Device Regulation, U.S. Food and Drug Admin., http://
www.fda.gov/MedicalDevices/DeviceRegulationandGuidance/Overview/#labeling (last
visited Aug.7, 2015), archived at http://perma.cc/6A6M-SU55. Nevertheless, there is
no indication that the FDA is considering regulating football equipment and, as will be
discussed below, it appears that football equipment manufacturers are providing the
types of warnings that the FDA would likely require.
g Former Player 2 complained that equipment manufacturers were often misleading
about their products: “This helmet is supposed to be safer for your head, but then
you go hit somebody and you have a concussion. You’re saying ‘What the hell is
going on?’”
368. \ Protecting and Promoting the Health of NFL Players
Riddell’s website also now contains a wealth of informa-
tion, articles, and links concerning concussions,
75,h
all of
which would militate against claims that Riddell failed to
warn consumers about the risks of concussions. Similarly,
Schutt’s homepage contains a lengthy warning about the
risks of concussions that a visitor to the website must check
off as having “read and underst[ood]” before visiting any
other Schutt webpage.
i
At the current time, NOCSAE appears to be taking a
proactive approach in assessing whether equipment actu-
ally meets its standards. In December 2014, NOCSAE
announced that the two most popular lacrosse helmets on
the market did not meet NOCSAE standards.
76
The helmet
manufacturer quickly offered to increase the padding in
the helmets at no cost to the consumer, a modification
NOCSAE accepted.
77
Had it not made changes to the
helmets, the manufacturer would not have been able to
continue using the NOCSAE logo as evidence of its compli-
ance with NOCSAE standards.
78
In addition to NOCSAE, Virginia Tech has also pro-
vided valuable information concerning football helmets.
Since 2011, The Virginia Tech Department of Biomedical
Engineering and Mechanics has been evaluating helmets
using a series of biomechanical tests and assigning them
a rating from zero stars up to five stars based on the
helmet’s perceived ability to minimize the risk of concus-
sions.
79
The Virginia Tech ratings have become incredibly
important in the industry, as consumers are reluctant to
h In reviewing this chapter, Riddell indicated that since 1981 its helmets have
included a warning that “NO HELMET CAN PREVENT ALL HEAD OR NECK INJURIES
A PLAYER MIGHT RECEIVE WHILE PARTICIPATING IN FOOTBALL” and that improper
use of the helmet “can result in severe head or neck injuries, paralysis or death.” In
addition, Riddell indicated that beginning in 2002, its helmets have included warn-
ings that contact in football can result in “CONCUSSION-BRAIN INJURY” and advised
players not to “return to a game until all symptoms are gone and you have received
MEDICAL CLEARANCE.” Letter from Brian P. Roche, General Counsel, Riddell, Inc., to
authors (Apr.28, 2016) (on le with authors).
i The entire message reads:
WARNING
Scientists have not reached agreement on how the results of impact absorp-
tion tests relate to concussions. No conclusions about a reduction of risk or
severity of concussive injury should be drawn from impact absorption tests.
NO HELMET SYSTEM CAN PREVENT CONCUSSIONS OR ELIMINATE THE RISK OF
SERIOUS HEAD OR NECK INJURIES WHILE PLAYING FOOTBALL.
Keep your head up. Do not butt, ram, spear or strike an opponent with any part of
the helmet or faceguard. This is a violation of football rules and may cause you to
suffer severe brain or neck injury, including paralysis or death and possible injury to
your opponent. Contact in football may result in Concussion/BrainInjury which no
helmet can prevent. Symptons (sic) include loss of consciousness or memory, dizzi-
ness, headache, nausea or confusion. If you have symptoms, immediately stop and
report them to your coach, trainer and parents. Do not return to a game or contact
until all symptoms are gone and you receive medial (sic) clearance. Ignoring this
warning may lead to another and more serious or fatal brain injury.
NO HELMET SYSTEM CAN PROTECT YOU FROM SERIOUS BRAIN AND/OR NECK
INJURIES INCLUDING PARALYSIS OR DEATH. TO AVOID THESE RISKS, DO NOT
ENGAGE IN THE SPORT OF FOOTBALL.
See http://www.schuttsports.com/, archived at http://perma.cc/6K6F-PEU9.
buy anything that has not received five stars from Vir-
ginia Tech.
80
According to Virginia Tech, the research
“is done as part of Virginia Tech’s service mission and
is 100% independent of any funding or influence from
helmet manufacturers.”
81
( E ) Enforcement of Legal and
EthicalObligations
j
Players’ only recourse against equipment manufacturers is a
civil lawsuit.
Riddell, along with the NFL, is a defendant in the Con-
cussion Litigation, discussed at length in Chapter 7: The
NFL and NFLPA. The plaintiffs’ claims against Riddell are
summarized by the header to the section of the plaintiffs’
Complaint concerning Riddell: “The Riddell Defendants
Duty to Protect Against the Long-Term Risk of Concus-
sions.”
82
The plaintiffs alleged a variety of intentional and
negligent acts on the part of Riddell concerning the design,
manufacture, inspection, testing and warnings related to
Riddell helmets which allegedly caused plaintiffs to suffer
injuries. The plaintiffs further alleged that Riddell has never
“acknowledge[d] a link between repeat concussions and
later life cognitive problems” and that Riddell has “never
warned any Plaintiff or retired player of the long-term
health effects of concussions.”
83
In August 2012, Riddell sought to dismiss the plain-
tiffs’ claims arguing, like the NFL, that the claims were
preempted by the Labor Management Relations Act
(LMRA).
84
Common law claims such as negligence are
generally preempted by the LMRA.
85
The LMRA bars or
“preempts” state common law claims
k
where the claim is
“substantially dependent upon analysis of the terms” of a
CBA, i.e., where the claim is “inextricably intertwined with
consideration of the terms of the” CBA.”
86
Riddell argued that claims against it are subject to preemp-
tion “even though the Riddell Defendants were not parties
to the CBAs, because, as the Supreme Court has explained,
the doctrine of complete preemption barring state-law
claims ‘is more aptly expressed not in terms of parties but
in terms of the purpose of the lawsuit.’”
87
j Appendix K is a summary of players’ options to enforce legal and ethical obligations
against the stakeholders discussed in this Report.
k Common law refers to “[t]he body of law derived from judicial decisions, rather than
from statutes or constitutions.” Black’s Law Dictionary (9th ed. 2009). The concept
of “preemption” is “[t]he principle (derived from the Supremacy Clause [of the Con-
stitution] that a federal law can supersede or supplant any inconsistent state law or
regulation.” Id.
Part 6 \ Chapter 16 \ Equipment Manufacturers 369.
The NFL settled the Concussion Litigation in August
2013, approved by the United States District Court for the
Eastern District of Pennsylvania in April 2015,
88
and by
the United States Court of Appeals for the Third Circuit
in April 2016.
89
Riddell was not a party to the settlement
and has not reached any settlement of its own. Thus, the
Concussion Litigation continues as against Riddell.
Riddell’s argument that the LMRA preempts the claims
against it seems unlikely to succeed, if for no other reason
than it would leave players with no ability to enforce equip-
ment manufacturers’ obligations. Players cannot pursue
grievances against equipment manufacturers under the CBA
because the manufacturers are not parties to the CBA and
thus did not agree to arbitrate any such claims.
In addition, as mentioned above, Riddell is currently the
subject of several ongoing lawsuits brought by non-NFL
player consumers who, like the plaintiffs in the Concussion
Litigation, allege a variety of intentional and negligent acts
on the part of Riddell concerning the design, manufacture,
inspection, testing, warnings, and marketing related to
Riddell helmets that allegedly caused plaintiffs to suf-
fer injuries.
90
Schutt is also a defendant in at least one of
the lawsuits.
91
There is, however, one case against Schutt brought by an
NFL player that bears mentioning. In 2016, Ryan Mundy,
who played in the NFL from 2009 to 2014, sued Schutt
alleging that a defect in the helmet caused a laceration on
his forehead when he impacted another player.
92
Mundy
alleged that the laceration required 17 stitches and left him
with permanent scarring.
93
The lawsuit is ongoing as of the
date of publication.
Lastly, NOCSAE has minimal enforcement authority
against equipment manufacturers. As mentioned above,
NOCSAE can only prevent non-conforming equipment
from using the NOCSAE logo, substantially precluding the
product from being sold. Since all NFL equipment meets
NOCSAE standards, there is nothing more that NOCSAE
can do in offering players recourse.
Recommendations Concerning Club Doctors – continued
370. \ Protecting and Promoting the Health of NFL Players
( F ) Recommendations Concerning Equipment Manufacturers
It appears that equipment manufacturers are generally working to create the safest equipment possible. Equipment manu-
facturers for a variety of reasons (including both liability and brand image) have generally sought to make equipment safer
and the recent increased emphasis on player health and safety can only have accelerated that interest. We thus expect and
recommend that equipment manufacturers continue to invest in the research and development of safer equipment. Simi-
larly, at present time it appears equipment manufacturers have been more careful in ensuring they accurately convey the
benefits and limitations of their equipment. In this regard, equipment manufacturers should continue to do what they have
been doing and there is no need for formal recommendations.
NOCSAE has minimal enforcement authority against equipment manufacturers. As mentioned above, NOCSAE can only
prevent non-conforming equipment from using the NOCSAE logo, substantially precluding the product from being sold.
Since all NFL equipment meets NOCSAE standards, there is nothing further NOCSAE can offer in terms of player health,
other than continued research.
Considering the public interest at hand, football equipment might be an area where additional regulation would be appro-
priate. Nevertheless, it is unclear who might fill this role of regulating equipment manufacturers. One possibility is for the
Government, including the CPSC, to play a greater role in establishing and enforcing equipment standards. For this and
other reasons we have included the Government as an Interested Party in Part 7.
Endnotes
1 See Lisa Brown, Rawlings Chases Growth in Football Equipment, St.
Louis Post-Dispatch, Oct.27, 2013, http:// www .stltoday .com /business /
local /rawlings -chases -growth -in -football -equipment /article _06babb3c
-9483 -5115 -b42b -8e818693901c .html (last visited Aug.7, 2015),
archived at http:// perma .cc /MDR4 -YFFN (describing each company’s
market share as exceeding 40%); Lisa Brown, Rawlings Gaining Ground
in the Football Equipment Market, St. Louis Post-Dispatch, Sept.18,
2011, http:// www .stltoday .com /business /local /rawlings -gaining -ground
-in -the -football -equipment -market /article _69329d3b -dd8d -5079 -a9a9
-9cf8b473b832 .html (last visited Aug.7, 2015), archived at http:// perma
.cc /924L -C74G (describing Riddell and Schutt’s combined market share
as over 90%).
2 See Shop, RIDDELL, http:// www .riddell .com/ (last visited Aug.7, 2015);
Football, Schutt Sports, http:// www .schuttsports .com /aspx /sport /
ProductLanding .aspx ?sp =3 (last visited Aug.7, 2015), archived at
http:// perma .cc /HL4K -2EJE.
3 E-mail from Robert Erb, Chief Executive Ofcer, Kranos Corporation to
authors (Mar.16, 2016) (on le with authors).
4 Lisa Brown, End of the line for Rawlings’ football helmets, St. Louis Post-
Dispatch, June 21, 2015, http:// www .stltoday .com /business /local /end
-of -the -line -for -rawlings -football -helmets /article _c2a1a349 -104c -504e
-80d7 -ea37c7ddd951 .html, archived at https :/ /perma .cc /F98N -XUV5.
5 See Xenith Products, Xenith, www .xenith .com /products/ (last visited
Aug.7, 2015).
6 See Jenny Vrentas, The First Line of Defense, MMQB (Oct.22, 2013),
http:// mmqb .si .com /2013 /10 /22 /n -helmets -head -injury -concussion/,
archived at http:// perma .cc /WL9Q -7PXT (describing Riddell agreement
as “indenite”); see also Schutt Athletic Sales Co. v. Riddell, Inc., 727
F.Supp. 1220 (N.D.Ill. 1989) (dismissing Schutt’s claim that the NFL-
Riddell agreement violated antitrust law).
7 Letter from Brian P. Roche, General Counsel, Riddell, Inc., to authors
(Apr.28, 2016) (on le with authors).
8 See Schutt Athletic Sales Co. v. Riddell, Inc., 727 F.Supp. 1220
(N.D.Ill. 1989)
9 Darren Rovell, NFL, Riddell Ending Helmet Deal, ESPN, (Oct.25, 2013,
2:44 PM), http:// espn .go .com /n /story /_ /id /9875758 /n -end -ofcial
-helmet -deal -riddell -2013 –14 -season, archived at http:// perma .cc
/8LRU -CJHT.
10 Vrentas, supra note 6.
11 Steven Rowson et al., Can Helmet Design Reduce the Risk of Concus-
sion in Football? 120 J Neurosurgery 919 (2014) (“Although helmet
design may never prevent all concussions from occurring in football,
evidence illustrates that it can reduce the incidence of this injury.”);
Don Comrie et al., Letters to the editor: football helmet design and
concussion, 121 J.Neurosurgery 491 (2014) (criticizing the ndings of
the Rowson paper); Timothy A. McGuine, et. al., Protective equipment
and player characteristics associated with the incidence of sport-related
concussion in high school football players: a multifactorial prospective
study, 42 Am. J.Sports Med. 2470 (2014) (“Incidence of SRC [sport-re-
lated concussion] was similar regardless of the helmet brand (manufac-
turer) worn by high school football players. Players who had sustained
an SRC within the previous 12 months were more likely to sustain an
SRC than were players without a history of SRC.”).
12 Letter from Brian P. Roche, General Counsel, Riddell, Inc., to authors
(Apr.28, 2016) (on le with authors); Micky Collins et al., Examining
Concussion Rates and Return to Play in High School Football Players
Wearing Newer Helmet Technology: A Three-Year Prospective Cohort
Study, 58 Neurosurgery 275 (2006).
13 Id.; Riddell, Inc. v. Schutt Sports, Inc., 724 F. Supp. 2d 963, 967
(W.D.Wis. 2010).
14 Collins et al., supra n. 12.
15 Riddell, Inc. v. Schutt Sports, Inc., 724 F. Supp. 2d 963, 968
(W.D.Wis. 2010).
16 Id.
17 Id.
18 Id. 7.6% less 31% of 7.6% = approximately 5.3%.
19 Id.
20 Id. at 969.
21 See id. at 966.
Part 6 \ Chapter 16 \ Equipment Manufacturers 371.
22 Id. at 965.
23 See In re Riddell Concussion Reduction Litigation, 121 F. Supp.3d 402
(D.N.J. 2015); DuRocher v. Riddell, Inc., 97 F. Supp.3d 1006 (S.D. Ind.
2015); Midwestern Midget Football Club Inc. v. Riddell Inc., 15-cv-244,
2015 WL 4727438 (S.D. W. Va. Aug.10, 2015).
24 See Thiel v. Riddell, Inc., 13-cv-7585 (D.N.J.); DuRocher v. Nat’l Colle-
giate Athletic Ass’n, 13-cv-1570 (S.D. Ind.); Midwestern Midget Football
Club Inc. v. Riddell, Inc., 15-cv-244 (S.D. W. Va.).
25 See Memorandum Opinion and Order, Midwestern Midget Football Club
Inc. v. Riddell, Inc., 15-cv-244 (S.D. W. Va. June 17, 2016), ECF No. 78; In
re Riddell Concussion Reduction Litigation, 121 F. Supp.3d 402, 416–17
(D.N.J. 2015).
26 Mark Fainaru-Wada & Steve Fainaru, League of Denial: The NFL, Con-
cussions, and the Battle for Truth 316–317 (2013). The FTC’s investiga-
tion followed an October 19, 2011 hearing before the Senate Commerce
entitled “Concussions and the Marketing of Sports Equipment.” Id.
27 Id.
28 Letter from Brian P. Roche, General Counsel, Riddell, Inc., to authors
(Apr.28, 2016) (on le with authors).
29 Steven Rowson et al., Can Helmet Design Reduce the Risk of Concus-
sion in Football? 120 J.Neurosurgery 919 (2014).
30 Id.
31 See Stephen Chapman, Football Doesn’t Have to Resemble Battleeld
Footage, Chi. Trib., Oct.20, 1988, available at 1988 WLNR 1727333; Red
Smith, Headgear as a Weapon, N.Y. Times, Feb 23, 1981, http:// www
.nytimes .com /1981 /02 /23 /sports /red -smith -headgear -as -weapon .html,
archived at http:// perma .cc /2LJV -K2RQ.
32 David Barron, Football: Prevent Defense: From NFL Down, Sport is
Legislated to Create a Safer Playing Environment, Hous. Chron., Aug.18,
2013, available at 2013 WLNR 20617460.
33 To help teach players not to use their heads while making tackles,
the University of New Hampshire football team occasionally practices
without helmets. See Jenny Ventras, Helmetless Football? It’s the
New Practice at New Hampshire, MMQB, (Dec.4, 2014), http:// mmqb
.si .com /2014 /12 /04 /helmetless -football -practice -university -of -new
-hampshire/, archived at http:// perma .cc /6CBB -8Y5J.
34 Tom Pelissero, More Padding Mandatory in NFL, Protection of Knees,
Thighs Now Required, USA Today, July 12, 2013, available at 2013
WLNR 16937591.
35 Quintiles, NFL Injury Data Analysis (Feb.19, 2014) (on le with authors).
36 Id.
37 Jeffri Chadiha, 10 Steps to Make the Game Safer, ESPN, (Aug.30, 2012),
http:// espn .go .com /n /story /_ /id /8061129 /n -10 -steps -make -game
-safer (last visited Aug.7, 2015), archived at http:// perma .cc /E49Q
-A6SC.
38 See Daniel H. Daneshvar et al., Helmets and Mouth Guards: The Role
of Personal Equipment in Preventing Sport-Related Concussions, 30
Clinical Sports Med. 145 (2011), http:// www .bu .edu /cte /les /2011 /07
/Daneshvar -et -al .-Helmets -and -Mouth -Guards .-2011 .pdf, archived at
https :/ /perma .cc /Y3DR -UZU5 ?type =pdf (discussing conicting evidence
as to whether mouthguards help prevent concussions); Paul McCrory,
Do Mouthguards Prevent Concussions?, 35 Br. J.Sports Med. 81
(2001) (same).
39 “One engaged in the business of selling or otherwise distributing prod-
ucts who sells or distributes a defective product is subject to liability for
harm to persons or property caused by the defect.” Restatement (Third)
of Torts: Products Liability § 1 (1998).
40 A product “contains a manufacturing defect when the product departs
from its intended design even though all possible care was exercised in
the preparation and marketing of the product.” Restatement (Third) of
Torts: Products Liability § 2 (1998).
41 A product “is defective in design when the foreseeable risks of harm
posed by the product could have been reduced or avoided by the adop-
tion of a reasonable alternative design by the seller or other distribu-
tor, or a predecessor in the commercial chain of distribution, and the
omission of the alternative design renders the product not reasonably
safe.” Restatement (Third) of Torts: Products Liability § 2 (1998). This
denition has proven controversial and some states have adopted
alternative denitions. See Larry S. Stewart, Strict Liability for Defective
Product Design: The Quest for a Well-Ordered Regime, 74 Brook. L. Rev.
1039 (2009); Patrick Lavelle, Crashing Into Proof of a Reasonable Alter-
native Design: The Fallacy of the Restatement (Third) of Torts: Products
Liability, 38 Duq. L. Rev. 1059 (2000).
42 A product “is defective because of inadequate instructions or warn-
ings . . . when the foreseeable risks of harm posed by the product could
have been reduced or avoided by the provision of reasonable instruc-
tions or warnings by the seller or other distributor, or a predecessor in
the commercial chain of distribution, and the omission of the instruc-
tions or warnings renders the product not reasonably safe. Restatement
(Third) of Torts: Products Liability § 2 (1998).
43 “One engaged in the business of selling or otherwise distributing prod-
ucts who, in connection with the sale of a product, makes a fraudulent,
negligent, or innocent misrepresentation of material fact concerning the
product is subject to liability for harm to persons or property caused by
the misrepresentation.” Restatement (Third) of Torts: Products Liability
§ 9 (1998).
