Years ago in my book The Dark Side of the Game: My Life in the NFL, I dedicated an entire chapter to the conflict of interest between a team doctor and his patients. Teams in the NFL hire and pay the doctors, yet their Hippocratic oaths belong to their patients. Some people are now claiming they know the answer to my question back then: How can a doctor act in the best interests of a patient when they may be diametrically opposed to the best interests of the people who hired him and pay his fees? The answer we now know: He can’t.
Worse still, a group of former players –and indeed we may see an entire class of players- have filed suit alleging certain NFL teams and their doctors committed fraud by inducing them to play with injuries they were unaware of or not fully informed about, which led to further and permanent injury. From a legal standpoint, these claims will arise from two categories: fraud and negligence, very different claims we need to distinguish. Fraud is the intentional misrepresentation or concealment of an important fact that results in an injury. Informed consent is something doctors need to secure from a patient by first fully illuminating the risks involved in a certain treatment or procedure so the patient can then either accept or reject that risk. Failure to do so constitutes negligence.
Before I illuminate the problems and potential outcomes of such claims, let me set the stage for you. On the bright side, football is match of wits, speed, and skill. It is an amalgamation of dance, track, and chess. But this essay is a reflection on the dark side of the game.
Football is a brutal game.
Football thrives on violence, strength, relentlessness, and physical domination. Toughness is revered. Enduring pain is a badge of honor. Surgical scars, arthritic hands, bad backs, and shuffling limps are the purple hearts of the game. In a pagan world, the god of football would be Mars.
The universe of football, both beautiful and terrible, captures the dreams of America’s youth. I know it did mine. Where else can a young boy from any walk of life attain the pride of a warrior, the adulation of a rock star, the access of a politician, and the treasure of a hedge fund manager? Nowhere quite like the National Football League. What lengths will young men go to live that dream? Show me the boundaries of the human spirit.
The culture of the sport begins in backyards, town parks, and school yards.
“Get back in there and hit him,” I remember one father saying.
“Toughen up and stop crying,” growled another.
“Getting hurt is part of the game,” said yet another.
“You have to know the difference between being hurt and being injured,” I instructed my own football team as a coach.
Being hurt is when you feel pain or discomfort that you can overcome with winces, gritted teeth, bells in your ears, and shooting stars across your vision. It may cause you to suffer, but it won’t get any worse. If, by continuing to block, tackle, run, snap, catch, or throw, you can, and likely will, further damage an important bodily structure, you are injured. (The definition of important is somewhere between the little finger Ronnie Lott had amputated so he could play and the internal organs you need to live and breathe.) Playing with pain is built into nearly every moment of preparation for the game of football as well as the game itself. You not only have to play with pain, you have to train with pain. It is with great wisdom players utter the mantra, “no pain, no gain.”
This culture, which ushers a young man from schoolyard to MetLife Stadium, rewards and thus nurtures the disregard for physical well-being typically sought by the common citizen. Doctors are mystical professionals whose purpose isn’t to get a patient “well,” but simply “well enough to play.” Players know this and accept it. Are they culpable? Absolutely. Players understand and players choose, and my money says that given the same circumstances they’d do things the same way all over again if it meant an unobstructed road to the NFL. I know I would, and I don’t say that lightly. Is forgetting what I was about to say or not remembering the name of a well-known associate just normal aging, or are the multiple concussions I suffered finally taking their toll? I’m not sure, but that’s the context in which I say that I’d do it all over again. I won’t even mention the cracked bone in my neck, the collar bone separated from my sternum, the tattered cartilage, ligaments, and bone spurs in my knees, shoulders, and elbows. Really, how many people get to live out their childhood dreams? Not many, and that’s what playing in the NFL was for me and most of the guys I played with and against. That’s the honest answer. You’d give a lot to make that happen.
So, regarding informed consent, my prediction is that courts will find players to have some measure of culpability in a majority of the decisions that resulted in their ill health. Yet, I think it likely courts (and juries) will find that the teams, doctors, and league own some of the responsibility as well. If this happens, players will receive damage awards slashed by the percentages of their own culpability.
The fraud is more troublesome and something I never witnessed. Could it have happened? Of course. I can easily envision someone on the medical staff of an NFL team overeager to get their patients “back on the field,” even if it took an omission or a white lie that everyone could live a bit easier with. Did it happen? I can’t answer that, but my guess is that we soon shall see as these cases make their way through the courts.