ringing the bell on concussions: the rise of head injuries and

Transcription

RINGING THE BELL ON CONCUSSIONS:
THE RISE OF HEAD INJURIES AND COGNITIVE
DECLINE IN FOOTBALL PLAYERS, AND
THE NFL'S OBLIGATION TO IMPROVE
SAFETY MEASURES
JarrydWerts*
INTRODUCTION ..............................................
I.
174
THE MEDICAL SCIENCE OF CONCUSSIONS AND THEIR
LONG-TERM EFFECTS .................................
A.
B.
C.
D.
Defining Concussions ..............................
PotentialLong-Term Effects of Concussions...........
Other Potential Effects of Concussions ...............
Recent Research on the Effect of Concussions .........
II. SEVERAL LAWSUITS BROUGHT AGAINST THE NFL .....
A. The Complaints ...................................
B. ProceduralBarriers to Recovery .....................
i. Are the Former Players a "Class" for the
Purposes of a Class-Action Lawsuit? ...........
ii. Claims Barred by the Collective Bargaining
Agreem ent ...................................
III. Do THE RETIRED PLAYERS HAVE A CASE?..............
A. Negligence Claim ..................................
i. Major Consensus Statements on Concussions in
Sport ........................................
ii. Safety-Related, On-the-Field Rules Changes
M ade by the NFL ............................
iii. Changes Made by Other Organizations in
Response to Concussions .....................
iv. Causality: A Proof Problem ...................
B. Fraud Claim: Did the NFL Withhold Facts About the
Effects of Concussions? .............................
IV. THE NFL MUST Do MORE TO PROTECT ITS PLAYERS.
C ONCLUSION .................................................
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* Articles Editor, 2012-2013, Cardozo Public Law, Policy & Ethics Journal.Candidate for
J.D., 2013, Benjamin N. Cardozo School of Law. Bachelor of Science in Biology, 2007, Duke
University. I would like to thank Professor Anthony Sebok for his invaluable advice and commentary throughout the writing process.
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INTRODUCTION
I had one my rookie year. I was knocked out cold for 10 minutes. I
had blood coming from my ear. The second [one] was [when] I got
knocked out in the '93 season NFC championship game against San
Francisco. I got knocked out in the third quarter. I spent the night in
the hospital. They asked me questions. I didn't know what planet I
was on. I still to this day have no recollection of ever having played in
that game. 1
Stories likes the ones described here by Troy Aikman, a Hall-ofFame quarterback for the Dallas Cowboys, have become commonplace
in the National Football League (NFL). Past and current players have
often described these types of head injuries as "getting your bell rung" or
"getting dinged."2 Today, more and more players are now
using the
medical term to describe the injury: concussion. In many ways, Aikman
is one of the lucky ones-he says he does not have any lingering effects
from his concussions. 3 However, at age 45,4 no one can be sure that the
concussions that drove him from the game of football will not impact
his long-term health.
In football, a sport that has been built on toughness and machismo, terms like getting "dinged" are used as a way to down play the
seriousness of a concussion. When players got their "bell rung," they
were expected by their organizations, teammates, coaches-and themselves-to return to the game. This culture of toughness bred camaraderie and respect throughout the football community; however, it also
may have led to long-term health issues for the players.
Even as the "macho" culture of the NFL continued, and in some
ways still continues, it became apparent that many of the retired players
had debilitating long-term health issues, many of which seem to be correlated with repeated concussions. A prime example is Ted Johnson, a
former NFL player who "had been locking himself in his apartment
1 Bob Woifley, Fox's Aikman Takes a Pass on Concussion Issue, WISCONSIN-MILWAUKEE
JOURNAL SENTINEL, Jan. 8, 2011, http://www.jsonline.com/blogs/sports/113137639.htm.
2 Mark Aubry et al., Summary andAgreement Statement of the FirstInternationalConference
on Concussion in Sport, Vienna 2001, Recommendationsfor the Improvement of Safety and Health
ofAthletes who may Suffer Concussive Injuries, 36 BRIT. J. SPORTS MED. 6, 7 (2002), available at
http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1724447/pdf/v36pOOO06.pdf.
3 Wolfley, supra note 1.
4 Troy Aikman Stats, ESPN.coM, http://espn.go.com/nfl/player/stats/l/id/53/troy-aikman
(last visited, Aug. 10, 2012).
2012]
RINGING THE BELL ON CONCUSSIONS
with the blinds drawn for days" soon after retirement." 5 After going to
see Dr. Robert Cantu-a neurologist and one of nation's top sports
concussion specialists 6 -Johnson was told that, at age 34, he was already
showing signs of mild cognitive impairment, which is "characteristic of
early Alzheimer's disease." 7 Johnson believes that his cognitive issues
began soon after his head coach Bill Belichick ignored trainers' recommendations that Johnson only participate in "practice without contact
while recovering from a concussion. '"8
Another example of a former player having cognitive impairment
following his NFL career was Andre Waters. Waters committed suicide
at age 44 in 2006-only 11 years after his playing career ended. 9 Although doctors cannot be certain of his reasons for committing suicide,
Dr. Bennet Omalu, a forensic pathologist, said that Waters' brain tissue
was similar to that of a typical 85-year-old man, and there were characteristics of early stages of Alzheimer's." ° Dr. Omalu believed that the
brain damage was accelerated by successive concussions and that Waters
would have been completely incapacitated if he had lived for an additional 10 to 15 years. 11
One problem is that medical science has been slow to catch up
with our intuitions. It appears to be common sense that repeated hits to
the head would be bad for your health, but until recently, there have not
been extensive studies on the impact of repeated head injuries in football
on long-term health. 2 However, as new studies have been completed,
5 Ben McGrath, Does Football Have a Future? The NFL. and the Concussion Crisis, THE
NEw YORKER (Jan. 31, 2011), http://www.newyorker.com/reporting/2011/01/31/110131fa
fact-mcgrath.
6 Kurt Samson, School Sport Concussions Draw NationalAttention as More States Draft Return-to-Play Laws, 10 NEUROLOGY TODAY 1, 12 (2010), available at http://journals.lww.com/
4
neurotodayonline/toc/2010/030 0. See also Tim Stevens, Concussion Experts Differ On Youth
Sports Safety, NEWSOBSERVER.COM (Feb. 12, 2012), http://www.newsobserver.com/2012/02/
12/1848278/concussion-experts-differ-on-youth.html.
7 McGrath, supra note 5.
8 Id.
9 Adam Hadhazy, Concussions Exact Toll on Football Players Long After They Retire, SCIENTIFIC AMERICAN (Sept. 2, 2008), http://www.scientificamerican.com/article.cfm?id=footballconcussions-felt-long-after-retirement.
10 Tom Farrey, Pathologist Says Waters' Brain Tissue HadDeteriorated,ESPN.coM (Jan. 19,
2007), http://sports.espn.go.com/nfl/news/story?id=2734941.
1 Id.
12 Alan Schwarz, Concussions Tied to Depression in Ex-NFL. Players, N.Y. TIMES, May 31,
2007, http://www.nytimes.com/2007/0 5/31 /sprts/football/3 1concussions.html?pagewanted=
all. See also Michael W. Collins et al., Relationship Between Concussion and Neuropsychological
Performance in College Football Players, 282 JAMA 964, 964 (1999).
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the science seems to support what many have long believed: repeated
head injuries leave you more susceptible to cognitive disorders later in
life.' 3
Now, the question is who is responsible for these injuries? Did the
players assume these "inherent" risks by playing the game of football, or
did the NFL and its teams encourage players to return to the field too
quickly following head injuries to the benefit of their organizations, but
to the detriment of the players' long-term health? This is the question
that several new lawsuits against the NFL are aimed at answering.14 Numerous groups of retired NFL players are suing the NFL alleging that
the NFL concealed the long-term effects of concussions from the players
and failed to implement measures to protect players from recurring head
injuries. 15 The NFL is claiming that the players assumed the health
risks associated with playing football and that they have remained vigilant in expanding safety measures as the science began to show a link
between concussions and long-term cognitive impairment. The retired
players are arguing that the NFL should have expanded safety measures
16
much sooner.
Regardless of whose side the law falls on, it is becoming increasingly clear that the NFL must do more to protect its players from longterm health problems stemming from concussions. In Part I, I will discuss the science behind concussions and their potential long-term health
effects. In Part II, I will explore the recent lawsuits filed by retired players against the NFL and the procedural obstacles the retired players will
have to overcome to allow their cases to be submitted to a jury. In Part
III, I will examine the merits of the claims, including the safety precautions taken by the NFL over the years and how they compare with those
implemented by the National Collegiate Athletic Association (NCAA)
Schwarz, supra note 12.
Complaint at 7, Easterling v. Nat'l Football League, No. 11CV05209 (E.D.Pa. filed Aug.
17, 2011); Complaint at 14, 19, Maxwell v. Nat'l Football League, No. CV1 1-08394 (C.D.
Cal. filed July 19, 2011). See also Pear et al. v. Nat'l Football League, No. CVI 1-08395 (C.D.
Cal. filed Oct. 11, 2011); Barnes et al. v. Nat'l Football League, No. CV1 1-08396 (C.D. Cal.
filed Oct. 11, 2011). These lawsuits have now been combined in the Eastern District of Pennsylvania. See Associated Press, Four concussion lawsuits combined, ESPN.coM (Jan. 31, 2012),
http://espn.go.com/nfl/story/-/id/7523991/four-nfl-concussion-lawsuits-combinedphiladelphia).
15 Michael McCann, Concussion Lawsuit Could Cost NFL, Whether Decided In or Out of
Court, SI.coM (Aug. 19, 2011), http://sportsillustrated.cnn.com/201l/writers/michaelmc
cann/08/19/concussion.lawsuit/index.html.
13
14
16
Id.
20121
and state legislatures for youth sports. Finally, in Part IV, I propose that
the NFL should do more to protect players from head injuries, including on-the-field rule changes, changes in the return-to-play policy, and
equipment changes.
I.
THE MEDICAL SCIENCE OF CONCUSSIONS AND
THEIR LONG-TERM EFFECTS
A.
Defining Concussions
Concussions are "a type of traumatic brain injury, or TBI, caused
by a bump, blow, or jolt to the head that can change the way your brain
normally works." 17 Concussions are typically considered mild TBIs because they are usually not life threatening; however, they can still have
long-term consequences.' 8
Two common symptoms of concussions are a temporary loss of
consciousness and amnesia, which almost always includes the loss of
memory of the blow to the head that caused the concussion.1 9 Other
physical symptoms may include headache, blurry vision, nausea or
vomiting (soon after the concussion), dizziness, and sensitivity to light.
Concussions can also affect one's mood, causing irritability, sadness, and
nervousness. Patients who experience concussions may also have difficulty concentrating, difficulty remembering new information, and
changes in sleeping patterns.2" Sometimes these symptoms can be
tough for the patient to detect and may persist for weeks or even
months. 2
If these symptoms persist for weeks, months, or longer than a year,
it is typically described as post-concussion syndrome, or PCS." Studies
have shown that increased age is a risk factor for PCS,2 3 but there has
been no documented link between the severity of the head injury and
the risk of developing PCS.2 4
17 Centers for Disease Control and Prevention, Concussion and Mild TBI, CDC.Gov (Oct.,
2011), http://www.cdc.gov/concussionlindex.html.
18 Id.
19 Centers for Disease Control and Prevention, Concussion: What are the Signs and Symptoms
of Concussion, CDC.gov (March, 2010), http://www.cdc.gov/concussion/signs-symptoms.html.
20 Id.
21 Id.
22 Post-Concussion Syndrome, MAYO CLINIC (Sept. 29, 2011), http:llwww.mayoclinic.coml
health/post-concussion-syndromelDS0 1020.
23 Id.
24 Id.
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PotentialLong-Term Effects of Concussions
Symptoms associated with concussions and PCS have been documented over several decades; however, only recently have scientists begun to study the long-term physical and cognitive effects of
concussions. 25 One potential long-term consequence of concussions is
dementia. Dementia is a general term, which describes a "loss of mental
functions such as thinking, memory, and reasoning that is severe
enough to interfere with a person's daily functioning." 26 Dementia can
be caused by a number of different diseases and conditions, but it is not
a disease in and of itself.27 Symptoms of dementia can also include
personality changes, mood swings, and behavioral changes. Depending
on the disease or condition that causes the dementia, it may be treated
or even cured. The most common (and incurable) form of dementia is
28
Alzheimer's disease.
Alzheimer's disease is described as "an irreversible, progressive
brain disease that slowly destroys memory and thinking skills, and eventually even the ability to carry out the simplest tasks."'29 The main
symptoms include memory impairment; problems with decision-making ability, language, and judgment; and personality changes. 30 The
most well known risk factor for Alzheimer's is increased age, as one's
risk of developing Alzheimer's doubles every 5 years after age 65 and
almost half of all people who live past the age of 85 have Alzheimer's
disease.3 1 Patients with Alzheimer's develop plaques and tangles in and
around the nerve cells, which are responsible for damaging and killing
those cells. 32 Although most people develop plaques and tangles as they
25 Schwarz, supra note 12. See also
26
Collins, supra note 12, at 964.
Alzheimer's Disease and Other Forms of Dementia, WEB MD (March 13, 2012), http://
www.webmd.com/alzheimers/guide/alzheimers-dementia.
27 Id.
28
Id.
29
Alzheimer's Disease Fact Sheet, U.S.
NATIONAL INSTITUTE ON AGING
tions/adfact.htm.
30 Alzheimer's Disease, U.S.
DEPARTMENT OF HEALTH AND HUMAN SERVICES:
(July, 2011), http://www.nia.nih.gov/Alzheimers/Publica-
NATIONAL LIBRARY OF MEDICINE
(Sept. 26, 2011), http://www.
ncbi.nlm.nih.gov/pubmedhealth/PMHO01767/.
31 Alzheimer's Disease Risk Factors, MAYO CLINIC (Aug. 2, 2011), http://www.mayoclinic.
com/health/alzheimers-disease/DS00161/DSECTION=risk%2Dfactors.
32 What Is Alzheimer's?, ALZHEIMER'S ASSOCIATION, http://www.alz.org/alzheimers diseasewhat is alzheimers.asp#brain.
2012]
age, patients with Alzheimer's tend to develop more of them and gener33
ally first develop them in areas that are important for memory.
Another cognitive disorder that has been linked to concussions is
chronic traumatic encephalopathy, or CTE. CTE is a "progressive degenerative disease of the brain found in athletes (and others) with a
history of repetitive brain trauma." 34 Since the 1920s, the condition has
been associated with former boxers and known as dementiapugilistica or
"punch drunk syndrome. 3 5 Recently, the condition has been seen in
former football players and other athletes with histories of "repetitive
brain trauma." 36 Symptoms of CTE include memory loss, impulse control problems, and impaired judgment.3 7 Currently, clinical diagnosis
of CTE is difficult because there are no consensus diagnostic criteria, so
conclusive diagnoses can only be made postmortem. 38
C.
Other PotentialEffects of Concussions
Related concerns for former football players who have sustained
traumatic brain injuries are depression and suicide. A study conducted
by the University of North Carolina's Center for the Study of Retired
Athletes has shown that the rate of diagnosed depression in former NFL
football players has a strong correlation with the number of concussions
sustained.3 9 In particular, the study, which surveyed 2,552 retired NFL
players, showed that of the 592 players who said that they sustained
three or more concussions during their career, 20.2 percent of them had
been diagnosed with depression. This rate of diagnosed depression was
three times the rate shown in former players who had not sustained
33
34
Id.
What is CTE?,
CEPHALOPATHY,
BOSTON
UNIVERSITY
CENTER FOR THE STUDY OF TRAuMATIc EN-
http://www.bu.edu/cste/about/what-is-cte/.
35 Pedro Pineda & Douglas J. Gould, The NeuroanatomicalRelationshipof Dementia Pugilistica andAlzheimer's Disease, 9 NEUROANATOMY 5 (2010), available at http://www.neuroanatomy.org/2010/005_007.pdf. See also, What is CTE?, supra note 34.
