I did see a serious head injury in the Denmark-Portugal Euro
qualifier game where Danish left back Nicolai Boilesen was hit in the side of a
head with a misdirected clearance. He
was immediately removed from the game.
Since this is what should happen in such cases, I have nothing to
complain about.
I have an update on the injury to Thibaut Courtois which I
discussed in my last concussion update.
Courtois has gone on record defending the handling of his head injury. He stated that the Chelsea doctor did a good
job. She asked him the questions she
needed to ask and he was able to respond appropriately. He was feeling well so he did not need to
come off. He did not lose consciousness
or have a headache at the time, but after a few minutes he felt worse and worse
so he needed to come off.
The most interesting quote is his statement that “I had some
neck pains, dizziness, and headaches for a few days afterwards.” He then notes that according to the
neurological tests his brain was responding correctly so he traveled to Belgium
and played every minute of their game against Andorra on Friday 10 October
2014.
Something is very wrong here. If we give everyone the benefit of the doubt
and assume that by “a few days” Courtois meant only two days that means that he
was still suffering concussion symptoms on 7 October 2014. The process of returning to play after
suffering a concussion is supposed to take a minimum of five days after
symptoms cease. (See here
and here.)
The protocol involves a specific sequence of steps. You only progress to the next step if you
remain symptom free in the prior step.
First, you have one symptom free day resting completely. The next day you may engage in light aerobic
exercise. The third day you may engage
in moderate exercise. The fourth day you
may engage in non-contact exercise. The
Fifth day you can engage in normal practice.
Only if you have remained symptom free through this process can you
safely return to play on the sixth day.
Assuming that Courtois was symptom free on Wednesday, that
should have been the first of the six days.
Assuming he suffered no further symptoms, the earliest he should have
returned to play was Monday 13 October 2014.
In other words, the Belgium national team flagrantly disregarded the
best medical practices for how concussions should be handled and, instead,
chose to risk Courtois’ career and life by rushing him back to play against
Andorra. It is difficult to view this as anything but
grossly irresponsible and stupid behavior on the part of the Belgium national
team. If I were Chelsea FC, I would not
be too happy about this treatment of my concussed player although, perhaps, by
not removing him from the game immediately, Chelsea might understandably
recognize that they had forfeited the moral high ground.
In any case, nothing about the way this was handled suggests
to me that the new focus on better treatment for concussed football players is
anything other than a publicity stunt. (To be fair, Belgium may not be
participating in the publicity stunt.) Certainly, it is difficult to look at
the Courtois incident and see where anyone, including Courtois himself, put his
long-term health ahead of the trivial short term interests of his club and
national team.
This cavalier disregard for concussed players is the primary
reason behind the lawsuit filed against FIFA in California. I have reviewed the 138 page Class Action Complaint
against FIFA and various American soccer entities (I will call it soccer when
referring to American organizations) concerning concussions. Of necessity, substantial parts of the
document are devoted to standard legal things such as proving that the United
States Northern District for the Northern District of California has
jurisdiction over FIFA and repeating the same thing over and over again because
that is what lawyer do. Nevertheless,
the document as a whole is an in depth primer on the current status of the
science of concussions in sports.
The complaint includes detailed information about the
various studies that have established the types of dangers concussions
represent both to younger players and elite athletes as well as to men and
women. (Generally speaking, women, and
particularly girls, are more susceptible to concussions than men and boys and younger people are more at risk than adults.) The document contains
a great deal of information as to what actions should be taken to mitigate the
risk of concussions both before and after they occur.
