When Popular Culture and the NFL Collide: Fan Responsibility in Ending the Concussion Crisis

Marquette Sports Law Review Marquette Sports Law Review

Volume 29

Issue 1

Fall

Article 3

2018

When Popular Culture and the NFL Collide: Fan Responsibility in When Popular Culture and the NFL Collide: Fan Responsibility in

Ending the Concussion Crisis Ending the Concussion Crisis

Taylor Simpson-Wood

Robert H. Wood

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Taylor Simpson-Wood and Robert H. Wood,

When Popular Culture and the NFL Collide: Fan Responsibility

in Ending the Concussion Crisis

, 29 Marq. Sports L. Rev. 13 (2018)

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ARTICLES

WHEN POPULAR CULTURE AND THE NFL

COLLIDE: FAN RESPONSIBILITY IN ENDING

THE CONCUSSION CRISIS

TAYLOR SIMPSON-WOOD* & ROBERT H. WOOD**

I. PART I

A. Introduction: The Kickoff

For the past fifty years, football has been the number one spectator sport in

America.

A 2018 Gallup Poll shows that the popularity of professional football

has only suffered a small decline since 2007.

This continuing popularity is

perplexing given the unsettling facts about the toll the game clearly takes upon

both the bodies and minds of its players. The concerns over brain injuries and

* Taylor Simpson-Wood is a Professor of Law at Barry University School of Law, Orlando, Florida. She

received her J.D. (magna cum laude) and LL.M. in Admiralty (with distinction) from Tulane Law School.

She currently teaches in the areas of Civil Procedure, Conflict of Laws, Federal Jurisdiction, Admiralty &

Maritime Law, and Popular Culture & the Law. She would like to express her gratitude to Dean Leticia M.

Diaz for her continuing support of faculty scholarship and the research grant that assisted in the writing of

this article. Prior to beginning her legal studies, Professor Simpson-Wood was a professional actress for a

number of years. She is a long-time member of the Actors’ Equity Association and Screen Actors Guild &

the American Federation of Radio and Television Artists. Full disclosure: Professor Simpson-Wood is a

die-hard New Orleans Saints fan.

** Robert H. Wood is an Associate Professor of Legal Studies at the University of Central Florida (UCF).

He received his J.D. from Georgia State University College of Law and his LL.M. in Admiralty (with

distinction) from Tulane Law School. At UCF, he teaches in the areas of Sports Law, Entertainment Law,

World Legal Systems, Admiralty Law, and Administrative Law. Professor Wood also has taught as an adjunct

at Barry University School of Law in the areas of Administrative Law, and Popular Culture and the Law. He

would like to thank his wife, Professor Taylor Simpson-Wood, for her love and support of over twenty-five

years of marriage. Full disclosure: He is a life-long Washington Redskins fan.

. Jim Norman, Football Still Americans’ Favorite Sport to Watch, GALLUP (Jan. 4, 2018),

https://news.gallup.com/poll/224864/football-americans-favorite-sport-watch.aspx.

. Id. Football’s “[p]opularity has slipped since peaking at 43% in 2006 and 2007. In 2008, it dipped

slightly to 41% and dropped again to 39% in 2013—the last time the question was asked before the December

2017 poll and its 37% reading.” Id.

WOOD ARTICLE 29.1 (DO NOT DELETE) 12/12/18 3:48 PM

14 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

death from chronic traumatic encephalopathy (CTE) resulted in the 2017 class

action settlement between the NFL and retired players, which created “a

65-year, uncapped fund for players with qualifying diagnoses, such as CTE,

ALS, Alzheimer’s disease, Parkinson’s and other neurocognitive

impairments.”

As of April 16, 2018, there are 20,480 registered settlement

class members.

In response to what it sees as a manipulation of the settlement

process, in March 2018, former players who are members of the settlement class

filed a complaint alleging that the agreement ‘“is failing to provide a fraction of

what the NFL promised” and that the NFL is arguing “‘virtually anything to

evade payments.”

According to the attorney who authored the motion, the NFL

has historically “always engaged in scorch-earth litigation, and that is what the

league is doing here, making it a settlement in name only.”

The league replied

in April 2018, by filing a motion in the United States District Court for the

Eastern Pennsylvania, requesting that a special investigator be appointed “to

probe what it described as widespread fraud that has resulted in hundreds of

millions of dollars in false claims to a fund meant to compensate former players

for head injuries.”