36 What is CTE?, supra note 34.
37 Id.
38 Brandon E. Gavett et al., Chronic Traumatic Encephalopathy: A Potential Late Effect of
Sport-RelatedConcussive and Subconcussive Head Trauma, 30 CLINICS IN SPORTS MED.179, 183
(2011), available at http://www.bu.edu/cste/files/2011/11/Gavettetal201 1ClinSportsMedCTE.
pdf.
39 Kevin M. Guskiewicz,et al., Recurrent Concussion and Risk ofDepression in Retired Professional FootballPlayers, 39 MED. & SCI.IN SPORTS & EXERCISE, 903, 907-08(2007). See also
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concussions.4" Depression has been shown to increase the risk of dementia, but it is unclear whether depression directly causes dementia.4 1
The issue of depression is a growing concern in light of recent
suicides by former NFL players. As discussed previously, Andre Waters
committed suicide in 2006, and his brain showed signs of early
Alzheimer's.4 2 More recently, Dave Duerson, a former NFL safety,
committed suicide in February 2011. Duerson, according to text
messages sent to family members shortly before his death, purposely
shot himself in the chest rather than the head so that doctors could
examine his brain for the same type of degenerative brain condition seen
with Waters.13 Other former players have also committed suicide in
recent months, including Junior Seau in May 2012,' 4 and Ray Easterling, a plaintiff in one of the many lawsuits against the NFL, in April
2012. 4 ' Although depression can be brought on by a myriad of different factors, the correlation between depression and brain degeneration
observed in these recent suicides certainly warrants more research.
D.
Recent Research on the Effect of Concussions
Although head injuries have been linked to cognitive disorders like
dementia since at least the 1920s, 4 6 only recently has the scientific community reached a general consensus that points to a clear connection
between head injuries and long-term cognitive impairment.4 7
40
41
Elizabeth Landau, Depression may raise risk of dementia, Alzheimer's, study says,
(July 5, 2010), http://articles.cnn.com/2010-07-05/health/depression.dementia
pressed-people-large-study?_s=PM:HEALTH.
42 Hadhazy, supra note 9.
CNN.COM
1-dementia-de-
43 Alan Schwarz, NFL. Players Shaken by Duerson'sSuicide Message, N.Y. TIMES (Feb. 20,
2011), http://www.nytimes.com/2011/02/21/sports/football/21duerson.html. Since Dave Duerson's death, his son has filed suit against the NFL in state court in Chicago, Illinois "contending that the N.F.L.'s handling of Duerson's on-field concussions led to his brain damage and
ultimate suicide." Complaint at 14, Duerson v. Nat'l Football League, No. 2012L002043 (Cir.
Ct. Ill. filed Feb. 23, 2012).
44 Junior Seau's Death Ruled a Suicide, ESPN.coM (May 3, 2012), http://espn.go.com/nfl/
story/-/id/788837/san-diego-cunty-medica-examiner-office-rules-junior-seau-death-suicide.
45 Scott Gleeson, Concussion suit plaintiff Ray Easterling commits suicide, USA TODAY (Apr.
20, 2012), http://content.usatoday.com/communities/thehuddle/post/2012/04/former-falconray-easterling-found-dead-ruled-a-suicide-/I#.UCPUCkKSBUQ.
46 Deborah Blum, Op-Ed., Will Science Take the Field?, N.Y. TIMES (Feb. 4, 2010), http://
www.nytimes.com/2010/02/05/opinion/05blum.html.
47 What is CTE?, supra note 34.
2012]
For instance, in 2009, a study commissioned by the NFL showed a
link between former NFL players and the development of dementia.4 8
The study involved a telephone survey of one thousand retired NFL
players, which was designed to examine various health measures.4 9 The
results showed that retired players that were under the age of fifty were
nineteen times more likely to have dementia, Alzheimer's disease, or
other memory-related diseases than the general population of similarly
aged men. 50 For retired players older than fifty years of age, the rate of
dementia or similar conditions was approximately five times greater than
that seen in the general male population over fifty years of age.5"
More recently, a 2011 study looked at the effect of mild TBIs on
former NFL players.5 2 The study, conducted by Dr. Christopher Randolph,5 3 first sent questionnaires to all retired players in 2001, and then
sent follow-up Alzheimer's screening questionnaires in 2008. After receiving 513 responses from the 2008 surveys, they called all the respondents and asked them if they had experienced any cognitive
impairment. 54 Those who had experienced cognitive issues were then
clinically examined. 55 They then compared the results of the respondents to a group of matched individuals who had never participated in
contact sports.56 The results demonstrated that the retired players had a
thirty-five percent rate of cognitive impairment compared with a rate of
thirteen percent for the control group. 57 Although Dr. Randolph still
considers these results to be "preliminary," the findings support the hy48 Allison Gandey, NFL Study Finds More Dementia Among Retired FootballPlayers, MEDSCAPE MEDICAL NEWS (Oct. 9, 2009), http://www.medscape.com/viewarticle/710274. See also
Study Links Concussions To Brain Disease, CBSNEws (Oct. 11, 2009), http://www.cbsnews.com/
stories/2009l10108/60minutes/main53 71686_page2.shtml?tag=contentMain;contentBody.
49 Gandey, supra note 48.
50 Id.
51 Id.
52 Kurt Samson, Former Players Sue NFL Alleging Cover-up of Concussion Risks, 11 NEUROLOGY TODAY 3, 4 (2011), available at http://www.aan.com/elibrary/neurologytoday/?event=
home.showArticle&id=ovid.com:/bib/ovftdb/00 132985-201108180-00006.
53 Dr. Christopher Randolph is a clinical neuropsychologist and Clinical Professor of Neurology at Loyola University Medical Center in Chicago and has been the principal investigator
for several clinical trials in dementia and depression. He is also a leader in neurocognitive test
development. See About, KAPPA CLINICAL PARTNERS, http://www.kappaclinical.com/about.
html.
54 Samson, supra note 52, at 4.
55 Id.
56 Id.
57 Id.
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pothesis "'that repetitive head trauma from many years of playing football may result in diminished brain reserve, and lead to the earlier
58
expression of age-related neurodegenerative diseases.'"
II.
SEVERAL LAWSUITS BROUGHT AGAINST THE
A.
NFL
The Complaints
On July 19, 2011, seventy-five former NFL players filed a lawsuit
against the NFL and Riddell Inc., an equipment company that makes
NFL helmets, in Los Angeles County Superior Court (Maxwell v. National Football League) on theories of fraud and negligence, and they are
seeking monetary damages. 59 The former players allege that the NFL
"fraudulently concealed the long-term effects of concussions" from the
players and "committed negligence by failing to exercise its duty to enact league-wide guidelines and mandatory rules regulating post-concussion medical treatment and return-to-play standards for players who
suffer a concussion and/or multiple concussions. "60
On August 17, 2011, six former NFL players filed a class-action
lawsuit against the NFL in U.S. District Court for the Eastern District
of Pennsylvania (Easterling v. National Football League) on theories of
negligence and intentional misconduct.6 ' Similar to the complaint in
Maxwell, the former players allege that the NFL "assumed a duty toward
the Plaintiffs ... to supervise, regulate, monitor and provide reasonable
and appropriate rules to minimize the risk of injury to the players," and
that the NFL breached that duty by inter alia "failing to warn [the players] of the risk of unreasonable harm resulting from repeated
concussions.""
Both lawsuits claim that for at least thirty-five years, the NFL has
denied the relationship between concussions sustained while playing and
the long-term health issues experienced by many former players, includ58
Id.
Complaint, Maxwell v. Nat'l Football League, No. CV1 1-08394 (C.D. Cal. filed July 19,
2011). See also Jef Feeley, NFL andHelmet Maker Riddell Sued by 75 Retired Players Over Concussions, BLOOMBERG.COM (July 21, 2011), http://www.bloomberg.com/news/2011-07-20/nfland-helmet-maker-riddell-sued-by-75-retired-players-over-concussions.html.
60 Complaint at 14, 19, Maxwell v. Nat'l Football League, No. CV1 1-08394 (C.D. Cal.
59
filed July 19, 2011).
61 Complaint at 7, Easterling v. Nat'l Football League, No. 1 1CV05209 (E.D. Pa. filed Aug.
17, 2011).
62 Id.
2012]
ing dementia and Atzheimer's disease.6 3 Plaintiffs in Maxwell go as far
as saying that the NFL knew as early as the 1920s of the harmful effects
of concussions on the players' brains.6 4 The Maxwell complaint also
contends that the NFL did not warn any player of the long-term risks
associated with concussions until June 2010.65 Both complaints claim
that a failure to adequately warn players of the long-term health risks
associated with concussions and the failure to adopt safety rules-specifically a return-to-play policy for players who have suffered a concussion-constitutes a breach of the duty of care that the NFL assumed for
its players. 66
Since the filings of these two lawsuits, thousands of former NFL
players have brought similar lawsuits against the NFL.67 In June 2012,
more than eighty of these complaints were aggregated into one master
complaint against the NFL and Riddell, Inc.68 The Federal Judicial
Panel on Multidistrict Litigation consolidated the cases in U.S. District
Court in Philadelphia.6 9 Overall, as of June 25, 2012, a total of 2,495
players are now plaintiffs in concussion-related complaints against the
70
NFL.
63 Id. See also Complaint at 13, Maxwell v. Nat'l Football League, No. CVI 1-08394 (C.D.
Cal. filed July 19, 2011).
64 Complaint at 13, Maxwell v. Nat'l Football League, No. CVl 1-08394 (C.D. Cal. filed
July 19, 2011).
65 Id.
66 Complaint at 8, Easterling v. Nat'l Football League, No. 11CV05209 (E.D. Pa. filed Aug.
17, 2011).
67
Greg Risling, Concussion LawsuitsAre Next Big US Litigation, WASHINGTON TIM.s (June
30, 2012), http://www.washingtontimes.com/news/2012/jun/30/concussion-lawsuits-are-nextbig-us-litigation/.
68 See Complaint, In re Nat'l Football League Players' Concussion Injury Litigation (E.D.
Pa. filed June 7, 2012), (No. 2:12-md-02323-AB); Lawsuits To Be Consolidated, ESPN.coM
(June 6, 2012), http://espn.go.com/nfl/story/j/id/8016911/former-players-combine-concussion-lawsuits.
69 Lawsuits To Be Consolidated,ESPN.coM (June 6, 2012), http://espn.go.comlnfl/story/-/
id/8016911/former-players-combine-concussion-lawsuits.
See also Four NFL Concussion Law-
suits Being Consolidated,USA TODAY (Jan. 31, 2012), http://www.usatoday.com/sports/football/
nfl/story/2012-01-31/concussion-lawsuits/52903968/1.
70 Risling, supra note 67.
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ProceduralBarriers to Recovery
Are the Former Players a "Class" for the Purposes of
a Class-Action Lawsuit?
One of the first hurdles that must be overcome by the plaintiffs in
these cases is receiving certification from the court that they are in fact a
class. 71 There are four prerequisites for being certified as a class under
Federal Rules of Civil Procedure ("FRCP") Rule 23(a): (1) numerosity;
72
(2) commonality; (3) typicality; and (4) adequacy of representation.
The first prerequisite will be fulfilled because the class of individuals
could include thousands of retired players who are dealing with the
repercussions of brain injuries as a result of playing in the NFL.73 The
second, third, and fourth prerequisites tend to overlap and, in some
cases, merge. 74 The Supreme Court has noted that the commonality
and typicality requirements "serve as guideposts for determining
whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff's claim and the class
claims are so interrelated that the interests of the class members will be
fairly and adequately protected in their absence." 75 Here, it appears that
the commonality and typicality will be met because there will definitely
be common questions of law or fact in regards to the NFL's policies on
head injuries, and the claims (e.g., negligence and fraud) 76 and defenses
in this case will be typical of the claims and defenses of the class. Thus,
because commonality and typicality will be met, the fourth requirement
77
of adequacy of representation, should be met as well.
Under FRCP Rule 23(b), if the prerequisites have been met, the
class action must also fit within one of four categories: 1) genuine risk
that separate actions would lead to incompatible standards; 2) genuine
risk that separate actions would prejudice individual plaintiffs; 3) it
71 Complaint, Easterling v. Nat'l Football League, No. 1 1CV05209 (E.D. Pa. filed Aug. 17,
2011).
72 "One or more members of a class may sue or be sued as representative parties on behalf of
all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2)
there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties
will fairly and adequately protect the interests of the class." FED. R. Civ. P. 23(a).
73 McCann, supra note 15.
74 WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS AcTIONS
§
1:2 (5th ed. 2012).
75 Id. (emphasis added).
76 Complaint at 14, 19, Maxwell v. Nat'l Football League, No. CV11-08394 (C.D. Cal.
77 WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS ACTIONS § 1:2 (5th ed. 2012).
2012]
would be appropriate to issue final relief on a class-wide basis; or 4) the
common issues would predominate over the individualized issues. 78
The first category was created by an advisory committee in 1966, and
was not meant to accommodate this type of lawsuit. 79 The second category is typically utilized in situations "where the defendant has limited
funds incapable of satisfying all potential claimants" 80 ; however, that is
not the case here, as the NFL's annual revenue is over $9 billion.8 ' The
third category also seems inappropriate here as it is typically used for
civil rights cases or other injunctive relief cases. 82 The plaintiffs seem to
have a compelling argument for the fourth category (Rule 23(b)(3)) because the main issues of the case are arguably based on the overall conduct of the NFL in response to head injuries, rather than the conduct of
individual teams or the facts specific to the players that will make up the
class in the lawsuit. Thus, since these common issues could arguably
predominate over the individualized issues, the class action could fall
into this category. 83 Although this category is the most common category for money damages cases, 84 federal courts have been reluctant to
certify a class under this provision in mass tort cases.85 Many courts
have decided that mass tort cases do not satisfy Rule 23(b)(3) requirements because there is typically too much variance in relevant facts between the plaintiffs such that the common issues would not
78 FED. R. Civ. P. 23(b).
79 WILLIAM B. RUBENSTEIN, NEWBERG ON CLASS ACTIONS § 1:3 (5th ed. 2012). "The
Advisory Committee explained the types of cases it imagined in this category as follows: Separate
actions by individuals against a municipality to declare a bond issue invalid or condition or limit
it, to prevent or limit the making of a particular appropriation or to compel or invalidate an
assessment, might create a risk of inconsistent or varying determinations. In the same way,
individual litigations of the rights and duties of riparian owners, or of landowners' rights and
duties respecting a claimed nuisance, could create a possibility of incompatible adjudications."
80 Id.
81 Associated Press, League, Players Disagree on Interpretation of Revenue Figures, NFL.coM
(Mar. 21, 2011), http://www.nfl.com/news/story/09000d5d81edda24/article/league-players-disagree-on-interpretation-of-revenue-figures.
82 WILLIAM
83
84
B.
RUBENSTEIN, NEWBERG ON CLASS ACTIONS .
1:3 (5th ed. 2012).
Id.
Id.
85 Sergio J. Campos, Mass Torts and Due Process, 65 VAND. L. REv. 1059, 1065-66 (2012),
available at http://www.vanderbiltawreview.org/content/articles/2012/05/Campos_65_VandL
_Rev_1059.pdf. See Amchem Products, Inc. v. Windsor 521 U.S. 591, 117 S.Ct. 2231, 2236
(1997) ("The predominance criterion is not satisfied by class members' shared experience of
asbestos exposure, given the greater number of questions peculiar to the several categories of class
members, and to individuals within each category, and the significance of those uncommon
questions.").
186
[Vol.
11: 173
[
"predominate" over the individualized issues. Additionally, these courts
have not considered these types of mass tort class actions to be advantageous to plaintiffs because there is enough monetary incentive to bring
these suits individually, in contrast to a small claims action, where potential "damages are too small to provide an incentive to bring suit
86
individually.
If the former players are unable to be certified as a class, it would
not necessarily be fatal to their lawsuits, as they could aggregate them as
a mass tort via FRCP Rule 20-Permissive Joinder of Parties.8 7
ii.