44 “A reasonable person in the seller’s position would provide a warning
after the time of sale if: (1) the seller knows or reasonably should know
that the product poses a substantial risk of harm to persons or property;
and (2) those to whom a warning might be provided can be identied
and can reasonably be assumed to be unaware of the risk of harm; and
(3) a warning can be effectively communicated to and acted on by those
to whom a warning might be provided; and (4) the risk of harm is suf-
ciently great to justify the burden of providing a warning.” Restatement
(Third) of Torts: Products Liability § 10 (1998).
45 “One engaged in the business of selling or otherwise distributing
products is subject to liability for harm to persons or property caused by
the seller’s failure to recall a product after the time of sale or distribu-
tion if: (a)(1) a governmental directive issued pursuant to a statute or
administrative regulation specically requires the seller or distributor
to recall the product; or (2) the seller or distributor, in the absence of
a recall requirement under Subsection (a)(1), undertakes to recall the
product; and (b) the seller or distributor fails to act as a reasonable
person in recalling the product.” Restatement (Third) of Torts: Products
Liability § 11 (1998).
46 See Jason Navia, Sitting on the Bench: The Failure of Youth Football Hel-
met Regulation and the Necessity of Government Intervention, 64 Admin.
L. Rev. 265 (2012) (discussing generally youth football helmet regulation
and proposed or possible legislation).
47 About NOSCAE, Nat’l Operating Comm. Standards for Athletic Equip-
ment, http:// nocsae .org /about -nocsae/ (last visited Aug.7, 2015),
archived at http:// perma .cc /J5DG -43JE.
48 Alan Schwarz, As Concussions Rise, Scant Oversight for Football Helmet
Safety, N.Y. Times, Oct.21, 2010, http:// www .nytimes .com /2010 /10
/21 /sports /football /21helmets .html ?pagewanted =all, available at
http:// perma .cc /2LJV -K2RQ.
49 NOCSAE Board of Diretors, Nat’l Operating Comm. Standards for Athletic
Equipment, http:// nocsae .org /board -of -directors/ (last visited May 2,
2016), archived at https :/ /perma .cc /5V87 -GJAN.
50 Standards — General, Nat’l Operating Comm. Standards for Athletic
Equipment, http:// nocsae .org /standards /general/ (last visited Aug.7,
2015), archived at http:// perma .cc /G9H4 -BKNY.
51 Id.
52 Letter from Mike Oliver, Executive Director/General Counsel, NOCSAE,
toauthors (Apr.28, 2016) (on le with authors); Letter from Brian P.
Roche, General Counsel, Riddell, Inc., to authors (Apr.28, 2016) (on le
with authors).
53 Standards — Statement on Shared Responsibilities, Nat’l Operating
Comm. Standards for Athletic Equipment, http:// nocsae .org /nocsae
-standard /statement -on -shared -responsibilities/ (last visited Aug.7,
2015), archived at http:// perma .cc /G9LB -526U; Letter from Mike Oliver,
372. \ Protecting and Promoting the Health of NFL Players
Executive Director/General Counsel, NOCSAE, to authors (Apr.28, 2016)
(on le with authors).
54 Letter from Mike Oliver, Executive Director/General Counsel, NOCSAE, to
authors (Apr.28, 2016) (on le with authors).
55 Id.
56 Id.
57 Letter from Mike Oliver, Executive Director/General Counsel, NOCSAE, to
authors (Apr.28, 2016) (on le with authors).
58 See NOCSAE, Standard Test Method and Equipment Used in Evaluating
the Performance Characteristics of Headgear/Equipment (Modied June
2015), available at http:// nocsae .org /standards /general (last visited
Apr.29, 2016).
59 See NOCSAE, Standard Performance Specication for Newly Manu-
factured Helmets (Modied June 2015), available at http:// nocsae .org /
standards /general (last visited Apr.29, 2016).
60 See id. at ¶ 1.2.
61 See Alan Schwarz, As Concussions Rise, Scant Oversight for Football
Helmet Safety, N.Y. Times, Oct.21, 2010, http:// www .nytimes .com /2010
/10 /21 /sports /football /21helmets .html ?pagewanted =all, available at
http:// perma .cc /2LJV -K2RQ (“The standard has not changed meaning-
fully since it was written in 1973”); Jason Navia, Sitting on the Bench:
The Failure of Youth Football Helmet Regulation and the Necessity of
Government Intervention, 64 Admin. L. Rev. 265, 269 (2012) (“NOCSAE’s
testing standards for football helmets have not changed since 1973”).
62 Letter from Mike Oliver, Executive Director/General Counsel, NOCSAE, to
authors (Apr.28, 2016) (on le with authors).
63 Id.
64 R. Graham et al., Sports-Related Concussions in Youth: Improving
the Science, Changing the Culture (2013), available at http:// www
.nationalacademies .org /hmd /Reports /2013 /Sports -Related -Concussions
-in -Youth -Improving -the -Science -Changing -the -Culture .aspx (last
visited Apr.29, 2016).
65 See Navia supra n. 61 at 276–77.
66 Gary Mihoces, New Helmet Standard To Address Concussion Prevention,
USA Today, June 20, 2014, http:// www .usatoday .com /story /sports /n
/2014 /06 /20 /helmets -safety -concussion -prevention -nocsae /11139183/,
archived at http:// perma .cc /M86U -EDUZ.
67 Id.
68 See Graham, supra n. 64 at 250 (“Advances in helmet test standards
that incorporate new methods and new injury criteria that evaluate
protection in both linear and rotational loading modes are needed before
real progress can be made on this issue. NOCSAE, to offer one example,
has research under way to develop such test protocols, but the limiting
factor may be having sufciently robust, age-dependent concussion
tolerance criteria with which to interpret the results of such tests.”)
69 About CPSC, U.S. Consumer Product Safety Comm., http:// www .cpsc
.gov /en /About -CPSC/ (last visited Aug.7, 2015), archived at http:// perma
.cc /RWB9 -RXD8.
70 Brooke de Lench & Lindsey Barton Straus, Standard-Setting by Non-
Governmental Agencies in the Field of Sports Safety Equipment: Promot-
ing the Interests of Consumers or Manufacturers?, 10 J.Bus. & Tech. L.
47, 47 n.3 (2015).
71 Football Helmets; Denial of Petition, 45 Fed. Reg. 63326
(Sept.24, 1980).
72 Jason Navia, Sitting on the Bench: The Failure of Youth Football Helmet
Regulation and the Necessity of Government Intervention, 64 Admin. L.
Rev. 265, 270 (2012).
73 H.R. 1127 (112th): Children’s Sports Athletic Equipment Safety Act,
GovTrack.us, https :/ /www .govtrack .us /congress /bills /112 /hr1127 (last
visited Aug.7, 2015), archived at https :/ /perma .cc /R9SQ -BWUS.
74 The Associated Press, In Race to Develop Safer Football Helmets, Many
Questions Remain, N.Y. Times, Aug.23, 2014, http:// www .nytimes .com
/2014 /08 /24 /sports /football /in -race -to -develop -safer -football -helmets
-many -questions -remain .html, archived at https :/ /perma .cc /2BYF -VJ5F.
75 See What is a Concussion?, Riddell, http:// www .riddell .com /
education#conclussion -tab (last visited Aug.7, 2015), archived at
http:// perma .cc /BEX2 -6YRP.
76 Mary Pilon, After 2 Helmets Are Decertied, Lacrosse Faces Safety Con-
cerns, N.Y. Times, Dec.5, 2014, http:// www .nytimes .com /2014 /12 /06
/sports /safety -organization -deems -popular -helmet -models -unsuitable
-for -play .html, archived at https :/ /perma .cc /5HDM -FYMK ?type =pdf.
77 Mary Pilon, Maker Agrees to Modify a Lacrosse Helmet That Was Decer-
tied, N.Y. Times, Dec.12, 2014, http:// www .nytimes .com /2014 /12 /13 /
sports /maker -agrees -to -modify -a -lacrosse -helmet -that -was -decertied
.html, archived at https :/ /perma .cc /S2U3 -Y5ZY ?type =pdf.
78 Letter from Mike Oliver, Executive Director/General Counsel, NOCSAE, to
authors (Apr.28, 2016) (on le with authors).
79 See Virginia Tech Helmet Ratings, Virginia Tech, http:// www .beam .vt .edu
/helmet /index .php (last visited May 9, 2016), archived at https :/ /perma
.cc /GJ9H -67UY.
80 Bryan Gruley, The Truth About the Safety Ratings That Sell Football
Helmets, Bloomberg (Jan.28, 2015), http:// www .bloomberg .com /news /
features /2015 -01 -28 /the -controversial -safety -ratings -that -sell -football
-helmets, archived at https :/ /perma .cc /KM9B -PWXY.
81 See Virginia Tech Helmet Ratings, Virginia Tech, http:// www .beam .vt .edu
/helmet /index .php (last visited May 9, 2016), archived at https :/ /perma
.cc /GJ9H -67UY.
82 Plaintiffs’ Amended Master Administrative Long-Form Complaint at
p.76, In re Nat’l Football League Players’ Concussion Injury Litigation,
2:12-md-2323 (E.D.Pa. July 17, 2012), ECF No. 2642.
83 Id. at ¶¶ 395–96.
84 See Brief in Support of Riddell Defendants’ Motion to Dismiss Based on
LMRA § 301 Preemption, In re Nat’l Football League Players’ Concus-
sion Injury Litigation, 2:12-md-2323 (E.D.Pa. Aug.30, 2012), ECF
No. 3592-1.
85 U.S.C. § 185.
86 Allis-Chambers Corp. v. Lueck, 471 U.S. 202, 213, 220 (1985).
87 See Brief in Support of Riddell Defendants’ Motion to Dismiss Based
on LMRA § 301 Preemption at 2–3, In re Nat’l Football League Players’
Concussion Injury Litigation, 2:12-md-2323 (E.D.Pa. Aug.30, 2012), ECF
No. 3592-1, quoting Wooddell v. Int’l Bd. of Elec. Workers, 502 U.S. 93,
112 (1991).
88 In re Nat’l Football League Players’ Concussion Injury Litigation, 307
F.R.D. 351, 393 (E.D. Pa. 2015).
89 In re Nat’l Football League Players’ Concussion Injury Litigation, 821
F.3d 410 (3d Cir. Apr.18, 2016).
90 See, e.g., Thiel v. Riddell, Inc., 13-cv-7585 (D.N.J.); DuRocher v. Nat’l
Collegiate Athletic Ass’n, 13-cv-1570 (S.D. Ind.); Midwestern Midget
Football Club Inc. v. Riddell, Inc., 15-cv-244 (S.D. W. Va.).
91 DuRocher v. Nat’l Collegiate Athletic Ass’n, 13-cv-1570 (S.D. Ind.).
92 Complaint at Law, Mundy v. Kranos Corp. d/b/a Schutt Sports, 2016-L-
005166 (Ill. Cir. Ct. May 24, 2016).
93 Id.
The Media
a
Chapter 17
a
Today, the media takes on many forms, including traditional print
journalists in newspapers and magazines, television and radio network
broadcasters and reporters, and journalists who work for Internet-based
news sources, e.g., “blogs.” In discussing the media in this chapter, we
intend for the term to include all of the aforementioned individuals who
report news as a profession, i.e., get paid, as well as their employers.
1,b
The NFL and the media have an important and signicant relationship
that, as a result, makes the media a stakeholder in player health.
a The portions of this work related to media are the result of collaboration with John Afect, Knight Chair in Sports Journalism and
Society, Penn State University.
b We recognize that the line between “media” and “social media” is increasingly blurred these days. Nevertheless, we think issues
related to social media are properly addressed in Chapter 18: Fans.
374. \ Protecting and Promoting the Health of NFL Players
In order to ensure that this chapter was as accurate and
valuable as possible, we invited the Professional Foot-
ball Writers Association (PFWA) and the National Sports
Media Association (NSMA) to review a draft version of
this chapter prior to publication. Both groups declined
our invitation.
( A ) Background
The NFL currently has television broadcasting agreements
with ESPN, NBC, CBS, FOX, NFL Network, and DirecTV.
The NFL also has a radio broadcasting agreement with
Westwood One and, for at least the 2016 season, a stream-
ing agreement with Twitter.
2
In total, the broadcasting
agreements bring in approximately $7 billion in annual
revenue to the NFL
3
— 58 percent of the NFL’s approximate
$12 billion in total annual revenue.
4
The television networks pay the broadcast fees in response
to consumer demand. According to The Nielsen Company,
during the 2015 season, 46 out of the top 50 rated televi-
sion programs, including the top 25, were NFL games.
5
In
addition, more than 202 million Americans watched an
NFL game in 2014 — 68 percent of the country.
6
The networks also employ dozens of journalists, broadcast-
ers, and other on-air talent to support their NFL coverage.
All of the NFL’s television broadcasting partners (except
DirecTV) have pre-game shows consisting of various broad-
casters, journalists, former players, coaches, and executives.
Moreover, ESPN dedicates more than 23 hours of shows
each week (not including SportsCenter) exclusively to the
NFL during the season, and even created a 90,000 square
foot studio exclusively for its NFL coverage.
7
In addition to the television media, the PFWA consists of
hundreds of writers who cover the NFL on a regular basis.
8
These writers consist of traditional journalists as well as
those who work for online news organizations.
To assist the media’s coverage, the NFL has a robust Media
Relations Policy requiring players and coaches to make
themselves available to the media and for practices to
generally be open to the media.
9
Players diagnosed with
concussions are excused from speaking with the media until
they have cleared the Concussion Protocol (see Appendix
A).
10
Players nonetheless do not always cooperate with
the Media Relations Policy. In 2014, Seattle Seahawks
running back Marshawn Lynch was fined $100,000 for
refusing to speak to the media.
11
When he did speak, Lynch
repeated the same non-responsive phrases over and over,
such as “thanks for asking”
12
or “I’m just here so I won’t
get fined.”
13
Below, we discuss the media and its historical treatment of
player health matters before moving to a discussion of the
NFL’s Injury Reporting Policy.
1 ) THE MEDIA AND ITS HISTORICAL
TREATMENT OF PLAYER HEALTH
Media have been reporting on injuries since the NFL’s
inception. At the same time, reporters have also been
praising players who played through injuries for just as
long. The Chicago Daily Tribune’s coverage of the NFL
champion 1940 Chicago Bears provides some descriptive
examples. In the account of a key victory that season, the
Bears’ 14–7 win over the Green Bay Packers, writer George
Strickler declared “the story of the game is written in the
second half, when [the Bears’ George] Swisher leaped from
the bench incased (sic) in tape that protected his recently
fractured ribs and brought the breath out of a record-
breaking crowd of 45,434[.]”
14
The article went on to
praise Packers fullback Clark Hinkle, “who played a good
share of the contest with a back injury that would have
kept him out of any game except one with the Bears.”
15
About a month later, Strickler’s preview of the champi-
onship matchup between the Bears and the Washington
football club devoted a paragraph to Swisher, who had an
injured heel but was declared set to play, and to two injured
Washington players.
16
The converse of this praise is that members of the media
have also been willing to criticize those players they believe
lack toughness,
17
not an uncommon occurrence.
The introduction of television created a powerful new way
for fans, through the media, to experience NFL football.
For example, in 1960, CBS created a documentary called
The Violent World of Sam Huff, a New York Giants
linebacker. Huff wore a microphone during a game for the
documentary, which was narrated by Walter Cronkite.
18
Perhaps one of the most important events in the media’s
coverage of the NFL occurred with the creation by Ed Sabol
of a small film company that would later become NFL
Films, an NFL-controlled corporation. NFL Films created
widely acclaimed highlight films using dramatic music, slow
motion, and live microphone recordings of players and
coaches. In addition, NFL Films excelled at glorifying the
violence of the game and toughness of the players.
19
Former
NFL Films President Steve Sabol once described NFL Films’
work as “movie making perfectly matched to the grace and
the beauty and the violence of pro football.”
20
Part 6 \ Chapter 17 \ The Media 375.
Beginning in 2003,
21
ESPN introduced a segment called
“Jacked Up” which also glorified the violence of the game.
The segment aired prior to Monday Night Football each
week with former player and broadcaster Tom Jackson
replaying the weekend’s biggest and most ferocious hits
while all of the announcers yelled in unison that the player
receiving the hit had “got JACKED UP!”
22
The segment
was discontinued after the 2008 season
23
after criticism
from both the media
24
and fans.
25
2 ) THE NFL’S INJURY REPORTING POLICY
A key component of the media’s relationship to player
health is the NFL’s “Personnel (Injury) Report Policy”
(“Injury Reporting Policy”). The Injury Reporting Policy
requires each club to report information on injured players
to both the NFL and the media each game week (“Injury
Report”).
26
The stated purpose of this reporting is “to
provide a full and complete rendering of player availabil-
ity” to all parties involved, including the opposing team,
the media, and the general public. According to the NFL,
the policy is of “paramount importance in maintaining the
integrity of the NFL,”
27
i.e., preventing gambling on inside
information concerning player injuries.
c
The Injury Report is a list of injured players, each injured
player’s type or location of injury, and the injured play-
er’s status for the upcoming game. Each injury must be
described “with a reasonable degree of specificity,”
28
e.g.,
ankle, ribs, hand or concussion. For a quarterback’s arm
injury or a kicker’s or punter’s leg injury, the description
must designate left or right. Historically, the player’s status
for the upcoming game was classified into four categories:
Out (definitely will not play); Doubtful (at least 75 percent
chance will not play); Questionable (50-50 chance will not
play); and, Probable (virtual certainty player will be avail-
able for normal duty).
29
In 2016, the NFL changed the classifications for player
injuries by: (1) eliminating the probable designation; (2)
changing the definition of “questionable” to “uncertain as
to whether the player will play in the game”; (3) changing
the definition of “doubtful” to “unlikely the player will
participate”; and, (4) only using the “out” designation
two days before a game.
30
The Injury Report also indicates
whether a player had full, limited, or no participation in
practice, whether due to injury or any other cause (e.g.,
team discipline, family matter, etc.).
31
c For more information on gambling and the NFL see Chapter 18: Fans.
Clubs must issue an Injury Report after practice each
Wednesday, Thursday, and Friday of game week. If there
are any additional injuries after the Friday deadline, the
club must report these injuries to the NFL, the club’s
opponent, the televising network, and the local media on
Saturday and Sunday.
32
The Injury Reporting Policy dictates that all injury reports
be “credible, accurate, and specific within the guidelines of
this policy.” In “unusual situations,” clubs are requested to
contact the League’s Public Relations Office, and when in
doubt, clubs should include a player in the Injury Report.
Clubs and coaches that violate the policy are subject to dis-
ciplinary action. If a player with a game status of “Doubt-
ful” plays, the club must provide a written explanation to
the NFL within 48 hours.
33
Despite the enforcement system and disciplinary action for
abuse (typically fines of $5,000 to $25,000
34
), many in the
media along with coaches and players have questioned the
Injury Report’s accuracy and value. A 2007 USA Today
analysis of two-and-a-half seasons of Injury Reports found
a high variance in the number of injuries reported by teams,
with 527 reported by the Indianapolis Colts versus just
103 by the Dallas Cowboys; interviews with coaches sug-
gested that the different philosophies of coaches to report
even minor injuries versus only major injuries accounted
for this variance.
35
In the same article, former Pittsburgh
Steelers coach Bill Cowher was quoted as saying that he
deliberately changed the location of injuries (e.g., report-
ing hip instead of knee) to protect his players from having
their injuries targeted by opponents.
36
Baltimore Ravens
head coach Jim Harbaugh, after being fined for not listing
an injured player in 2012, told the media that “[t]here’s
no credence on the injury report now. . . . It doesn’t mean
anything. It has no value.”
37
In March 2014, two former
players on the New England Patriots stated that head coach
Bill Belichick filed inaccurate and false injury reports.
38
Many in the media have referred to the Injury Report as a
“game” or “joke.”
39
Finally, some believed that the 2016
changes to the injury reporting policy allowed for even
more gamesmanship.
40
Possibly due to the potential for
fines for misreporting injuries on the Injury Report, many
clubs have policies prohibiting players from speaking to the
media about injuries.
41
376. \ Protecting and Promoting the Health of NFL Players
( B ) Current Legal Obligations
d
Traditionally, the media’s main legal obligations toward the
individuals it covers are explained in terms of defamation
law. Defamation is “[t]he act of harming the reputation of
another by making a false statement to a third person.”