Even more disconcerting than football’s continuing popularity and apparent

stonewalling by the NFL in paying legitimate claims under the settlement

agreement, is the league’s failure to effectively change the violent nature of the

game. At first blush, it might appear there has been some progress made. For

example, in 2016, the NFL added specific penalties for failing to follow the

guidelines for concussions.

Previously, a team was not fined if it violated the

NFL Concussion Protocols.

Under the 2016 revisions, a first violation can

. Andrew Beaton, NFL Alleges ‘Deep and Widespread’ Fraud in Concussion Settlement, WALL ST. J.,

Apr. 13, 2018, https://www.wsj.com/articles/nfl-alleges-deep-and-widespread-fraud-in-concussion-settle-

ment-1523641002.

. Official NFL Concussion Settlement, NFL CONCUSSION SETTLEMENT, https://www.nflconcussionset-

tlement.com (last visited Dec. 13, 2018) (“The In re: National Football League Players’ Concussion Injury

Litigation class action settlement became final and effective on January 7, 2017, which is the ‘Effective Date’

of the Settlement Program.”).

. Rick Maese, Dementia Claims in NFL Concussion Settlement Are Going Unpaid, Lawyers Say, WASH.

POST, Mar. 20, 2018, https://www.washingtonpost.com/sports/redskins/dementia-claims-in-nfl-concussion-

settlement-are-going-unpaid-lawyers-say/2018/03/20/00e635bc-2c7f-11e8-8ad6-

fbc50284fce8_story.html?noredirect=on&utm_term=.e25dbbb3cb2f.

. Id.

. Beaton, supra note 3.

. Lauren Theisen, Seahawks Become First-Ever Team Fined for Violating Concussion Protocol,

DEADSPIN (Dec. 21, 2017), https://deadspin.com/seahawks-become-first-ever-team-fined-for-violating-con-

1821508672.

. Ken Belson, N.F.L. Introduces New Rules to Back Its Concussion Protocol, N.Y. TIMES, July 25, 2016,

https://www.nytimes.com/2016/07/26/sports/football/nfl-concussion-protocol-new-rules.html.

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2018] POPULAR CULTURE AND THE NFL 15

result in a team facing a maximum fine of $150,000.

If a team skirts the rules

a second time, it will face a minimum fine of $100,000.

In addition, if a team

is found to have breached protocol “for competitive reasons,” such as “keeping

a concussed player in the game,” the team can be penalized by having to forfeit

draft picks.

Team medical and coaching staff members can also be required

to attend additional protocol training.

However, when the league released its

numbers about concussions, the report showed that diagnosed “[c]oncussions

increased by 13.5 percent (243 to 281) over the preseason and regular season

from 2016 to 2017.”

In December 2017, the Seattle Seahawks had the dubious honor of

becoming the first team to be fined for contravening the protocols.

The team

was fined $100,000 and members of the medical and coaching staff were

required to undergo “remedial training regarding the protocol.”

Comparatively, however, the consequences of the infraction were very mild.

There were “no lost draft picks, no suspensions for the coaching or medical

staff, and a fine that [was] not even a rounding error in the checkbook of

Seahawks owner Paul Allen.”

A week or so later, it was determined that the

Houston Texans had not run afoul of the protocols.

However, the result of

implementing the protocol even properly was “unacceptable” when quarterback

Tom Savage was allowed to continue playing and not removed from the game.

. Id.

. Kevin Patra, Seahawks Fined for Not Following Concussion Protocol, NFL (Dec. 21, 2017),

http://www.nfl.com/news/story/0ap3000000896202/printable/seahawks-fined-for-not-following-concussion-

protocol. Accepting the joint findings of the NFL and the NFL Players Association, the Seahawks responded

that they had “[n]ot knowingly disregard[ed] the Concussion Protocol” and that “[a]ny misstep was

unintentional and the result of confusion on the sideline.” Seahawks PR, @seahawksPR, TWITTER (Dec. 21,

2017, 11:49 AM), https://twitter.com/seahawksPR/status/943931425186766848.

. Jerry Barca, The NFL’s New Targeting Rule Will Save Football, FORBES (Mar. 31, 2018),

https://www.forbes.com/sites/jerrybarca/2018/03/31/the-nfls-new-targeting-rule-will-save-foot-

ball/#3e3f37707d57. See Danny Heifetz, How the NFL’s Rules Changes Will Affect the League, RINGER

(Mar. 27, 2018), https://www.theringer.com/nfl/2018/3/27/17170560/nfl-rule-changes-roundup (noting that

“[o]fficials said that increased self-reporting rates have partially driven the increase.”).

