National Football League

New twist in NFL concussion saga

Published Feb. 3, 2012 12:00 a.m. ET

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The NFL is working on controversial language that will prohibit future players from suing for any post-career health issues brought on by head injuries, The Daily has learned.

Sources told The Daily a legal team is preparing a waiver that the NFL wants to insert into contracts of new players, starting with the draft in April. It would stipulate that the league will do its best to educate and protect players from concussions and head injuries, but the athletes will not be able to sue the NFL for any long-term medical issues caused by such injuries.

The move comes as the league faces a lawsuit by more than 300 former players who charge the NFL should have warned them about the long-term effects of concussions.

NFL spokesman Greg Aiello denied the league plans to insert such language into future contracts.

“It is not accurate,” he said in an email Thursday night.

The National Football League Players Association, which represents the players, said they would fight any attempt to insert such a waiver.

"If they ask a player to do that, and we find out about it, we’ll step in," Richard Berthelsen, general counsel for the players’ union, said. "Because a player cannot waive his rights on his own. Like, the (collective bargaining agreement) sets minimum salaries, for example, and you may think that well, I’ll work for less than the minimum, so I’ll get the job and somebody else won’t. It’s not allowed. The union has to sign the waiver for that, and we’re never gonna do it.”

The union already addressed one concussion waiver issue after the National Football Post, citing multiple NFL sources, reported the Atlanta Falcons and Washington Redskins attempted to get players with a history of concussions to sign a waiver and release pertaining to that condition.

“Obviously, we sent a notice to all the agents telling them – and players – that under no circumstances are they allowed to do that,” George Atallah, assistant executive director of external affairs for the union, told The Daily. “Given that we have over 400 open workman’s compensation cases that we’re battling over with the league, something like this doesn’t help ... and it accentuates the league running away from their obligations to player benefits on the other.”

A memo from the players union, which was obtained by The Daily, also argues the league has refused to pay players who were cut after being told by the club concussion specialist “it was too dangerous for the player ever to play professional football again, due to multiple short- and long-term risks of another concussion.”

The memo, dated, Jan. 18, continued: “The NFL has taken the position that once the player’s current symptoms dissipate and once his scores on cognitive tests have returned to baseline, he can be released with no obligation on the part of the club to pay his continued salary or Injury Protection payments.”

If what the union memo claims is true, the league seems to be in violation of Article 45 of the new collective bargaining agreement, which guarantees a player will receive half of his salary for the upcoming year, up to $1 million, if he is released after a season he was injured.

Hundreds of former NFL players are suing the league due to the effects of head injuries, and the list seems to increase by the month. In December, a suit filed in Miami on behalf of ex-Dolphins cornerback Patrick Surtain and 20 others claims they’ve suffered permanent brain damage linked to concussions. Former 2,000-yard rusher Jamal Lewis joined three other players in a federal lawsuit claiming brain injuries have left them with medical problems as well.

This week, former Dallas Cowboys great and Pro Football Hall of Famer Tony Dorsett told USA Today he has joined the throng of players suing the NFL due to concussion-related ailments.

“Yeah, I understand you paid me to do this, but still yet, I put my life on the line for you, I put my health on the line,” Dorsett told USA Today. ”And yet when the time comes, you turn your back on me? That’s not right. That’s not the American way.”

Recently, the NFL has taken steps to make the game safer. During Super Bowl XLVI on Sunday, the league will air a one-minute TV spot explaining rules changes through recent seasons that better protect the players. One such rule is prohibiting defenders from hitting receivers in a “defenseless” position. The quarterback position is also better safeguarded than in seasons past.

When two members of the New York Giants, who are playing in the Super Bowl, were asked hypothetically if they’d sign a waiver that states they cannot sue for any future health problems due to head injuries, the reactions were mixed.

“Would I sign the waiver that said the organization I work for won’t be responsible for my health, long-term? I think that’s completely out of the question,” linebacker Mathias Kiwanuka said. “I would never sign something today that’s gonna affect me 20 or 30 years from now. That just doesn’t make sense.”

“Have I had concussions? Yes. Probably in the four to six range,” defensive end Dave Tollefson said. “But the culture of what we grew up with of how to play football, through concussions and what not, that’s really gonna be tough to, uh, to change that.

“It’s the game I love, man. You gotta accept it for what it is.”