42
Slander is the spoken form of defamation while libel is
the written form.
43
A public figure, which would likely
include any NFL player,
44
must prove that the reporter
alleged to have committed defamation acted with “actual
malice.”
45
Actual malice is generally established where the
reporter knew the statement was false or acted with reck-
less disregard of whether the statement was false or not.
46
Thus, media members generally have a legal obligation
to work diligently to ensure the accuracy of their reports
concerning public figures, including NFL players. Beyond
these generalized obligations, there do not appear to be any
specific relevant legal obligations that the media has as to
NFL players.
( C ) Current Ethical Codes
The principal source of media ethical obligations comes
from the Society of Professional Journalists (SPJ), a vol-
untary organization of nearly 10,000 members.
47
The SPJ
Code of Ethics includes 35 specific obligations, separated
into the following categories: Seek Truth and Report It;
Minimize Harm; Act Independently; and, Be Accountable
and Transparent.
48
The principles most relevant to NFL
players include:
Ethical journalism treats sources, subjects, col-
leagues and members of the public as human
beings deserving of respect.
***
Balance the public’s need for information against
potential harm or discomfort.
***
Weigh the consequences of publishing or broad-
casting personal information.
The PFWA does not have a Code of Ethics but does include
as one of its stated purposes “[t]o practice and advance
the concepts of professional journalism while using verifi-
able facts, proper attribution and an objective, appropriate
perspective in order to inform and enlighten the public in a
credible manner.”
49
d The legal obligations described herein are not an exhaustive list but are those we
believe are most relevant to player health.
( D ) Current Practices
Media attention and interest concerning player health
and safety has certainly increased in recent years. On the
one hand, numerous news articles discussed and cited
in this Report brought important attention to player
health issues and increased scrutiny of current practices.
At the same time, the media’s interest in player injury
information for reasons unrelated to player health has
increased dramatically.
Perhaps the biggest contributing factor to increased media
attention to player injuries is fantasy football. As is dis-
cussed in more detail in Chapter 18: Fans, tens of millions
of NFL fans play fantasy football with billions of dollars at
stake. An essential component of fantasy football success is
the health of the players on the fan’s fantasy football roster.
Media companies have responded with a variety of items to
assist fans. For example, ESPN has a website called “Injury
Central” which tracks injuries to key fantasy players,
50
and
CBS Sports partnered with a web application called “Sports
Injury Predictor” which is supposed to help fans determine
whether a player is likely to get injured.
51
Additionally,
every Sunday morning during the season, ESPN broadcasts
a two-hour fantasy football show called “Fantasy Football
Now.” The program includes live updates from report-
ers on players’ health statuses while also debating which
players will “benefit” from the injury to another player.
52
Another frequent topic of debate among fantasy football
media is whether fans can “trust” a player and his health.
53
Finally, ESPN employs Stephania Bell, “a physical therapist
who is a board-certified orthopedic clinical specialist” to
provide analysis of player injuries, specifically as they relate
to fantasy football.
54
As is discussed in more detail in Chapter 18: Fans, Sec-
tion D: Current Practices, some have argued that fantasy
football commoditizes and depersonalizes the players.
55
The
reason is that media and fan focus is not on the health of
players as human beings, but the health of the player as a
replaceable unit in a gambling game. For example, when
Carolina Panthers quarterback Cam Newton was in a
major car crash during the 2014 season, fans quickly took
to social media asking what the car crash meant for their
fantasy football team.
56
Another important factor in the media’s coverage of players
and their health is the increasingly intense 24/7 news cycle.
With the rapid demand for and consumption of news, jour-
nalists may not have sufficient time to verify the details of a
Part 6 \ Chapter 17 \ The Media 377.
story. If they do, they risk being scooped by competing
news outlets. Moreover, news is no longer delivered by
a predictable group of traditional news outlets. A large
number of websites and Twitter users pass along rumors
and other stories about players, many of which make it
into the mainstream media as “news.” Additionally, several
top sports media organizations have websites specifically
devoted to “rumors,” including ESPN,
57
FOX Sports’
Yardbarker,
58
and NBC Sports’ ProFootballTalk.
59
National
Football Post, another well-read NFL-specific website,
includes a column called “The Training Room,” written by
former San Diego Chargers Club doctor Dr. David Chao.
60
On a weekly basis, Chao speculates on the diagnosis,
prognosis, and treatment of player injuries. Of note, Chao
resigned as the Chargers Club doctor in 2013 after a series
of negative incidents, including a complaint by the NFLPA
(see Chapter 2: Club Doctors).
An example of the intense interest in player health infor-
mation occurred during the 2015 offseason when Giants
defensive end Jason Pierre-Paul suffered a hand injury that
resulted in the amputation of one of his fingers. While
Pierre-Paul was in the hospital and the status of his hand
still uncertain, ESPN reporter Adam Schefter Tweeted a
photo of a hospital surgical record showing that Pierre-
Paul’s finger was to be amputated.
61
Despite criticism for
posting the picture of Pierre-Paul’s medical records, ESPN
and Schefter defended the Tweet as part of the normal
reporting of player injuries.
62
In February 2016, Pierre-Paul
sued ESPN and Schefter, alleging they had violated Florida
medical confidentiality and privacy laws. In August 2016,
the United States District Court for the Southern District
of Florida denied ESPN and Schefter’s motion to dismiss,
finding that Pierre-Paul had properly pled a claim for
invasion of privacy.
63
The case is ongoing as of the date of
this publication.
Prior to the 2014 season, Green Bay Packers star quarter-
back Aaron Rodgers lamented the intense interest in player
injuries and its effect on players:
TMI. There’s too much information out there[.]
There’s too much exposure and, at times, undue
pressure on players and coaching staffs to play
now, win now. Just too much access.
64,e
e Perhaps as further support for Rodgers’ complaint, in July 2014, the satirical news
organization The Onion ran a story with the following headline: “Report: Majority
of Football Fans Better Informed On Health of NFL Players Than Parents.” Report:
Majority of Football Fans Better Informed on Health of NFL Players Than Parents, The
Onion (July 29, 2014), http://www.theonion.com/article/report-majority-of-football-
fans-better-informed-o-36565, archived at http://perma.cc/GJY6-AX2F.
Players we interviewed echoed these concerns:
f
• Current Player 4: “I think at times [the media’s coverage of
player health issues] could be pretty hurtful . . . . Their job is
to get as much information as possible and you, as a player,
don’t necessarily want all your business being published in
anarticle.”
• Current Player 5: “I think for the most part the media usually
doesn’t know what they’re talking about. In sports reporting, I
think there’s a very low bar for accuracy. So I think in general
that they don’t do a very good job of drawing attention to
player safety or reporting the facts.”
• Former Player 2: “I don’t know how accurate [the club is]
giving proper information to the media . . . , so I wouldn’t say
[the media is] that accurate . . . . I would say 60 percent con-
dence that anything the media reports on injuries is true.”
g
Clubs and the NFL have also placed considerable pressure
on the way the media covers the NFL. The NFL and the
clubs have websites that employ writers to cover the clubs.
Not surprisingly, these writers receive greater access to the
clubs, the League, coaches and players than unaffiliated
writers, and often write stories favorable to the clubs or
League. Additionally, NFL clubs often have public relations
staff that monitors or shadows the media during interviews
and news conferences. If a journalist writes articles unfa-
vorable to the club, the club might reduce that journalist’s
access to the club, its coaches, and players.
65
Similarly,
when reporter Albert Breer left NFL Network in 2016, he
explained that, while with NFL Network, he was prevented
or discouraged from reporting on stories problematic for
the NFL.
66
f We reiterate that our interviews were intended to be informational but not represen-
tative of all players’ views and should be read with that limitation in mind.
g Former Player 2 also believed that “the media denitely does” put pressure on play-
ers concerning their health.
With the rapid demand for and
consumption of news, jour nalists
may not have sufcient time to
verify the details of a story. If they
do, they risk being scooped by
competing news outlets.
378. \ Protecting and Promoting the Health of NFL Players
Despite the increased attention to player health issues, it is
still common for journalists to question a player’s tough-
ness. For example, when Chicago Bears quarterback Jay
Cutler was removed from a 2011 playoff game due to a
knee injury, numerous news articles questioned the severity
of Cutler’s injury and his inability to return to the game.
67
Sometimes the criticism is more implicit. For example,
during a 2015 playoff game against the Green Bay Packers,
Dallas Cowboys linebacker Rolando McClain left the game
after suffering a head injury.
68
McClain had been diagnosed
with a concussion earlier in the week after suffering a head
injury in the prior week’s game against the Detroit Lions.
69
Nevertheless, when McClain was taken out of the Packers
game, a Dallas-based ESPN reporter Tweeted: “Rolando
McClain to Cowboys locker room. Nobody frustrates
training staff more[.]”
70
Conversely, if the media glorifies players for playing
with injuries,
71
it creates pressure on other players to do
the same.
The media’s portrayal of players can have a powerful influ-
ence on the public. In a 2014 article in Communication
& Sport,
72
researchers reviewed 177 newspaper articles
concerning two injury situations: Cutler’s, as discussed
above, and Washington quarterback Robert Griffin III’s
efforts to play with a knee injury during a 2013 playoff
game against the Seattle Seahawks.
73
Of note, the research-
ers found that the leading theme from the articles discuss-
ing Griffin’s injury shifted the blame to the Washington
football club (40.67 percent of articles). Meanwhile, 49.24
percent of articles supported Cutler’s decision to stop play-
ing while 44.22 percent of articles blamed Cutler in some
way, downplayed the severity of his injury or called him
a “sissy” in some way. The authors, citing other studies,
reasoned that “[t]he notion that a player who needs to sit
out or miss playing time due to an injury is a ‘sissy’ or less
of a ‘man’ can have extremely unfortunate consequences.”
74
Finally, the authors suggested that “[a]s sports journalists
take more of an advocacy role and support athletes who
make their health a priority, attitudes towards injuries
and the players who sustain them may gradually begin
to change.”
75
The media’s coverage of player health issues has been
mixed. Beginning in January 2007, Alan Schwarz of The
New York Times was one of the leading journalists to
report on health problems among former NFL players and
problems with the NFL’s approach to player health issues,
including its Mild Traumatic Brain Injury (MTBI) Commit-
tee.
76
Schwarz appropriately received numerous accolades
for this work. Mark Fainaru-Wada and Steve Fainaru of
ESPN and authors of League of Denial similarly exposed
problems in the way player health is or has been addressed,
and the resulting problems suffered by current and former
players. Reporters from all over the country and world
have taken the lead from this work and contributed their
own stories of problems concerning player health. Without
this work, many of the improvements concerning player
health that have been made in the last 5 to 10 years may
never have happened.
h
Despite the important work the media has done reporting
on player health, there are also concerns. First, the media
regularly reports on the perils and drawbacks of football,
h Indeed, Current Player 9 believes the media has done a good job of covering player
health “because they’ve done a good job of bringing awareness.”
The media may not
always have adequate
space or time to convey
the implications, and
more importantly the
limitations, of studies
concerning player health.
Part 6 \ Chapter 17 \ The Media 379.
whether children should be allowed to play,
77
and whether
fans should continue to engage with the sport.
78
While these
may be legitimate and important aspects to cover, some of
this coverage shows a tendency to ignore important benefits
to players (including those offered by the NFL and NFLPA)
and others, and other positive aspects of the game.
i
In other
words, balance in coverage in some instances appears to
be lacking.
Another problem relates to accuracy. There have been many
important scientific studies concerning the injuries, particu-
larly concussions, suffered by football players. However,
the media may not always have adequate space or time to
convey the implications, and more importantly the limita-
tions, of these studies.
j,79
The media may not always have
adequate space or time to convey the implications, and
more importantly the limitations, of studies concerning
player health. Similarly, the media has not always accu-
rately reported on player health litigation. For example,
on September 12, 2014, the NFL filed an expert report in
support of its position that the Concussion Litigation settle-
ment would adequately compensate the plaintiffs.
80
The
NFL’s experts, using “conservative assumptions,” assumed
28 percent of former players would be eligible for benefits
under the settlement to demonstrate that the settlement was
adequate.
81
The same day, the New York Times published
a story entitled “Brain Trauma to Affect One in Three
Players, N.F.L. Agrees.”
82
The Times’ headline ignored that
the number was used by an actuarial firm as a conserva-
tive estimate meant to demonstrate the adequacy of the
settlement — as opposed to medical data — and misstated
28 percent as “one in three,” when it is actually closer to
i Former Player 3: “There’s thousands, tens of thousands, of former players . . . doing
great, physically, mentally, nancially, spiritually doing great. So those stories are
nottold.”
j For example, in January 2015, The New York Times reported on a study done at
the Boston University School of Medicine which, based on tests given to 42 former
NFL players, purported to nd “that those who began playing tackle football when
they were younger than 12 years old had a higher risk of developing memory and
thinking problems later in life.” Ken Belson, Study of Retirees Links Youth Football
to Brain Problems, N.Y. Times, Jan.28, 2015, http://www.nytimes.com/2015/01/29/
sports/football/study-points-to-cognitive-dangers-of-tackle-football-before-age-12.
html, archived at https://perma.cc/G7MC-KGE8?type=pdf. However, the New York
Times article did not include any responses to the study, including criticism from
highly respected neurologist Julian Bailes, which was included in ESPN’s coverage
of the study. See Tom Farrey, Study Cites Youth Football for Issues, ESPN (Jan.29,
2015, 4:04 PM), http://espn.go.com/espn/otl/story/_/id/12243012/ex-n-players-
played-tackle-football-youth-more-likely-thinking-memory-problems, archived at
http://perma.cc/V3Y5-EQJH (Bailes told ESPN “that the sample is too small to draw
any conclusions from, and that the results of NFL players cannot be compared to
that of athletes who never made it to that level.”).
one in four.
k
The scientific and legal nuances are difficult to
understand, which makes accurate reporting on them criti-
cally important.
( E ) Enforcement of Legal and
EthicalObligations
A player’s most likely available legal recourse against a
member of the media is a civil lawsuit alleging defama-
tion. As discussed above, lawsuits against journalists must
overcome the high burden of proving that the journalist
acted with actual malice, which should only arise in the
rare event a journalist fails to abide by any of the sourcing
or fact-checking requirements of the industry. Importantly,
statements of opinion cannot be defamatory
83
and truth
is an absolute defense to defamation claims.
84
While there
are a few instances of sports figures suing journalists or
publications for defamation,
85
there are no known cases of
an NFL player suing a journalist.
In addition, as demonstrated by the Pierre-Paul case, it is
possible more players will look to assert health privacy-
related claims against media members.
The PFWA has a “Grievance Committee” that is charged
with hearing any complaints about its members but its
sanctioning authority as to the media is unclear. Similarly,
while the SPJ has an Ethics Committee, it has no mecha-
nism for investigating or enforcing violations of its Code of
Ethics.
86
Instead, the SPJ believes the best enforcement of
journalism ethics comes from the scrutiny of the public and
other journalists.
87
k Similarly, in a lengthy article praising the attorney who led the rst concussion-
related lawsuit against the NFL, the New York Times wrongly asserted that if the
NFL had won its motion to dismiss prior to the settlement, the case would have
proceeded in “mediation or arbitration.” Michael Sokolove, How One Lawyer’s
Crusade Could Change Football Forever, N.Y. Times (Magazine), Nov.6, 2014,
http://www.nytimes.com/2014/11/09/magazine/how-one-lawyers-crusade-could-
change-football-forever.html, archived at https://perma.cc/4DJ6-XMQV?type=pdf.
In reality, dismissal likely would have been the end of the players’ claims. See
Michael McCann, Retired Players Who Opt Out of NFL Concussion Settlement Taking
Big Risk, Sports Illustrated (Jan.26, 2015), http://www.si.com/n/2015/01/26/n-
concussion-lawsuit-settlement-retired-players-opt-out, archived at http://perma.cc/
ZD66-EJ67. See also In re Nat’l Hockey League Players’ Concussion Injury Litiga-
tion, 14-md-2551, 2016 WL 2901736, *22 (D. Minn. May 18, 2016) (“Plaintiffs, as
retire[d] [hockey players], would likely be unable to access the arbitration forum and
would not have another forum in which to seek relief”).
Recommendations Concerning Club Doctors – continued
380. \ Protecting and Promoting the Health of NFL Players
( F ) Recommendations Concerning the Media
The media has a powerful and unique voice to shape the way player health issues are perceived and addressed. Below we
make recommendations to improve the relationship between the media and the players they cover.
Goal 1: To recognize the media’s responsibility in encouraging a culture of health
for NFL players.
Principles Advanced: Respect; Health Primacy; Collaboration and Engagement; and, Justice.
Recommendation 17:1-A: The media’s reporting on players should take care not to
dehumanize them.
The media can both help and hurt players. While many reporters are increasingly taking into consideration players’ health,
there are still many reporters who are willing to criticize and question the toughness of players who suffer injuries or who
do not play with injuries. Such reports impossibly and improperly assume to understand the pain the player may be in or
the medical consequences of the player’s playing with the injury. Moreover, such reports fail to take into consideration the
player’s best interests, e.g., the player’s short- and long-term health.
Similarly, the fantasy football-related discussions, websites, and applications take on a disturbing tone in some instances.
At their worst, they do not acknowledge the players as human beings with medical conditions that could, and in many
cases will, affect the quality and length of their lives. Instead, in some instances there is a dehumanization of the player
and only a concern for how the player’s injury that will affect fantasy football rosters which, relative to player health, is
meaningless.
88
While many in the media work hard to avoid dehumanizing players, those media members who participate
in and perpetuate such discussions should reconsider the tone and context of their reports and debates. We recognize that
this is an aspirational goal and not one that can be readily monitored or enforced, but it is important to acknowledge this
behavior as a problem and the role it plays in player health.
Through taking care in its reporting of player injuries and treating players with dignity, the media has the power to draw
greater public emphasis to player health and also reduce pressure on players to play while injured.
Recommendation 17:1-B: The media should engage appropriate experts, including
doctors, scientists and lawyers, to ensure that its reporting on player health matters is
accurate, balanced, and comprehensive.
The media’s coverage of player health issues, while excellent at times, also has been occasionally misleading or not entirely
accurate. Inaccurate news reports will only undermine the credibility of the serious issues facing NFL players. The medi-
cal, scientific and legal issues concerning player health are extremely complicated, which demands that the media take
care to avoid making assertions that are not supported or that do not account for the intricacies and nuance of medicine,
science, and the law. While we understand the pressures faced by members of the media trying to complete work on tight
deadlines, we also emphasize the importance of engaging appropriate experts who can help the media understand these
complex issues.
Part 6 \ Chapter 17 \ The Media 381.
Endnotes
1 See also “Media”, Oxford Dictionaries, 2015, http:// www
.oxforddictionaries .com /us /denition /american _english /media (last
visited Aug.7, 2015), archived at http:// perma .cc /6FGD -CQP7 (dening
“media” as “[t]he main means of mass communication (especially
television, radio, newspapers, and the Internet) regarded collectively);
“Journalist”, Oxford Dictionaries, 2015, http:// www .oxforddictionaries
.com /us /denition /american _english /journalist (last visited Aug.7,
2015), archived at http:// perma .cc /37MC -9PZX (dening “journalist” as
“[a] person who writes for newspapers or magazines or prepares news
to be broadcast”); “Press” Black’s Law Dictionary (9th ed. 2009) (den-
ing “press” as “[t]he news media; print and broadcast news organiza-
tions collectively”).
2 National Football League and Twitter Announce Streaming Part-
nership for Thursday Night Football, NFL (Apr.5, 2016), https :/ /
ncommunications .com /Documents /2016 %20Releases /NFL %20TWTR
%20TNF .pdf, archived at https :/ /perma .cc /F5SN -AVRL.
3 Kurt Badenhausen, The NFL Signs TV Deals Worth $27 Billion, Forbes
(Feb.14, 2011, 6:13PM), http:// www .forbes .com /sites /kurtbadenhausen
/2011 /12 /14 /the -n -signs -tv -deals -worth -26 -billion/, archived at https :/
/perma .cc /B64R -2GHV ?type =pdf.