. Seahawks Fined $100,000 for Violating Concussion Protocol, REUTERS (Dec. 21, 2017),

https://www.reuters.com/article/us-football-nfl-sea/seahawks-fined-100000-for-violating-concussion-proto-

col-idUSKBN1EF2RJ.

. Patra, supra note 13.

. Theisen, supra note 8.

. Mark Maske, Texans Not Punished for Tom Savage Concussion, But NFL, NFLPA Call Outcome

‘Unacceptable’, WASH. POST (Dec. 29, 2017), https://www.washing-

tonpost.com/news/sports/wp/2017/12/29/texans-not-punished-for-tom-savage-concussion-but-nfl-nflpa-call-

outcome-unacceptable/?utm_term=.043be8d3883c.

. Id.

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16 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

Arguably, it was a shock to anyone watching the game that Savage was allowed

to return to play after the brutal hit he took. Not only was he slow to get up, he

experienced motor coordination problems and exhibited the “fencing

response”

right after the hit.

How any competent member of the medical

staff or the independent neurotrauma consultant missed these signs when

reviewing the video of the play is simply a mystery. The NFL basically looked

at the error as a learning experience, and once again modified the Concussion

Protocol in December 2017. These modifications included implementing a pilot

program requiring the addition of another Unaffiliated Neurotrauma Consultant

(“UNC”) to watch the broadcast feeds of all games from a central location who

has to alert the sideline medical teams of “any signs or symptoms warranting

further evaluation” and that any player displaying seizure or fencing responses

“at any time shall be removed from play and may not return to the game.”

In March of 2018, while the league made some substantial changes to its

bylaws and rules, there was one rather glaring omission from the safety

updates- no additions to the Concussion Protocol even though a number of

quarterbacks had joined Tom Savage in returning to play after it appeared they

had sustained a concussion.

The major change garnering attention is a new

“head targeting rule.” Under this new rule, it is now a penalty for a player to

employ the technique of lowering his head in order to utilize his helmet when

. Gary Wickman, The Fencing Response, HEALTHGUIDANCE (Nov. 4, 2010), http://www.healthguid-

ance.org/entry/14309/1/The-Fencing-Response.html.

The fencing response is an unusual and unnatural looking position of the arms adopted by

individuals when suffering a concussion. Here, immediately following moderate forces

affecting the brain stem of the individual, the forearms are held awkwardly, with one in a

flexed position, and the other extended up into the air lasting a few seconds following the

impact. This often occurs in sports such as football, hockey, boxing, rugby, martial arts and

others, and is used as an indicator of an injury force magnitude and midbrain localization

which can aid in injury identification for medical professionals in sports activities and

possibly other scenarios.

Id.

. Steven Ruiz, Tom Savage Re-enters a Game Minutes After Suffering Clear Concussion, USA TODAY:

FOR THE WIN, Dec. 10, 2017, https://ftw.usatoday.com/2017/12/nfl-49ers-texans-tom-savage-concussion-

protocol-video.

. National Football League, NFL, NFLPA Complete Tom Savage Concussion Investigation, NFL (Dec.

29, 2017), http://www.nfl.com/news/story/0ap3000000899838/article/nfl-nflpa-complete-tom-savage-con-

cussion-investigation. See Kevin Armstrong, How Texans QB Tom Savage’s Injury Changed NFL’s

Concussion Protocol, N.Y. DAILY NEWS, Dec. 29, 2017, http://beta.nydailynews.com/sports/football/texans-

qb-savage-injury-changed-nfl-concussion-protocol-article-1.3725869.

. Heifetz, supra note 14 (discussing additional concussed quarterbacks include Russell Wilson, Jacoby

Brissett, and Cam Newton).

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2018] POPULAR CULTURE AND THE NFL 17

initiating contact with an opponent.

If this occurs, it is an automatic 15-yard

penalty and the offending player may be ejected from the game.

Initially, this rule would seem to be an advancement in the effort to prevent

brain injuries. However, it has been met with some criticism, particularly by

the players.

In response to the new rule, Buffalo Bills linebacker Lorenzo

Alexander, a co-vice president on the NFL Players Association’s executive

committee and a twelve-year veteran, commented that the new rule:

[C]ontinues to put [players] in a predicament . . . . In our mind,

it makes it hard to play defense in this league. In my mind,

there needs to be more of a common-sense approach to it . . . .

It is football at the end of the day. There are going to be injuries

that you can’t avoid. You can’t legislate everything out.