Claims Barred by the Collective Bargaining Agreement
When current players have general grievances against the NFL,
these complaints are typically handled under the provisions of the collective bargaining agreement ("CBA"), signed by all players. 88 For the
retired players at issue here, the question that must be answered is
whether their grievances against the NFL must also be governed by the
CBAs they signed during their careers.8 9
Typically, the CBA also covers disability and worker's compensation provisions for players after they retire from the league.9 ° With this
in mind, the NFL is arguing that these concussion-related claims must
also be governed by the CBA. This argument is not without merit, as
the NFL successfully argued that a wrongful death suit by the widow of
Korey Stringer-a former player for the Minnesota Vikings who died of
complications from a heatstroke after practice in 2001-was preempted
by the Labor Management Relations Act (LMRA) under the 6th Circuit's two-step approach. Under this approach, the tort claim will be
preempted by the LMRA if "(1) it arose from the CBA or (2) resolution
of the claim is substantially dependent on an analysis of the terms of the
CBA, or is inextricably intertwined with it." 9 1 In the case of Stringer,
the court determined that the claim was "dependent on an analysis of
the terms of the CBA" and "inextricably intertwined with it," and thus
86
Campos, supra note 85, at 1065-66.
87 FED.
88
R. Civ. P. 20(a).
Ken Belson, For NF.L., Concussion Suits May Be Testfor Sport Itself N.Y. TIMES (Dec. 29,
2011), http://www.nytimes.com/201 1/ 2/30/sports/football/nfl-faces-retired-players-in-a-high-
stakes-legal-battle.html?pagewanted=all.
89 Id.
91 See Stringer v. National Football League, 474 F. Supp. 2d 894, 903 (S.D. Ohio 2007).
2012]
was preempted by the LMRA. 92 Two federal judges in the concussion
lawsuits have similarly accepted the argument that any claims made by
93
the retired players are preempted under federal labor laws.
The former NFL players argue that they are not employees under
the CBA and federal labor laws, and thus their claims cannot be preempted. 94 Bill Gould, the former chairman of the National Labor Relations Board and a law professor at Stanford University, is also skeptical
of the NFL's argument, stating that the "mere fact that there is a CBA
with dispute-resolution procedures is only the beginning [of the analysis]." 95 Additionally, Michael Hausfeld, an attorney for many of the
former players, asserts that the CBA "is not intended to focus on medical care issues, specifically those that manifest [themselves] outside the
term of employment. '96 The retired players could also make the argument that because the NFL was fraudulently withholding what they
knew about the effects of concussions, the retired players should not be
bound by a CBA that was agreed to under false pretenses. 97 One problem with this argument is that it seems to depend upon proving that the
NFL fraudulently concealed the effects of concussions from the players.
Thus, it is conceivable that the judge would not allow the defendants to
prevail on this basis because this particular fraud is one of the plaintiffs'
major claims. Conversely, the court could opt to follow the example of
two federal judges to strictly enforce the CBA and thus not allow the
lawsuit to go forward. 98
III.
Do
THE RETIRED PLAYERS HAVE A CASE?
A.
Negligence Claim
If the players can overcome the procedural barriers, their next challenge will be to prove their substantive claims. The players, in their
negligence claim, allege that the NFL failed to exercise its duty to enact
league-wide guidelines and mandatory rules regulating post-concussion
medical treatment and return-to-play standards for players who suffer a
92 Idat
903, 909, 911.
See Risling, supra note 67.
94 Id.
95 Daniel Kaplan, NFL Concussion Conundrum: As Lawsuits Increase, League Runs Risk of
Massive Judgment (May 8, 2012), SPORTING NEWS, http://aol.sportingnews.com/nfllstory/
2012-05-08/nfl-concussions-lawsuits-suicide-seau-easterling.
96 Id.
98 Belson, supra note 88; Risling, supra note 67.
93
188
CARDOZO PUB. LAW, POLICY 6- ETHICS J
[Vol.
V 11: 173
concussion or multiple concussions. 9 9 However, to win this claim, the
players must first prove that the NFL had a duty to enact these guidelines. The best way for the players to prove this claim would be to show
that the medical community, via consensus statements, called for these
types of guidelines and the league failed to implement them. If the
players could show that the NFL was not maintaining standards consistent with the medical consensus at time, it would significantly
strengthen their negligence claim.
i.
Major Consensus Statements on Concussions in Sport
The first major consensus statement for sports-related concussions
was created following the First International Symposium on Concussion
in Sport, held in Vienna, Austria in 2001.°00 The consensus statement,
created by a small group of experts following the meeting, outlined the
typical signs and symptoms of concussions, and provided recommendaThe
tions for diagnosis, treatment, and management of concussions.'
experts recommended that players showing "any symptoms or signs of a
concussion" be prevented from returning to the current game or practice
and that "return to play must follow a medically supervised stepwise
process." 102
In 2004, the Second International Conference on Concussion in
Sport was held in Prague, Czech Republic, and the same group of experts updated their consensus recommendations. °3 In this update, the
experts recommended categorizing concussions as either simple or complex, for purpose of management.'0 4 Simple concussions were those
that progressively resolved without complication over 7 to 10 days,
while complex concussions were those that had "persistent symptoms
(including persistent symptom recurrence with exertion), specific sequelae (such as concussive convulsions), prolonged loss of consciousness
(more than one minute), or prolonged cognitive impairment after the
injury."'1 5 Experts also discussed the sport concussion assessment tool
99 Complaint at 14, 19, Maxwell v. Nat'l Football League, No. CVi 1-08394 (C.D. Cal.
100 Aubry, supra note 2, at 6-10.
101 Id.
102
103
Id.
Paul McCrory et al., Summary andAgreement Statement of the 2nd InternationalConference
on Concussion in Sport, Prague2004, 39 BRIT. J. SPORTS MED. 196, 196 (2005).
104 Id, at 197.
105 Id.
2012]
(SCAT), which is a standardized tool to allow physicians and trainers to
10 6
evaluate athletes after a concussion.
Also in 2004, the National Athletic Trainers' Association developed
a position statement on the management of sports-related concussions. 11 7 The authors here discussed three different ways to evaluate the
severity of concussions 0 8 as well as return-to-play policies. 0 9 The authors explained that many return-to-play policies called for the athletes
who sustained a grade 1 or 2 concussion to be symptom free for seven
days before returning to participation.11 0 Further, they explained that
many clinicians believed this seven-day policy was "too conservative"
and thus these clinicians allowed some athletes, based on their clinical
judgment, to return to play earlier.' t Even though the authors cited
some studies that suggested that the seven-day waiting period can minimize the risk of a recurrent injury," 2 they did not recommend a specified time period for how long athletes should be held out of practice or
games once they have become symptom free.' 13 Instead, they recommended that once athletes become symptom-free, they should first be
put through "exertional maneuvers," such as biking, sit-ups, and jogging, and have a clinician monitor them to ensure that symptoms do
not return. 1 4 If the athlete remains symptom free after the exertional
maneuvers, the athlete could then begin doing sport-specific activities,
106 Id. at 198-201.
107 Kevin M. Guskiewicz et al., National Athletic Trainers' Association Position Statement:
Management of Sport-Related Concussion, 39 J. ATHLETIC TRAINING 280, 280 (2004), available
at http://www.ncbi.nlm.nih.gov/pmclarticles/PMC522153/pdf/attr_39-030280.pdf.
108 Id. at 285-86. The American Academy of Neurology Concussion Grading Scale is used
to "grade the concussion at the time of the injury on the basis of the signs and symptoms present
at the time of the concussion and within the first 15 minutes after injury." The concussion is
graded primarily on whether the patient lost consciousness at the time of the injury. In contrast,
the Cantu Evidence-Based Grading Scale is used to evaluate the severity of concussions only
after the patients's symptoms have resolved and puts less emphasis on loss of consciousness.
Finally, a third way of evaluating concussion severity does not focus on the grading scale, but
rather focuses on whether the patient is asymptomatic, and subsequently implementing a stepwise progression to allowing the patient to resume participation.
109 Id. at 286.
110
Id.
111 Id.
112
Id.
See also Kevin M. Guskiewicz et al., Cumulative Effects of Recurrent Concussion in
Collegiate Football Players: the NCAA Concussion Study, 290 JAMA 2549, 2549-55 (2003);
Michael McCrea et al., Acute Effects and Recovery Time Following Concussion in CollegiateFootball
Players: the NCAA Concussion Study, 290 JAMA 2556, 2556-63 (2003).
113 Guskiewicz, supra note 107, at 285-86.
114
Id.
190
V 11:173
[Vol.
but should not yet begin activities where there is a risk of recurrent head
injury.1 15 These activities should be monitored for a few days and the
workouts could be gradually intensified to make sure the athlete's symptoms do not return.' 1 6 If the athlete remains asymptomatic after a few
days of sport-related activity, the authors recommend that the athlete
pass "neuropsychological and postural-stability tests" before being
cleared for full-contact participation. 117 However, if the athlete has previously sustained a concussion, especially during that same season, the
authors "strongly" recommend that the athlete be held out of full-contact participation for approximately seven days after the athlete is de18
clared symptom-free.'
In 2006, the American College of Sports Medicine (ACSM) also
produced a consensus statement for team physicians.1 1 9 This consensus
statement focused on game-day treatment, management, and return-toplay decisions. 120 It reemphasized the idea that athletes should be completely asymptomatic at rest and with exertion before they can return to
play. Additionally, the statement explained that return-to-play decisions
should be based on the number and duration of post-concussion symptoms, as well as the individual attributes of the particular athlete, including one's age, history of concussions, and whether they had any learning
disabilities. 12 1 The statement also recommended that team physicians
develop "progressive aerobic and resistive exercise challenge tests that the
injured athlete would have to pass prior to full return to play" and that
they discuss the athlete's status with his or her family, caregivers, and
22
coaching staff.1
In 2008, the Third International Conference on Concussion was
held in Zurich, Switzerland.1 23 Building on the consensus statements
115 Id.
116
Id.
117 Id.
Id.
119 Robert C.
118
Cantu, Overview of Concussion Consensus Statements Since 2000, 21
NEUROSURGICAL Focus
1, 3-4 (2006), availableat http://thejns.org/doi/pdf/10.3171/foc.2006.
21.4.4.
120
Id.
121
Id. at 4.
122
Id.
123 PAUL MCCRORY ET AL., Consensus Statement on Concussion in Sport: the 3rd International
Conference on Concussion in Sport Held in Zurich, November 2008, 44 J. ATHLETIC TRAINING
434, 434 (2009), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2707064/pdf/
attr-44-04-434.pdf.
20121
developed after the first and second conferences, the conference published a third consensus statement in 2009, again emphasizing returnto-play policies and classification of concussions. 124 This expert panel
decided to abandon the terms "simple" and "complex" for the classification of concussions because they felt that these terms did not "fully
describe" the different types of concussions. Additionally, they expounded upon their return-to-play recommendations by giving a detailed example of a graduated return-to-play protocol. Specifically, this
protocol was a six-step progression in which each step would last approximately twenty-four hours and physical exertion was increased for
' 25
each step until the athlete was ready to return to "normal game play.'
The panel also recommended that if any post-concussion symptoms developed during the protocol, the athlete should drop back to the last
hours
step in which they were asymptomatic and then, after twenty-four
126
progression.
the
in
steps
next
the
onto
move
of rest, try to
The panel also explained that adult athletes, in certain cases, might
be able to return to play significantly quicker than the typical seven to
ten-day recovery period. They cited a study conducted by the NFL in
which players, in certain instances, have been able to return-to-play that
same day without an increased risk of recurrence.1 27 However, despite
the ability of adult athletes to sometimes recover more quickly than
usual, the panel emphasized that these athletes should still follow the
same "basic management principles" throughout their recovery and
should show "full clinical and cognitive recovery" prior to returning to
1
play.
28
These consensus statements show that while there were some varying opinions on methods for diagnosing concussions, there was plenty
of agreement regarding the overall management of concussions. At the
very least, these consensus statements seem to be sufficient to show that
the NFL had a duty to enact league-wide guidelines regulating postconcussion medical treatment and return-to-play standards for players
1 29
who suffer a concussion.
125
Id. at 434-35.
Id. at 437.
126
Id.
124
Id.
128 Id.
129 Complaint at 14, 19, Maxwell v. Nat'l Football League, No. CVI 1-08394 (C.D. Cal.
127
192
[Vol.
V 11:173
The next question is whether the NFL breached its duty to the
players in regards to instituting concussion management policies. First,
it could be argued that the NFL breached its duty to the players by
waiting so long to institute a league-wide concussion policy. The NFL
did not create its first league-wide concussion policy until 2007.131 After establishing the Mild Traumatic Brain Injury Committee in 1994, it
should not have taken 13 years for the NFL to develop a league-wide
policy on concussions. This seems especially reasonable considering the
National Hockey League instituted its first league-wide concussion policy in 1997 and NASCAR implemented its first policy in 2003.131 If
other professional sports leagues were making concussions policies, what
took the NFL so long? Even if the individual NFL teams may have had
their own protocols for concussions prior to the institution of a leaguewide policy, the delay by the NFL in creating this policy seems to show
that the NFL was "dragging its feet" and not taking the dangers of con-
cussions seriously. 132
Second, the NFL may have also breached its duty by creating a
concussion policy that did not comport with consensus medical opinions at that time. The 2007 NFL concussion policy stipulated that
players who had been knocked unconscious as a result of a head injury
should not be allowed to return to the game or practice in which they
were injured.1 33 Prior to 2007, allowing players to return to the game or
practice after being knocked unconscious was considered medically acceptable by the NFL's Mild Traumatic Brain Injury Committee based in
part on their findings in a 2005 study that "there was no evidence of
any adverse effect" of returning a player to a game in which he had
134
previously been knocked unconscious.
The consensus statements developed following the First and Second International Conferences on Concussion in Sport both recommended that players showing "any symptoms or signs of a concussion"
130 Erik Brady, Concussions Now a Hot Issue as Leagues Toughen Policies, USA TODAY (Oct.
25, 2011), http://www.usatoday.com/sports/2011-0 4 -12-nba-concussionsN.htm.
See also
Alan Schwarz, New Advice by NFL. in Handling Concussions, N.Y. TIMES (Aug. 21, 2007),
http://www.nytimes.com/2007/08/21/sports/football/21concussions.html.
131 Brady, supra note 130.
132 Legal Issues Relating to Football HeadInjuries (PartI & II): Hearings Before the H. Comm.
on the Judiciary, 111 th Cong. 360 (2010) (statement of Rep. Linda T. Sfnchez).
133 Concussions in Sport: Concussions in the NFL, ESPN.coM, http://espn.go.com/nfl/topics/
_/page/concussions (last visited Jan. 31, 2012). See also Schwarz, supra note 130.
134 Schwarz, supra note 130.
2012]
be prevented from returning to the current game or practice. 13 5 Thus, it
is clear that the NFL did not follow these recommendations prior to
their first concussion policy. Also, even the NFL's first concussion policy in 2007 was not completely consistent with these recommendations,
as they did not require a player's removal from the game or practice if
the player exhibited symptoms of a concussion other than loss of consciousness. 136 The consensus statement developed after the Third International Conference on Concussion in Sport suggested that adult
athletes, in some cases, may be able to return to play on the same day as
the concussion. However, the support given for this assertion by the
1 37
conference was a small study conducted by the NFL itself.
The NFL did amend its policy in 2009, stating that players who
exhibit any signs or symptoms of a concussion should not return to the
game or practice.13 Additionally, the amended policy states that once a
player has been deemed unable to return to the game or practice, the
player should not return to play until he is completely "asymptomatic,
both at rest and after exertion, has a normal neurological examination,
normal neuropsychological testing, and has been cleared to return by
both his team physician(s) and the independent neurological consultant."1 39 This 2009 update also stated that "a player who suffers a concussion should not return to play or practice on the same day if he
shows any signs or symptoms of a concussion that are outlined in the
return-to-play statement." 4 ° These symptoms included: confusion as
evidenced by disorientation to person, time or place; inability to respond appropriately to questions; amnesia as evidenced by a gap in
memory for events occurring just prior to the injury; and new and persistent headache, particularly if accompanied by photosensitivity, nausea, vomiting or dizziness. 4 '
135 Aubry, supra note 2, at 7; McCrory, supra note 103, at 201.
136
Safety Rules and Regulations, NFL EVOLUTION, http://www.nflevolution.com/article/
Safety-Rules-038-Regulations?ref=258 (last visited Aug. 10, 2012).