4 See Daniel Kaplan, NFL Projecting Revenue Increase of $1B Over 2014,
Sports Bus. Daily (Mar.9, 2015), http:// www .sportsbusinessdaily .com
/Journal /Issues /2015 /03 /09 /Leagues -and -Governing -Bodies /NFL
-revenue .aspx, archived at http:// perma .cc /F8B5 -233U (discussing NFL’s
$11.2 billion in revenue for 2014, growing at a rate of approximately $1
billion per year and expected to exceed $12 billion in 2015).
5 Regular Season Tv Ratings Recap, Nat’l Football League, https :/ /
ncommunications .com /PublishingImages /Pages /2015 -REGULAR
-SEASON -RATINGS -RECAP -/2015 %20Regular %20Season %20Ratings
%20Recap .pdf (last visited Apr.7, 2016), archived at https :/ /perma .cc /
Q43S -4HBE.
6 B.J. Kissel, 2014 NFL TV Ratings Recap, Kansas City Chiefs, (Jan.11,
2015), http:// www .kcchiefs .com /news /article -2 /2014 -NFL -TV -Ratings
-Recap /2638f637 -5fae -4e89 -afd9 -8a0da6135588, archived at
http:// perma .cc /7ZME -GGZN.
7 Bill Hofheimer, ESPN’s Coverage of the 2014 NFL Season, ESPN,
(Sept.3, 2014), http:// espnmediazone .com /us /press -releases /2014 /09
/espns -coverage -of -the -2014 -n -season/, archived at http:// perma .cc /
U5CU -BQ5D.
8 See Bob McGinn, Packers: Scouts Should Determine NFL Awards, Mil.
J.Sentinel, Dec.18, 2005, available at 2005 WLNR 20536517 (discuss-
ing “a few hundred PFWA members”); Young Nabs Honor as NFL’s
Best, Buffalo News, Jan.26, 1995, available at 1995 WLNR 1092627
(describing PFWA membership as “400-plus”).
9 NFL Media Access Policy, Pro Football Writers Am., http:// www
.profootballwriters .org /n -media -access -policy/ (last visited Aug.7,
2015), archived at http:// perma .cc /QGS4 -HUMW.
10 Id.
11 Jeffri Chadiha, The Misunderstood Marshawn Lynch, ESPN (Jan.27,
2015), http:// espn .go .com /n /playoffs /2014 /story /_ /id /12232435 /the
-misunderstood -marshawn -lynch -why -seattle -seahawks -running -back
-trust -media, archived at http:// perma .cc /7CVQ -8XDK.
12 Mike Florio, Marshawn Has a Very Polite Media Availability, ProFootball-
Talk (Dec.22, 2014, 9:57 AM), http:// profootballtalk .nbcsports .com /2014
/12 /22 /marshawn -has -a -very -polite -media -availability/, archived at
http:// perma .cc /2QS3 -XCP2.
13 Darin Gantt, Marshawn Lynch Shows Up at Media Day to Avoid Fines,
ProFootballTalk (Jan.27, 2015, 2:30 PM), http:// profootballtalk .nbcsports
.com /2015 /01 /27 /marshawn -lynch -shows -up -at -media -day -to -avoid
-nes/, archived at http:// perma .cc /K7GG -TCRX.
14 George Strickler, 45,434 see Bears defeat Packers 14 to 7, Chi. Trib.,
Nov.4, 1940.
15 Id.
16 George Strickler, Bears meet Redskins today for pro football title, Chi.
Trib., Dec.8, 1940.
17 See, e.g., Dan Pompei, Gault’s Condence Built on Toughness, Chi. Sun
Times, Nov.7, 1987, available at 1987 WLNR 2135505; Frank Cooney,
Everett’s Courage is Being Questioned Around the NFL, S. F. Examiner,
Sept.12, 1993, available at 1993 WLNR 12375; Damon Amendora,
Washington Still Doesn’t Know if RGIII is Tough Enough, CBS Sports
Radio (Aug.21, 2015, 11:40 AM), http:// da .radio .cbssports .com /2015 /08
/21 /da -washington -still -doesnt -know -if -rgiii -is -tough -enough/, archived
at http:// perma .cc /YYM7 -ZVCS.
18 The Violent World of Sam Huff (CBS October 30, 1960).
19 See Bob Raissman, Concussion Concerns Will Go Over CBS’ Head, N.Y.
Daily News, Jan.25, 2013, available at 2013 WLNR 1999106 (dis-
cussing role of NFL Films in Concussion Litigation and allegations of
glorifying violence); Desmond Ryan, A Player In The Field Of Film NFL
Films Focuses On Gridiron Glory, But Has An Impact Beyond The End
Zone, Phil. Inquirer, May 8, 1995, http:// articles .philly .com /1995 -05
-08 /entertainment /25673540 _1 _n -lms -cahiers -critics -and -editors
(discussing the style of NFL Films); Bill Lyon, NFL Films has seen – and
lmed – it all, Seattle Times, Dec.16, 1990, available at 1990 WLNR
887902 (discussing NFL Films’ history and, among other things, glori-
cation of violence in the NFL).
20 NFL Films: Inside the Vault, Vol. 1 (Steve Sabol 2003).
21 Brent Jones, Billick: Browns fans off base on Modell, Balt. Sun, Dec.23,
2003, available at 2003 WLNR 2034569 (earliest news article mention-
ing the “Jacked Up” segment).
22 See Aaron Gordon, When ESPN Cheered Violence, Salon (Sept.15, 2013,
10:00 AM), http:// www .salon .com /2013 /09 /15 /keep _your _helmet _on
_espns _jacked _up _in _retrospect _partner/, archived at http:// perma .cc
/3RDU -4CTP.
23 See Chad Finn, ESPN’s Reaction Was Candid And Poignant, Bos. Globe,
Sept.15, 2014, available at 2014 WLNR 25499549 (referencing “Jacked
Up” segment ending after the 2008 season).
24 See Phil Mushnick, ESPN Gets ‘Jackassed Up!’, N.Y. Post, Oct.3, 2004,
available at 2004 WLNR 19629651.
25 Will Leitch, ESPN Listens Closely to Its Viewers, Deadspin (Oct.4, 2007,
4:10 PM), http:// deadspin .com /307063 /espn -listens -closely -to -its
-viewers, archived at http:// perma .cc /D3G6 -AFA9 (discussing internal
ESPN memo citing 200+ complaints about the “Jacked Up” segment
during the 2006 season). NFL Columnist Mike Freeman has criticized
journalists (including himself) for “glorifying the violence of the sport
while not detailing the toll that violence took on the body.” Mike Free-
man, Two Minute Warning: How Concussions, Crime, and Controversy
Could Kill the NFL (and What the League Can Do to Survive) 218 (2015).
26 Both quotes are from the 2008 Personnel (Injury) Report Policy,
Page E32.
27 Id.
28 Id.
29 Id. at E34.
30 Tom Pelissero, Major change to NFL’s injury report will take some get-
ting used to, USA Today (Aug.21, 2016, 4:33 PM), http:// www .usatoday
.com /story /sports /n /2016 /08 /21 /injury -report -probable -bill -belichick
-patriots /89080582/, archived at https :/ /perma .cc /QT4C -MAA6.
31 Personnel (Injury) Report Policy, Page E33.
32 Id.
33 Personnel (Injury) Report Policy.
382. \ Protecting and Promoting the Health of NFL Players
34 Scott Boeck & Skip Wood, Analysis: Injury Report Is Game Within
The Game, USA Today, Nov.22, 2007, available at http:// usatoday30
.usatoday .com /sports /football /n /2007 -11 -22 -injury -report -cover _N
.htm, archived at http:// perma .cc /4MK7 -657Q. Midway through the
2012 season, 4 NFL teams had been ned $20,000 each for injury
report violations. Mike Florio, Rams Rack Up an Injury-Reporting Fine,
Too, ProFootballTalk (Nov.2, 2012, 10:44 PM), http:// profootballtalk
.nbcsports .com /2012 /11 /02 /rams -rack -up -an -injury -reporting -ne -too/,
archived at http:// perma .cc /W8U5 -XTN7. In 2009, the Jets were ned a
total $125,000 for former quarterback Brett Favre’s injury for the last 5
games of the season ($75,000 for the team and $25,000 each for Gen-
eral Manager Mike Tannenbaum and former Head Coach Eric Mangini),
the highest injury-reporting violation ne publicly announced. See
Greg Bishop, Jets Still Paying Price for Favre and Mangini, N.Y. Times,
Sept.16, 2009, http:// www .nytimes .com /2009 /09 /17 /sports /football
/17favre .html, archived at https :/ /perma .cc /M9VT -BF96 ?type =pdf.
35 Boeck supra note 34; see also Gregg Rosenthal, Redskins Play the
“Questionable” Game, Again, ProFootballTalk (Sept.25, 2010, 10:07
AM), http:// profootballtalk .nbcsports .com /2010 /09 /25 /redskins -play
-the -questionable -game -again/, archived at http:// perma .cc /L4PQ -J8LV
(players reporting that coaches report the wrong injuries): Michael David
Smith, Spikes, Talib Say Patriots File False Injury Reports, ProFootball-
Talk (Mar.19, 2014, 7:01 AM), http:// profootballtalk .nbcsports .com /2014
/03 /19 /spikes -talib -say -patriots -le -false -injury -reports/, archived at
http:// perma .cc /A4S9 -MQ6Q.
36 See Boeck supra note 34.
37 Jeff Zrebiec, John Harbaugh: ‘The Injury Report Has No Value’, Balt.
Sun, Nov.2, 2012, http:// www .baltimoresun .com /sports /ravens /ravens
-insider /bal -harbaugh -criticizes -n -over -injury -report -20121102 -story
.html, archived at http:// perma .cc /FS8C -2PHX.
38 Smith supra note 35.
39 See Rosenthal supra note 35; Boeck supra note 34. See also Carl Prine,
Bloody Sundays, Pitt. Trib.-Rev., Jan.9, 2005, http:// triblive .com /x /
pittsburghtrib /sports /steelers /s _291033 .html#axzz3OdCi5UC7, archived
at http:// perma .cc /GSK3 -W254 (nding that “the NFL’s 1999 [Injury
Reports] data was so suspect, the Trib didn’t use it”).
40 Mike Florio, New Injury report creates plenty of questions, concerns,
ProFootballTalk (Aug.21, 2016, 8:20 PM), http:// profootballtalk
.nbcsports .com /2016 /08 /21 /new -injury -report -creates -plenty -of
-questions -concerns/, archived at https :/ /perma .cc /ZMX9 -XQT2.
41 See Darin Gantt, Julian Edelman Won’t Say Whether He Had Concussion
Tests, ProFootballTalk (Feb.1, 2015, 11:30 PM), http:// profootballtalk
.nbcsports .com /2015 /02 /01 /julian -edelman -wont -say -whether -he -had
-concussion -tests/, archived at http:// perma .cc /3WZQ -RU9K (discussing
Patriots’ policy of prohibiting players from speaking about injuries). In an
interview, a current player on a different club also stated that his club
prohibited players from speaking to the media about injuries.
42 Black’s Law Dictionary (9th ed. 2009).
43 See id. (dening “slander” as “[a] defamatory assertion expressed in a
transitory form, esp. speech” and “libel” as “[a] defamatory statement
expressed in a xed medium, esp. writing but also a picture, sign, or
electronic broadcast”).
44 See Vilma v. Goodell, 917 F. Supp. 2d 591, 596 (E.D.La. 2013) (describ-
ing NFL player Jonathan Vilma as “a public gure” for purposes of
defamation claim).
45 N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964).
46 Id.
47 About SPJ, Soc’y Prof’l Journalists, http:// www .spj .org /aboutspj .asp (last
visited Aug.7, 2015), archived at http:// perma .cc /6TSA -LVN3.
48 SPJ Code of Ethics, Soc’y Prof’l Journalists, http:// www .spj .org /
ethicscode .asp (last visited Aug.7, 2015), archived at http:// perma .cc /
W49E -8MK2.
49 PFWA Constitution and Bylaws (amend. Jan.30, 2009) (on le with
authors).
50 Injury Central: Tracking Key Injuries, ESPN (Dec.26, 2014, 5:41
PM), http:// espn .go .com /fantasy /football /story /_ /id /11426633 /all
-latest -fantasy -football -injury -information -injury -central, archived at
http:// perma .cc /WEE8 -D764.
51 Sports Injury Predictor and ASL Extend Partnership, Advanced Sports
Logic (Feb.20, 2014), http:// advancedsportslogic .com /about /asl -in
-industry -news /asl -and -sports -injury -predictor -extend -partnership,
archived at http:// perma .cc /EM7E -2938.
52 See also Matt Pallister, Fantasy Football Players Can Benet From
Injuries If They Know Where To Look, Wash. Times (DC), Aug.28, 2014,
available at 2014 WLNR 23671218.
53 Ladd Biro, Starters and Benchwarmers: Fantasy Football, S.F. Chron.,
Nov.21, 2014, available at 2014 WLNR 32864699 (“it’s hard to trust
Rivers, who apparently is trying to play through a rib injury”); Cecil
Lammey, Fantasy Football Gates’ Status Requires a Backup Plan, Denver
Post, Nov.21, 2010, available at 2010 WLNR 23277384 (“Floyd is
returning from a hamstring injury, but I can’t trust him in the starting
lineup this week.”).
54 See Stephania Bell Blog, ESPN, http:// espn .go .com /blog /stephania -bell
(last visited Aug.7, 2015), archived at http:// perma .cc /59PZ -NC4R.
55 See Mónica Guzmán, Internet Pumps Up Interest in Fantasy Football,
Seattle Times, Nov.10, 2013, available at 2013 WLNR 28440805;
Mackenzie Ryan, An Analysis of National Football League Fandom and
Its Promotion of Conservative Cultural Ideals about Race, Religion and
Gender 9 (Aug. 2012).
56 Josh Hill, Scumbag NFL Fans Ask Fantasy Football Advice After Cam
Newton Car Crash, FanSided.com (Dec.9, 2014), http:// fansided .com
/2014 /12 /09 /fantasy -football -advice -cam -newton -car -crash/, archived
at http:// perma .cc /4RPJ -U9DD.
57 Rumor Central: ESPN Insiders, ESPN, http:// insider .espn .go .com /blog /
insider /rumors/ (last visited Aug.7, 2015), archived at http:// perma .cc /
CJQ2 -4P9W.
58 Yardbarker, http:// www .yardbarker .com/ (last visited Aug.7, 2015),
archived at http:// perma .cc /YG7W -4KXK.
59 ProFootballTalk, http:// profootballtalk .nbcsports .com /category /rumor
-mill/ (last visited Aug.7, 2015), archived at http:// perma .cc /4F8Z -VFA6.
60 The Training Room — by Dr. David Chao, Nat’l Football Post, http:// www
.nationalfootballpost .com /category /the -training -room/ (last visited
Aug.7, 2015), archived at http:// perma .cc /GL5E -MYNB.
61 Mike Florio, Schefter says he “could and should have done more” before
posting JPP medical records, ProFootballTalk (July 12, 2015, 10:39 AM),
http:// profootballtalk .nbcsports .com /2015 /07 /12 /schefter -says -he -could
-and -should -have -done -more -before -posting -jpp -medical -records/,
archived at http:// perma .cc /ZY4D -9ZC5.
62 Id.
63 Order on Defendant’s Motion to Dismiss After Hearing, Pierre-Paul v.
ESPN, Inc., 16-cv-21156 (Aug.29, 2016, S.D. Fla.), ECF No. 30.
64 Tom Pelissero, Tony Romo’s Injury Shows Pressure QBs Face to Play
Hurt, USA Today, Nov.3, 2014, http:// www .usatoday .com /story /sports /n
/2014 /11 /03 /tony -romo -quarterback -injuries -aaron -rodgers -alex -smith
/18439613/, archived at http:// perma .cc /QLH9 -U4LG.
65 Interview with John Afeck, Knight Chair in Sports Journalism and
Society, Penn State University.
66 Mike Florio, Breer pulls back curtain on working for NFL Network, Pro-
FootballTalk (Apr.23, 2016, 12:51 PM), http:// profootballtalk .nbcsports
.com /2016 /04 /23 /breer -pulls -back -curtain -on -working -for -n -network/,
archived at https :/ /perma .cc /KD7Y -BBBA.
67 Nancy Gay, Cutler Lacks Grit In Loss Against Packers, FoxSports (Jun.2,
2014, 1:49 PM), https :/ /web .archive .org /web /20110125180314 /http
:/msn .foxsports .com /n /story /gay -jay -cutler -knee -injury -chicago -bears
-nfc -championship -012311, archived at https :/ /perma .cc /7MD9 -U6C4;
Will Cutler Ever Be Where Rodgers Is?, Daily Herald (Arlington Heights,
IL), Feb.2, 2011, available at 2011 WLNR 2223051; Dave George,
Not Tough Enough? Palm Beach Post (FL), Jan.25, 2011, available at
Part 6 \ Chapter 17 \ The Media 383.
2011 WLNR 1562822; Tom Rock, Cutler’s Exit Opens Debate, Newsday,
Jan.24, 2011, available at 2011 WLNR 1423016.
68 Josh Alper, Cowboys Tie Game, Lose Rolando McClain to Locker
Room With Head Injury, ProFootballTalk (Jan.11, 2015, 1:36 PM),
http:// profootballtalk .nbcsports .com /2015 /01 /11 /cowboys -tie -game
-lose -rolando -mcclain -to -locker -room -with -head -injury/, archived at
http:// perma .cc /KDS3 -GGD8.
69 Id.
70 Samer Kalaf, Concussions Sure Are Frustrating, Deadspin (Jan.11,
2015, 2:05PM), http:// deadspin .com /concussions -sure -are -frustrating
-1678834644, archived at http:// perma .cc /8HUG -LKM4; see also Mike
Freeman, Two Minute Warning: How Concussions, Crime, and Contro-
versy Could Kill the NFL (and What the League Can Do to Survive) 219
(2015) (criticizing journalist who “wrote glowingly about the violence of
the sport, and condemned players we perceived as soft.”)
71 See Jeffri Chadiha, J.J. Watt’s nasty bruise evokes memories of great
injury moments, ESPN (May 22, 2015), http:// espn .go .com /n /story /_ /id
/12928692 /jj -watt -bruise -continues -storied -tradition -athletes -playing
-injuries, archived at http:// perma .cc /W2RU -4VRU (providing examples
of “great injury moments” in which athletes played while injured).
72 According to its website, “Communication and Sport (C&S) is a cutting-
edge, peer-reviewed quarterly journal that publishes research to foster
international scholarly understanding of the nexus of communication
and sport. C&S publishes research and critical analysis from diverse
disciplinary and theoretical perspectives to advance understanding of
communication phenomena in the varied contexts through which sport
touches individuals, society, and culture.” Communication & Sport, SAGE
Publications, https :/ /us .sagepub .com /en -us /nam /communication -sport /
journal202136 (last visited Aug.7, 2015), archived at https :/ /perma .cc /
JA2M -AQ8N ?type =pdf.
73 Jimmy Sanderson et al., A Hero or Sissy? Exploring Media Framing of
NFL Quarterbacks Injury Decisions, Commc’n & Sport, May 28, 2014.
74 Id. at 16.
75 Id. at 15.
76 See Mark Fainaru-Wada & Steve Fainaru, League of Denial: The NFL,
Concussions and the Battle for Truth 213, 215, 226, 227, 234, 260, 264,
276, 283–84 (2013).
77 See, e.g., John Guida, Should Your Child Play Football? N.Y. Times,
Nov.11, 2014, http:// op -talk .blogs .nytimes .com /2014 /11 /11 /should
-your -child -play -football/, archived at http:// perma .cc /5VRC -H4PM; Julie
Suratt, Would You Let This Boy Play Football? Bos. Mag., Jan.2015,
http:// www .bostonmagazine .com /news /article /2015 /01 /05 /let -boy -play
-football/, archived at http:// perma .cc /ND6J -EF9Q; Opinion Northwest:
Would You Let Your Son Play Football? Seattle Times, Oct.14, 2013,
available at 2013 WLNR 25728781; If You Had A High-School-Age Son,
Would You Let Him Play Football? Ariz. Republic, Sept.22, 2012, avail-
able at 2012 WLNR 23906921; Lindsay Schnell, Oregon Ducks Rundown
Column, Oregonian (Portland, Ore), Oct.27, 2011, available at 2011
WLNR 22155996; Sports Poll, San Diego Union-Tribune, Jan.13, 2013,
available at 2013 WLNR 1063883.