He added that the league:

[N]eed[s] to be a little more creative or and strategic rather than

throw something out there that sounds good or looks good from

player safety . . . . Because of (the degenerative brain disease

Chronic Traumatic Encephalopathy), they feel like they have to

do something to show the fans they’re trying to change it. End

of the day, it’s football, and if you change the game so much,

we’ll eventually have to play something else.

There is also concern that the new rule will be difficult to effectively and

consistently enforce.

During a phone interview, Josh Norman, cornerback for

the Washington Redskins, lamented that he did not know how the players would

be able to play the game. “If your helmet comes in contact? How are you going

to avoid that if you’re in the trenches and hit a running back, facemask to

facemask and accidentally gaze the helmet? It’s obviously going to happen. So,

I don’t even know what the definition looks like.”

Richard Sherman, the

49ers’ cornerback, thinks that the new rule will not make the game safer. It will

simply create different injuries. “It’s ridiculous. Like telling a driver if you

. Mark Maske, NFL’s New Targeting-Like Rule Will Penalize Players for Lowering Helmet Before Hit,

WASH. POST, Mar. 27, 2018, https://www.washingtonpost.com/news/sports/wp/2018/03/27/nfls-new-target-

ing-rule-will-penalize-players-for-lowering-helmet-before-hit/?utm_term=.7a65643d145d.

. Id.

. Mike Jones, NFL’s Targeting Rule Has Defensive Worried About Penalties, USA TODAY, Mar. 27,

2018, https://www.usatoday.com/story/sports/nfl/2018/03/27/nfl-targeting-rule-penalty-josh-norman-rich-

ard-sherman-lorenzo-alexander/464275002/.

. Id.

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18 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

touch the lane lines, you’re getting a ticket. (It’s) gonna lead to more

lower-extremity injuries.”

The players are also concerned that “[e]ven if portions of practice time [are]

devoted to refining techniques,” it is highly improbable “that players will be

able to alter their tackling approach[]” in order to comply with the rule.

Josh Norman further observed:

It’s not going to do anything. I don’t know any other way to

play . . . . I understand trying to be safer, I get it. We saw what

happened to (Pittsburgh Steelers linebacker) Ryan Shazier

[who took a hit that resulted in a serious spine injury], and I get

it and understand that, but at the same time, it’s football. I don’t

know what other way to say it but it’s football . . . . I pray for

the game and hope it’ll still be what it is, but it seems in our day

and age, the game as we know it is coming to an end. But

really, we’re all playing the game the way it’s supposed to be

played.

In light of a recent 2018 study, even with changes like the new ban on

head targeting with the helmet, football continues to be played in a way which

still does not prevent or even lessen the threat to the minds of the players. It has

been shown that it is not only hits which result in concussions that can cause

CTE, but sub-concussive head hits can result in chronic brain damage, thereby

destroying the lives of the players.

A positive correlation is being found by

researchers between “[t]he amount of time spent playing sports with long-term

exposure to sub-clinical head trauma” and CTE.

A January 2018 Boston

University “[s]tudy published . . . in Brain, a journal of neurology, present[ed]

the strongest case yet that repetitive hits to the head that don’t lead to

concussions – meaning no loss of consciousness or other symptoms that can

include headaches, dizziness, vision problems or confusion – cause CTE.”

According to associate professor of psychiatry at Boston University, Dr. Lee

Goldstein, researchers previously “[h]ad an inkling that subconcussive hits,”

that do not evidence “neurological signs and symptoms” were likely “associated

. Id.

. Emily Boerger, The Sub-Concussive Impact, B.U. NEWS SERV. (Feb. 23, 2017), http://bunewsser-

vice.com/sub-concussions-a-threat-to-brain-health/.

. Id.

. Tom Goldman, CTE in Athletes Linked to Hits to the Head, Even Without Concussions, NPR (Jan.

18, 2018), https://www.npr.org/sections/health-shots/2018/01/18/578355877/repeated-head-hits-not-concus-

sions-may-be-behind-a-type-of-chronic-brain-damage.

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2018] POPULAR CULTURE AND THE NFL 19

with CTE.”

As a result of the study, however, there is now “[s]olid scientific

evidence” establishing the correlation.

In fact, “about 20 percent of the known

cases of CTE have no record or report of concussion.”

The “real-life

application” of the study was encapsulated by the head of the Concussion

Legacy Foundation, Chris Nowinski, in a rather disturbing statement made to

NPR:

We see hard hits all the time, where a guy pops up and smiles

and [signals] a first down, and [we think], ‘OK, that hit was

fine.’ But what this study says is: No, that hit probably wasn’t

fine, and that poor guy can’t feel the damage that’s happening

in his brain right now.