Of particular interest is the relief sought by the
plaintiffs and the legal basis for their claims. The lawsuit claims that FIFA and other
entities were negligent by violating their duty to protect all soccer players
by failing to take appropriate action in light of the knowledge they had or
should have had about concussions and the consequences they cause in both the
short and long term. In particular, the
plaintiffs claim that FIFA and the other entities were negligent by
a. Failing to educate
players and their parents concerning symptoms that may indicate a concussion
has occurred;
b. Failing to warn of
the risk of unreasonable harm resulting from repeated concussions, the
accumulation of subconcussive hits, and heading;
c. Failing to
disclose the risks of long-term complications from repeated concussions and
return to play;
d. Failing to
disclose the role of repeated concussions or accumulation of subconcussive hits
in causing chronic life-long cognitive decline;
e. Failing to
promulgate rules and regulations to adequately address the dangers of repeated
concussions and accumulation of subconcussive hits, and a return to play policy
to minimize long-term chronic cognitive problems;
f. Concealing and
misrepresenting pertinent facts that players and parents needed to be aware of
to make determinations of the safety of return to play;
g. Failing to adopt
rules and reasonably enforce those rules to minimize the risk of players
suffering debilitating concussions;
and
i. Other acts of
negligence or carelessness that may materialize during the pendency of this
action.
The complaint asked for injunctive relief requiring FIFA and
the other entities to adopt rules to deal with these problems. The lawsuit focuses on the laws of the game
promulgated by FIFA which all football and soccer entities worldwide are
compelled to follow at the risk of being evicted from FIFAdom. FIFA’s insistence that everyone must play
football their way or not at all is probably what makes them susceptible to
this type of lawsuit at least in the United States.
If, for example, an official football or soccer league wanted
to create a system whereby players could be removed by the game temporarily and
replaced while they were being evaluated to see if they suffered a concussion,
that rule would be in direct violation of the laws of the game.
The current version of the laws of the game provides:
Modifications
Subject to the
agreement of the member association concerned and provided the principles of
these Laws are maintained, the Laws may be modified in their application for
matches for players of under 16 years of age, for women footballers, for
veteran footballers (over 35 years of age) and for players with disabilities.
Any or all of the
following modifications are permissible:
• size of the field
of play
• size, weight and
material of the ball
• width between the
goalposts and height of the crossbar from the ground
• duration of the
periods of play
• substitutions
Further modifications
are only allowed with the consent of the International Football Association
Board.
While the reference to substitutions, might suggest that
football leagues could create rules allowing temporary substitutes to evaluate
head injuries, the Laws of the Game dealing with substitutions make it quite
clear that a substituted player may not return to the game:
To replace a player
with a substitute, the following conditions must be observed:
• the referee must be
informed before any proposed substitution is made
• the substitute only
enters the field of play after the player being replaced has left and after
receiving a signal from the referee
• the substitute only
enters the field of play at the halfway line and during a stoppage in the match
• the substitution is
completed when a substitute enters the field of play
• from that moment,
the substitute becomes a player and the player he has replaced becomes a
substituted player
• the substituted
player takes no further part in the match
• all substitutes are
subject to the authority and jurisdiction of the referee, whether called upon
to play or not
Under these rules, it is possible that FIFA would be okay
with removing and temporarily replacing players in under 16 leagues—assuming
that such actions maintain the principles of the Laws. However, professional leagues quite simply
cannot make such changes because they are prohibited. FIFA would no doubt object to changing such a
significant rule without their permission.
This power which FIFA has deliberately gathered to itself is the opening
that allows FIFA to be the target of this and other similar lawsuits. Moreover, because FIFA does business in every
country in the world, courts throughout the world would have jurisdiction over
FIFA.
The lawsuit asks that FIFA be required to adopt a medical
monitoring process to watch over persons who have played football who may in
the future manifest the physical and long term mental effects of their head
injuries. In a way, this is not unlike
the remedy that has been sought (and granted) in the NFL concussion
lawsuit. Specifically, the complaint
asks that FIFA be required to:
a. Establishing a
trust fund, in an amount to be determined, to pay for the medical monitoring of
all past, current, and future FIFA athletes, as frequently and appropriately as
necessary;
b. Notifying all
Medical Monitoring Class members in writing that they may require frequent
medical monitoring; and
c. Providing
information to treating team physicians to aid them in detecting concussion or
sub-concussions and to assist them in determining when the student-athlete is
subjected to an increased risk of harm.