78 See, e.g., Chuck Klosterman, Is It Wrong to Watch Football?, N.Y. Times,
Sept.5, 2014, http:// www .nytimes .com /2014 /09 /07 /magazine /is -it
-wrong -to -watch -football .html, archived at https :/ /perma .cc /STD5
-4GGS ?type =pdf; Will Leitch, Is Football Wrong? Even to a Devoted Fan,
It’s Getting Harder to Watch the NFL, N.Y. Magazine, Aug.10, 2012,
http:// nymag .com /news /sports /games /n -fans -2012 -8/, archived
at http:// perma .cc /ZT5D -BBX2; Steve Almond, Why You Should Stop
Watching Football, Bos. Globe, Aug.10, 2014, available at 2014 WLNR
21887974; Melissa Jeltsen, The Moral Case Against Football, Hufngton
Post (Sept.4, 2014, 3:22 PM), http:// www .hufngtonpost .com /2014
/09 /04 /steve -almond -against -football _n _5718939 .html, archived at
http:// perma .cc /DK93 -ZK6X; Rick Maese & Scott Clement, Despite Prob-
lems, NFL Remains Very Popular, Wash. Post, Sept.5, 2012, available at
2012 WLNR 18865647.
79 See Last Week Tonight With John Oliver: Scientic Studies (HBO) (May 8,
2016), YouTube, https :/ /www .youtube .com /watch ?v =0Rnq1NpHdmw.
80 Report of the Segal Group to Special Master Perry Golkin, In re: Nat’l
Football League Players’ Concussion Injury Litigation, 2:12-md-2323
(Sep. 12, 2014), ECF No. 6168.
81 Id. at ¶¶ 18–23.
82 Ken Belson, Brain Trauma to Affect One in Three Players, N.F.L. Agrees,
N.Y. Times, Sept.12, 2014, http:// www .nytimes .com /2014 /09 /13 /sports
/football /actuarial -reports -in -n -concussion -deal -are -released .html, ar-
chived at https :/ /perma .cc /5HFR -N8TV ?type =pdf; see also Ken Belson,
Dementia Care, Tailored to N.F.L. Retirees, N.Y. Times, Mar.22, 2016,
http:// www .nytimes .com /2016 /03 /23 /sports /dementia -care -tailored -to
-n -retirees .html, archived at https :/ /perma .cc /P3E4 -WXRV (also inac-
curately describing 28% gure).
83 GreenBelt Co-op Pub. Ass’n v. Bresler, 398 U.S. 6 (1970).
84 Curtis Publishing Co. v. Butts, 388 U.S. 130, 151 (1967).
85 In 2013, St. Louis Cardinals (MLB) slugger Albert Pujols sued former
player turned radio announcer Jack Clark for defamation after Clark as-
serted that Pujols used performance-enhancing drugs. Pujols agreed to
drop the lawsuit after Clark retracted his statement and apologized. See
Media Views: The Real Meaning of Jack Clark’s Apology, St. Louis Post-
Dispatch, Feb.21, 2014, available at 2014 WLNR 4958206. In 2005,
former Alabama football coach Mike Price settled a lawsuit against
Sports Illustrated in which Price alleged Sports Illustrated slandered
him about a night of drinking at a strip club. Price, Time Reach Second
Settlement Over Sports Illustrated Article, Seattle Times, Nov.15, 2005,
http:// seattletimes .com /html /sports /2002625534 _webprice15 .html,
archived at http:// perma .cc /4288 -A3LZ.
86 Frequently Asked Questions, Soc’y Prof’l Journalists, http:// www .spj .org
/ethicsfaq .asp (last visited Aug.7, 2015), archived at http:// perma .cc /
P36J -633X.
87 Id.
88 See William C. Rhoden, Fantasy Sports’ Real Crime: Dehumanizing the
Athletes, N.Y. Times, Nov.25, 2015, http:// www .nytimes .com /2015 /11
/26 /sports /football /fantasy -sports -real -crime -dehumanizing -the -athletes
.html ?_r =1, archived at https :/ /perma .cc /WPG9 -GL5A ?type =image.
384. \ Protecting and Promoting the Health of NFL Players
Fans
a
Fans are undoubtedly a central component to the NFL’s success. Fans
engage with NFL football and players in a variety of ways, including
by watching on television, attending practices or games in-person, by
gambling and playing fantasy sports, and through public events where
fans might see or speak with players. These different fan experiences
also shape the fan’s interests and role in player health.
While in other chapters we provided the stakeholder an opportunity to
review a draft of the relevant chapter(s) prior to publication, because
there is no well-dened representative for fans, no one reviewed this
chapter on behalf of fans prior to publication.
a The portions of this work related to fans are the result of collaboration with Daniel Wann, Professor, Murray State University.
Chapter 18
386. \ Protecting and Promoting the Health of NFL Players
( A ) Background
Below we discuss two components of fandom that have
connections to player health: (1) the level at which fans
engage with the NFL; and, (2) gambling, an activity that
presents particular legal and ethical concerns.
1 ) FAN ENGAGEMENT
NFL football is the most popular sport in America by a
variety of measures.
1
Thirty-five percent of Americans
consider professional football (i.e., the NFL) their favorite
sport, a number that is increasing yearly.
2
Fifty-five per-
cent of Americans identify themselves as fans of the NFL.
3
According to ESPN, there are more than 85 million “avid”
NFL fans — “more than a quarter of the nation.”
4
A mean
of more than 68,000 people attend every NFL game.
5
NFL
games are the most watched television programming: more
than 20 million people watch the primetime broadcasts, tri-
ple the ratings of the major television networks.
6
The Super
Bowl is the most viewed broadcast in television history,
with approximately 45-percent of all households (about 53
million) tuning in annually.
7
And, not surprisingly, millions
of fans also follow and engage with their favorite NFL
clubs via social media.
8
Indeed, NFL fans have strong psychological connections
to their favorite clubs. Being a fan is a central component
of their social identity,
9
and fans often have a stronger
connection to their favorite club than their religion or alma
mater,
10
or their favorite consumer brands such as clothing
and food or beverage products.
11
2 ) FANS AND GAMBLING
b
A comprehensive analysis of issues in the NFL, includ-
ing player health, is not complete without a discussion of
gambling,
c
including fantasy sports.
d
The sports gambling
b The portions of this work related to gambling are the result of collaboration with
Ryan Rodenberg, JD, PhD, Professor, Florida State University.
c For purposes of this report, gambling is dened broadly to include traditional sports
gambling (point spreads, money lines, totals, prop bets, in-game wagering, etc.),
and fantasy sports (season-long and daily). We acknowledge the ongoing debate
about whether fantasy sports constitute gambling but believe it is appropriate to
include them in the denition for our purposes. See, e.g., Decision and Order, State
of New York v. DraftKings, Inc., Index No. 543054/2015 (N.Y. Sup. Ct. Dec.11, 2015)
(enjoining daily fantasy sports operator from conducting business in New York).
d Although specic forms of fantasy sports have been exempted under the Unlawful
Internet Gambling Enforcement Act of 2006 (“UIGEA”), see 31 U.S.C. §§ 5361–5367,
many suggest that in reality there is no distinction between gambling and fantasy
sports, see, e.g., Robert Lipsyte, Serving Sports Fans Through Journalism, ESPN
(Dec.3, 2014), http://espn.go.com/blog/ombudsman/tag/_/name/robert-lipsyte,
archived at http://perma.cc/5G2C-EPTB (“The rise of gambling and fantasy
leagues — some would argue often the same thing — will have social conse-
quences that need to be monitored”); Joshua Brustein, Web Sites Blur Line between
Fantasy Sports and Gambling, N.Y. Times, Mar.11, 2013, http://www.nytimes.
com/2013/03/12/sports/web-sites-blur-line-between-fantasy-sports-and-gambling.
html, archived at https://perma.cc/C6E5-5J3P?type=pdf.
industry in the United States is vast and appears to have
grown at an exponential rate since the 1970s.
12
The size
of the legal college and professional football gambling
market is limited to Nevada, Montana, and Delaware
by virtue of the Professional and Amateur Sports Protec
-
tion Act (PASPA), a 1992 federal statute that exempted
a small number of states from a federal prohibition on
sports gambling.
13
The legal sports gambling market in Nevada saw, in total,
$3.9 billion wagered on sports in 2014, $1.74 billion of
which was on football (about 45 percent of the total).
14
In
2014, Nevada sportsbooks won $113.73 million on college
and professional football.
15
Delaware recently reported rev-
enue associated with state licensed football pools of $25.4
million.
16
The “Montana Sports Action,” a line of games
related to fantasy football and racing, sold $179,790 worth
of tickets in 2013.
17
Although no monetary amounts are
available, the Houston Chronicle reported that “the Super
Bowl is by far the most wagered on event — legally and
illegally — in the country.”
18
Despite the above-referenced figures, illegal gambling still
dwarfs legal gambling. In the United States, illegal gambling
on professional sports has been estimated at $80-$380
billion annually.
19
If we assume the rate of illegal gambling
on football matches Nevada’s 45-percent rate of legal
gambling on football, one would estimate that there is as
much as $170 billion illegally gambled on football each
year.
20
While likely off in its specifics, that estimate gives a
rough sense of the magnitude of illegal NFL gambling that
goes on.
The relationship between gambling and the NFL’s popular-
ity is undeniable. As one current club owner recently said
in reference to gambling, “our game is made for that.”
21
In
testimony surrounding the 1999 National Gambling Impact
Study (created at Congress’ behest), broadcaster Bob
Costas stated “there is also no denying that the presence
and prevalence of sports gambling benefits those leagues
and benefits their television ratings.”
22
More recently, NFL
commentator Mike Florio opined on the role of fantasy
sports and NFL popularity:
The unprecedented growth of pro football over
the last 20 years has resulted in large part from
the ascension of fantasy football. With free agency
potentially undermining fan rooting interest in
specific teams, the ability to cobble together a team
of their own has expanded fan interest far beyond
the teams they love and the teams they hate.
23
Part 6 \ Chapter 18 \ Fans 387.
Gambling and player health have a long history. Following
a 1960 incident in which a point spread
24
changed dramati-
cally after publication of a photograph of Pittsburgh Steeler
quarterback Bobby Layne’s injured arm, the NFL insti-
tuted a policy requiring clubs to report player injury status
during the week.
25,e
Former NFL security director Jack
Danahy explained the purpose of the injury reports during
a 1976 deposition:
We have initiated a program in the [NFL] wherein
we require each team to report injuries on Tues-
days, again on Thursdays, and then following
Thursday, right up to the time of the game. We
publicize these injuries. The purpose of mak-
ing this information public — and it has been in
existence probably as long as I have been in the
league . . . is to foreclose the possibility of gam-
blers attempting to obtain or obtaining confi-
dential information or obtaining information
surreptitiously as to the condition of ballplayers.
We want it out in the open so that no one can
claim an unfair advantage.
26
For at least the last 50 years, the NFL has been concerned
about the possibility of inside information about player
injuries making its way into the hands of gamblers, who
typically were involved in organized crime. In 1967, NFL
assistant to the Commissioner in charge of gambling,
William G. Hundley, wrote a letter to a federal probation
officer on behalf of organized crime figure Gil Beckley as
a result of Beckley’s provision of NFL gambling-related
information to Hundley.
f
Former NFL commissioner Pete
Rozelle admitted in a 1976 deposition that inside informa-
tion concerning injuries “could be construed as for gam-
bling purposes.”
27
Also during a 1976 deposition, NFL
security director Jack Danahy stated: “There can be times
when maybe there is a key injury and we will have four and
five representatives calling in at the same time with point
spread changes.”
28
In 1977, the NFL admitted that
e For more information on the NFL’s Injury Reporting Policy, see Chapter 17:
The Media.
f Letter from William G. Hundley to C.L. Williams, Probation Department, Miami, FL,
April 20, 1967 (“[Beckley] offered, on a condential basis, to furnish any informa-
tion that came into his possession concerning the possibility of endeavors to
corrupt professional football players, seek unauthorized information about players
[sic] conditions, and supply any other information that might reect adversely on
the integrity of professional football.”). A March 2, 1970 Time Magazine feature
described Beckley as follows: “Handling as much as $250,000 worth of bets daily,
Beckley, 58, mastered all the tricks of his arcane trade: (i) wangling information
from locker rooms; (ii) computing odds in his head; and (iii) occasionally bribing ath-
letes.” See also Adam Bernstein, Lawyer William G. Hundley, 80, Wash. Post, June
14, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/06/13/
AR2006061301681.html, archived at http://perma.cc/7WZ6-5QHZ (describing
Hundley’s role at the NFL).
it “investigates at least one allegedly crooked game a week
during a typical season.”
29
Additionally, there have been
reports of gamblers seeking to obtain information from
NFL club doctors.
g
( B ) Current Legal Obligations
h
Generally speaking, fans have no legal obligations specific
to their status as NFL fans. In other words, fans are gener-
ally obligated to treat (and avoid harming) players in the
manner as they would any other individual.
Unfortunately, there have been several violent incidents
between fans and athletes in a variety of sports over the
years. Brawls occurred between Boston Bruins players
and New York Rangers fans in 1980 (National Hockey
League), and between Indiana Pacers players and Detroit
Pistons fans in 2004 (National Basketball Association).
30
Fortunately (relatively speaking), in the NFL, fan and
player violence has generally been limited to incidents of
players and opposing fans trading snowballs.
31
However,
during a 2014 joint practice between the Oakland Raiders
and Dallas Cowboys, after players began to fight near fans,
a Raiders fan swung a helmet at a Cowboys player, nar-
rowly missing.
32
While some of these incidents have resulted in criminal
charges (typically assault or battery) for the fans and play-
ers,
33
there have been no criminal or civil proceedings that
would demonstrate that fans have a legal obligation to
players unique to the fan-player relationship.
g See Rob Huizenga, M.D., You’re Okay, It’s Just a Bruise 67–68 (1994) (former Los
Angeles Raiders Club doctor explaining ““For the rst time in my life I had informa-
tion that people would pay money for. Big money.”)
h The legal obligations described herein are not an exhaustive list but are those we
believe are most relevant to player health.
In the United States, illegal
gambling on professional sports
has been estimated at $80-$380
billionannually.
388. \ Protecting and Promoting the Health of NFL Players
( C ) Current Ethical Codes
The only existing ethical codes for fans are stadium codes
of conduct. In 2008, the NFL and its clubs began to imple-
ment codes of conducts for fans attending games.
34
The
NFL’s code requires fans to refrain from:
• Behavior that is unruly, disruptive, or illegal in nature.
• Intoxication or other signs of alcohol impairment that results
in irresponsible behavior.
• Foul or abusive language or obscene gestures.
• Interference with the progress of the game (including
throwing objects onto the eld).
• Failing to follow instructions of stadium personnel.
• Verbal or physical harassment of opposing team fans.
Moreover, in 2012, the NFL began to require that any fan
ejected from a stadium be required to take an online course
on stadium conduct before being permitted back into an
NFL stadium.
35
While these codes of conduct are not spe-
cific to the fan-player relationship, if followed, they would
seemingly help to minimize the frequency of incidents
between fans and players.
( D ) Current Practices
1 ) FAN ENGAGEMENT
Increased attention on football-related injuries has had an
effect on fans. A 2014 Bloomberg Politics poll reported that
50 percent of Americans say they will not let their son play
football.
36
Major news publications such as the New York
Times and Boston Globe have questioned whether it is ethi-
cal to continue to watch football
37
or to let your kids play
football.
38
Not surprisingly, between 2010 and 2012, Pop
Warner, the country’s largest youth football program, saw
a 9.5-percent decrease in participation.
39
Although officials
at Pop Warner have suggested a number of potential causes
for the declining rates (e.g., a poor economy), they admit-
ted that parent concerns about injuries was likely a key
contributor to the drop in participation.
40
While other orga-
nizations have reported similar declines in participation,
41
the Sports & Fitness Industry Association (SFIA) actually
found that participation in tackle football across all leagues
and among individuals aged 6 and above increased from
2014 to 2015.
42,i
i For more discussion on youth football, see Part 7: Other Interested Parties:
YouthLeagues.
Despite all of the scrutiny, fans have generally not been
dissuaded from consuming NFL football. Many fans
enjoy NFL football (and other physical sports) specifically
because of its violent nature.
43
Moreover, in a 2014 Sports
Illustrated poll, while 26 percent of fans reported being
less interested in NFL football as a result of news stories
regarding the long-term health risks of playing football,
only 8 percent said they actually viewed fewer NFL games
than they did two years ago.
44
In contrast, 36 percent of
fans said they were watching more NFL games than they
previously did.
45
Additionally, after the NFL’s mishandling
of domestic violence incidents during the 2014 season, only
11 percent of fans said they were less likely to watch as
a result.
46
Nevertheless, in the long term, decreased participation in
youth football is likely to result in fewer future NFL fans.
Research has frequently found that previous involvement
in youth sport is one of the best predictors of interest in
sport as a fan.
47
If fewer children participate in football
because parents are hesitant to expose them to potential
injury, a likely longitudinal consequence will be fewer
adults interested in football as a fan years later (or at
least less interested than they would have been had they
played football).
The same dynamic is evident from older studies. A
1981 study found that fans rated football plays as more
entertaining and enjoyable when the plays were violent
in nature.
48
In a similar study, published in 1982, fans
reported greater enjoyment of watching sport contests
when the announcers focused on the hatred and violence
between the two teams.
49
It has even been argued by some
scholars that some fans are attracted to combative sports
such as the NFL specifically for the opportunity to see
players be injured.
50
Indeed, it is not uncommon for news
articles to compare watching an NFL game to being in
attendance at the Roman Colosseum.
51
A fan’s concern for an athlete’s injury not surprisingly
depends on his or her feelings toward that athlete. Follow-
ing the 2001 fatal car crash by NASCAR drive Dale Earn-
hardt, Sr., researchers examined the reactions of NASCAR
fans.
52
Those who were not fans of Earnhardt were more
likely to trivialize Earnhardt’s death and be unsympathetic
in their reactions to the crash. Conversely, fans with a
strong attachment to Earnhardt were clearly disturbed and
psychologically affected by the incident.
Part 6 \ Chapter 18 \ Fans 389.
There are many incidents of fans cheering players’ injuries.
In one of the more famous examples, in 1999, Philadelphia
Eagles fans cheered as Dallas Cowboys star wide receiver
Michael Irvin was being placed on a stretcher as a result of
head and neck injuries.
53
In a more recent trend, fans have
been cheering when their own players (typically poorly
performing quarterbacks) are injured, such as Cleveland
Browns fans and Derek Anderson in 2008,
54
Kansas City
Chiefs fans and Matt Cassel in 2012,
55
and Houston Tex-
ans fans and Matt Schaub in 2013.
56
Fans’ occasional disregard for the health of players is not
surprising considering past research that has shown that
college football fans are more attached to the game of
football than they are to the individual players.
57
Some have
suggested that as a result of the players’ helmets, players
become depersonalized,
58
and thus fans do not develop the
same sentiment towards players and might not be uncom-
fortable cheering an injury.
There are, of course, positive relationships between fans
and players as well. Research has shown that athletes are
viewed positively by fans where the athletes are perceived
as “good people off the field,”
59
and exhibit prosocial
behavior.
60
Nevertheless, there is no doubt that players
often feel pressure from fans to perform.
61
2 ) FANS AND GAMBLING
As discussed in the background section of this chapter, the
NFL has long been concerned about the commoditization
of player health information. These concerns persist today.
In a 2011 book discussing the gambling scandal involving
former NBA referee Tim Donaghy,
j
professional gambler
Jimmy Batista described winning a large amount after
receiving a tip from the Philadelphia Eagles’ locker room
concerning the injury status of star running back Brian
Westbrook (who played from 2002 to 2010) right before
a game.
62
Today, the “Personnel (Injury) Report Policy” (“Injury
Reporting Policy”) makes clear that “it is NFL policy
that information on all injured players be supplied by
the clubs to the league office.”
63
The NFL describes the
Injury Reporting Policy as one “of paramount importance
in maintaining the integrity of the NFL.”