The seriousness of such hits for professional players is demonstrated by the

first case of CTE discovered by Dr. Omalu, that of the late Mike Webster, who

played center for the Pittsburgh Steelers for “27 years and never had a known

or diagnosed concussion.”

A number of studies have also shown the risks

sub-concussive hits can pose for younger athletes, from youth football (ages

eight – thirteen), high school, and at the college level. These players can sustain

anywhere from several hundred to over a thousand impacts during a single

season of football.

The realization of the threat posed by sub-concussive head hits in

conjunction with the cutoff dates regarding CTE in the settlement agreement is

also troubling. Under the terms of the settlement agreement, “NFL retirees may

receive awards up to $4 million for ‘Death with CTE’ but only if they died

between January 1, 2006 and July 7, 2014.”

This means that players who

retired after the 2014 date and the players currently being bashed on the playing

field are not covered for CTE. In other words, “every single NFL retiree going

forward [after July 7, 2014] – and there’s about 20,000 of these guys – if they’re

still alive to hear this right now, and they die and they have CTE and they suffer,

. Id.

. Id. Mr. Nowinski “[i]s a former high school and college player who says that even now, at 39, he

deals with symptoms of acute post-concussion syndrome, including lingering headaches, sleepwalking and

nausea during exercise.” Id.

. Id.

. Boerger, supra note 34.

. Patrick Hruby, Cutting Them Short, INDEP. FOOTBALL VETERANS (July 19, 2014), http://www.foot-

ballvets.org/blog/2014/07/patrick-hruby-cutting-them-short/.

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20 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

and their families suffer, they’re gonna get nothing for that.”

While the

agreement does allow for it to be revisited every ten years, there is no “legal

guarantee” that CTE will ever be “included [in the settlement] as a

[re-compensable] recogniz[ed] condition . . . .”

Perhaps the greatest irony of the settlement terms, however, is that the

ramifications of the 2006 cut-off date will be to exclude a large number of

former players from recovering under the settlement, “including those whose

deaths sparked the outrage over the NFL’s actions.”

This means that the

families of players “[w]ho died or killed themselves for reasons related to brain

trauma, may not collect a thing.”

For example, while the families of Dave

Duerson and Junior Seau, both of whom committed suicide and were later

diagnosed with CTE, would qualify for coverage under the settlement, the

family of the man whose diagnoses started the awareness of the CTE problem,

Mike Webster, is unable to receive a dime.

It also leaves players currently

suffering from certain symptoms of CTE without a remedy.

A case on point is that of former defensive lineman, Joe DeLamielleure,

who is currently sixty-seven years old and played in the NFL for thirteen

seasons from 1973 to 1885, for both the Buffalo Bills and the Cleveland

. Patrick Hruby, Concerns Mount Over NFL Concussion Deal, WBUR 90.9 (July 26, 2014),

http://www.wbur.org/onlyagame/2014/07/26/hruby-concussion-nfl-cte (Bill Littlefield speaking with Patrick

Hruby).

. Michael McCann, Will New CTE Findings Doom NFL Concussion Settlement?, SPORTS

ILLUSTRATED, Aug. 15, 2017, https://www.si.com/nfl/2017/08/15/new-cte-study-effect-nfl-concussion-set-

tlement.

. Barry Petchesky, The NFL’s Concussion Settlement Is a Disaster, DEADSPIN (Sept. 20, 2013),

https://deadspin.com/the-nfls-concussion-settlement-is-a-disaster-1356127608. CTE coverage could be

added to the settlement at a later date, perhaps as soon as the mid 2020s. See Class Action Settlement

Agreement (As Amended), In re Nat’l Football League Players’ Concussion Injury Litig., No. 2:12-md-

02323-AB (E.D. Pa. Feb. 13, 2015). The settlement calls for retired players and the NFL to meet every ten

years. Id. In those meetings, the two sides are expected to evaluate whether the settlement has been effective

and whether changes are warranted. Id. The science of CTE diagnosis could advance over the next several

years. If as credible method of testing for CTE in living subjects were created, the players would have a

compelling argument that CTE should be added to the settlement as a recognized condition. Then again, the

NFL is not obligated to add CTE as a recognizable condition at a later date. The inclusion of CTE testing and

benefits would have to be negotiated with the NFL. The possibility for CTE to later be included as a

recognizable condition is not a legal guarantee. See McCann, supra note 45.