137 McCrory, supra note 123, at 437.
138 Safety Rules and Regulations, NFL EVOLUTION, http://www.nflevolution.com/article/
139 Id.
140 League Announces Stricter Concussion Guidelines, NFL.coM (Dec. 2, 2009), http://blogs.
nfl.com/2009/12/02/league-announces-stricter-concussion-guidelines/.
141 Id.
194
ii.
[Vol. 11:173
Safety-Related, On-the-Field Rules Changes Made by the NFL
Although the NFL's first concussion policy may not have been
completely consistent with the consensus statements at the time, the
NFL did make several on-the-field rule changes that were designed in
response to player safety concerns. 4 2 Specifically, the NFL made rule
changes that have arguably been related to head injuries since the
1960s. 4 3 In 1962, the league added the rule that no player shall grasp
the facemask.' 4 4 In 1976, the NFL instituted a rule stating that a defender is not permitted to "rough" a ball carrier that falls to the ground
untouched by running or diving into him. 145 The NFL made addi146
tional safety changes in the late 70's and early 80's as well.
Although the NFL made rule changes, the former players will
rightly argue that those changes did not necessarily prevent that type of
on-the-field behavior from occurring. The rule changes were only enforced via on-the-field penalties, which is only a slight deterrence to the
prohibited contact. The NFL did not institute harsher penalties for
prohibited hits on the football field until 1990: "A player who butts,
spears, or rams an opponent may be disqualified if action is judged to be
1 47
of a flagrant or vicious nature, in addition to a loss of 15 yards."
The 1990s seem to signal the time when the NFL began to focus
more on head injuries. For example, in 1993, the NFL formed the
Injury and Safety Committee, which "manages an injury surveillance
system that reports on the types and severity of injuries sustained by
players on a yearly basis."14' 8 The NFL subsequently formed the Mild
Traumatic Brain Injury Committee in 1994 in order "to initiate research
and advise the NFL and NFL clubs on best practices for concussion
prevention and management, as well as for avoidance or protection
142 Evolution ofRules, NFL HEALTH & SAFETY, http://nflhealthandsafety.com/commitment/
evolution/ (last visited Aug. 10, 2012).
143 Id.
144 Id.
145 Id.
146 Id. (1979: (1) A play is dead as soon as the quarterback is clearly in the grasp and control
of any tackler, and (2) it is illegal for player to use crown of helmet unnecessarily re: "unnecessary roughness." 1980: A player may not strike, swing, or club an opponent in the head, neck,
or face even if initial contact is below the neck. 1982: A player may not use the crown or top of
his helmet against a passer, a receiver in the act of catching a pass, or a runner who is in the
grasp of a tackler re: "unnecessary roughness").
147 Id.
148 Health Committees, NFL HEALTH & SAFETY, http://nflhealthandsafety.com/commitment/committees/ (last visited Aug. 10, 2012).
2012]
against other head, neck and spine injuries." 4 9 This committee, however, is at the heart of Maxwell v. National Football League, as the former players contended that the Mild Traumatic Brain Injury Committee
published "false, distorted and deceiving" findings that the risk of brain
damage was minimal in order to deceive Congress, players and the
public. 50
Within the last decade, especially during recent years, the NFL has
seemed to increase its precautions against brain trauma as a result of
concussions. 1 5 ' In 2002, the NFL prohibited players from hitting a
152
quarterback helmet-to-helmet anytime after a change of possession.
In 2009, the NFL instituted a rule in which the defender is no longer
allowed to hit a defenseless receiver if the initial force of the contact by
the defender's helmet, forearm, or shoulder is to the head or neck area
1 53
of the receiver.
As discussed previously, in 2009 the NFL also updated its concussion policy. 154 These additional changes to the return-to-play policy
were likely a result of the hearings before the House Judiciary Committee in 2009 regarding the NFL's handling of brain injuries. 1 55 At that
hearing, lawmakers criticized the NFL for "its handling of active and
'
retired players with brain injuries."156
Specifically, Representative Linda
T. SAnchez of California opined that "[t]he N.F.L. sort of has this blan149 Id.
150 Associated Press, Lawsuit Accuses NFL of Concealing Concussion Dangers, NFL.coM
(July 19, 2011), http://www.nfl.com/news/storylO9000d5d820dcbea/printable/report-75-former-players-suing-nfl-over-concussions.
151 Evolution of Rules, supra note 142.
152 Id.
153 See Associated Press, Helmet Hits to be Discussed Again, ESPN.coM (Dec. 18, 2011),
http:l/espn.go.com/nfl/story/-/id/7365426nfl-expand-ban-launching-helmet-hits
(In 2010,
this "unnecessary roughness" rule was expanded to provide defenseless players with protection
"from blows to the head or neck by an opponent who launches." Other rules added by the NFL
in 2009 were 1) wedge blocks involving more than two players on kickoff returns are illegal; and
2) it is an illegal "blindside" block if the blocker is moving toward his own endline and approaches the opponent from behind or from the side, and the initial force of the contact by the
blocker's helmet, forearm, or shoulder is the head or neck area of an opponent).
154 League Announces Stricter Concussion Guidelines, supra note 140.
155 Legal Issues Relating to FootballHeadInjuries (PartI & II) HearingsBefore the H. Comm. on
the Judiciary, 111th Cong., (2010). See also Alan Schwarz, NFL. Scolded Over Injuries to Its
Players, N.Y. TIMES (Oct. 28, 2009), http://www.nytimes.com/2009/10/29/sports/football/29
hearing.html; Associated Press, Goodell Issues Memo Changing Return-to-Play Rules for Concussions, NFL.coM (Dec. 3 2009), http://www.nfl.com/news/story?conflrm=true&id=09000d5d81
4a9ecd&template=with-video-with-comments.
156 Schwarz, supra note 155.
196
CARD OZO PUB. LAW, POLICY & ETHICS
[Vol.
V 11:173
ket denial or minimizing of the fact that there may be this link."'1 5 7
Although NFL Commissioner Roger Goodell stated: "I can think of no
issue to which I've devoted more time and attention than the health and
well-being of our players, and particularly retired players," the Committee clearly believed that the concerns about brain injuries had not been
adequately addressed up to that point.'5 8
Following the hearings with the House Judiciary Committee, the
NFL made additional changes in 2010. They first formed the Head,
Neck, and Spine Committee, which replaced the Mild Traumatic Brain
Injury Committee.15 9 This committee not only continued the mission
of the previous committee, but also focused on "broad research, advocacy, and education about head, neck and spine injuries and their prevention and treatment.""1 6 They also added an additional safety rule
that stated that any play is immediately over if the ball carrier's helmet
comes off.16' Finally, the NFL, in conjunction with NFL Players Association and the Center for Disease Control and Prevention (CDC), also
placed posters in the locker rooms of all NFL teams, which displayed
facts about concussions symptoms, and advised players to report concus62
sions and to take adequate time to recover from them.
In 2011, the NFL made additional safety improvements including
forming the NFL Player Safety Panel, which consists of former players,
coaches, and general managers. This panel aims to "produce recommendations to improve player safety by reviewing rules, equipment standards and game video."' 6 3 Additionally, the NFL changed kickoff rules
in order to make kick returns less frequent due to the increased likelihood of high-speed collisions on these plays. Finally, the NFL expanded the definition of a defenseless player (including a kicker or
punter during the kick and the return, and the quarterback any time
157 Legal Issues Relating to FootballHeadInjuries (PartI & II) HearingsBefore the H. Comm. on
the Judiciary, 111 th Cong., 116 (2010).
158 Id. at 29.
159 Health Committees, NFL HEALTH & SAFETY, http://nflhealthandsafety.com/commit-
ment/committees/ (last visited Feb 25, 2012).
160 Id.
161
Evolution of Rules, supra note 142.
162
Centers for Disease Control and Prevention, Partneringto Help Take Concussions Out of
Play, CDC.Gov (Oct. 27, 2010), http://www.cdc.gov/concussion/sports/nfl-poster.html.
163 New Player Safety Advisory Panel Co-Chairedby Lott, Madden, NFL.coM Uan. 4, 2011),
http://www.nfl.com/news/story/09OOOd5d8ld745be/article/new-player-safery-advisory-panelcochaired-by-lott-madden.
2012]
after a change of possession), and more stringently limited the ways in
164
which a defenseless player can be hit.
During the 2011 season, the NFL modified its return-to-play policy following a game in which Colt McCoy, the quarterback of the
Cleveland Browns, sustained a concussion, but because it went undiagnosed, was allowed to return to the game. 165 According to the modified
policy, the NFL will arrange for a certified athletic trainer to be at every
game to monitor injuries for both teams. 16 6 The trainer will have access
to video replays and will be able to relay relevant information about a
1 67
player's injury to both teams' medical staffs throughout the game.
Access to these replays is vital because teams' medical staffs may not be
able to see the injuries from their view on the field.'16 8 While the trainer
will not have the authority to diagnose a player's injury or to prevent
them from returning to a game, they will have the ability to provide
training staffs with more complete information regarding a player's
injury. 169
In the 2012 offseason, the NFL again expanded its definition of
"defenseless player" to include defensive players on "crackback" blocks,
thus making it illegal for an offensive player to hit them in the head or
neck area. 17' Despite the NFL's recent flurry of rule changes and more
stringent concussion policies, the former players will argue that these
changes came far too late and have only been due to the increased scrutiny brought on the NFL by these lawsuits.
iii.
Changes Made by Other Organizations
in Response to Concussions
In deciding whether the NFL implemented safety changes related
to head injuries at a reasonable time based on the available information
on concussions, it is fair to compare the NFL's safety regulations with
those instituted in collegiate and youth football.
164
Evolution of Rules, supra note 142.
165 Browns Say Colt McCoy Seemed OK, ESPN.coM (Dec. 10, 2011), http:l/espn.go.comlnfll
story/jid733621 l/colt-mccoy-cleveland-browns-diagnosed-concussion.
166 Memo Explains Policy to Have Trainers Monitor for Concussions, NFL.coM (Dec. 21,
2011), http://www.nfl.com/news/story/O9000d5d82547e65/article/memo-explains-policy-tohave-trainers-monitor-for-concussions.
167 Id.
168 Id.
169 Id.
170 Evolution of Rules, NFL HEALTH & SAFETY, http://nflhealthandsafety.com/commitment/
evolution/ (last visited Aug. 10, 2012).
198
[
[Vol.
11:173
In December 2009, the NCAA's Committee on Competitive Safeguards and Medical Aspects of Sports decided to make concussion protocols more stringent for all NCAA sports. These rule changes
prevented athletes who exhibited any signs or symptoms of concussions
from return to a game or practice until cleared by a physician.17 ' Additionally, any athlete who is "rendered unconscious or [has] amnesia or
persistent confusion" cannot return to the game or practice for the rest
of the day and is not allowed to participate at all until cleared by a
physician. 172
In April 2010, the NCAA made it mandatory for all NCAA-affiliated college institutions to have a concussion management plan. These
concussion management plans, which were essentially uniform for all
schools, included detailed guidelines for how athletes with suspected
concussions should be handled. These guidelines, however, allowed
physicians for each university to determine their own return-to-play
1 73
policies.
The NCAA, like the NFL, joined forces with the CDC to create
more educational resources for student-athletes and coaches in regards
to concussion safety. 174 Similar to the NFL poster, these resources discussed signs and symptoms of concussions, the importance of reporting
concussions, and when players should resume participation following a
175
concussion.
Some college programs have undertaken even greater measures to
insure player safety in regards to head injuries. In 2011, the Ivy League
instituted a rule that greatly reduced the number of full-contact prac-
171 JACKSON LEWIS
LLP,
CONCUSSIONS IN ATHLETES: WHERE WE ARE AND WHAT TO DO
Now 4 (Jan. 2010), available at http://www.naia.org/fls/27900/1NALA/resources/trainers/
NAIAConcussionsinAthletesSpecialReport.pdfDBOEMID=27900.
172
173
ORG
Id at 4.
University of Georgia Athletic Association, Concussion Management Guidelines, NCAA.
(May
30, 2010),
http://www.ncaa.orglwps/portal/ncaahome?WCMGLOBALCON
TEXT=/ncaalncaa/academics+and+athetes/personai+welfare/health+and+safety/ugaa+concussion+plan. See also NCAA Memorandum, NCAA.ORG (Apr. 29, 2010), http://www.ncaa.org/
wps/portal/ncaahome?WCMGLOBALCONTEXT=ncaancaaacademics+and+athleteslpersonal+welfarelhealth +and+safetylconcussion+plan+ memo.
174 Centers for Disease Control and Prevention, Attention College Sports Fans: CDC and
NCAA Team Up on Concussion Safety, CDC.GOV (Dec. 10, 2010), http:l/www.cdc.gov/concus-
sion/sports/cdc-ncaa.html?source=govdelivery.
175
Id.
2012]
tices that each football team was allowed to have. 176 Specifically, Ivy
League programs were limited to two full-contact practices each week
throughout the season, compared with the maximum of five full-contact
practices allowed per week under NCAA rules. The new rules also limited the number of full-contact practices during the preseason and during the spring. 177 Additionally, the Ivy League asked its football coaches
"to spend more time emphasizing and teaching techniques for avoiding
178
helmet hits and show videos of permissible and non-permissible hits."
States have even enacted laws to prevent brain injuries in youth
football. The first state to pass legislation specifying a return-to-play
policy for concussions in youth sports was Washington in 2009. This
piece of legislation- the "Lystedt Law"-was created as a result of an
injury sustained by thirteen-year-old Zackery Lystedt in a football game
in 2006. Lystedt sustained a concussion on the field, and then returned
to the field fifteen minutes later, only to collapse on the field with an
apparent brain injury. 179 The Lystedt Act stipulates in part that, "[a]
youth athlete who is suspected of sustaining a concussion or head injury
in a practice or game shall be removed from competition at that time"
and "[a] youth athlete who has been removed from play may not return
to play until the athlete is evaluated by a licensed health care
' 180
provider."
Following the lead of Washington, and because at least fifty youth
football players in more than twenty states have sustained serious head
injuries on the football field (some resulting in death),' 8' more than half
176 Ken Belson, Ivy League to Limit Full-Contact Football Practices, N.Y. TIMES (July 19,
2011), http://www.nytimes.com/2011/07/20/sports/ncaafootball/college-football-to-protectplayers-ivy-league-to-reduce-contact.html?_r=3&ref=headinjuries.
177 Id.
178 Id.
179 Lystedt Law Overview, NFL HEALTH & SAFETY, http://nflhealthandsafety.com/zackery-
lystedt-law/lystedt-law-overview/ (last visited Feb. 25 2012).
180 WASH. REv. CODE ANN. § 28A.600.190 (West 2009). (additionally, the law requires that
"Each school district's board of directors shall work in concert with the Washington interscholastic activities association to develop the guidelines and other pertinent information and forms
to inform and educate coaches, youth athletes, and their parents and/or guardians of the nature
and risk of concussion and head injury including continuing to play after concussion or head
injury. On a yearly basis, a concussion and head injury information sheet shall be signed and
returned by the youth athlete and the athlete's parent and/or guardian prior to the youth athlete's initiating practice or competition.").
181 Young Players, Serious Injuries, N.Y. TIMES (Sept.16, 2007), http://www.nytimes.com/interactive/2007/09/16/sports/20070916_CONCUSSIONGRAPHIC.html?refdOadinjuries
statistic was accurate as of September 2007).
(this
200
[[Vol. 11:173
of the fifty states have now adopted concussion management provisions
for youth sports.1 82 Congress also introduced a bill, the Concussion
Treatment and Care Tools Act (ConTACT) of 2010 (H.R. 1347),
which would have required "the Secretary of Health and Human Services to establish guidelines for the management of concussions in
school-aged children," and would have authorized "the Secretary to
make grants to states to collect data on such concussions and to implement the guidelines." 183 Although this bill was passed in the House of
Representatives, it never came to a vote in the Senate and was subse184
quently cleared from the books at the end of the session.