64
The potential
abuses of the Injury Reporting Policy, including the pos-
sibility that players and coaches target injured players, are
discussed in more detail in Chapter 17: The Media.
Perhaps the most visible way in which gambling affects
players today is through fantasy sports. An estimated 33.5
million Americans play fantasy sports every year, spending
more than $3 billion on fantasy games and related services
and products.
65
Moreover, there are many websites where
fantasy players, for a fee, can win cash prizes, some exceed-
ing $1 million.
66
These games have been partially exempted
under the Unlawful Internet Gambling Enforcement Act
of 2006 (UIGEA),
67
a legal status supported by the NFL,
MLB, NBA, NHL, and NCAA.
68
j “Tim Donaghy, a former National Basketball Association (NBA) referee, was caught
making picks on games he ofciated during the 2006–07 season following an
investigation conducted by the Federal Bureau of Investigation. Donaghy bet on
dozens of games that he ofciated in each of the three prior seasons and had
disclosed information regarding player injuries and which referees were assigned
to specic games to people betting on NBA games. He was eventually sentenced
to a prison term of fteen months for conspiracy to commit wire fraud and ordered
to pay $217,266 USD in restitution by denying his employer the intangible right to
his honest services and conspiracy to transmit wagering information.” Richard H.
McLaren, Is Sport Losing Its Integrity? 21 Marq. Sports L. Rev. 551, 566 (2011).
Fans now routinely
harass players via social
media or in person
concerning players’
fantasy performance.
390. \ Protecting and Promoting the Health of NFL Players
The high stakes of fantasy sports has nevertheless come
with a dark side. Fans now routinely harass players via
social media or in person concerning players’ fantasy
performance.
69
Star running backs Jamaal Charles of
the Kansas City Chiefs and Arian Foster of the Houston
Texans both recalled being pressured by fans to come
back from injuries to help the fans’ fantasy football per-
formance.
70
Additionally, many of the interactions have
come in the form of threats. For example, during the 2013
season, a fan sent the following Tweet to New York Giants
running back Brandon Jacobs: “ON LIFE BRANDON
IF YOU DON’T RUSH FOR 50 YARDS AND TWO
TOUCHDOWNS TONIGHT ITS OVER FOR YOU AND
YO FAMILY N---ER.”
k
Jacobs reported the incident to
NFL security.
71
Current Player 4 relayed a story in which an injured team-
mate had a fan tell the player “to get back in the game”
because the fan had the player on his fantasy roster. “[The
player] was pretty disgusted that somebody would even
suggest something like that.”
l
Current Player 6 confirmed
“[y]ou feel the pressure and you hear the chatter” and Cur-
rent Player 7 said players “definitely” feel pressure from
fans to play through injuries.
m
The NFL reportedly has growing concerns about high
stakes fantasy sports,
72
but to date has not reversed its
position that fantasy sports is not gambling; this is unsur-
prising since the NFL administers free fantasy leagues
(without cash prizes) through its own website,
73
and even
recognizes a Fantasy Player of the Year at its annual awards
ceremony.
74
Indeed, inside information concerning player
injuries is now just as important for fantasy sports as it
k In the Tweet to Jacobs, the fan spelled out the entire slur. See Fantasy Pressure,
ESPN (Dec.8, 2014, 10:09 AM), http://espn.go.com/video/clip?id=11994138.
l Other players also expressed concern about the pressures created by fantasy
football: Current Player 9: “Yes, denitely [players feel pressure from fans],
especially with fantasy football.” Former Player 2: “This fantasy football stuff right
now has kind of gone crazy.”
m Other players did not believe players felt meaningful pressure from fans. Current
Player 2: “I don’t think that [fans] play a huge role in putting pressure on guys as
they’re out on the eld. I don’t think there’s any that have any impact on the guy
whether a guy is going to go out there and play hurt or not.” Current Player 10:
“Idon’t think the fans or even the media plays that much into it.” We reiterate
that our interviews were intended to be informational but not representative of all
players’ views and should be read with that limitation in mind.
always has been for more traditional gambling: ESPN
offers a subscription service called “Insider Trading,”
which purportedly includes “a collection of fantasy advice
pulled straight from the locker rooms and practice fields of
every team.”
75
The relationship between gambling and professional sports
has caused some to reconsider its prohibition. In Novem-
ber 2014, NBA Commissioner Adam Silver, accepting that
gambling has become widespread, called for the legaliza-
tion of sports gambling, proposing that it instead be heavily
regulated.
76
Indeed, both the NBA and MLB own equity
interests in fantasy websites where fans pay entry fees and
can win large financial prizes.
77
While the NFL does not
have an equity interest in such websites, two NFL club
owners do.
78
The NFL, nevertheless, as a collective entity,
has been unmoved, stating that Silver’s comment “doesn’t
change our stance that has been articulated for decades: no
gambling on N.F.L. games.”
79
( E ) Enforcement of Legal and Ethical
Obligations
As discussed above, there are no legal obligations unique
to the fan-player relationship. To the extent fans assault,
batter, threaten or otherwise harm NFL players, NFL play-
ers could pursue either criminal charges or a civil lawsuit
against the fan.
If fans are acting unruly or in a threatening manner at a
game, players can bring that to the attention of security and
have the fan ejected.
Recommendations Concerning Fans – continued
Part 6 \ Chapter 18 \ Fans 391.
( F ) Recommendations Concerning Fans
Fans, ultimately, are what drive the success of the NFL. Fans consume the sport in incredible numbers, driving record-
breaking television audiences and contracts. Fans, thus, also have incredible power. Without fan interest, the money,
power, and prestige disappear. Below we make recommendations that seek to recognize and harness the power of the fans
for the betterment of NFL players.
Goal 1: To wield the power of NFL fans to improve the health of NFL players.
Principles Advanced: Respect; Health Primacy; and, Justice.
Recommendation 18:1-A: Fans should recognize their ability to bring about change
concerning player health.
As discussed above, fans are tremendously important when it comes to the NFL’s success. Fans thus have the leverage to
pressure the NFL and other stakeholders into making positive changes for player health. There is precedent for the exercise
of such leverage. In 2009, the Sports Fan Coalition was formed by a former White House attorney for the purposes of pro-
tecting fans’ interests.
80
In its brief history, two items on the Sports Fan Coalition agenda have changed for the better: (1)
NCAA college football created a playoff system; and, (2) the Federal Communications Commission eliminated a rule that
permitted NFL clubs to “blackout” television broadcasts where the game did not reach a certain attendance level. While
the Sports Fan Coalition’s importance in these changes is unclear, it seems likely that the Sports Fan Coalition’s expression
of a collective fan voice had an impact.
Fans could have a similar positive impact on NFL player health, including by putting pressure on the NFL, NFLPA, clubs,
and other stakeholders to adopt recommendations like those we have made in this Report.
n
Recommendation 18:1-B: Fans should recognize that the lives of NFL players are more
than entertainment, and that NFL players are human beings who suffer injuries that may
adversely affect their health.
While NFL players’ profession entails playing a sport largely for the entertainment of fans, an NFL career has real and
important short and long-term impacts on players and their families. The fan experience sometimes strips some fans of
understanding or sympathy for players — viewing them as mere means rather than human beings. Such a view is incompat-
ible with the principle of Respect we have outlined in this Report. Fortunately, fans have increasingly taken note of the
ways in which the game can harm players and through their behavior can help foster a norm of respect. This is a positive
trend and hopefully one that will continue.
Recommendation 18:1-C: Fans should not pressure players to play while injured.
n The long-time NFL columnist Mike Freeman stated, “[i]f there ever comes a time when fans see the players as people and not commodities or gladiators or faceless entities on
our fantasy rosters, everything could change.” Mike Freeman, Two Minute Warning: How Concussions, Crime, and Controversy Could Kill the NFL (and What the League Can Do to
Survive) xx (2015).
Recommendations Concerning Fans – continued
392. \ Protecting and Promoting the Health of NFL Players
For the reasons discussed above, fans should respect players and their physical and mental conditions. It is obvious that
all NFL players often play with varying degrees of injury and pain. No fan — except perhaps former NFL players — can
realistically understand the physical limitations of a player’s particular injury and whether it can withstand the physical
demands of playing in an NFL game. Moreover, fans should respect that the player has legitimate long-term interests in his
health at stake. As part of the continuing theme, fans must treat players with dignity and respect, and not as combatants
for the fans’ amusement.
On a related topic, fans should exercise discretion when communicating with players via social media. While the interac-
tion between players and fans via social media is a great way to build a connection, fans should obviously refrain from
crossing the line with racist attacks or other threats. To the extent players are recipients of such communications, they
should take them seriously and report them to club and NFL security.
Recommendation 18:1-D: Fans should not advocate, cheer, encourage, or incite
playerinjuries.
It seems obvious that one should not encourage or be happy about the bodily or mental injury of another human being.
Nevertheless, fans sometimes express joy when a player, even their own team’s player, has been injured. That behavior is
incompatible with showing respect for players and treating them as human beings.
Endnotes
1 Regina Corso, As American As Mom, Apple Pie, and Football? Harris
Poll (Jan.16, 2014), http:// www .harrisinteractive .com /NewsRoom /
HarrisPolls /tabid /447 /ctl /ReadCustom %20Default /mid /1508 /ArticleId
/1365 /Default .aspx, archived at http:// perma .cc /9GF9 -Y2WP (listing
America’s favorite sports as, among others, Pro Football (35%), Baseball
(14%), College Football (11%), Auto Racing (7%), Men’s Pro Basketball
(6%), Hockey (4%), Men’s College Basketball (3%). 35% is the highest
percentage Pro Football has received in the history of the poll, dating
back to 1985.).
2 Id.
3 Larry Shannon-Missal, Denver Broncos Are America’s Favorite Football
Team; Dallas Cowboys Drop to 4th After Six Years at the Top, Harris Poll
(Oct.14, 2014), http:// www .harrisinteractive .com /NewsRoom /HarrisPolls
/tabid /447 /mid /1508 /articleId /1506 /ctl /ReadCustom %20Default /Default
.aspx, archived at http:// perma .cc /MB7G -FKX7.
4 Mark Fainaru-Wada & Steve Fainaru, League of Denial: The NFL, Con-
cussions, and the Battle for Truth 5 (2013).
5 See NFL Attendance – 2015, ESPN, http:// espn .go .com /n /attendance
(last visited Apr.7, 2016), archived at https :/ /perma -archives .org /warc
/3ST3 -L4ZB /http:// espn .go .com /n /attendance.
6 Sara Bibel, NFL 2013 TV Recap: 205 Million Fans Tuned In; 34
of 35 Most Watched Shows This Fall, Zap2It (Jan.8, 2014),
http:// tvbythenumbers .zap2it .com /2014 /01 /08 /n -2013 -tv -recap
-205 -million -fans -tuned -in -34 -of -35 -most -watched -shows -this -fall
/227726/, archived at http:// perma .cc /NZ7C -WF3C.
7 Super Bowl XLVIII Draws 111.5 Million Viewers, Nielsen (Feb.3, 2014),
http:// www .nielsen .com /us /en /insights /news /2014 /super -bowl -xlviii
-draws -111 -5 -million -viewers -25 -3 -million -tweets .html, archived at
http:// perma .cc /X38F -ZX59.
8 One.Cool.Customer, NFL Social Media Rankings: Which Teams Have The
Largest Social Media Reach? SB Nation Blog (Jun 4, 2014, 8:00 PM),
http:// www .bloggingtheboys .com /2014 /6 /4 /5772834 /n -social -media
-rankings -which -teams -have -the -largest -social -media -reach, archived
at http:// perma .cc /8ZDY -RHDA.
9 See K. A. Hunt, T. Bristol, & R. E. Bashaw, A Conceptual Approach to
Classifying Sports Fans, J Serv. Mktg. 13, 439–452 (1999); D. L. Wann,
J.Royalty, & A. Roberts The Self-Presentation of Sport Fans: Investigat-
ing the Importance of Team Identication and Self-Esteem, J.Sport
Behavior 23, 198–206 (2000).
10 S. E. Smith et al., How Does Sport Team Identication Compare to
Identication With Other Social Institutions? 6 J Contemp. Athletics
69–82 (2011).
11 R. J. Sebastian & D. N. Bristow, Win or Lose, Take Me Out to the Ball-
game! An Empirical Investigation of Loyalty Proneness Among College
Students, 9 Sport Mktg. Quarterly 211, 211–20 (2000).
12 A 1977 New York Times article estimated the illegal sports gambling
market in the United States as being worth $50 billion. Steve Cady,
The Need for a Super Security Agency to Police All Major Sports, N.Y.
Times, Feb.22, 1977, http:// query .nytimes .com /gst /abstract .html ?res
=9C04E0DF143BE63BBC4A51DFB466838C669EDE, archived at https :/ /
perma .cc /593A -72WT ?type =source.
13 PASPA also exempted Oregon from the prohibition on sports gambling.
However, in 2005 Oregon voted to abolish the sports wagering lottery at
the end of the 2006–2007 NFL season. Carla Hanson, Oregon Sports Ac-
tion Laid to Rest, BlueOregon, Feb.9, 2007, http:// www .blueoregon .com
/2007 /02 /oregon _sports _a/, archived at http:// perma .cc /5RYJ -2CBY.
14 David Purdum, Wagers, Bettor Losses Set Record, ESPN (Jan.30, 2015),
http:// espn .go .com /chalk /story /_ /id /12253876 /nevada -sports -bettors
-wagered -lost -more -ever -2014, archived at http:// perma .cc /RKR8 -WPD7.
15 Id.
16 Delaware State Lottery 2013 Annual Report for the Fiscal Year Ending
June 30, 2013, Del. State Lottery, http:// www .delottery .com /pdf /2013
_DELott _Annual _Report .pdf (last visited Aug.7, 2015), archived at https
:/ /perma .cc /QWD5 -CW6B ?type =pdf.
Part 6 \ Chapter 18 \ Fans 393.
17 Montana Lottery Annual Report 2013, Mont. Lottery,
http:// montanalottery .com /forms /annual _report _2013 .pdf (last visited
Aug.7, 2015), archived at https :/ /perma .cc /5JRT -9GDT ?type =pdf.
18 Jerome Solomon, NFL’s Dirty Little Secret: Gambling’s Roots Run Deep,
Houston Chron., Jan.29, 2004, http:// www .chron .com /sports /article /NFL
-s -dirty -little -secret -Gambling -s -roots -run -1562128 .php, archived at
http:// perma .cc /6YEX -JU9R.
19 See The 1999 National Gambling Impact Study –Chapter 2: Gambling
in the United States, Nat’l Gambling Impact Study Comm’n (June 18,
1999), http:// govinfo .library .unt .edu /ngisc /reports /2 .pdf, archived at
https :/ /perma .cc /7VQU -EY39 ?type =pdf, at Page 2–14. (“Estimates of
the scope of illegal sports betting in the United States range anywhere
from $80 billion to $380 billion annually, making sports betting the most
widespread and popular form of gambling in America.”).
20 Unfortunately, the reported numbers make it impossible to bifurcate
estimates for professional football and college football.
21 Robert Kraft, Owner, New England Patriots, Deans’ Innovation in Sports
Challenge Kickoff, Harvard innovation lab (Nov.21, 2014).
22 Testimony of Bob Costas, N.G.I.S.C Las Vegas Meeting, November
10, 1998.
23 Mike Florio, Goodell Says Fantasy Football Isn’t About Wagering,
ProFootballTalk (January 17, 2014 11:32 AM), http:// profootballtalk
.nbcsports .com /2014 /01 /17 /goodell -says -fantasy -football -isnt -about
-wagering/, archived at http:// perma .cc /BU2B -YQUB.
24 Generally speaking, the point spread is the number of points by which
one team is expected to beat its opponent.
25 Dan Moldea, Interference: How Organized Crime Inuences Professional
Football, 101–02 (1989). The Steelers were initially pegged as a seven-
point favorite over Washington, but the spread closed to one point before
kickoff following the publication of a photograph featuring Layne and his
injured arm.
26 Deposition of John J.Danahy, NFL v. Governor of Delaware, Oct.28,
1976, p.70–71. Danahy’s afdavit in the same case elaborates on the
motivation: “It is obvious that illegal gambling on NFL games occur and
that constant efforts are made by these gamblers to seek information
about teams or even inuence games.” Afdavit of John J.Danahy, NFL
v. Governor of Delaware, (August 23, 1976), p. 3.
27 Deposition of Pete Rozelle, NFL v. Governor of Delaware, Oct.13, 1976,
p. 99.
28 Deposition of John J.Danahy, NFL v. Governor of Delaware, Oct.28,
1976, p.24. Danahy also revealed: “We have had situations where
rumors of injuries have been specically created by gamblers for the
purpose of creating or effecting a gambling coup” (p. 72).
29 Steve Cady, The Need for a Super Security Agency to Police All Major
Sports, N.Y. Times, Feb.22, 1977, http:// query .nytimes .com /gst /abstract
.html ?res =9C04E0DF143BE63BBC4A51DFB466838C669EDE, archived
at https :/ /perma .cc /593A -72WT ?type =source.
30 See Glenn M. Wong, Essentials of Sports Law, § 16.1.3 (4th ed. 2010)
(discussing these and other cases of fan-athlete violence).
31 See Rich Cimini, NFL Hits Ellis with 10G Fine for Snowball, N.Y. Daily
News, Dec.24, 2008, available at 2008 WLNR 24668756 (discussing
2008 incident between Seattle Seahawks fans and New York Jets player
Shaun Ellis); Hector Gutierrez, Snow May Land Fans in Court, Denver
Rocky Mountain News, Nov.24, 1999, available at 1999 WLNR 811239
(discussing 1999 incident between Denver Broncos fans and Oakland
Raiders players); Snowball Barrage Injures 15, Denver Rocky Mountain
News, Dec.24, 1995, available at 1995 WLNR 657930 (discussing
New York Giants fans pelting San Diego Chargers players and coaches
withsnowballs).
32 Mike Wilkening, Fan Swings Helmet At Cowboys’ Webb During Practice
Fight; Webb Swings Back, ProFootballTalk (Aug.12, 2014, 10:59 PM),
http:// profootballtalk .nbcsports .com /2014 /08 /12 /fan -swings -helmet -at
-cowboys -webb -during -practice -ght -webb -swings -back/, archived at
http:// perma .cc /RDR2 -JFTL.
33 See Wong, supra note 30.
34 NFL Teams Implement Fan Code of Conduct, NFL (Aug.5, 2008, 04:43
PM, Updated Jul.26, 2012, 08:20 PM), http:// www .n .com /news /story
/09000d5d809c28f9 /article /n -teams -implement -fan -code -of -conduct,
archived at http:// perma .cc /X4J4 -T3X9.
35 See Darren Rovell, NFL Gets Serious About Fan Conduct, ESPN (Aug.17,
2012) http:// espn .go .com /n /story /_ /id /8278886 /n -require -ejected
-fans -take -online -fan -conduct -course, archived at http:// perma .cc /2N9E
-ER4F. The course is available at www .fanconductclass .com /NFL.
36 Half of Americans Don’t Want Their Sons Playing Football, Poll Shows,
Bloomberg (Dec.10, 2014, 7:00 AM), http:// www .bloomberg .com /
politics /articles /2014 -12 -10 /bloomberg -politics -poll -half -of -americans
-dont -want -their -sons -playing -football, archived at http:// perma .cc /
CQ5Q -D7KW.
37 See Chuck Klosterman, Is It Wrong to Watch Football?, N.Y. Times,
Sept.5, 2014, http:// www .nytimes .com /2014 /09 /07 /magazine /is -it
-wrong -to -watch -football .html, archived at https :/ /perma .cc /STD5 -4GGS
?type =pdf; Steve Almond, Why You Should Stop Watching Football, Bos.
Globe, Aug.10, 2014, available at 2014 WLNR 21887974.
38 John Guida, Should Your Child Play Football? N.Y. Times, Nov.11, 2014,
http:// op -talk .blogs .nytimes .com /2014 /11 /11 /should -your -child -play
-football/, archived at http:// perma .cc /5VRC -H4PM.