. Id. The settlement agreement does have a loophole for players who died before 2006. Ken Belson,

He Helped Ex-Players Get Benefits. His Family Is Still Waiting, N.Y. TIMES, Jan. 13, 2018, https://www.ny-

times.com/2018/01/13/sports/football/nfl-cte-mike-webster.html. While not eligible for payouts under the

agreement, they can seek to sue the NFL if the local statute of limitations, which varies by state, has not run.

Id.

. Jacob Tierney, Family of Former Steeler Mike Webster Get Nothing from $1 Billion Brain-Damage

Settlement, TRIBLIVE (Jan. 13, 2018), http://triblive.com/sports/nfl/13178006-74/family-of-former-steeler-

mike-webster-get-nothing-from-1-billion-brain-damage; Belsen, supra note 47.

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2018] POPULAR CULTURE AND THE NFL 21

Browns.

Three years ago, his wife, Gerri, shared that her husband was

“[a]lready starting to show some of the behavioral symptoms that are associated

with CTE, but was excluded from the settlement.”

There are a number of

symptoms attendant to CTE, including “memory loss, depression, and mood

swings.”

The federal judge, Anita Brody, who approved the agreement,

allowed the exclusion of future cases of CTE “because neurocognitive ailment

associated with the disease are eligible for awards.”

Arguably, players who

are still living suffering from CTE should be entitled to damages as long as their

symptoms fall into a covered condition.

The problem with this conclusion by

the judge is that many CTE victims do not experience such symptoms.

Instead, they may suffer from mood swings and depression.

This is

DeLamielleure’s situation. One minute, he is fine; then he’ll have a “flare[] of

temper” for no apparent reason.

To quote his wife, “He’ll turn on a dime.”

Unfortunately, Judge “Brody specifically excluded [from coverage under the

agreement] symptoms of CTE, such as irritability, aggression, depression and

suicidal tendencies . . . .”

Consequently, after the cutoff date, “families of

players diagnosed with CTE after death are ineligible for an award . . . .”

The

Judge’s concern was that to have permitted benefits going forward might

“incentivize suicide” because the disease can (at present) only be diagnosed

posthumously.

To coin a phrase from Laurel and Hardy, it appears that football and those

of us who love the game, are “in another fine mess.”

This Article examines

. Sean Gregory, NFL Concussion Settlement: Ex-Players Angered Over CTE Exclusion, TIME, Apr.

27, 2015, http://time.com/3836097/nfl-concussion-settlement-former-players/. Joe DeLamielleure

participated in a PET scan developed by researchers at UCLA which may be able to detect CTE in living

players. Id. It was found that DeLamielleure’s brain, along with those of a dozen or so other former players

whom had suffered at least one concussion, including “fellow NFL Hall of Famer Tony Dorsett” and “[f]ormer

All-Pro Leonard Marshall,” all suffered from signs of CTE. Id.

. Id.

. Id. (“Robert Stern, a leading CTE researcher from Boston University, has said that many of the CTE

victims he has studied did not suffer from [memory loss or other neurocognitive impairments] - and thus

wouldn’t have been eligible for this award under the settlement.”).

. Id.

. ANOTHER FINE MESS (Hal Roach, MGM 1930).

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22 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

the forces that have resulted in this “fine mess” where football fans essentially

paying week after week to destroy the thing they love. In particular, it delves

into the role played by popular culture in creating this modern American

tragedy. Part I of this Article provides an overview of key medical information

surrounding CTE and brain damage from sub-concussive hits, examines the

litigation which resulted in the settlement agreement between affected players

and the NFL, and evaluates the effectiveness of past and present concussion

protocols. It also focuses on two key films that helped bring the CTE crisis into

mainstream consciousness and explains why football and television are a match

made in heaven.

While issues of popular culture are touched upon in Part I, the second part

of the Article is devoted almost exclusively to the role of popular culture in

helping to create the concussion crisis. It discusses the influence the concepts

of cultivation, heuristic reasoning and resonance have on a fan perception, and

considers key lessons fans have learned from films and how this education has

created a fan mentality that condones the current level of violence in football.

Finally, the paper scrutinizes suggestions about how to modify the way the sport

is played in order to allow the game of football to have a viable, and healthy,

future not only economically, but for the players and their fans.

B. Medical Evidence

Scenes from Concussion

INT. ELEVATOR – PRESBYTERIAN UNIVERSITY

HOSPITAL – DAY

Bennet cradles the box.

INT. HALLWAY – PRESBYTERIAN UNIVERSITY

HOSPITAL

Bennet walks an endless hallway with a hundred doors,

where–

DR. RON HAMILTON [Bennet’s former professor during

his two-year fellowship training watches Bennet approach.