The difference is that
the NFL lawsuit obtained (grossly inadequate) monetary damages while the FIFA
law suit appears to be asking only for monitoring and testing of athletes who
may have suffered injuries, but not compensation for their injuries either in
the form of money for pain and suffering, lost income, or medical
expenses. However, the request for
relief at the end of the Complaint also asks for “[a]n award to the Plaintiffs
and Class for such other and further relief as the Court deems just and proper.” While this is standard legal boilerplate, it
does leave the door open for a monetary award which could be quite sizable.
The most significant barrier to the success of this lawsuit
is likely to be the certification of the Plaintiffs as a class. Recent developments in American Jurisprudence
and the current pro-business slant of the United States Supreme Court have made
it more difficult to pursue class actions.
I am not an expert in this field of law so I cannot evaluate whether the
lawyers in this case have done enough to establish that a class action is
appropriate. I have no doubt that if the
proposed class were being evaluated 20 or 30 years ago it would pass
muster. I also have no doubt that the
lawyers who prepared this lawsuit are competent and do not intend to waste
their time. They must believe they had
established a viable class. No doubt
they are hoping both to fix a serious problem and be well compensated for their
efforts
The class in this case purports to cover basically everyone
who has played organized soccer in the United States from 2002 to the
present. The 2002 date is apparently
chosen because the first international symposium on concussions was held in
Vienna, Austria in 2001. The theory of
the case is that following that conference FIFA and everyone else should have
recognized the serious problems of concussions and taken immediate action. To support this claim, the complaint
discusses in some detail the findings and recommendations included in the
protocol that emerged from that conference.
This lawsuit is a serious threat to FIFA’s way of doing
business. The orders that could result
from a successful prosecution of this lawsuit might change the way that
football is played worldwide. On the
other hand, it might not.
FIFA may be able to convince the court that the class action
lawsuit is not appropriate and, obviously, this is not the sort of case that
can be litigated by individual plaintiffs.
They also may be able to convince the court that it should not assert
jurisdiction over FIFA and that only the American soccer entities should be
held responsible for the rules in America.
As a lawyer, my best understanding of the law is that both of these
claims would be weak but I am cynical enough to recognize that powerful
entities get more favorable treatment in courts and I also recognize that I am
not an expert in this area of the law.
Even if FIFA does, ultimately, lose this lawsuit, it is
possible that any orders that result of the lawsuit would only apply to the
United States. FIFA might be able to choose
to leave the concussion rules and other issues unchanged in the rest of the
world but simply change things in the United States. I would think that this would leave FIFA wide
open to further lawsuits in other countries, but who knows.
FIFA might be able to convince the court that their actions
with respect to concussions were reasonable either because concussions are not
as harmful as the plaintiffs claim or because they could not have known how harmful
they would be at the early date that the lawsuit alleges. The problem for this sort of response is that
the NFL case set something of a precedent that supports the idea that FIFA should
have known about the dangers of concussions and taken early action. On the other hand, the NFL case had some
smoking guns indicating that the NFL was covering up evidence of the effects of
brain injuries on its players. As far as
I know, no similar evidence of a FIFA cover-up exists. Of course, if there is an ongoing cover-up, I
would not know about it.
Finally, the plaintiffs might settle the lawsuit. Most lawsuits are settled. The could result in some
lesser remedy, perhaps some money for the members of the class, and hefty attorney fees for the plaintiffs’
law firm. There is no way to predict
what might result from a settlement.
FIFA has not yet responded to the complaint. According to a paralegal at the plaintiffs’
law firm, their response is not due until sometime in November. The American entities are supposed to respond
earlier than that. I will review the
responses when they are filed and if there is anything worth reporting, I will
do yet another concussion update.
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