39 Steve Fainaru & Mark Fainaru-Wada, Youth Football Participation Drops,
ESPN (Nov.14, 2013), http:// espn .go .com /espn /otl /story /_ /page /
popwarner /pop -warner -youth -football -participation -drops -n -concussion
-crisis -seen -causal -factor, archived at http:// perma .cc /E3GZ -5D65.
40 Id.
41 See Ryan Wallerson, Youth Participation Weakens in Basketball, Football,
Baseball, Soccer, Wall St. J., Jan.31, 2014, http:// www .wsj .com /articles
/SB10001424052702303519404579350892629229918, archived at
http:// perma .cc /D47A -QTPN (5.4% decrease in youth football participa-
tion between 2008 and 2012 according to the Sports and Fitness
Industry Association and Physical Activity Council); Emily Attwood,
2013 Editions of NSGA Sports Participation Reports Released, Athletic
Bus. (June 2013), http:// www .athleticbusiness .com /industry -press
-room /2013 -editions -of -nsga -sports -participation -reports -released
.html, archived at http:// perma .cc /L5A2 -7LZZ (National Sporting Goods
Association nding a “nearly 13% decline” in youth football participation
between 2011 and 2013).
42 Date Shows Team Sports Participation Increased in ’15, Including
Hoops, Football, Sports Business Daily (Mar.10, 2016), http:// www
.sportsbusinessdaily .com /Daily /Issues /2016 /03 /10 /Research -and
-Ratings /SFIA .aspx, archived at https :/ /perma .cc /PQ86 -E29E.
43 See Jennings Bryant, Viewers Enjoyment of Televised Sports Violence,
Media, Sports, and Soc’y, 270–89 (1989); R. Todd Jewell, Afsheen Moati,
& Dennis Coates, A Brief History of Violence and Aggression in Spectator
Sports, in Violence and Aggression in Sporting Contests: Economic,
History and Policy 11–26 (2011); Stephanie Lee Sargent, Dolf Zillmann
& James B. Weaver III, The Gender Gap in the Enjoyment of Televised
Sports, 22 J.Sport Soc. Issues 46 (1998); Daniel L. Wann et al., Sport
fans: The Psychology and Social Impact of Spectators (2001).
44 Don Banks, NFL Fan Poll: Should Roger Goodell Keep Job? More State of
the Game, Sports Illustrated, http:// www .si .com /n -fan -poll -2014 (last
visited Aug.7, 2015), archived at http:// perma .cc /PM8J -ZTNY.
45 Id.
46 Michael David Smith, Poll Finds NFL Still Has Strong Support Across
America, ProFootballTalk (Sept.18, 2014, 6:59 PM), http:// profootballtalk
.nbcsports .com /2014 /09 /18 /poll -nds -n -still -has -strong -support
-across -america/, archived at http:// perma .cc /6D3R -PHE4.
47 Daniel L. Wann et al., Sport Fans: The Psychology and Social Impact
of Spectators (2001); Matthew D. Shank & Fred M. Beasley, Fan or
Fanatic: Rening a Measure of Sports Involvement, 21 J.Sport Behavior
435 (1998); Stephen J.Grove et al., Spectatorship Among a Collegiate
Sample: An Exploratory Investigation, in Michael J.Etzel & John F. Gaski,
Applying Marketing Technology to Spectator Sports, 26–40 (1982).
48 Jennings Bryant, Paul W. Comisky & Dolf Zillmann, The Appeal of
Rough-And-Tumble Play in Televised Professional Football, 29 Commc’n
Quarterly 256 (1981).
394. \ Protecting and Promoting the Health of NFL Players
49 Jennings Bryant et al., Sports and Spectators: Commentary and
Appreciation, 32 J Commc’n 109 (1982).
50 Dolf Zillmann & Paul B. Paulus Spectators: Reactions to sports events and
effects on athletic performance, in Robert N. Singer, Milledge Murphey &
L. Keith Tennant, Handbook of Res. on Sport Psychol. 600–19 (1993).
51 See Michael Powell, Outrage Over Violence Ends at the Stadium Gates,
N.Y. Times, Sept.16, 2014, http:// www .nytimes .com /2014 /09 /17 /
sports /football /reactions -to -adrian -peterson -case -ignore -brutality -on
-n -elds .html ?_r =0, archived at https :/ /perma .cc /P82D -CKY6 ?type
=image; Scott Ostler, How will Martin t in?, S.F. Chron., Mar.13, 2014,
available at 2014 WLNR 6793584; Matthew Stanmyre, NFL has tried
to make football safer, but violence remains at its core, Star-Ledger
(NJ), Feb.1, 2014 available at 2014 WLNR 2909040; Cf. Chiefs Players
Angry as Fans Cheer Injury, Pitt. Post-Gazette, Oct.8, 2012, available at
2012 WLNR 21308873 (Kansas City Chiefs offensive lineman and future
NFLPA President Eric Winston exclaiming “We are not gladiators and this
is not the Roman Colosseum. This is a game” after Chiefs fans cheered
the injury of quarterback Matt Cassel).
52 Daniel L., Wann & Paula J.Waddill, Examining reactions to the Dale
Earnhardt crash: The importance of identication with NASCAR drivers,
30 J.Sport Behav. 94 (2007).
53 Jean-Jacques Taylor, Crowd Callous About Irvin’s Injury: Players
Astonished By Fans’ Reaction, Dall. Morning News, Oct.11, 1999,
available at 1999 WLNR 7714249.
54 Mary Kay Cabot, Browns QB Anderson Heard the Jeers After Injury,
Cleveland.com (Nov.30, 2008, 8:38 PM), http:// www .cleveland .com /
browns /index .ssf /2008 /11 /browns _qb _anderson _heard _the _j .html,
archived at http:// perma .cc /FM3C -HST7.
55 Darin Gantt, Eric Winston Rips Chiefs Fan For Cheering Cassel Injury,
ProFootballTalk (October 7, 2012, 5:48 PM), http:// profootballtalk
.nbcsports .com /2012 /10 /07 /eric -winston -rips -chiefs -fans -for -cheering
-cassel -injury/, archived at http:// perma .cc /A2KZ -VZVB.
56 Mike Florio, Texans Players Sound Off on Fans Cheering Matt Schaub
Injury, ProFootballTalk (Oct.14, 2013, 10:11 AM), http:// profootballtalk
.nbcsports .com /2013 /10 /14 /texans -players -sound -off -on -fans -cheering
-matt -schaub -injury/, archived at http:// perma .cc /7QS5 -ZDWM.
57 Matthew J.Robinson & Galen T. Trail, Relationships Among Spectator
Gender, Motives, Points Of Attachment, And Sport Preference, 19 J.Sport
Mgmt. 58 (2005).
58 See Barbara Barker, Broncos, Seahawks Defenders Bring Sack Dances
To Big Stage, Newsday, Jan.29, 2014, http:// www .newsday .com /sports
/football /super -bowl /super -bowl -2014 -broncos -seahawks -defenders
-bring -sack -dances -to -big -stage -1 .6904808, archived at http:// perma .cc
/UZ25 -FBGJ; Sally Jenkins, NFL Violence: It’s a Matter Of Choice, Not Just
the Rules, Wash. Post, Dec.1, 2002, available at 2002 WLNR 15895732.
59 Traci A. Giuliano et al., Gender and the Selection of Public Athletic Role
Models, 30 J.Sport Behav. 161 (2007).
60 Julie A. Stevens, Anna H. Lathrop, & Cheri L. Bradish, “Who Is Your
Hero”: Implications for athlete endorsement strategies, 12 Sport Mktg.
Q. 103 (2003).
61 See Tom Pelissero, Tony Romo’s Injury Shows Pressure QBs Face To Play
Hurt, USA Today Sports, Nov.3, 2014, http:// www .usatoday .com /story /
sports /n /2014 /11 /03 /tony -romo -quarterback -injuries -aaron -rodgers
-alex -smith /18439613/, archived at http:// perma .cc /SUW3 -9CVX (Green
Bay Packers quarterback Aaron Rodgers discussing pressure from fans to
play through injuries as a result of publicly released medical information);
Joseph White, Redskins’ Sellers: Temptation of steroids was hard to resist,
Virginian-Pilot, May 4, 2010, available at 2010 WLNR 9202873 (former
Washington Redskins fullback Mike Sellers describing “pressure from
fans, family . . . ” as reasons players take performance enhancing drugs).
62 Sean Patrick Grifn, Gaming the Game, 68 (2011) (“He was question-
able but we got a call out of the locker room before anyone else that he
wasn’t playing,” Battista says. “The Eagles were favored by ten points
and the over/under was something like fty-two. Well, Westbrook being
out of the offense was a big deal. The total moved like six points. We bet
the dog and buried the under. The under hit and the dog covered.”).
63 National Football League, 2008 Personnel (Injury) Report Policy, Media and
Public Relations – General Information, Volume IV, Page E32. The NFL’s
policy has numerous prongs: (i) “all players with signicant or noteworthy
injuries must be listed on the report;” (ii) “the intent of the policy is to
provide a full and complete rendering of player availability;” (iii) “coaches
violating [the] policy are subject to disciplinary action;” and (iv) “injuries
must be identied with a reasonable degree of specicity in terms that
are meaningful to coaches, other club ofcials, the media, and the public.”
The degree of specicity in the reports creates a possible concern about
gamblers, coaches, or players targeting injured bodily areas.
64 Id.
65 Erik Matuszewski, Fantasy Sports Luring Wall Street in Its Fastest-Grow-
ing Sector, Bloomberg (Jan.5, 2014, 10:00 PM), http:// www .bloomberg
.com /news /2014 -01 -06 /fantasy -sports -luring -wall -street -in -its -fastest
-growing -sector .html, archived at http:// perma .cc /77RF -GAAR.
66 Id.
67 See 31 U.S.C. §§ 5361–5367. For a detailed academic treatment of the
UIGEA carve-out for certain kinds of fantasy sports see Anthony N. Cabot
& Louis V. Csoka, Fantasy Sports: One Form of Mainstream Wagering in
the United States, J.Marshal L. Rev. 40, 1195–219 (2007).
68 See Letter from Jeffrey Pash, VP and General Counsel, NFL, Tom Oster-
tag, Senior VP and General Counsel, MLB, Richard Buchanan, Senior VP
and General Counsel, NBA, William Daly, Deputy Commissioner, NHL,
and Elsa Kircher Cole, General Counsel, NCAA, to Members of Congress
(Feb.1, 2006) (urging members of Congress to pass the UIEGA).
69 See Fantasy Pressure, ESPN (Dec.8, 2014, 10:09 AM), http:// espn .go
.com /video /clip ?id =11994138.
70 Id.
71 Id.
72 Mike Florio, NFL paying attention to inuence of high-stakes fan-
tasy football leagues, ProFootballTalk (July 28, 2014, 3:08 PM),
http:// profootballtalk .nbcsports .com /2014 /07 /28 /n -paying -attention
-to -inuence -of -high -stakes -fantasy -football -leagues/, archived at
http:// perma .cc /LD2K -KW84.
73 See Fantasy Football, NFL, http:// www .n .com /fantasyfootball (last
visited Aug.7, 2015).
74 See Fantasy Football Player of the Year Vote, NFL, http:// fantasy .n
.com /features /playeroftheyearvoteconrm ?votedPlayerId =100025
&votingState =pre (last visited Apr.7, 2016), archived at https :/ /perma .cc
/6WKF -TN3B.
75 NFL Nation Reports, Fantasy Advice for Every Team, ESPN Insider
(Sept.5, 2014), http:// insider .espn .go .com /fantasy /football /story /_ /id
/11467696 /insider -trading -fantasy -advice -every -team -week -1 -n,
archived at http:// perma .cc /KQN7 -WS9X (“ESPN Insider has planted
‘spies’ in every NFL locker room – OK, so they’re our 32 NFL Nation
team reporters – in order to provide fantasy owners with inside intel to
help you win your league.”).
76 Adam Silver, Legalize and Regulate Sports Betting, N.Y. Times, Nov.13,
2014, http:// www .nytimes .com /2014 /11 /14 /opinion /nba -commissioner
-adam -silver -legalize -sports -betting .html, archived at https :/ /perma .cc /
LUF8 -EZM2 ?type =pdf.
77 Craig Calcaterra, MLB Owns a Stake in Daily Fantasy Sports, HardBall-
Talk.com (Mar.30, 2015, 11:35 AM), http:// hardballtalk .nbcsports .com
/2015 /03 /30 /mlb -owns -a -stake -in -daily -fantasy -sports/, archived at
http:// perma .cc /QFH9 -R8NT.
78 Mike Florio, NFL owners may have to dump investments in DFS com-
panies, ProFootballTalk (Nov.13, 2015, 7:29 AM), http:// profootballtalk
.nbcsports .com /2015 /11 /13 /n -owners -may -have -to -dump -investments
-in -dfs -companies/, archived at https :/ /perma .cc /TH7P -W5QJ.
79 Ken Belson, Will Other Leagues Join N.B.A.? Don’t Bet on It, N.Y. Times,
Nov.14, 2014, http:// www .nytimes .com /2014 /11 /15 /sports /not -all
-leagues -ready -to -go -all -in -on -legalized -gambling .html, archived at
https :/ /perma .cc /P8TH -Z3P2 ?type =pdf.
80 Who We Are, SportsFans.org, http:// www .sportsfans .org /about/ (last
visited Aug.7, 2015), archived at http:// perma .cc /QZ7V -GE8Z.
In the 2015 season, the NFL had approximately 29 ofcial corporate
partners,
a
which collectively paid the NFL more than one billion dollars
annually.
1
While there are many other companies that might advertise on
television during NFL games or around other NFL events, the business
partners we are principally focused on here are the ones that have
reached an agreement with the NFL to be considered an ofcial partner
or sponsor of the NFL. These business partners are an important
component in professional football. Such a role includes the potential,
and at times the obligation, to also play a role in player health.
a These corporate partners are sponsors of the NFL as opposed to sponsors of particular clubs or players. In addition, none of them are
Medical Service Providers, as discussed in Chapter 2: Club Doctors.
NFL Business Partners
Chapter 19
396. \ Protecting and Promoting the Health of NFL Players
In order to ensure that this chapter was as accurate and
valuable as possible, we invited nine NFL business part
-
ners to review a draft version before publication: Verizon,
Anheuser-Busch, Pepsi, and McDonald’s did not respond to
multiple invitations to review the Report; Gatorade, FedEx,
and Nationwide Insurance declined to review the draft;
Microsoft reviewed the chapter but did not provide any
comments; and, Nike provided a single comment affirming
the importance of player health and safety to Nike.
b
b Nike’s full comment: “As a sponsor of the NFL and the sponsor and footwear pro-
vider of many individual players, the safety and well-being of players is important to
us. Through the years NIKE has worked closely with the both the NFLPA and the NFL
in the NFL Foot and Ankle Committee (a subsection of the Player Safety Committee).
Additionally, we have always worked directly with athletes, teams and equip-
ment managers on testing, feedback and changes to our products to help athletes
perform to their highest ability.” E-mail from Nike counsel to author (May 18, 2016,
12:05 PM).
( A ) Background
The largest NFL business partners at the time of publication
include Verizon ($250 million in sponsorship annually);
2
Anheuser-Busch ($233 million);
3
Nike ($220 million);
4
Pepsi ($100 million);
5
and, Microsoft ($80 million).
6
The
relationship with the NFL generally provides the business
partners, among other things, advertising during NFL games
and through other NFL media, the right to include the
NFL logo on their products and in their advertisements, the
right to advertise themselves as the “official” brand of the
NFL, exclusivity in their brand category, and/or the right to
engage in promotional activities at NFL events, such as the
Super Bowl. The business partners have clearly determined
that the value of their association with the NFL and the
related exposure exceeds the millions in sponsorship fees.
Part 6 \ Chapter 19 \ NFL Business Partners 397.
Table 19-A:
NFL Sponsors (2015)
7
Sponsor Category Since
Gatorade Isotonic beverage 1983
Visa USA Payment systems service 1995
Campbell’s Soup Soup 1998
FedEx
Worldwide package
deliveryservice
2000
Frito-Lay Salted snack/popcorn/peanuts/dip 2000
Mars Snackfood
Chocolate and non-
chocolateconfectionery
2002
Pepsi Soft drinks 2002
Bridgestone Tire 2009
Procter & Gamble (Gillette, Head &
Shoulders, Vicks, OldSpice)
Grooming products, fabric care/
aircare, household needs
2009
Verizon
Wireless
telecommunicationservice
2010
Barclays Afnity card/rewards program 2010
Papa John’s Pizza 2010
Castrol Motor oil 2010
Anheuser-Busch Beer 2011
USAA Insurance/military appreciation 2011
Bose Home theater system 2011
Marriott Hotel 2011
Xbox (Microsoft)
Video game console, interactive
video entertainment console
2011
Nike Athletic apparel 2012
Quaker Hot cereal 2012
Procter & Gamble (Tide, Duracell) Household cleaning, battery power 2012
Lenovo
Computers (desktop, laptop, and
computer workstations)
2012
McDonald’s Restaurant 2012
SAP
Cloud software solutions, business
and business analytics
2012
Microsoft (Surface, Windows)
Sideline technology (tablet,
PCoperating system)
2013
Cover Girl Beauty 2013
Nationwide Insurance 2014
Extreme Networks Wi-Fi Analytics Provider 2014
Hyundai Automobile 2015
398. \ Protecting and Promoting the Health of NFL Players
( B ) Current Legal Obligations
c
Although NFL players and NFL business partners benefit
from one another, there is generally no direct legal relation-
ship between them. While some players might also enter
into endorsement agreements with the business partners,
these contracts concern marketing matters and would
not create any legal obligations for the business partners
concerning NFL player health.
8
Similarly, the CBA does not
create any obligations on NFL business partners, nor could
it, since the CBA is a contract between the clubs and play-
ers. Thus, NFL business partners have no legal obligations
to NFL players specific to their status as business partners.
( C ) Current Ethical Codes
The NFL is supported by a range of business partners
whose main focus often has nothing to do with football,
but instead centers on reaching the NFL’s massive audi-
ence for marketing purposes. Reaching consumers is a
legitimate and important business goal, but not all advertis-
ing venues are fair game. One can imagine a wide variety
of unsavory outlets a company would prefer (and ought)
to avoid, even if they would be an effective way to reach
potential customers. This is because companies are often
concerned — either genuinely, or out of fear that negative
responses from consumers will affect their bottom line —
that they may contribute to some ethically problematic
endeavor, thereby becoming complicit in or even exacerbat-
ing it. Notably, complicity comes in many forms, ranging
from failure to intervene when one has the capacity to
provide assistance to offering active support to an ethically
problematic activity.
As increasing questions arise about the health of profes-
sional football players, NFL business partners (and their
customers) may ask themselves, “what is our responsibil-
ity?” That is, what level and type of support should they
be providing to the NFL, or from a different angle, to the
players? At root, these questions are about unclean hands,
and whether NFL business partners are profiting on the
backs of players who may suffer dire consequences in the
long term. While the precise risks and benefits of an NFL
career remain subject to debate, the concerns suggest that
these are precisely the questions that ethically responsible
companies should ask. To avoid complicity, these compa-
nies should be concerned with what endeavors they allow
their money to support, and in what ways they can and/or
should wield their power to affect change.
c The legal obligations described herein are not an exhaustive list but are those we
believe are most relevant to player health.
The concept of corporate social responsibility seeks to
address these questions. We find it a useful framework for
understanding the ethical obligations NFL business partners
might have towards players. The most influential articu-
lation of corporate social responsibility principles is the
United Nations Guiding Principles on Business and Human
Rights, published in 2011 (“Guiding Principles”).
9
Indeed,
many NFL business partners have stated their intention to
comply with the Guiding Principles.
10
To be clear, we are not claiming that any of the problems
we discuss in this Report or that NFL players face by play-
ing football rise to the level of human rights violations;
given the simple fact of consent to play and payment for
services, the difficulties players face do not compare to the
numerous and ongoing tragedies around the world that
human rights law is thought to govern. Nonetheless, the
Guiding Principles provide a framework for understanding
business enterprises’ ethical obligations concerning others.
This framework is useful to understanding the relationship
between NFL business partners and players, even if we are
not discussing human rights violations.