The sign on Dr. Hamilton’s door reads “Chairman,

. Peter Landesman, Concussion Movie Script, SCRIPTS, https://www.scripts.com/script/concus-

sion_304 (last visited Dec. 13, 2018) (focusing on scenes 69-73). See Concussion (2015) Movie Script,

SPRINGFIELD! SPRINGFIELD!, https://www.springfieldspringfield.co.uk/movie_script.php?movie=concussion

(last visited Dec. 13, 2018).

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2018] POPULAR CULTURE AND THE NFL 23

Neuropathology Program, Univ. of Pittsburg Medical

School”–]

HAMILTON:

What did you bring me?

BENNET:

I need you to look at this cold.

(as they go into--)

INT. NEUROPATHOLOGY LAB – PRESBYTERIAN

UNIVERSITY HOSPITAL

[Dr. Hamilton] leads Bennet into his office, digging out the

slides. Bennet steps to the window, looks down on massive

Heinz Field [the home of the Pittsburgh Steelers].

HAMILTON:

Bennet. Relax. I can hear you breathing (another look,

then--) Hamilton slowly lifts his head. Pause.

HAMILTON (CONT’D)

This is a really really terrible brain.

INT. HALLWAY – PRESBYTERIAN UNIVERSITY

HOSPITAL

Office of “Dr. Steven DeKosky, Chairman, Dept of

Neurology.” Out strides DEKOSKY, a fit 55. Pissed-off to

be interrupted. And back to–

INT. HAMILTON’S OFFICE – PRESBYTERIAN

UNIVERSITY HOSPITAL –

PITTSBURGH – DAY

HAMILTON:

Ever met the great man before? (Bennet shakes, No)

Tough. One of the top brain guys in the world. Expect

two minutes tops. DeKosky blows in. Gives Hamilton

a “this better be good” look.

DEKOSKY:

That him? (Hamilton nods) So you’re our prize

graduate. And crosses straight to the microscope.

Great focus, long moment of this. Then–

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24 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

It’s very obvious. And he faces them. In the presence

of something monumental and knows it.

HAMILTON:

Tell him.

BENNET:

That is Mike Webster. The Pittsburgh Steeler–

DEKOSKY:

(get to the point) I know who Mike Webster is.

HAMILTON:

Steve. He was fifty. (and that’s the point and–)

DeKosky looks to the window, mentally shuffling

through his decades of study, toil, research. The tens

of thousands of hours. Then reaches for the phone–

DEKOSKY:

(into phone) Cancel the rest of my morning– (hangs

up; then) You have my attention. Hamilton nods, Go.

BENNET:

Diving birds hit the sea at 200 MPH, generating 1,000

g-force at impact. Each peck of a woodpeckers

produces a g-force of a thousand. 12,000 pecks a day,

85-million times over their lifetimes. Big-horned

sheep–

(DeKosky gives Hamilton an impatient look)

HAMILTON:

Bennet–

BENNET:

All these animals have shock absorbers built into their

bodies. The woodpecker’s tongue comes out the back

of the mouth through the nostril and goes around the

top of its head. Basically, it’s one big safety belt for

the brain. (then) Humans? Not one piece of anatomy

protects us from those kinds of collisions. A human

being will get concussed at 80 g’s. The average

head-to-head contact on a football field? 120 g’s. God

did not intend for us to play football.

HAMILTON:

Let’s keep God out of this.

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2018] POPULAR CULTURE AND THE NFL 25

And Bennet goes to a white board and draws the

S’s/O’s coach’s diagram of football squads. Offense.

Defense. The backs. The quarterback. And circles the

center--

HAMILTON (CONT’D) BENNET *

What’s the ‘S’? The Steelers. *

HAMILTON DEKOSKY *

The ‘O’s--? The ‘others’. Obviously. *

BENNET:

The others, yes.

DEKOSKY:

Do you even watch football?

BENNET:

Not at all– (back to the board) But I studied Mike

Webster’s position. The one in the middle. The most

violent on the field. The slaps and the choking, the

head as a weapon on every play of the game, of every

practice. From the time he was a boy, then a college

man, through a professional career. The time he was a

boy, then a college man, through a professional career.

The thousands and thousands of hits that weren’t con-

cussions.

Now circles the wide-outs, running backs and safeties–

BENNET (CONT’D)

But these? They are the fastest.