The NFL's current return-to-play policies are on par with the policies set forth by the NCAA and many of the state legislatures, and they
were implemented at roughly the same time. 185 , 186 , 187 In light of this,
the NFL will argue that they have done enough to avoid liability. Even
though the NFL has made many safety-related rules changes over the
last two decades, it seems likely that the NFL breached its duty to the
players by failing the implement a league-wide policy sooner, and by
making an initial policy that was inconsistent with the prevailing medical opinions regarding concussions. 88 18
, 9 So, if the NFL did indeed
breach its duty, then was this breach the actual and proximate cause of
the players' head injuries?
iv.
Causality: A Proof Problem
Even though the NFL may have breached its duty to the players
regarding concussion guidelines, the players may have a difficult time
proving that this breach was the proximate cause of their injuries. The
182 Joe Frollo, See Where Your State Stands on Concussion Law,
USAFooTBALL.COM
(Aug. 8,
2011), http://www.usafootball.com/news/featured-articles/see-where-your-state-stands-concussion-law.
183 CONGRESSIONAL BUDGET OFFICE, COST ESTIMATE: H.R. 1347 CONCUSSION TREAT(Sept. 24, 20120), availableat http://www.cbo.gov/sites/
default/files/cbofiles/ftpdocs/ 18xx/docl 1894/hr1347.pdf.
184 Concussion Treatment and Care Tools Act of 2010, H.R. 1347, 11 1th Cong. (2010),
MENT AND CARE TOOLS ACT OF 2010
available at http://www.govtrack.us/congress/bill.xpd?bill=hl 11-1347.
185 League Announces Stricter Concussion Guidelines, supra note 140.
186 JACKSON LEWIS LLP, CONCUSSIONS IN ATHLETES: WHERE WE ARE
AND WHAT TO DO
Now 4 (Jan. 2010), available at http://www.naia.org/fls/27900/INAA/resources/trainers/
NAIA_ConcussionsinAthletesSpecialReport.pdfDBOEMID=27900.
187 WASH. REV. CODE ANN. § 28A.600.190 (West 2009).
188 Aubry, supra note 2, at 7; McCrory, supra note 103, at 197.
189 Safety Rules and Regulations, NFL EVOLUTION, http://www.nflevolution.com/article/
2012]
players should be able to show that they have cognitive decline, but the
problem will be, first, proving that the concussions that led to the cognitive decline were sustained while they were playing in the NFL, and,
second, that the NFL's negligence was the proximate cause of the injury.
Proving that the head injuries that led to cognitive decline occurred
while playing in the NFL will be difficult because researchers are unclear
as to how many head injuries are required to initiate cognitive decline,
as it seems to differ based on the individual. 90 For instance, researchers
do not yet know the severity or recurrence necessary to cause CTE in
athletes, as "well-designed" prospective studies have not been conducted
to date.' 91 Because of this, the injuries that initiated cognitive decline in
these athletes could ultimately have occurred during college football or
92
even during high school or youth football.1
For example, Dr. Robert Cantu has observed early signs of CTE in
teenagers who played contact sports.1 93 Cantu stated that "[tihe seventeen and the eighteen-year-olds had no [outwardly visible] symptoms at
all, but when their brains were studied, they had very early chronic traumatic encephalopathy."' 9'
Cantu also stated that younger brains are
more vulnerable to concussions because "they're less myelinated, the
necks are weaker, the heads are bigger proportionately so the forces that
accelerate the brain need not be as high to produce higher accelerations."' 19 5 Even if some of the former players did not have any recognized concussions during their high school and college football careers,
it still may be difficult to show that all the injuries leading to their
cognitive decline occurred during their time in the NFL.
Recent research at the Center for the Study of Traumatic Encephalopathy at the Boston University School of Medicine, led in part
by Dr. Cantu, has shown that even minor or "subconcussive" hits can
cause significant brain damage. 1 96 In fact in 2010, Owen Thomas, an
offensive lineman for the University of Pennsylvania football team, com190 Robert A. Stern et al., Long-term Consequences ofRepetitive Brain Trauma: Chronic Traumatic Encephalopathy, 3 PM & R S460, S461 (2011).
191 Ann C. McKee et al., Chronic Traumatic Encephalopathy in Athletes: Progressive Tauopathy
Following Repetitive Head Injury, 68 J. NEUROPATHOLOGY EXPERIMENTAL NEUROLOGY 709,
709 (2009).
192 Belson, supra note 88.
193 Brain Expert: Kids Shouldn't Play Contact Sports, THEBOSTONCHANNEL.COM (Sept. 13,
2011), http://www.thebostonchannel.com/r/29168930/detail.html.
194 Id.
195 Id.
196 Id.
202
[Vol. 11:173
mitted suicide and was subsequently diagnosed with CTE at the autopsy
197
despite the fact that he had never been diagnosed with a concussion.
Although not being diagnosed with a concussion is not proof that
Thomas never actually sustained a concussion, this incident does show
that athletes do not have to sustain major head injuries to have visible
brain damage even at a young age. ' 98 Based on this new research, Dr.
Cantu and others are recommending that kids under the age 14 not
participate in any contact sports;' 99 however, there has yet to be a consensus on this particular topic.2 °0
In addition to showing that their injuries occurred while playing in
the NFL, the players must show that the NFL's negligence in failing to
make league-wide policies for concussions and additional safety measures were the proximate cause of the players' injuries. Again, because
there is currently no way of determining how many head injuries it takes
to actually result in cognitive decline, 20 ' the players will have a difficult
time showing that the negligence of the NFL led to their concussions
and ultimately their cognitive decline. On the one hand, the players
could contend that the NFL's policies or lack there of led to an increased risk of head injuries. However, in order to win the case, the
players will likely have to show more direct causation between the NFL's
policies and their subsequent injuries. As we examined earlier, this will
be very difficult to do because most of the players likely experienced
head injuries in high school or college football that could have led to
their cognitive decline.20 2 Finally, the NFL may also advance a theory
of implied assumption of risk, arguing that the former players were
aware and appreciated the "inherent risks '2 3 of playing professional
football and nevertheless decided to participate, and thus would not be
197
CTE Found in Dead College FootballPlayer: FirstEvidence of Brain Disease in Athlete with
No Concussions (Sept. 14, 2010),
BOSTON UNIVERSITY SCHOOL OF MEDICINE,
http://www.
bumc.bu.edu/busm-news/2010/09/14/cte-found-in-dead-college-football-player-first-evidenceof-brain-disease-in-athlete-with-no-concussions/.
198 Id.
199 Brain Expert: Kids Shouldn't Play Contact Sports, supra note 193.
200 Tim Stevens, Concussion Experts Differ On Youth Sports Safety, NEWSOBSERVER.COM (Feb.
12, 2012), http://www.newsobserver.com/2012/02/12/1848278/concussion-experts-differ-onyouth.html. (Dr. Kevin Guskiewicz, another sports concussion expert believes that it's vital for
children to "learn how to safely handle contact at an early age and develop those skills against
competition that is the same size and age).
201 McKee, supra note 191, at 709.
202 Belson, supra note 88.
203 John C.P. Goldberg, Anthony J. Sebok & Benjamin C. Zipursky, TORT LAW: RESPONSIBILITIES AND REDRESS
418 (2nd ed. 2008).
2012]
"entitled to recover for harm within that risk. ' 204 The key to this argument would be showing that the former players not only knew of the
dangers, but also fully appreciated them.20 5 The NFL could easily show
that the players assumed the risk of receiving concussions, as there is an
inherent risk of being hit in the head while playing football.2 °6 However, it will be difficult to show that the players assumed the long-term
risks associated with concussions. While conditions such as dementia
pugilistica have been associated with boxers since the 1920s,20 7 it will be
difficult for the NFL to show that the former players truly appreciated
that these long-term risks were also present in professional football.
B.
Fraud Claim: Did the NFL Withhold Facts About
the Effects of Concussions?
The second main claim in these lawsuits is that the NFL "fraudulently concealed the long-term effect of concussions" from the players.20 8 To succeed in these fraud claims, the players will likely have to
prove that the NFL 1) falsely represented or concealed the long-term
effects of concussions; 2) the NFL did so knowingly; 3) the NFL intended to deceive the players; 4) the players took actions in "justifiable
reliance upon the representation"; and 5) the injuries sustained by the
players proximately resulted from the representation and action.20 9
This type of claim parallels the fraud claims utilized by plaintiffs
suing the tobacco industry in the mid-to-late 1990s. 2 11 There, plaintiffs
shifted their focus from the "defective nature of the cigarettes" to the
how the cigarettes were marketed. Specifically, they alleged that the tobacco companies were misleading consumers about the safety of cigarettes.211 This change in strategy coupled with an increased access to
evidence of fraud led to better results for plaintiffs.
204 RESTATEMENT (SECOND)OF TORTS,
205 RESTATEMENT (SECOND) OF TORTS,
206
§ 496C (1965).
§ 496D (1965).
Suneal Bedi, From Pigskin to Bacon: The Legal Issues Surrounding the NFL's Concussion
Litigation, FORBES.cOM (May 8, 2012), http://www.forbes.com/sites/realspin/2012/05/08/
from-pigskin-to-bacon-the-legal-issues-surrounding-the-nfls-concussion-litigation/.
207 Pineda & Gould, supra note 35.
208 Complaint at 14, 19, Maxwell v. Nat'l Football League, No. CV 1-08394 (C.D. Cal.
209 37 ROSEMARY
210
VAND.
211
GREGOR ET AL., AM. JUR. § 23 (2nd ed. 2012).
Anthony J. Sebok, Pretext, Transparency and Motive in Mass Restitution Litigation, 57
L. REv. 2177, 2185-86 (2004).
Id.
204
[Vol.
11:173
[
Plaintiffs in the concussion lawsuits will look to follow the script
set by these tobacco litigations; however, these fraud claims will seemingly be difficult to prove for two main reasons. First, it will again be
difficult to prove that the injuries sustained by the former players proximately resulted from the actions of the NFL, as these injuries could have
resulted from playing high school or college football.2" 2 Second, the
former players will have trouble showing that the NFL knowingly
deceived the players regarding the long-term effects of concussions.
Many of the complaints suggest that the NFL has known the long-term
effects of head injuries since the 1920s, with the diagnosis of boxers with
dementia pugilistica.21 3 The complaints also suggest that the NFL created its Mild Traumatic Brain Injury Committee in the mid 1990s in
order to discredit increasing medical science that showed a connection
between concussions and long-term mental damage. 21" However, it is
unclear whether the former players will have enough evidence of fraudulent intent to show that the NFL created the committee for this purpose. Additionally, the cognitive decline from head injuries sustained
from football-related head injuries have only been confirmed
neuropathologically in recent years. 21 5 Similarly, clinical diagnosis of
CTE is still difficult because there are no consensus diagnostic criteria,2 16 so conclusive diagnoses can currently only be made postmortem.
Thus, the fact that CTE has only been shown recently in former football players makes it difficult to prove that the NFL knowingly withheld
the consequences of concussions from the players.
Overall, it appears that while the NFL may have "dragged its feet"
in making concussion policy 21 7 and that they may have withheld information regarding the long-term consequences of head injuries, the former players will have a difficult time proving that the NFL's actions
were the proximate cause of their injuries, and thus will likely not win
these lawsuits. However, it is possible that if the former players can
escape the procedural pitfalls of the lawsuit and proceed to trial, then
Belson, supra note 88.
Complaint at 14, 19, Maxwell v. Nat'l Football League, No. CVl 1-08394 (C.D. Cal.
214 Complaint at 3-4, In re Nat'l Football League Players' Concussion Injury Litigation
(E.D. Pa. filed June 7, 2012), (No. 2:12-md-02323-AB); Bedi, supra note 206.
212
213
215
What is CTE?, supra note 34.
216
Gavett, supra note 38, at 183.
217
Legal Issues Relating to FootballHead Injuries (PartI & II): Hearings Before the H. Comm.
on the Judiciary, 111 th Cong. 360 (2010) (statement of Rep. Linda T. Sinchez).
20121
the NFL could settle the lawsuit in order to prevent the negative publicity that would be associated with these monumental cases.
IV.
THE
NFL MUST Do MORE TO PROTECT ITS PLAYERS
Even though the NFL may escape liability in these lawsuits, they
have a responsibility to the players, and to the sporting world as a whole,
to do all they can to limit the number and severity of head injuries in
football. While much is still unknown about concussions and their
long-term effects, one thing is certain: the current research is increasingly alarming. As of 2009, there had been forty-seven sports-related
cases of neuropathologically verified CTE in the medical literath number has continued to grow. The Boston Univerture, 218 ,219 and the
sity Center for the Study of Traumatic Encephalopathy has examined
over ninety brains of former athletes and five hundred more living athletes have agreed to donate their brains upon death. 22' As scientists continue to learn more, it appears that CTE will be fairly prevalent in
former athletes who played contact sports. Regardless of the results of
the lawsuits, the NFL must do something in response to the growing
concerns about head injuries to make their game safer for the players.
First, the NFL should begin by making additional rules changes.
For instance, the NFL has discussed outlawing players from launching
in an attempt to tackle the opponent.22 1 Launching is already considered an "illegal" hit in many instances such as when the opponent is
"defenseless," and players who commit such hits are subject to fines,
ejections, and even suspensions.22 2 Expanding this rule would hopefully
eliminate this type of dangerous hit in the long run as players would
hopefully be deterred by the threat of fines and suspensions.
Additionally, the NFL could look to make penalties for "illegal"
hits harsher as a way to better deter players from committing these hits.
Some players and coaches believe that fines are not a strong enough
deterrent, and that players will not modify their behavior unless they get
218
Case
Studies,
BOSTON UNIVERSITY CENTER FOR THE STUDY OF TRAuMATIc ENCEPHA-
http://www.bu.edu/cste/case-studies/ (last visited Aug. 28, 2012).
McKee, supra note 191, at 709.
Mark Gaughan, Gilchristhad Severe Damageto Brain, BUFFALoNEws.coM (Nov. 2011),
LOPATHY,
219
220
http://www.buffalonews.com/incoming/article621602.ece.
221 Associated Press, Helmet Hits to be DiscussedAgain, ESPN.coM (Dec. 18, 2011), http://
espn.go.com/nfl/story/_/id/7365426/nfl-expand-ban-launching-helmet-hits.
222 Id.
206
CARDOZO PUB. LAW, POLICY& ETHICSJ
V 11:173
[Vol.
suspended.2 3 Jeff Saturday, an offensive lineman for the Indianapolis
Colts opined that, "obviously, suspensions would be a much bigger deal
than fining guys" and he further explained that "if guys are headhunting
out there to knock a guy out of the game, [suspensions are] the only way
to take care of it."' 2 2 4 The league has threatened to potentially suspend
"first-time offenders" for illegal hits in the future, and although it is
unlikely that suspensions will be a complete deterrent, the league hopes
that the threat of suspensions will help to limit these types of hits.22 5
The NFL must also consider equipment changes to limit the number of concussions. In particular, the NFL must consider encouraging
the players to wear the safest helmets possible. The problem is that
researchers who are developing the newer helmet models are still unsure
of how best to limit concussions.2 26 ,2 27 Because of this, many experts
believe that the NFL should not have an official sponsor for helmets
because it may "send mixed signals" to the players. 2 28 As it stands now,
Riddell is the official sponsor of helmets for the NFL; however, players
have the option of wearing any company's helmet, so long as it meets
the standard set forth by the National Operating Committee on Standards for Athletic Equipment.22 9 Down the line, if a consensus can be
met as to what types of helmets are best at limiting concussions, the
NFL has a responsibility to make it mandatory for players to wear these
helmets.
The NFL must do more not only for the sake of the current players, but also because of the league's influence on youth and collegiate
football. Young football players look up to NFL players and often attempt to emulate their moves and techniques. Children want to deliver
bone-crushing hits like James Harrison 230 or Ndamukong Suh, 23 but if
223
Jason La Canfora, League Could Suspend Players for Helmet-to-Helmet Hits, NFL.coM
(Oct. 19, 2010), http://www.nfl.com/news/story/09000d5d81b6d381/article/league-could-suspend-players-for-helmettohelmet-hits.
224
Id.
225
Id.
Jason La Canfora, Helmet Technology isFocus at NFL Injury Prevention Conference, NFL.
