The National Football League (NFL) has made headlines for all of the wrong reasons following Thursday Night Football’s week 4 matchup between the Bengals and Dolphins. After Dolphins’ Quarterback, Tua Tagovailoa, sustained his second head injury in as many weeks[1], the National Football League Players Association (NFLPA) and NFL agreed to update their concussion protocols in an attempt to better protect players who sustain injuries to the head.[2]The current policy states that a team physician along with an unaffiliated neurotrauma consultant (UNC) will examine and determine if a player can return after sustaining suspected damage to the head.[3]

The updated policy is rumored to change the current rule of a player returning after they display signs of “Gross Motor Instability”, which would eliminate much of the subjectivity of the current policy.[4]Rather, the new protocols would prohibit a player from returning to the game if they demonstrate “any instability.”[5] The current NFL collective bargaining agreement (CBA) states that the “the responsibility for the diagnosis of concussion and the decision to return a player to a game remains exclusively within the professional judgment of the [team physician].”[6] This means, regardless of the sideline UNC’s testing and/or opinion, the team doctor makes the ultimate decision which could lead to a conflict of interest between what the team wants and what is best for the player’s health.

NFL chief medical officer Dr. Allen Sills stated that while the final language and consequences of the new policy are being discussed, they could be approved before Week 5 of the NFL season begins.[7] Under the current CBA of the NFL, the NFLPA has the right to investigate a matter which concerns the “health, safety, or medical care provided by Club-affiliated personnel.”[8]While the investigation is ongoing, it has already resulted in the firing of the UNC involved in the clearing of Tua after it was found he made “several mistakes” during his evaluation.[9]

The firing of the UNC takes some of the heat off of the NFL and the Dolphins and amending the collective bargaining agreement could help protect injured players. However, neither of these addresses the root cause of the issue. In the 321 total games between preseason and the regular season, NFL players suffered a total of 187 concussions, calculating that 58% of games resulted in a concussion.[10] In a study conducted by a team of researchers led by Boston University Neuropathologist Ann McKee, 175 out of 202 (87%) former football players’ brains showed signs of chronic traumatic encephalopathy (CTE).[11] Head trauma and long-term injury is a prominent problem for football players during and after their career.

The primary issue at hand is the Dolphins’, and potentially every NFL team’s, treatment of their players. The Dolphins tried to justify their decision by stating Tua’s injury was a back injury.[12] However, language in the concussion protocol never mentions proving it was a back or head injury, just proof that it was a neurological issue.[13] Attempting to use this loophole as a justification for their decision highlights the problem with the NFL. They value team success more than player health. It is a shame it took such a frightening injury to bring this issue to light, but we can only hope that players and fans alike keep the pressure on the NFL and its teams to implement policies that protect the long-term health of the players.

Evan Mattel is a 2L at Hofstra Law, Vice President of the Sports and Entertainment Law Society, Representative for the New York State Bar Association's Entertainment and Sports Law Section, and a member of Hofstra's Labor and Employment Law Journal. He can be found at @Evan_Mattel21 on Twitter or on Linkedin

Footnotes: [1] See What we know about the injury to Dolphins QB Tua Tagovailoa, and what’s next, ESPN (Sep. 30, 2022) https://www.espn.com/nfl/story/_/id/34697326. [2] See Ian Rapoport & Tom Pelissero, NFL, NFLPA agree to parameters of updated concussion protocols, NFL (Oct. 01, 2022) https://www.nfl.com/news/nfl-nflpa-agree-to-parameters-of-updated-concussion-protocols [3] See NFLPA to investigate handling of Dolphins’ QB Tua Tagovailoa concussion evaluation during game v. Bills, NFL (Sep. 25, 2022) https://www.nfl.com/news/nflpa-to-investigate-handling-of-dolphins-qb-tua-tagovailoa-concussion-evaluatio [4] See id. [5] Jack Baer, Tua Tagovaoila Rule? NFL, NFLPA reportedly working on change preventing players’ return after ‘instability’, Yahoo Sports, (Oct. 1, 2022) https://sports.yahoo.com/tua-tagovailoa-rule-nfl-nflpa-reportedly-working-on-change-preventing-players-return-after-instability-001833719.html?soc_src=social-sh&soc_trk=ma [6] Collective Bargaining Agreement, NFL (Mar. 15, 2020) https://nflpaweb.blob.core.windows.net/website/PDFs/CBA/March-15-2020-NFL-NFLPA-Collective-Bargaining-Agreement-Final-Executed-Copy.pdf [7] See Rapaport & Pelissero, supra note 2. [8] Baer supra note 5. [9] See Marcel Louis-Jacques, Unaffiliated neurotrauma consultant who evaluated Tua Tagovailoa fired, sources say; investigation ongoing, ESPN (Oct. 1, 2022) [10] See Injury Data Since 2015, NFL (Feb. 27, 2022) https://www.nfl.com/playerhealthandsafety/health-and-wellness/injury-data/injury-data. [11] See Meredith Wadman, Ninety-nine percent of ailing NFL player brains show hallmarks of neurodegenerative disease, autopsy study finds, Science (July 25, 2017) https://www.science.org/content/article/ninety-nine-percent-ailing-nfl-player-brains-show-hallmarks-neurodegenerative-disease [12] See Jodan Dajani, Tua Tagovailoa injury: Orthopedic surgeon discusses QB’s scary situation, decision to play Thursday night, (Sep. 30, 2022) https://www.cbssports.com/nfl/news/tua-tagovailoa-injury-orthopedic-surgeon-discusses-qbs-scary-situation-decision-to-play-thursday-night/ [13] See NFL Concussion Diagnosis and Management Protocol, NFL (Aug. 01, 2022) https://www.nfl.com/playerhealthandsafety/resources/fact-sheets/nfl-head-neck-and-spine-committee-s-concussion-diagnosis-and-management-protocol