BENNET (CONT’D)

Their speed multiplied by the speed of the men who hit

them, and the trajectories at which they hit them, the

g-force created – the same as getting hit on the head

with a sledgehammer –

HAMILTON:

Slow down. The brain. Get to the brain part–

BENNET:

(distinctly not slowing)

Mike Webster played eighteen years of professional

football. 90 thousand blows to the head during just his

professional career, by my calculation. (and now --)

All this triggered a cascading series of neurological

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26 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

events that unleashed killer protein upon Mike

Webster’s brain. The tangles invading and then

strangling his mind from the inside out. Leaving him

unrecognizable, even to himself.

BENNET:

I don't’ know the game. I have never played the game.

But I am convinced playing football killed him. (and)

And there have to be others.

DEKOSKY:

How can you know that?

BENNET:

Common sense. But they’re dead. Or lost. Like Mike

Webster was lost.

DEKOSKY:

I’m not interested in common sense. The only thing

that interests me is science, and science is knowing.

BENNET:

I know from these men’s records their doctors think

they have early Alzheimer’s. Which is statistically

impossible. Because it isn’t Alzheimer’s. It’s this.

Dekosky sits.

HAMILTON:

Steve. It’s a billion-dollar finding.

DEKOSKY:

I don't like it. Actually, I hate it. But as a scientist I

can’t deny it.

BENNET:

We need to tell them. Now.

HAMILTON:

And name this. You’re going to have to give this a

name.

. Landesman, supra note 62 (emphasis added).

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2018] POPULAR CULTURE AND THE NFL 27

CTE is a progressive tauopathy

that occurs as a result of repetitive mild

traumatic brain injury (TBI).

CTE was first identified in 1928 by a New Jersey

pathologist who observed the progressive neurological deterioration of boxers

who became “punch drunk” after sustaining repetitive brain trauma. This

condition was initially called “dementia pugilistica,” but was changed to

“progressive traumatic encephalopathy” (and later to CTE) after scientists

observed the same condition occurring as a result of other physical activities.

The early clinical symptoms of CTE include irritability, impulsivity,

aggression, depression, short-term memory loss and a heightened tendency

towards suicide. These symptoms typically begin between eight and ten years

after exposure to TBI. As the disease advances, more severe neurological

deterioration is exhibited, including dementia, gait and speech abnormalities

and parkinsonism. Advanced CTE can be mistaken for Alzheimer’s disease,

frontotemporal dementia or motor neuron disease. The neuropathological

changes of CTE include the atrophy of parts of the brain including the cerebral

cortex and medial temporal lobe, as well as other extensive changes to healthy

tissue.

While CTE was long known to occur in boxers, the first study to connect

the condition to football players was authored by Dr. Bennet Omalu in 2005.

His study noted that the NFL had formed a Committee on Mild Traumatic Brain

Injury in 1994 to study the trend of football players taking premature retirement

. Tauopathies, U.C.S.F. INST. NEURODEGENERATIVE DISEASES, http://ind.ucsf.edu/research/tauopa-

thies (last visited Dec. 13, 2018).

The tauopathies are a class of diseases caused by misfolding of the tau protein. Tau prions

begin replicating spontaneously in the frontal lobes. Tau prions are observed in

frontotemporal dementia (FTD), posttraumatic stress disorders (PTSD), dementia

pugilistica, and chronic traumatic encephalopathy (CTE), which has been seen in boxers,

football and hockey players, and soldiers after episodes of traumatic brain injury (TBI).

Id.

. Ann C. McKee et al., The Spectrum of Disease in Chronic Traumatic Encephalopathy, 136 BRAIN 43

(2012).

. Id. at 44.

. Id. These include:

cavum septum pellucidum, often with fenestrations; extensive p-tau-immunoreactive

neurofibrillary tangles and astrocytic tangles in the frontal and temporal cortices,

particularly around small cerebral vessels and at the depths of cerebral sulci; extensive

p-tau-immunoreactive neurofibrillary tangles in limbic regions, diencephalon and

brainstem nuclei; extensive degeneration of axons and white matter fibre bundles; TAR

DNA-binding protein 43 (TDP-43) immunoreactive intraneuronal and intraglial inclusions

and neurites in most cases and a relative absence of amyloid-β peptide deposits.

Id.

. Bennet I. Omalu et al., Chronic Traumatic Encephalopathy in a National Football League Player, 57

NEUROSURGERY 128 (2005).

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28 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

due to “postconcussion syndrome,” which was later renamed “mild traumatic

brain injury.”

Despite the recommendation of that committee to fund

independent scientific studies of that condition, little was actually done during

the intervening years. A pathologist, