On the latest episode of Conduct Detrimental, Dan Lust and Dan Wallach discussed the NFLPA’s initiation of an investigation into the concussion protocols performed on Miami Dolphins’ quarterback, Tua Tagovailoa. During their discussions, the Dans talked about the controversy surrounding the game including video clips showing Tua stumbling after a fall in which Tua’s head whipped into the grass. They also discussed how the Dolphins’ social media team seemed to flip-flop on their reports of Tua’s injury during the game. This only fueled concerns that the concussion protocols may have been conducted in a way that allowed Tua to return to the game prematurely.

In this article, I dive deeper into the NFL’s Collective Bargaining Agreement, highlighting the sections that gave the NFLPA the power to initiate an investigation as well as the punishments that could be handed down by the league should they find any wrongdoing by the team’s medical staff. I conclude with a short trip into the world of medical malpractice, comparing the standards of proof with those stated in the NFL’s CBA.

The NFL, over the past decade, has made it a priority to enhance player safety on multiple fronts. The NFL uses complex analytics to help develop new helmets that provide more protection for players. This year, we saw the implementation of Guardian Caps which players wore during preseason practices. On the same line, the NFL established the Head, Neck, and Spine Committee. In Article 39, Section 16, the NFL gave the committee power to create the “Concussion Diagnosis and Management Protocol.” As part of this protocol, the Committee issued an “NFL Concussion Checklist.” The CBA goes on to state, “[t]he application of the NFL Concussion Checklist to evaluate potential concussions during NFL preseason and regular season games is mandatory.”

The formatting of the quote above is ripped straight from the CBA. The NFL wants to emphasize the mandatory nature of following the NFL Concussion Checklist by underlining the word in the CBA itself.

The next section in the CBA is the power behind the NFLPA’s complaint brought to the league surrounding the Dolphin’s handling of concussion protocol. The CBA states “The NFLPA, the NFL Management Council or any player involved in an alleged failure by a club employee or other member of a club’s medical staff to follow any of the mandatory steps required by the NFL’s Concussion Checklist shall each have the right (independently or collectively) to bring forward a complaint about such alleged failure to the Representatives, which complaint shall be submitted in writing.”

Now that the complaint has been brought forth by the NFLPA, the question is: what happens next?

As with most things in the NFL or any major sports league, the short answer is arbitration. The NFL and the NFLPA appoint Representatives to participate in the arbitration over the complaint. The CBA outlines, “The Impartial Arbitrator shall determine: (1) whether a Club employee or member of a club’s medical team knowingly and materially failed to follow any of the mandatory steps in the NFL Concussion Checklist and, if so, (2) whether there were any relevant mitigating or aggravating factors present in the incident, including, without limitation: (a) whether the deviation resulted from an ambiguity in the Checklist or its failure to address the facts triggering the underlying violation, (b) whether any player interfered with the club employee or medical team’s ability to perform its duties, and (c) whether competitive concerns motivated the deviation.”

As sports law fanatics, this provision provides what we look for when scoping out potential legal issues within sports. This provision provides the standard by which the arbitrator will determine the outcome of the complaint. This standard is stated as knowingly and materially failed to follow any of the steps outlined in the Concussion Checklist. The provision then goes on to do one of my favorite things and add complexity to the standard by accounting for mitigating factors.

If the arbitrator does find that the employee of the Club knowingly and materially failed to follow the Concussion Checklist, then the CBA states the Commissioner shall hand out a punishment. The potential punishments include:

• (a) issuance of a letter of reprimand advising that club employee(s) and/or member(s) of the club’s medical staff knowingly and materially violated the NFL Game Concussion Protocol,

• (b) requiring the club employees or medical team members involved with the deviation from the Protocol to attend remedial education; and/or

• (c) a fine against the club in an amount no more than Five Hundred Thousand Dollars ($500,000); and any other discipline that the Commissioner deems warranted by the violation.

Those who have played sports or are fans of sports have undoubtedly heard stories about players “playing hurt.” It happens all the time and stories come out yearly about players who found out about an injury and decided to hold off on surgery or did not realize the severity of the injury in question. The NFL has included a provision in the punishment section of the CBA in the hopes of discouraging teams from putting players back in too soon following a concussion. Specifically, the CBA states, “In the event that the NFL Commissioner determines that the violation of the NFL Concussion Checklist was motivated by competitive considerations (e.g., intent to leave player in game and knowingly, intentionally and materially disregard the Protocol in order to gain a competitive advantage) the Commissioner may require the club to forfeit draft pick(s) and additional fines exceeding those amounts set forth above.”

If the NFL finds that concussion protocol was violated by a team’s employee, this conclusion may also give rise to a legal claim against that medical professional for Medical Malpractice. Given that the Tua concussion controversy occurred during a home game for the Miami Dolphins, Florida law will govern any potential action.

The Florida statute provides, “the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider.” It continues, “The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”

Florida law attaches the preponderance of the evidence standard to its medical malpractice claims or whether something is more likely or not based on the evidence. The preponderance of the evidence standard is most likely the standard the arbitrator uses when they reside over the complaint brought by the NFLPA. If the team is punished by Roger Goodell for failing to follow concussion protocols and Tua has somehow suffered harm from this failure, then Tua may just have a solid claim for medical malpractice against the team as well.

This article highlights the different connections between this controversy and the law. It is important to note that concussions have been a problem for the NFL since the league was established. Currently, the NFL is still paying former players from a concussion fund that started payments in 2017. Given this history, it is the hope that the NFL does its due diligence in ensuring that teams are following proper concussion protocol to protect the players.

Justin Mader is a recent graduate of the University of New Hampshire Franklin Pierce School of Law, earning a J.D. and a Sports and Entertainment Law Certificate. He can be reached via Twitter: @maderlaw and LinkedIn at https://www.linkedin.com/in/justin-mader-15a602119/.