COM (Dec. 8, 2010), http://www.nfl.comlnews/story/O90OOd5d81cbe76a/article/helmet-technology-is-focus-at-nfl-injury-prevention-conference.
227 Brittany Sauser, The Search for a Safer Helmet, TECHNOLOGY REVIEW (Jan.26, 2011),
http:l/www.technologyreview.com/computing/27126/.
228 La Canfora, supra note 226.
226
229 Id.
230 James Harrison, ESPN.coM, http://espn.go.com/nfl/player/ /id/4433/james-harrison (last
visited Feb. 25, 2012) (linebacker for the Pittsburgh Steelers).
2012]
these children are delivering helmet-to-helmet hits, they could be doing
irreparable damage to themselves and their opponents without even
knowing it. Many, like Marjorie J. Albohm, president of the National
Athletic Trainers' Association, believe that if the NFL puts a greater emphasis on safety, and concussions in particular, "their influence [will
trickle] down to all levels."'232 Additionally, because recent studies are
now showing that adolescent brains are more susceptible to injury than
adult brains,2 33 any rule changes made by the NFL to limit head injuries
should certainly be implemented by youth leagues and the NCAA.
To their credit, the NFL has encouraged all fifty states to adopt
youth-concussion laws.2 34 Additionally, the NFL has teamed up with
the CDC and other medical organizations to create Heads Up: Concussion in Youth Sports, an initiative "to improve prevention, recognition,
response and management of concussions across all youth sports."233,236
However, despite the NFL's recent efforts to educate professional players and the youth about concussions, the best way for them to effect
change is to modify their own safety protocols which will, in turn, put
tremendous pressure on the states without concussion laws.
Although it appears that the NFL is making strides towards a safer
game of football, many of the current players, including Maurice JonesDrew of the Jacksonville Jaguars, still have the mindset that they would
conceal concussions in order to get back on the field quicker to help
237
their teams:
The bottom line is: You have to be able to put food on the table. No
one's going to sign or want a guy who can't stay healthy. I know there
will be a day when I'm going to have trouble walking. I realize that
....But this is what I signed up for. Injuries are part of the game. If
you don't want to get hit, then you shouldn't be playing.
231
Ndamukong Suh, ESPN.coM, http://espn.go.com/nfl/player//id/13234/ndamukong-suh
(last visited Feb. 25, 2012) (defensive tackle for the Detroit Lions).
233 Brain Expert: Kids Shouldn't Play Contact Sports, supra note 193.
234 Bryan Toporek, Roger Goodell Wants Youth-Concussion Laws in Every State,
EDUCATION
(Oct. 3, 2011), http://blogs.edweek.org/edweek/schooled-in-sports/2011/10/roger_
goodell wants-youth-concussion laws in everystate.html.
WEEK
235
Programs and Partnerships, NFL
HEALTH
& SAFETY,
http://nflhealthandsafety.com/com
mitment/programs/ (last visited Aug. 10, 2012).
236 Centers for Disease Control and Prevention, Heads Up: Concussion in Youth Sports, CDC.
14, 2011), http://www.cdc.gov/concussion/HeadsUp/youth.html.
Associated Press, Players Still Willing to Hide Head Injuries, ESPN.coM (Dec. 26, 2011),
GOV,(Dec.
237
http://espn.go.com/nfl/story/-/id/7388074/nfl-players-say-hiding-concussions-option.
208
[Vol.
V 11:173
Viewpoints like those expressed by Jones-Drew show just how engrained this attitude of toughness and a lack of regard for long-term
health consequences is in the NFL. Although this attitude is arguably
understandable for other types of injuries, it is misplaced when it comes
to concussions. In fact, this mindset is so misplaced that players and
coaches even target players on opposing teams who have had a history of
head injuries.
In a 2012 playoff game, players from the New York Giants
"targeted" Kyle Williams, the San Francisco 49ers' punt
returner, because he had a history of concussions. 8 When asked by reporters why
they were able to cause Kyle Williams to fumble the ball twice during
the game, New York Giants' player Jacquian Williams said, "we knew he
had four concussions, so that was our biggest thing . . . to take him
outta the game . . . . We were just like, 'We gotta put a hit on that
guy.'"239 Although Kyle Williams did not sustain a concussion in the
game,2 4 ° these comments are still alarming: not because players are trying to hit their opponents hard, but because it suggests that coaches are
explicitly instructing their team to target players with histories of concussions and "knock them out" of the game. 24 1 These comments confirm the fact that the culture and even the tactical approach in the NFL
must change in order for the NFL to limit the number of life-altering
head injuries in the game, but it is going to take some time.2 42 First, the
NFL must start by making sure players know that head injuries are different from most other bodily injuries in terms of their lifelong impact.
Specifically, many players treat head injuries like a hurt wrist or ankle
and will attempt to play through the injury. The long-term issues associated with repeated wrist injuries, however, do not compare with those
associated with head injuries. Wrist injuries could limit one's mobility
in their hand, while head injuries can significantly shorten one's lifespan. NFL players and football players at all levels must understand that
head injuries are not something that you "play through" and that players
238
Benjamin Wallace-Wells, Did Giants Strategically Concuss Kyle Williams?, NYMAG.COM,
(Jan. 23, 2012), http://nymag.com/daily/sports/2012/01/did-giants-strategically-concuss-kylewilliams.html.
239 Id
240 Niners' Williams Played With Shoulder Injury in OT, Father Says, NFL.coM, (Jan. 24,
2012), http://www.nfl.com/news/story/09000d5d8264128a/article/niners-williams-playedwith-shoulder-injury-in-ot-father-says (explaining that Williams sustained a shoulder injury during the game).
241 Wallace-Wells, supra note 237.
242 Players Still Willing to Hide Head Injuries, supra note 235.
2012]
209
should be fully cleared by physicians or medical staff before returning to
243
play.
The NFL's concussion policy will not only have an influence on
youth football, but on hockey, another sport that has dealt with its fair
share of concussion-related issues. Although the National Hockey
League (NHL) developed a concussion plan ahead of the NFL,2 44 recent
head injuries to many of its key players has led the NHL to take a
careful look at its sport.245 Sidney Crosby, one of the premier players in
the NHL, was sidelined for more than ten months following a concussion in January 201 1.246 After returning to play, Crosby experienced
more concussion-like symptoms following a game in December 2011,
and had not returned to play as of February 2012.247 Although the
most recent injury for Crosby was not diagnosed as a concussion,
Crosby has still become the face of the NHL's concussion problem.
The NHL, to their credit, has modified their rules in recent years due to
the increased concerns over concussions. 2 8 However, if the NFL made
additional changes to its rules and policies, it would likely spark changes
in hockey rules and policies, thus making both games safer for the players. Because football is the biggest sport in the United States, if the
NFL were able to significantly diminish the number of concussions
through rule, policy, and equipment changes, the NHL would likely be
under a tremendous amount of pressure to ensure that their game's
safety protocols mimicked those of the NFL.
CONCLUSION
Based on the number of procedural and substantive hurdles that
retired NFL players will have to overcome, it seems unlikely that they
will prevail in these lawsuits against the NFL. Even though the NFL
may avoid liability, they still must do more to provide greater protection
243
Safety Rules and Regulations, NFL
EVOLUTION,
http://www.nflevolution.com/article/
245 Concussions Sideline Several Top NHL Stars, SAN FRANcIsco
CHRONICLE
(Dec. 15,
2011), http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/12/14/SPMN1MCMJM.DTL.
246 Associated Press, Sidney Crosby Out Indefinitely, ESPN.coM (Dec. 12, 2011), http://
espn.go.com/nhl/story/-/id/7345193/sidney-crosby-pittsburgh-penguins-indefinitely-concussion-symptoms.
247 Stephanie Bell, Crosby Injury No Easy Puzzle to Solve, ESPN.coM (Feb. 9, 2012), http://
espn.go.com/nhl/story/-/id/7556814/sidney-crosby-neck-injury-requires-complex-explanation.
248 Dan Rosen, Board ofGovernorsApproves Changes to Two Rules, NHL.coM (June 21, 2011)
http://www.nhl.com/ice/news.htm?id=566579.
210
V
[Vol.
11:173
for players. As the cases of cognitive decline continue to rise among
retired players and even current players, 24 9 the NFL can no longer say
that the science behind concussions is unclear-we may not know everything, but we know enough to know that something must be done.
The NFL not only has an obligation to its former and current players,
but it has a responsibility to its future players, the youth, high school,
and college players who are working towards a career in the NFL. These
future players should not have to choose between not playing football in
order avoid cognitive injury and playing the game, knowing that they
may very well face significant cognitive impairments at some point
down the line.
Even though some current players have been brought up in a culture in which they are willing to accept the long-term consequences of
concussions, its unlikely that the next generation-who will grow up
being aware of the effects of concussions-are willing to make that same
sacrifice. Football players, and athletes in general, already put the rest of
their bodies through a tremendous amount of trauma and they should
not also be forced to sacrifice their long-term mental capacities for the
games they love. No one wants the aggressive, physical game of football-as we know it-to disappear. At the same time, if something is
not done to curb the number of head injuries and their subsequent
health consequences, fewer youth will pursue the game of football at the
highest level and the game will disappear anyways.
For the sake of current and future players, the NFL must not only
expand the on-the-field rules, but also make fines and suspensions harsher for players who break those rules designed to protect against head
injuries. Additionally, the NFL must improve its regulation of returnto-play policies so players cannot-on their own accord or under pressure from teammates and coaches-return to play before they are medically ready to do so. Finally, the NFL must make changes to their safety
protocols because they will influence other professional sports leagues
and state legislatures to make all contact sports safer in terms of head
injuries. The NFL's stature in the United States puts it in a unique
position to affect change in concussion policies throughout the country.
Commissioner of the NFL Roger Goodell put it succinctly: "[It's] our
249 Alan Schwarz, Dementia Risk Seen in Players in NFL. Study, N.Y. TIMES (Sept. 29,
2009), http://www.nytimes.com/2009/09/30/sports/football/30dementia.html?pagewanted=a-l.
20121
responsibility." 25 ° The NFL is saying all the right things. Now the only
thing left for them to do is follow through.
250 Goodell on concussions: 'It' our responsibility', NFL.coM (Oct. 3, 2011), http://www.nfl.
com/videos/nfl-network-around-the-league/09OOd5d822cd973/Goodell-on-concussions-It-sour-responsibility.
CARDOZO PUBLIC LAW, POLICY, AND ETHICS JOURNAL
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PUBLIC LAW, POLICY, AND ETHICS
VOLUME 11
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JOURNAL
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ii
Benjamin N. Cardozo School of Law
Yeshiva University
ADMINISTRATION
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FACULTY
Michelle Adams, Professor of Law. B.A., 1985, Brown University; J.D., 1989, City
University of New York; LL.M., 1994, Harvard University.
Paris Baldacci, Clinical Professor of Law and Supervising Attorney, Bet Tzedek Legal
Services Clinic. B.A., 1965, University of Scranton; Ph.D., 1974, Marquette
University; J.D., 1987, City University of New York.
Richard A. Bierschbach, Associate Professor of Law. B.A., 1994, J.D., University of
Michigan.
Jennifer Blasser, Clinical Assistant Professor of Law. B.A., 1993, Tufts University; J.D.,
1998, New York University.
J. David Bleich, Herbert and Florence Tenzer ProfessorofJewish Law and Ethics. B.A.,
1960, Brooklyn College; M.A., 1968, Columbia University; Ph.D., 1974, New
York University.
Lester Brickman, Professor of Law. B.S., 1961, Carnegie-Mellon University; J.D., 1964,
University of Florida; LL.M., 1965, Yale University.
Michael J. Burstein, Assistant Professor of Law. B.A., 1999, Yale University; J.D., 2004,
New York University.
David Gray Carlson, Professor of Law. B.A., 1974, University of California, Santa
Barbara; J.D., 1977, University of California, Hastings.
Susan P. Crawford, Professor of Law. B.A., 1984, J.D., 1989, Yale University.
Laura E. Cunningham, Professor of Law. B.S., 1977, University of California, Davis;
J.D., 1980, University of California, Hastings; LL.M., 1988, New York University.
Matthew Diller, Dean and Professor of Law. A.B., 1981, J.D., 1985, Harvard University.
Mitchell Engler, Professorof Law. B.A., 1987, J.D., 1990, LL.M., 1991, New York
University.
Brett M. Frischmann, Professor of Law. B.A., 1995, M.Sc., 1997, Columbia University;
J.D., 2000, Georgetown University.
Myriam Gilles, Professor of Law. B.A., 1993, Harvard-Radcliffe Colleges; J.D., 1996,
Yale University.
Elizabeth Goldman, Clinical Associate Professor of Law. B.A., 1987, State University of
New York, Albany; J.D., 1990, Benjamin N. Cardozo School of Law, Yeshiva
University.
Toby Golick, Clinical Professor of Law, Director of ClinicalLegal Education, and Director,
Bet Tzedek Legal Services Clinic. B.A., 1966, Barnard College; J.D., 1969,
Columbia University.
Peter Goodrich, Professor of Law. LL.B., 1975, University of Sheffield; Ph.D., 1984,
University of Edinburgh.
Minasse Haile, ProfessorEmeritus. B.A., 1950, University of Wisconsin, Madison; LL.B.,
1954; M.A., 1957; Ph.D., 1961, Columbia University.
Malvina Halberstam, Professor of Law. B.A., 1957, Brooklyn College; J.D., 1961,
M.I.A., 1964, Columbia University.
Marci A. Hamilton, PaulR. Verkuil Chair in Public Law. B.A., 1979, Vanderbilt
University; M.A., 1982, M.A., 1984, Pennsylvania State University; J.D., 1988,
University of Pennsylvania.
Eva H. Hanks, Dr. Samuel Belkin Professor of Law and Society. Referendar, 1951, Freie
Universitt, Berlin; LL.B., 1960, University of California, Los Angeles; LL.M.,
1962, J.S.D., 1969, Columbia University.
Michael Eric Herz, Professor of Law, and Director,Floersheimer Centerfor Constitutional
Democracy. B.A., 1979, Swarthmore College; J.D., 1982, University of Chicago.
Justin Hughes, Professor of Law. B.A., 1982, Oberlin College; J.D., 1986, Harvard
University.
Kyron J. Huigens, Professor of Law. A.B., 1981, Washington University; J.D., 1984,
Cornell University.
Arthur J. Jacobson, Max Freund Professor of Litigation and Advocacy. B.A., 1969, J.D.,
1974, Ph.D., 1978, Harvard University.
Melanie Leslie, Professor of Law. B.A., 1983, University of Oregon; J.D., 1991,
Benjamin N. Cardozo School of Law, Yeshiva University.
Marcia Levy, Associate Dean for Career Services and Professor of ProfessionalDevelopment.
B.S., 1975, State University of New York, Albany; J.D., 1980, Lewis and Clark
College.
Lela Porter Love, Professor ofLaw and Director, Kukin Programfor Conflict Resolution
and Mediation Clinic. A.B., 1973, Harvard-Radcliffe Colleges; M.Ed., 1975,
Virginia Commonwealth University; J.D., 1979, Georgetown University.
Peter Lushing, Professor of Law. A.B., 1962, LL.B., 1965, Columbia University.
Peter Markowitz, ClinicalAssociate Professor of Law. B.A., 1994, Wesleyan University;
J.D., 2001, New York University.
Leslie S. Newman, Professor of Law and Director of Lawyering Skills and Legal Writing.
B.A., M.A., 1975, Brown University; J.D., 1978, Boston University.
Jonathan H. Oberman, ClinicalProfessor of Law. B.A., 1974, M.A., 1976, M. Phil.,
1979, Columbia University; J.D., 1982, Northeastern University.
Eric J. Pan, Associate Professor of Law. A.B., 1994, J.D., 1998, Harvard University;
M.Sc., 1995, University of Edinburgh.
Deborah N. Pearlstein, Assistant Professor Law. A.B., 1993, Cornell University; J.D.,
1998, Harvard University.
Monroe E. Price, Joseph and Sadie Danciger Professor of Law and Director,Howard M.
Squadron Program in Media, Law, and Society. B.A., 1960, LL.B., 1964, Yale
University.
Daniel B. Ravicher, Lecturer in Law. B.S.C.E., 1997, University of South Florida; J.D.,
2000, University of Virginia.
Alexander A. Reinert, Associate Professor of Law. A.B., 1994, Brown University; J.D.,
Sheri Rosenberg, ClinicalAssistant Professor of Law, Director, Program in Holocaust and
Human Rights Studies, and Director,Human Rights and Genocide Clinic. B.A.,
1989, New York University; J.D., 1994, Benjamin N. Cardozo School of Law,
Yeshiva University; LL.M., 2003, Columbia University.
Michel Rosenfeld, Justice Sydney L. Robins Professor of InternationalLaw and Human
Rights. B.A., 1969, M.A., 1971, M.Phil., 1978, Ph.D., 1991, Columbia University;
J.D., 1974, Northwestern University.
Jessica A. Roth, Assistant Professor of Law. B.A., 1992, J.D., 1997, Harvard University.
David Rudenstine, Sheldon H. Solow Professor of Law. B.A., 1963, M.A.T., 1965, Yale
University; J.D., 1969, New York University.
Leslie Salzman, Clinical Professor of Law. B.A., 1978, Tufts University; J.D., 1981, New
York University.
Barry C. Scheck, Professor of Law and Co-Director, Innocence Project. B.S., 1971, Yale
University; J.D., M.C.P., 1974, University of California, Berkeley.
Jeanne L. Schroeder, Professor ofLaw. A.B., 1975, Williams College; J.D., 1978,
Stanford University.
William Schwartz, University Professor ofLaw. A.A., 1952, J.D., 1955, A.M., 1960,
Boston University; L.H.D., 1996, Hebrew College; L.H.D., 1998, Yeshiva
University.
Anthony Sebok, Professor of Law. B.A., 1984, Cornell University; M.Phil., 1986,
University of Oxford; J.D., 1991, Yale University; Ph.D., 1993, Princeton
University.
Paul M. Shupack, ProfessorEmeritus. A.B., 1961, Columbia University; J.D., 1970,
University of Chicago.
Jonathan L. F. Silver, Professor of Law. B.A., 1969, Yale University; J.D., 1973,
Carlton M. Smith, ClinicalAssociate Professor and Director, Tax Clinic. B.A., 1978, J.D.,
Alex Stein, Professor of Law. LL.B., 1983, LL.M., 1987, The Hebrew University of
Jerusalem; Ph.D., 1990, University of London.
Edward Stein, Vice Dean, Professor of Law, and Director, Programfor Family Law, Policy,
and Bioethics. B.A., 1987, Williams College; Ph.D., 1992, Massachusetts Institute
of Technology; J.D., 2000, Yale University.
Stewart E. Sterk, H. Bert and Ruth Mack Professor of Real Estate Law and Acting
Director,Intellectual Property Law Program. A.B., 1973, J.D., 1976, Columbia
University.
Martin J. Stone, Professor of Law. B.A., 1982, Brandeis University; J.D., 1985, Yale
University; B.Phil., 1988, Oxford University; Ph.D., 1996, Harvard University.
Suzanne Last Stone, Professor of Law and Director, Centerfor Jewish Law and
Contemporary Civilization. B.A., 1974, Princeton University; J.D., 1978, Columbia
University.
Julie Chi-Hye Suk, Professor of Law. A.B., 1997, Harvard University; J.D., 2003, Yale
University; M.Sc., D.Phil., 2004, University of Oxford.
Peter Tillers, Professor of Law. B.A., 1966, Yale University; J.D., 1969, LL.M., 1972,
Harvard University.
Richard H. Weisberg, Walter FloersheimerProfessor of ConstitutionalLaw. B.A., 1965,
Brandeis University; Ph.D., 1970, Cornell University; J.D., 1974, Columbia
University.
Lynn Wishart, Associate Dean for Library Services, Professor of Legal Research, Director,
Dr. Lillian & Dr. Rebecca Chutick Law Library. A.B., 1969, West Virginia
University; A.M.L.S., 1971, University of Michigan; J.D., 1977, Washington
University.
Felix Wu, Associate Professor ofLaw. A.B., 1996, Harvard College; Ph.D., J.D., 2005,
University of California, Berkeley.
Charles M. Yablon, Professor of Law. B.A., 1972, Columbia University; J.D., 1975, Yale
University.
Ekow N. Yankah, Professor of Law. B.A., 1997, University of Michigan; J.D., 2000,
Columbia University; B.C.L., 2002, Oxford University.
Ellen C. Yaroshefsky, Clinical Professor of Law. B.A., 1969, J.D., 1975, Rutgers
University.
Edward A. Zelinsky, Morris and Annie Trachman Professor of Law. B.A., 1972, M.A.,
J.D., 1975, M. Phil., 1978, Yale University.
VISITING FACULTY
Mauro Bussani, Visiting Professor of Law. J.D., 1983, University of Trieste.
Robert Collins, Visiting Clinical Professor of Law. B.A., 1972, Yale University; J.D.,
1975, University of Pennsylvania.
Larry Cunningham, Visiting Professor ofLaw. B.A., 1985, University of Delaware; J.D.,
1988, Benjamin N. Cardozo School of Law, Yeshiva University.
Christian Delage, Visiting Professor of Law. M.A., 1980, Ph.D., 1985, Ecole des Hautes
ltudes en Sciences Sociales.
Erica M. Eisinger, Visiting Professor of Law. B.A., 1965, William Smith College; M.A.,
1966, Middlebury College; Ph.D.,1972, Yale University; J.D., 1982, University of
Wisconsin.
Stanley Fish, Floersheimer Distinguished Visiting Professor ofLaw. B.A., 1959, University
of Pennsylvania; M.A., 1960, Ph.D., 1962, Yale University.
Eric Freedman, Visiting Professor of Law. B.A., 1965, University of Durham U.K.;
Ph.D., 1970, Cornell University.
Ann Gellis, Visiting Professor of Law. B.A., 1968, Case Western Reserve University; J.D.,
Betsy Ginsberg, Visiting Clinical Assistant Professor of Law. B.A., 1994, Wesleyan
University; J.D., 1999, New York University.
Lisa Huestis, Visiting Professor of Law. B.A., 1978, Hamilton College; J.D., 1983,
Brooklyn Law School.
Yair Lorberbaum, Visiting Professor of Law. B.A., 1986, LL.B., 1987; M.A., 1991,
Ph.D., 1997, Hebrew University.
Susanna Mancini, FloersheimerDistinguished Visiting Professor of Law. J.D., 1991,
University of Bologna; LL.M., 1992, University of Florence; Ph.D., 1995,
European University Institute.
Uriel Procaccia, Visiting Professor of Law. LL.B., 1967, LL.M., 1969, Hebrew University;
S.J.D., 1972, University of Pennsylvania.
Hon. Eliezer Rivlin, Visiting Professor ofLaw. B.A., 1968, Hebrew University; LL.M.,
1982, Tel Aviv University; LL.M., 1985, Temple University.
Wojciech Sadurski, Floersheimer Distinguished Visiting Professor of Law. LLM., 1972,
Ph.D., 1977; Habilitacja, 1992, University of Warsaw.
Renata Salecl, Visiting Professorof Law. B.A., 1986, M.A., 1988, Ph.D., 1991,
University of Ljubjana.
Kate Shaw, Visiting Assistant Professor of Law. B.A., 2001, Brown University; J.D., 2006,
Northwestern University.
Michael Silverman, Visiting Professor of Law. B.A., 1994, McGill University; J.D., 2000,
Harvard University.
David Udell, Visiting Professorfrom Practice. B.A., 1979, Brandeis University; J.D.,
ADJUNCT FACULTY
Laura Abel, Adjunct Professor of Law. A.B., 1989, Harvard University; J.D., 1994, Yale
University.
Harold Abramson, Adjunct Professor of Law. B.B.A., 1971, University of Michigan; J.D.,
1974, Syracuse University; M.P.A., 1982, LL.M., 1983, Harvard University.
Olga Akselrod, Adjunct Professor of Law. B.A., 1996, University of California, Berkeley;
M.A., 1999, Johns Hopkins; J.D., 2002, New York University.
William Araiza, Adjunct Professor of Law. B.A., 1983, Columbia University; M.S., 1985,
Georgetown University; J.D., 1990, Yale University.
William Baker, Adjunct Professor of Law. B.A., 1968, Yale University; J.D., 1972,
Harvard University.
Roger Baneman, Adjunct Professor of Law. B.A., 1972, Yale University; J.D., 1976,
Harvard University.
Hon. Deborah Batts, Adjunct Professor of Law. B.A., 1969, Harvard-Radcliffe Colleges;
J.D., 1972, Harvard University.
Simeon H. Baum, Adjunct Professor of Law. B.A., 1976, M.A., 1979, Colgate
University; J.D., 1982, Fordham University.
Bryce Benjet, Adjunct Professor of Law. B.A., 1995, Brandeis University; J.D., 1998,
University of Texas.
Adam J. Berner, Adjunct Professor of Law. B.A., 1990, M.A., 1994, Yeshiva University,
J.D., 1994, Benjamin N. Cardozo School of Law, Yeshiva University.
Nicole Blumberg, Adjunct Professor of Law. B.A., 1995, University of Vermont; J.D.,
Blaine H. Bortnick, Adjunct Professor of Law. B.A., 1986, Duke University; J.D., 1989,
Emory University; LL.M., 1990, New York University.
Kathleen A. Bryan, Adjunct Professor of Law. B.A., 1978, University of Massachusetts;
J.D., 1981, Northeastern University.
Susan Buckley, Adjunct Professorof Law. B.A., 1973, Mount Holyoke College; J.D.,
1977, Fordham University.
Douglas Burgess, Adjunct Professor of Law. B.A., 1999, McGill University; J.D., 2002,
Cornell University; LL.M., 2003, University of British Columbia; Ph.D., 2009,
Brown University.
Patrick J. Burke, Adjunct Professor of Law. B.A., 1980, State University of New York,
Binghamton; J.D., 1987, New York University.
Daniel J. Bursky, Adjunct Professor ofLaw. B.A., 1990, Yale University; J.D., 1993,
Edward Cavanagh, Adjunct Professor of Law. A.B., 1971, University of Notre Dame;
J.D., 1974, Cornell University; LL.M., 1986, J.S.D., 1988, Columbia University.
Efraim Chalamish, Adjunct Professor ofLaw. LL.B., 1999, LL.M., 2000, MBA, 2001,
Bar-Ilan University; LL.M., 2003, S.J.D., 2008, University of Michigan.
Devereux Chatillon, Adjunct Professor of Law. A.B., 1975, Harvard College; J.D., 1979,
Elizabeth Clemants, Adjunct Professorof Law. B.A., 1993, Iowa State University;
M.S.W., 1998, Columbia University.
Carolyn E. Coffey, Adjunct Professor of Law. B.A., 1994, Franklin & Marshall College;
J.D., 2004, City University of New York.
Morris E. Cohen, Adjunct Professor of Law. A.B., 1989, Harvard College; J.D., 1994,
Benjamin N. Cardozo of Law, Yeshiva University.
Susan W. Coleman, Adjunct Professor of Law. B.A., 1978, Hampshire College; M.P.A.,
1987, Kennedy School of Government, Harvard University; J.D., 1983, Hofstra
University.
Craig Cooley, Adjunct Professor of Law. B.S., 1996, University of Pittsburgh; M.S.,
2000, University of New Haven; J.D., 2004, Northwestern University.
Thomas A. Crowell, Adjunct Professor of Law. B.A., 1988, New York University; J.D.,
Howard Darmstadter, Adjunct Professor of Law. A.B., 1963, University of Pennsylvania;
Ph.D., 1967, Princeton University; J.D., 1977, Harvard Law School.
Alphonso David, Adjunct Professor of Law. B.A., 1992, University of Maryland; J.D.,
2000, Temple University.
Janice A. Dean, Adjunct Professor of Law. B.S., 1999, University of California at
Berkeley; J.D., 2005, Pace University.
Alvin Deutsch, Adjunct Professor of Law. A.B., 1965, Johns Hopkins University; LL.B.,
1968, Yale University.
Ayala Deutsch, Adjunct Professorof Law. B.A., 1986, City University of New York; J.D.,
Frank S. DiGiglio, Adjunct Professor of Law. B.S., 1975, Boston College; J.D., 1982, St.
John's University.
Nancy Neveloff Dubler, Adjunct Professor of Law. A.B., 1964, Barnard College; LL.B.,
Donny Ebenstein, Adjunct Professor of Law. B.A., 1990, University of Michigan; J.D.,
Janis M. Echenberg, Adjunct Professor of Law. B.A., 1997, University of Pennsylvania;
J.D., 2003, University of California, Los Angeles.
Arthur Eisenberg, Adjunct Professor of Law. B.A., Johns Hopkins University; J.D.,
Cornell University.
Bennett Ellenbogen, Adjunct Professor of Law. B.A., 1986, Michigan State University;
J.D., 1990, University of Michigan.
Andrew Elmore, Adjunct Professor of Law. B.A., 1995, Swarthmore College; J.D., 2002,
University of California, Los Angeles.
Richard Eskew, Adjunct Professor of Law. B.S., 1996, Manhattan College; J.D., 1999,
Fordham University.
Christopher D. Frey, Adjunct Professor of Law. B.A., 1999, Syracuse University; J.D.,
2003, Stanford Law School.
Andrew Friedman, Adjunct Professor ofLaw. BA, 1993, Columbia University; J.D.,
Tracey B. Frisch, Adjunct Professor of Law. B.A., 2001, Tulane University; J.D., 2006,
Matthew Furman, Adjunct Professor of Law. B.A., 1991, Brown University; J.D., 1994,
Harvard University.
Gary J. Galperin, Adjunct Professor of Law. B.A., 1977, Columbia University; J.D.,
Hon. Nicholas Garaufis, Adjunct Professor of Law. B.A., 1969, J.D., 1974, Columbia
University.
Leslie Gerwin, Adjunct Professor of Law. B.S., 1972, Prescott College; J.D., 1976,
Antioch University; M.P.H., 1998, Tulane University; M.P.A., 2002, Kennedy
School of Government, Harvard University.
Rabbi Anthony Glickman, Adjunct Professor of Law. B.A., 1970, Columbia University;
M.B.A., 1980, New York University.
Amy Gottlieb, Adjunct Professor of Law. B.A., 1985, M.S., 1986, State University of New
York, Albany; JD., 1996, Rutgers University, Newark.
Michael R. Graif, Adjunct Professor of Law. B.S.E., 1988, University of Pennsylvania;
LL.B., 1991, University of Toronto.
Hon. Joseph Greenaway, Adjunct Professor of Law. B.A., 1978, Columbia University;
J.D., 1981, Harvard University.
Hon. Ethan Greenberg, Adjunct Professor ofLaw. B.A., 1978, Yale University; J.D.,
1981, Columbia University.
Jeffrey J. Haas, Adjunct Professor of Law. B.S., 1984, Florida State University; J.D.,
Zvi Hahn, Adjunct Professor of Law. B.A., LL.B., 1993, Tel Aviv University; LL.M.,
1996, J.S.D., 2002, New York University.
Eric Hecker, Adjunct Professor of Law. B.A., 1991, University of Pennsylvania; J.D.,
1997, University of Michigan.
Jonathan Henes, Adjunct Professor of Law. B.A., 1991, Union College; J.D., 1996,
Robert Hettleman, Adjunct Professor of Law. B.A., 1991, Dartmouth College; J.D.,
David N. Hoffman, Adjunct Professor of Law. J.D., 1986, State University of New York,
Buffalo.
Gary T. Holtzer, Adjunct Professor of Law. B.S., 1986, Cornell University; J.D., 1990,
Moshe Horn, Adjunct Professor of Law. B.A., 1989, George Washington University; J.D.,
Omar Jadwat, Adjunct Professorof Law. B.A., 1995, Yale University; J.D., 2001, New
York University.
Edward Josephson, Adjunct Professor of Law. B.A., 1978, Harvard College; J.D., 1981,
Barbara Kolsun, Adjunct Professor of Law. B.A., 1971, Sarah Lawrence College; J.D.,
David Korzenik, Adjunct Professor of Law. B.A., 1972, Harvard College; M.A., 1976,
Columbia University; J.D., 1979, Benjamin N. Cardozo School of Law, Yeshiva
University.