To put the point another way, in asking the question “what
ethical obligations should business partners have as to the
health of NFL players,” it is useful to begin by understand-
ing what recognized ethical obligations they have in the
human rights realm, simply as a starting point. The Guiding
Principles include several principles that may be relevant to
that inquiry:
• Business enterprises should “[s]eek to prevent or mitigate
adverse human rights impacts that are directly linked to their
operations, products or services by their business relation-
ships, even if they have not contributed to those impacts.”
11
• “[B]usiness enterprises should carry out human rights due
diligence” including “assessing actual and potential human
rights impacts, integrating and acting upon the ndings,
tracking responses, and communicating how impacts
areaddressed.”
12
• Business enterprises should engage in “meaningful
consultation with potentially affected groups and other
relevantstakeholders.”
13
• Business enterprises should “exercise” leverage “to prevent
or mitigate the adverse impact” when possible.
14
• Business enterprises which lack the leverage to prevent or
mitigate the adverse impact should consider “collaborating
with other actors.”
15
Part 6 \ Chapter 19 \ NFL Business Partners 399.
In the corporate context, these responsibilities are con-
sidered as defining the ethical business conduct, but the
Guiding Principles do not purport to be legally enforceable
obligations. Nonetheless, using the Guiding Principles as
persuasive authority, we highlight two of the above prin-
ciples for further discussion.
Importantly, the Guiding Principles do not require that
the business enterprises’ conduct cause an adverse impact,
only that they be “directly linked.” NFL business part-
ners’ practices almost certainly do not cause player health
problems, but for reasons discussed in this chapter, there is
a direct link between business partners’ practices and player
health issues.
Second, the second-to-last bullet point recognizes business
enterprises’ obligations to exercise leverage where appropri-
ate. Again, for reasons discussed in this chapter, business
partners have the ability to wield influence with the NFL.
With that influence comes the responsibility to act conscien-
tiously and force others to do the same, including on mat-
ters concerning player health.
( D ) Current Practices
NFL business partners’ approach to NFL player health
issues is best highlighted by examining their response to
recent NFL controversies. When the NFL faced scrutiny for
mishandled domestic violence incidents in the fall of 2014,
many of its major sponsors issued generalized statements
expressing disappointment in the situation and calling on
the NFL to make changes.
16
However, research has not
revealed any statements by any NFL corporate sponsor
concerning the lawsuits over concussions or painkillers, or
any other player health or safety issue.
Much of the relationship between business partners and
the NFL occurs behind closed doors. All we can see are
the public positions, statements, and actions undertaken
by business partners. Taking inspiration from the Guiding
Principles (and again emphasizing that there is no claim
that we are talking about human rights violations), and
evaluating only based on the public record (a limitation,
to be sure), it does not appear that NFL business partners
have undertaken any of these kinds of efforts to prevent
harm to the health of NFL players, or even to influence a
culture that recognizes the value and importance of player
health. That is, there is no evidence that NFL business
partners have: (1) sought to prevent or mitigate player
health problems; (2) conducted due diligence concerning
player health issues; (3) engaged in meaningful consultation
Research has not revealed
any statements by any
NFL corporate sponsor
concerning the lawsuits
over concussions or
painkillers, or any
other player health or
safety issue.
Business partners should be
concerned with what endeavors they
allow their money to support, and in
what ways they can and/or should
wield their power to affect change.
400. \ Protecting and Promoting the Health of NFL Players
with players concerning player health issues; (4) exercised
leverage in an individual capacity to prevent or mitigate
player health problems; or, (5) exercised leverage in
a collaborative capacity to prevent or mitigate player
health problems.
d
Commentators have opined that one way to push the NFL
to make meaningful changes to its policies or course of
conduct regarding player health is to threaten financial con-
sequences, i.e., if business partners threatened to stop doing
business with the NFL.
17
Thus, there seemingly exists the
possibility that NFL business partners have the power to
effect change — or to at least begin meaningful conversation
about change — concerning player health issues.
Nevertheless, so long as the NFL remains a valuable
property with which to be associated, it seems unlikely that
individual business partners would risk damaging their rela-
tionships with the NFL by either taking adverse positions
or putting pressure on the League. At the same time, this
may be an era where the economic realities are changing.
Business enterprises that engage in sponsorship like that of
the NFL’s business partners are principally concerned with
d The business partners’ conduct must also be viewed in light of Guiding Principle
No. 24, which states that “[w]here it is necessary to prioritize actions to address
actual and potential adverse human rights impacts, business enterprises should rst
seek to prevent and mitigate those that are most severe or where delayed response
would make them irremediable.” Thus, some business partners might believe there
are issues of a human rights nature that deserve greater attention and immediacy
than their involvement in NFL player health matters.
deriving economic value from the sponsorship through
increased brand awareness and positive association with
the sponsored entity, e.g., the NFL. Negative publicity for
the NFL or decreased attention to the NFL (e.g., television
ratings) lessens the economic value of the business partner’s
sponsorship. NFL player health issues have created negative
attention for the NFL through lawsuits, news articles, and
other means. This negative attention has the potential to
spread to the NFL’s business partners through a “guilt by
association” mindset.
e
Thus, this may be the moment where
economic and ethical interests align, such that business
partners can take on a more prominent role in pressing for
protection of player health.
( E ) Enforcement of Legal and
EthicalObligations
In the absence of any existing legal or ethical obliga-
tions for NFL business partners concerning NFL player
health, there can be no enforcement of any such legal or
ethical obligations.
e Such concerns are not hypothetical. In 2014, ve sponsors (Sony, Emirates Airlines,
Castrol, Continental and Johnson & Johnson) pulled their sponsorship of FIFA’s
World Cup due to extensive allegations of corruption within the international soccer
organization. See Peter Sharkey, Cup Joy’s a World Apart From FIFA ‘Toxic Brand’,
Birmingham Post (UK), Jan.29, 2015, available at 2015 WLNR 2794660.
Recommendations Concerning NFL Business Partners – continued
Part 6 \ Chapter 19 \ NFL Business Partners 401.
( F ) Recommendations Concerning NFL Business Partners
NFL business partners, due to the power of their purses, have a unique ability to influence the NFL to make positive
changes concerning player health. Below we make recommendations that can improve business partners’ approaches
to player health issues, to the benefit of both players and the business partners. In making these recommendations, we
also stress that while we recommend and encourage business partners to act independently when necessary, that if busi-
ness partners collaborated and worked collectively on these issues they would be more likely to achieve positive changes
quickly and effectively.
Goal 1: To encourage NFL business partners to work towards advancing a culture
of health for NFL players.
Principles Advanced: Respect; Health Primacy; Collaboration and Engagement; and, Justice.
Recommendation 19:1-A: NFL business partners should not remain silent on NFL player
health-related policies.
During the 2014 season, the NFL’s business partners condemned the NFL’s failures to handle and address domestic vio-
lence issues. Several of the business partners’ statements reflected on the NFL’s place in our society and emphasized the
need for ethical conduct and leadership.
18
However, none of the business partners have ever made any statements concern-
ing the risks players face in playing professional football and the tolls of such a career. Moreover, the business partners
never made any statement concerning the allegations in the Concussion Litigation (see Chapter 7: The NFL and NFLPA)
that for many years the NFL misrepresented the risks of playing professional football to players. Why this asymmetry? It is
quite possible that business partners’ comments on the domestic violence issue were in response to greater public pressure,
and the more diffuse public pressure on player health has not yet reached the same crescendo.
Nevertheless, for the same reasons business partners commented on the NFL’s domestic violence issues, they should also
make their voices heard on player health-related issues. Business partners, like everyone in the professional football uni-
verse, need to understand and accept their responsibilities and role concerning player health.
A recent useful example is the energy bar company Clif Bar. Clif Bar sponsors adventure sports athletes, including moun-
tain climbers. After determining that some of these athletes were taking risks that were excessive (such as not using safety
ropes or BASE jumping), Clif Bar pulled their sponsorships of some of these athletes and issued a statement clarifying the
types of risks Clif Bar felt comfortable supporting. Of particular relevance, Clif Bar indicated that it “no longer [felt] good
about benefitting from the amount of risk certain athletes [we]re taking[.]”
19
Recommendation 19:1-B: NFL business partners should consider applying pressure on
the NFL to improve player health.
The NFL is a business and, like any business, does not want to suffer a drop in revenue. Individually, the business part-
ners might not represent a significant portion of the NFL’s revenue, but collectively the business partners’ sponsorship fees
comprise more than 10 percent of the NFL’s revenue. Thus, collectively, the business partners have leverage, i.e., the ability
to force the NFL to make change at the threat of losing hundreds of millions of dollars. The business partners, consistent
Recommendations Concerning NFL Business Partners – continued
402. \ Protecting and Promoting the Health of NFL Players
with the spirit of the Guiding Principles and other social responsibility initiatives and aspirations they have, should use
their power of the purse to help the players from whom they derive considerable financial value.
f
To be fair, business partners might reasonably be concerned that any exercise of such leverage will only result in the NFL
replacing them with a competitor. However, the NFL has reasons to maintain continuity with its business partners. Spon-
sor turnover is bad for brand loyalty and identification for both the sponsor and the NFL, thus decreasing the value of
the replacement partner’s sponsorship. For example, Pepsi is currently the official soft drink of the NFL. If Pepsi were to
be replaced by Coca-Cola, many fans might still believe Pepsi is the official soft drink or be confused as to which brand
is the official soft drink, decreasing the value of Coca-Cola’s sponsorship and the amount it would be willing to pay to
the NFL.
20
The recommendations made in this Report and other outlets that have discussed changes to player health provide guidance
on the types of issues for which business partners should exercise leverage.
Recommendation 19:1-C: NFL business partners should consider supporting
organizations conducting due diligence into player health issues.
The Guiding Principles, generally speaking, instruct business enterprises to conduct due diligence into how their actions
and business relationships affect others. If business partners are going to make fully informed decisions about their rela-
tionships with the NFL, it would be advisable that they consider research and data on NFL players and the issues they
face. While the business partners themselves likely lack the capabilities or expertise to conduct research into player health
issues, they have the resources to support organizations conducting such research.
Recommendation 19:1-D: NFL business partners should engage players concerning
player health issues.
As discussed above, NFL business partners receive tremendous economic value from their association with, and from
the work of, NFL players. In such situations, the Guiding Principles direct that the business enterprise should engage
the stakeholders involved to understand the impact of the business enterprise’s conduct on the health of the stakeholder.
Such conversations have the possibility to improve relations between the stakeholder and business enterprise, the business
enterprise’s own business operations, and the health of the stakeholder. In this context, NFL business partners could hold
conversations with current or former players to better understand them and the issues that matter to them. Additionally,
through these conversations, the business partners could learn how they might adopt more consistent messaging con-
cerning professional football, apply pressure on the NFL where appropriate, and what types of causes or organizations
concerning football the business partners should support. Such conversations would establish a better dynamic between
players and business partners and enhance the business partners’ reputation for social responsibility.
f FIFA again provides a useful example. In 2015, major sponsors Coca-Cola, Visa, and McDonald’s demanded FIFA take actions to address allegations of corruption and criminal
activity and requested a meeting to voice their concerns. Brian Homewood, FIFA to meet sponsors after reproaches from Coke, Visa, McDonald’s, Reuters, (Jul.24, 2015, 8:48
AM), http://www.reuters.com/article/2015/07/24/us-soccer-fa-sponsors-idUSKCN0PY1IC20150724, archived at http://perma.cc/VF4G-JHJ4.
Part 6 \ Chapter 19 \ NFL Business Partners 403.
Endnotes
1 Spons-o-Meter: NFL Lines Up 26 Partners To Start ’13 Season, Sports
Bus. Daily (Sept.13, 2013), http:// www .sportsbusinessdaily .com /Daily
/Issues /2013 /09 /06 /NFL -Season -Preview /Sponsometer .aspx, archived
at http:// perma .cc /U4S2 -TLUJ. For several years, Sports Business Daily
published an annual list of the NFL’s ofcial sponsors. However, for
unknown reasons, Sports Business Daily did not publish any such list in
2014 or 2015.
2 Matthew Futterman and Spencer Ante, Verizon Pads NFL Deal,
Wall St. J., Jun.4, 2013, http:// online .wsj .com /news /articles /
SB10001424127887324563004578525060861520512, archived at
http:// perma .cc /53SG -7U4H.
3 Michael David Smith, Bud Light sponsorship will pay the NFL $1.4
billion over six years, ProFootballTalk (Nov.4, 2015, 10:28 AM),
http:// profootballtalk .nbcsports .com /2015 /11 /04 /bud -light -sponsorship
-will -pay -the -n -1 -4 -billion -over -six -years/, archived at http:// perma .cc
/6YVT -FKJY.
4 Kristi Dosh, Steep Price Paid by Nike Likely to Pay Off, ESPN (Apr.3,
2012), http:// espn .go .com /blog /playbook /dollars /post /_ /id /554 /steep
-price -paid -by -nike -likely -to -pay -off, archived at http:// perma .cc /2MRR
-UBHJ.
5 Matthew Futterman, NFL Back On Field, And Deals Pile Up,
Wall St. J., Sept.6, 2011, http:// online .wsj .com /news /articles /
SB10001424053111904900904576552773485086198, archived at
http:// perma .cc /6QXS -GP4K. Gatorade, Frito-Lay, and Quaker are all
brands owned by PepsiCo and are included in Pepsi’s deal with the NFL,
which runs through the 2022 season.
6 NFL Sponsorship Revenue Totals $1.07 Billion In 2013 Season, IEG
Sponsorship Report, Jan.27, 2014, http:// www .sponsorship .com /IEGSR
/2014 /01 /27 /NFL -Sponsorship -Revenue -Totals -$1 -07 -Billion -In -20
.aspx, archived at http:// perma .cc /SD88 -HK2L.
7 See Spons-o-Meter: NFL Lines Up 26 Partners To Start ’13 Season,
Sports Bus. Daily (Sept.13, 2013), http:// www .sportsbusinessdaily
.com /Daily /Issues /2013 /09 /06 /NFL -Season -Preview /Sponsometer
.aspx, archived at http:// perma .cc /U4S2 -TLUJ (providing the bulk of
the list’s data); New Deal Establishes Nike As League’s Ofcial Uniform
Provider, NFL (Oct.12, 2010, 1:25 PM), http:// www .n .com /news /story
/09000d5d81b4559b /article /new -deal -establishes -nike -as -leagues
-ofcial -uniform -provider, archived at http:// perma .cc /R7PZ -393X
(discussing sponsorship agreement between Nike and NFL); Nationwide
Insurance Teams Up With The National Football League As An Ofcial
Sponsor, Nationwide Ins. (Aug.4, 2014), http:// www .nationwide .com /
about -us /080414 -n -announcement .jsp, archived at http:// perma .cc /
K74G -4WZV (discussing sponsorship agreement between Nationwide
and NFL); Extreme Networks Named Ofcial Wi-Fi Analytics Provider
of National Football League, Extreme Networks (Jan.15, 2014),
http:// investor .extremenetworks .com /releasedetail .cfm ?releaseid
=819515, archived at http:// perma .cc /9LFY -ZSBD (discussing sponsor-
ship agreement between Extreme Networks and NFL).
8 Additionally, players routinely enter into sponsorship agreements with
competitors of the NFL’s business partners. See Cindy Boren, Colin
Kaepernick Sticks with Beats by Dre — With a Little Tape Over the Logo,
Wash. Post, Oct.14, 2014, available at 2014 WLNR 28601543.
9 United Nations Ofce of the High Commission, Guiding Prin-
ciples on Business and Human Rights, A/HRC/17/31 (Jun.16,
2011) available at http:// www .ohchr .org /Documents /Publications /
GuidingPrinciplesBusinessHR _EN .pdf ?v =1392752313000 /_ /jcr :system /
jcr :versionstorage /12 /52 /13 /125213a0 -e4bc -4a15 -bb96 -9930bb8fb6a1
/1 .3 /jcr :frozennode, archived at https :/ /perma .cc /U36F -S7YR ?type =pdf
[hereinafter, “Guiding Principles”].
10 The NFL business partners that have stated their intention to comply
with the Guiding Principles include, but are not limited to: Pepsi, see
PepsiCo Code of Conduct, PepsiCo, http:// www .pepsico .com /Purpose /
Talent -Sustainability /Human -Rights, archived at http:// perma .cc /5YN4
-WRPW ?type =live (last visited Aug.7, 2015); see Report of the Sustain-
ability and Corporate Responsibility Committee of the Board of Directors
of McDonald’s Corporation, McDonalds Corp., Jan.9, 2014, http:// www
.aboutmcdonalds .com /content /dam /AboutMcDonalds /Investors /Investor
%202014 /Human %20Rights .pdf, archived at https :/ /perma .cc /QN4Y
-XMBR ?type =pdf (last visited Aug.7, 2015); Corporate Citizenship,
Microsoft,http:// www .microsoft .com /about /corporatecitizenship /en -us
/working -responsibly /principled -business -practices /human -rights/,
archived at http:// perma .cc /EVJ3 -H2KK (last visited Aug.7, 2015); and
P&G Corporate Newsroom A Renewed Commitment to Respect Human
Rights, Procter & Gamble, (Apr.21, 2014, 2:33 PM) http:// news .pg .com /
blog /social -responsibility /renewed -commitment -respect -human -rights,
archived at http:// perma .cc /MN33 -JNEF.
11 Guiding Principles, supra note 9 at 14.
12 Id. at 17.
13 Id. at 19.
14 Id. at 22.
15 Id.
16 Laurie Kulikowski, Will These 10 NFL Sponsors Quit Funding Football
Over Domestic Violence?, Street (Sept.24, 2014, 2:04 PM), http:// www
.thestreet .com /story /12885981 /1 /10 -n -sponsors -upset -over -the
-handling -of -domestic -abuse -scandals .html, archived at http:// perma
.cc /5P8L -9KFN (discussing statements by ten NFL sponsors expressing
disappointment, including Anheuser-Busch, General Motors, Verizon,
USAA, McDonald’s, Pepsi, Bose, FedEx, Marriott and Campbell Soup).
17 See Michael David Smith, Anheuser-Busch Disappointed, Concerned,
Dissatised With NFL, ProFootbalTalk (Sept.16, 2014, 3:47 PM),
http:// profootballtalk .nbcsports .com /2014 /09 /16 /anheuser -busch
-disappointed -concerned -dissatised -with -n/, archived at http:// perma
.cc /4G5C -6FFN; Juliet Macur, Time for N.F.L. Sponsors to Demand
Change, N.Y. Times, Feb.14, 2014, http:// www .nytimes .com /2014 /02 /15
/sports /football /time -for -n -sponsors -to -demand -change .html, archived
at https :/ /perma .cc /PC9J -5PMF ?type =pdf.
18 See Kulikowski, supra note 16 (Anheuser-Busch stating that the players’
actions “so clearly go against our own company culture and moral
code.”; USAA stating: “USAA’s founding values of service, loyalty, hon-
esty and integrity will always govern how we ultimately move forward,
and we’ve made this clear to the NFL.”; PepsiCo CEO Indra Nooyi
stating: “Given PepsiCo’s long-standing partnership with the NFL, I know
Roger Goodell. We have worked together for many years. I know him to
be a man of integrity, and I am condent that he will do the right thing
for the league in light of the serious issues it is facing.”).
19 See The Clif Bar Team, A Letter to the Climbing Community, Clif Bar,
http:// www .clifbar .com /text /a -letter -to -the -climbing -community (last
visited Aug.14, 2015), archived at http:// perma .cc /VA9L -QSKN; John
Branch, A Sponsor Steps Away From the Edge, N.Y. Times, Nov.14,
2014, http:// www .nytimes .com /2014 /11 /16 /sports /clif -bar -drops
-sponsorship -of -5 -climbers -citing -risks -they -take .html, archived at
https :/ /perma .cc /7TFM -UK3V ?type =pdf.
20 SportsBusiness Journal, in conjunction with Turnkey Sports & Entertain-
ment, conducts an annual poll measuring fans’ ability to correctly
identify a league’s ofcial sponsor is various categories as opposed
to a competing brand. See David Broughton, Awareness up across
the board for sponsors, Sports Bus. Daily (June 16, 2014), http:// www
.sportsbusinessdaily .com /Journal /Issues /2014 /06 /16 /Research -and
-Ratings /NHL -Sponsor -Loyalty .aspx, archived at http:// perma .cc /6VKS
-DWX8.