Over here at the Wormser Legal blog, we normally write about business law, raising capital, private placements, etc. Every now and then, however, we may write about other legal topics. This is one of those “other” posts…
This past Sunday’s AFC Championship game, between the New England Patriots v. Baltimore Ravens, featured two incidences, both with legal implications for the National Football League. Based on the CBS TV broadcast, it appears as though the NFL chose to act decisively in only one of the incidences, protecting what I would consider rather short-term legal and liability concerns, and choosing to ignore long-term, though perhaps more topical, liability concerns.
The first incident occurred in the 4th quarter, at about the 9 minute mark, when wide receiver Wes Welker took a hard hit that left him seemingly dazed on the ground for a few moments. The second incident transpired on the sideline with approximately 2 minutes left to play, with a giddy Ray Lewis eager to remove his jersey and gear, likely to show off whatever shirt he had on underneath.
Let’s start with the later of the two events – Ray Lewis on the sideline near game’s end. He was clearly excited, ready to start his celebration. At first, the cameras showed a Ravens staff member helping Lewis remove his jersey and perhaps too, his pads. Lewis routinely wears undershirts with religious messages on them, and it’s probably safe to assume that he was wearing a similar shirt during this game as well. (Update: I’m told Ray Lewis was wearing a shirt with a picture of the late Art Modell, owner of the Ravens from 1996-2004. Modell passed away in 2012.)
The CBS broadcast cut back to the game for a while, and then, no more than 30 seconds later, you could easily see a tall gentleman in a suit and overcoat talking to Lewis in a rather excitable manner. Inasmuch as one can read into their conversation, it appeared as though the man was instructing Ray Lewis to stop removing his gear, and to keep his jersey on through the remainder of the game. Lewis seemed very upset by the conversation, and his undressing came to a swift stop. Without knowing any additional details of the situation, it looked as though an NFL staff member told Lewis that he could not take off his NFL jersey before the game was over, protecting the large value the NFL puts upon its brand and the licensing of its images, jerseys and gear.
Incident number two arose earlier in the 4th quarter, around the 9 minute mark, when Patriot Wes Welker took a hard hit that left him dazed on the ground (it’s worth noting that Welker had already taken a large hit from Bernard Pollard in the 3rd quarter). When getting up, Welker looked woozy and, at a minimum, one could say that he was “shaken-up” on the play. Welker remained in the game, and continued to play until the 2013 AFC Championship was over.
How bad was Welker hit? I can’t say. I’m not a doctor, and I can’t diagnose concussions in person, let alone from a couch. But these days, being “shaken-up” on a play takes on new, and more weighty meaning that it might have in years past. We have a greater understanding of head trauma resulting from football hits, and Welker sure looked like a player suffering from something, even if only temporarily. And yet, he stayed in the game. To my knowledge, no NFL staff member spoke up about the hit, nor did an NFL staff member stand on the sideline to counsel the Patriot coaching staff, nor did the NFL otherwise do anything to look out for Welker’s safety in that moment.
While I recognize that these moments are fleeting, passing by in minutes if not seconds, one might try to use these two incidences to extrapolate what is of chief importance to the National Football League. If we can read into what the suited gentleman on the sideline was there to do, i.e. to protect the NFL brand, and if we can reasonably conclude that Welker was at a minimum “shaken-up” in the 4th quarter and no NFL staff attempted to intervene to protect Welker from further trauma, perhaps we can say that the NFL is more interested in protecting its brand than in protecting its players from extreme harm.
Are these big assumptions? Maybe.
Again, I can’t say for sure what was said to Ray Lewis on the sideline, and I cannot know the nature of Welker’s health. Even if these things are not precisely as they seem, if it is the case that the NFL does have a brand ambassador waiting on the sideline to counsel players but the NFL does not have a doctor on hand (more than merely the team doctors), advising coaching staffs on player head trauma, then it seems as though the NFL prioritizes short-term liability concerns relating to NFL brand licensing over long-term liability arising from player head trauma.
There are, of course, a myriad of issues relating to head trauma and the NFL’s ability to do anything about trauma and big hits mid-game. Two of the bigger hiccups that immediately come to mind are a) NFL team autonomy, and b) NFL Player’s Association rights and responsibilities in such situations. And yet, at what point does the NFL determine, if at all, that long-term liability associated with player head trauma must be mitigated, whatever the cost, and that this liability must be mitigated in the same way it seems to protect its powerful and highly valuable NFL brand? Perhaps it is time to divert some of the royalties resulting from Ray Lewis jersey sales towards the naming of an NFL head-trauma czar, who ensures player safety mid-game, and perhaps too, lessening the NFL’s long-term liability risks.