Jason Kreag, Adjunct Professor of Law. B.A., 1997, DePauw University; M.A., 1999,
Indiana University; J.D., 2003, Harvard University.
Carolyn Kubitschek, Adjunct Professor of Law. B.A., 1970, Oberlin College; J.D., 1973,
Marina Lao, Adjunct Professor of Law. B.A., 1974, State University of New York, Stony
Brook; J.D., 1980, Albany Law School; LL.M., 1994, Temple University.
Lillian Laserson, Adjunct Professor ofLaw. B.S., 1972, Syracuse University; J.D., 1983,
Jeffrey I. D. Lewis, Adjunct Professor of Law. B.S.E., 1983, University of Connecticut;
Arthur S. Linker, Adjunct Professor of Law. A.B., 1968, M.A., 1970, Columbia
University; J.D., 1974, Harvard University.
Burton N. Lipshie, Adjunct Professor of Law. B.S., 1964, LL.B., 1967, Columbia
University.
David Loftis, Adjunct Professor of Law. B.A., 1986, Tufts University; J.D., 1990,
Wanda Lucibello, Adjunct Professor of Law. B.A., 1978, St. Lawrence University; J.D.,
1981, State University of New York, Buffalo.
Kenneth McCallion, Adjunct Professor of Law. B.A., 1968, Yale University; J.D., 1972,
Fordham University.
Matthew McFarlane, Adjunct Professor of Law. Sc.B., 1991, Brown University; PhD.,
1997, Stanford University; J.D., 2005, Fordham University.
Robert Meister, Adjunct Professor of Law. A.B., 1959, New York University; LL.B.,
Melanie Meyers, Adjunct Professor of Law. B.S., 1982, Massachusetts Institute of
Technology; J.D., 1987, Columbia University.
Alba Morales, Adjunct Professor of Law. B.A., 1996, Brown University; J.D., 2001, New
York University.
Matthew Morreale, Adjunct Professor of Law. B.A., B.A.S., 1990, M.S., 1994, University
of Pennsylvania; J.D., 1997, Columbia University.
Nina Morrison, Adjunct Professor ofLaw. B.A., 1992, Yale University; J.D., 1998, New
York University.
Tim Mulligan, Adjunct Professor of Law. B.A., 1990, Boston College; M. P.A., 1996,
Princeton University; J.D., 1996, New York University.
Peter Neufeld, Adjunct Professor ofLaw. B.A., 1972, University of Wisconsin; J.D.,
Stanley Neustadter, Adjunct Professor of Law. A.B., 1964, Tufts University; LL.B., 1967,
Boston University.
Sateesh Nori, Adjunct Professor of Law. B.A., 1997, Johns Hopkins University; J.D.,
Clyde Otis III, Adjunct Professor of Law. B.S., 1983, Cornell University; J.D., 1986,
Christian T. Palmieri, Adjunct Professor of Law. B.A., 1993, University of Rhode Island;
Hon. Andrew J. Peck, Adjunct Professor of Law. B.A., 1974, Cornell University; J.D.,
1977, Duke University.
Arnold Pedowitz, Adjunct Professor of Law. B.A., 1967, University of Wisconsin; J.D.,
1971, Boston University; LL.M., 1978, New York University.
Curtis Pew, Adjunct Professor of Law. B.A., 1969, Tulane University; M.P.P.A., 1970,
University of Wisconsin; J.D., 1978, George Washington University.
Vanessa Potkin, Adjunct Professor of Law. B.A., 1996, J.D., 2002, Columbia University.
Rebecca Price, Adjunct Professor of Law. B.A., 1995, Sarah Lawrence College; J.D.,
2002, City University of New York.
Harlan J. Protass, Adjunct Professor of Law. B.A., 1988, Cornell University; J.D., 1995,
Stephen Radin, Adjunct Professor of Law. B.A., 1980, Cornell University; J.D., 1983,
Lauris G. L. Rail, Adjunct Professor of Law. B.A., 1974, J.D., 1977, University of
Virginia.
Eric Rayman, Adjunct Professor of Law. A.B., 1973, Harvard College; J.D., 1977,
Jarrod Reich, Adjunct Professorof Law. B.A., 2001, Brandeis University; J.D., 2004,
Vanderbilt University.
Peter Rienecker, Adjunct Professor of Law. A.B., 1982, Boston College; J.D., 1985,
Harvard University.
Kenneth Rivlin, Adjunct Professor of Law. A.B., 1987, Brown University; J.D., 1994,
Boston University.
Hon. Stephen Robinson, Adjunct Professor of Law. B.A., 1979, J.D., 1984, Cornell
University.
Bridget M. Rohde, Adjunct Professor of Law. B.A., 1983, College of Notre Dame,
Baltimore, MD; J.D., 1986, University of Maryland.
Sharyn Rootenberg, Adjunct Professor of Law. B.A., 1990, State University of New York,
Albany; J.D., 1995, Benjamin N. Cardozo School of Law, Yeshiva University.
Michael Ross, Adjunct Professor of Law. B.A., 1971, Rutgers University; J.D., 1984,
Lucille Roussin, Adjunct Professor of Law. B.A., 1969, M.A., 1971, M.Phil., 1973,
Ph.D., 1985, Columbia University; J.D., 1996, Benjamin N. Cardozo School of
Law, Yeshiva University.
Gail Rubin, Adjunct Professor of Law. B.A., 1977, Oberlin College; J.D., 1982,
Ben Rubinowitz, Adjunct Professor of Law. B.A., 1978, Boston University; J.D., 1981,
Hofstra University.
Gerald Russello, Adjunct Professor of Law. B.A., 1992, Georgetown University; J.D.,
Seema Tahir Saifee, Adjunct Professor ofLaw. A.B., 2001, Cornell University; J.D.,
2004, Fordham University.
Lisa Sbrana, Adjunct Professorof Law. BS., 1987, University of the Pacific; J.D., 1993,
City University of New York, Queens.
Hon. Sara P. Schechter, Adjunct Professor of Law. A.B., 1965, Barnard College; J.D.,
Hon. Shira Scheindlin, Adjunct Professor of Law. B.A., 1967, University of Michigan;
M.A., 1969, Columbia University; J.D., 1975, Cornell University.
David Sciarra, Adjunct Professor of Law. B.A., 1974, University of California, Berkeley;
J.D., 1978, Temple University.
Paul Schoeman, Adjunct Professor of Law. A.B., 1991, Princeton University; J.D., 1995,
Harvard University.
Philip Segal, Adjunct Professor of Law. B.A., 1984, Columbia University; M.S.L., 2004,
Yale University; J.D., 2006, Benjamin N. Cardozo School of Law, Yeshiva
University.
Careen B. Shannon, Adjunct Professor of Law. B.A., 1981, Oberlin College; J.D., 1989,
City University of New York.
Fabio R. Silva, Adjunct Professor of Law. B.A., 1993, University of California, Santa
Barbara; J.D., 1998, Stanford University.
Daniel Silverman, Adjunct Professor ofLaw. B.S., 1963, LL.B., 1966, LL.M., 1967, New
York University.
Hon. Robert Smith, Adjunct Professor of Law. B.A., 1965, Stanford University; LL.B.,
John E. Sorkin, Adjunct Professor of Law. B.A., 1990, Yale University; J.D., 1994,
Steven S. Sparling, Adjunct Professor of Law. B.A., 1993, University of Massachusetts,
Amherst; J.D., 1998, Benjamin N. Cardozo School of Law, Yeshiva University.
Lee S. Sporn, Adjunct Professor of Law. B.A., 1980, Oberlin College; J.D., 1986,
Mindy Stern, Adjunct Professor of Law. A.B., 1976, Lafayette College; J.D., 1982,
Rutgers University.
Michael H. Stone, Adjunct Professor of Law. B.A., 1969, State University of New York,
Binghamton; J.D., 1974, Brooklyn Law School; LL.M., 1978, New York
University.
Joseph Stulberg, Adjunct Professor of Law. B.A., 1967, Kalamazoo College; J.D., 1970,
New York University; M.A., Ph.D., 1975 University of Rochester.
Mariann Sullivan, Adjunct Professor of Law. B.A., 1972, Newton College of the Sacred
Heart; M.S., 1974, Columbia University; J.D., 1980, Fordham University.
John Richard Supple, Adjunct Professorof Law. B.A., 1985, Duke University; J.D.,
1989, University of Wisconsin.
Margaret Sweeney, Adjunct Professorof Law. J.D., 2001, Benjamin N. Cardozo School
of Law, Yeshiva University.
Eva Talel, Adjunct Professor of Law. B.A., 1970, City College, CUNY; J.D., 1973, New
York University.
Karen Denise Thompson, Adjunct Professor of Law. B.A., 1993, Carleton College; M.A.,
1998, New York University; J.D., 2003, Northwestern University.
Marshall Tracht, Adjunct Professor of Law. B.A., 1983, Yale University; M.B.A., J.D.,
John E. Tsavaris II, Adjunct Professor of Law. B.S., 1973, Pace University; M.S., 1977,
Queens College; Ph.D., 1981, Columbia University; J.D., 1987, Fordham
University.
Marian Underweiser, Adjunct Professor ofLaw. A.B., 1983, Harvard College; Ph.D.,
1992, University of California, Los Angeles; J.D., 1997, Columbia University.
Stephen A. Weiner, Adjunct Professorof Law. B.A., 1954, Harvard College; J.D., 1957,
Yale University.
Paul T. Weinstein, Adjunct Professor ofLaw. B.A., 1981, Colgate University; J.D., 1985,
Syracuse University.
Jaime Lauren Weiss, Adjunct Professor of Law. B.S., 1989, Cornell University; J.D.,
Daniel M. Weitz, Adjunct Professor of Law. B.A., 1991, New York University; J.D.,
David White, Adjunct Professor ofLaw. B.A., 1992, M.A., 1994, J.D., 2002, Fordham
University.
Leon Wildes, Adjunct Professor of Law. B.A., 1954, Yeshiva College; J.D., 1957, LL.M.,
Michael J. Wildes, Adjunct Professor of Law. B.A., 1986, Queens College; J.D., 1989,
Hope Brock Winthrop, Adjunct Professor of Law. B.A., 1971, Harvard College; J.D.,
1975, Boston University.
LAWYERING SKILLS AND LEGAL WRITING INSTRUCTORS
Peter Adelman, Adjunct Professor of Law. B.A., 1983, University of Rochester; J.D.,
Mary Alestra, Adjunct Professor of Law. B.E., 1999, The Cooper Union; J.D., 2001,
Marshall B. Bellovin, Adjunct Professor of Law. B.A., 1965, University of North
Carolina; M.A., 1974, New York University; J.D., 1968, New York Law School.
Andrew S. Buzin, Adjunct Professor of Law. B.S., 2000, New York University; M.B.A.,
2002, J.D., 2003, University of Miami.
R. Michael Cestaro, Adjunct Professor of Law. B.A., 1988, J.D., 1992, Rutgers
University.
Kerin E. Coughlin, Adjunct Professor of Law. B.A., 1992, State University of New York,
Albany; J.D., 2002, Columbia University; M.A., 2003, City University of New
York
Richard Dearing, Adjunct Professor of Law. B.A., 1996, University of North Carolina;
J.D., 1999, Yale University.
Adria De Landri, Adjunct Assistant Professor of Law. A.B., 1980, Vassar College; J.D.,
1986, Benjamin N. Cardozo School of Law, Yeshiva University; LL.M., 2011,
University College London.
Ralph Fabrizio, Adjunct Professor of Law. B.S., 1978, Fairfield University; M.S., 1981,
John Jay College of Criminal Justice; J.D., 1984, St. John's University.
David T. Feuerstein, Adjunct Professor ofLaw. B.A., 1995, Yale University; J.D., 2001,
Michael Gerstein, Adjunct Professor of Law. B.A., 1970, City University of New York;
Kristine Hamann, Adjunct Professor ofLaw. B.A., 1974, State University of New York,
Albany; J.D., 1977, Union University.
Barbara K. Hathaway, Adjunct Professor of Law. B.A., 1980, Mount Holyoke College;
J.D., 1983, George Washington University; LL.M., 2006, New York University.
Julie A. Interdonato, Adjunct Professor of Law. B.A., 1979, Columbia University; J.D.,
1983, New York Law School.
Alex Kriegsman, Adjunct Assistant Professor of Law. B.A., 1994, Lafayette College; J.D.,
Victoria A. Kummer, Adjunct Professor of Law. B.A., 1980, Cornell University; J.D.,
Steckley Lee, Adjunct Assistant Professor of Law. B.S., 2000, Clemson University; M.A.,
J.D., 2006, University of Florida.
Jolie Lehmann, Adjunct Professor of Law. B.A., 1995, University of Vermont; J.D., 1998,
Caroline Levy, Adjunct Professor of Law. B.A., 1990, Cornell University; J.D., 1993,
Georgetown University.
Burton N. Lipshie, Adjunct Professor of Law. B.S., 1964, LL.B., 1967, Columbia
University.
Bertrand Madsen, Adjunct Assistant Professor of Law. B.A., 1998, J.D., 1989, Cornell
University.
Robert Malchman, Adjunct Professorof Law. B.S., 1985, Massachusetts Institute of
Technology; J.D., 1989, University of Michigan.
Kevin McElroy, Adjunct Assistant Professor of Law. B.A., 1980, State University of New
York, Albany; J.D., 1986, St. John's University.
Michael Pantazakos, Adjunct Professor of Law. B.A., 1990, New York University; J.D.,
Rebecca Price, Adjunct Assistant Professor of Law. B.A., 1995, Sarah Lawrence College;
J.D., 2002, City University of New York.
Jarrod F. Reich, Adjunct Professor of Law. B.A., 2001, Brandeis University; J.D., 2004,
Vanderbilt University.
Brandi Katz Rubin, Adjunct Professor of Law. B.A., 1996, University of Pennsylvania;
Joel Shafferman, Adjunct Professor of Law. B.A., 1982, J.D., 1985, Hofstra University.
Cecilia A. Silver, Adjunct Assistant Professorof Law. A.B., 2000, Princeton University;
M.St., 2001, Oxford University; J.D., 2004, Georgetown University.
Alicia M. Simmons, Adjunct Assistant Professor of Law. B.A., 2003, University of
Pennsylvania; J.D., 2006, Georgetown University.
Lisa R. Volpe, Adjunct Professor of Law. B.A., 1978, Sarah Lawrence College; J.D.,
1989, Southwestern University.
Paul Weinstein, Adjunct Professor of Law. B.A., 1981, Colgate University; J.D., 1985,
Syracuse University.
Steven K. Weiss, Adjunct Professor of Law. B.A., 1992, Tufts University; J.D., 1996,
Sylvia Wertheimer, Adjunct Professor of Law. B.A., City University of New York; J.D.,
David Wirtz, Adjunct Professor of Law. B.A., 1969, Johns Hopkins University; J.D.,
1974, Cornell University.
Pauline H. Yoo, Adjunct Assistant Professor of Law. B.A., 1990, M.P.A., 1991, J.D.,
Joseph V. Zujkowski, Adjunct Assistant Professor of Law. B.A., 2004, Boston College;
J.D., 2007, Boston University.
Ben Zviti, Adjunct Assistant Professor of Law. B.A., 2003, New York University; J.D.,
CARDOZO PUBLIC LAW, POLICY, AND ETHICS JOURNAL
MISSION STATEMENT
The Cardozo Public Law, Policy, and Ethics Journal is a multidisciplinary
publication dedicated to discussing and analyzing the policy implications of
governmental actions, how lawyers advocate in the public interest, and how the
ethical choices of legal workers affect the law and the public at large. The
Journal publishes writing in all areas of the law, including the Constitution,
criminal law, civil rights, the family, legal ethics, immigration, the environment, civil law, labor, animal rights, and sexual orientation. The Journal is
committed to a non-ideological investigation of issues, and accepts submissions
from philosophers, economists, sociologists, activists, lawyers, and other
professionals.
We also thank the following for our cover design:
Nathan King Design
311 Greenwood Avenue, Floor 1
New York, NY 11218
(718) 431-0979

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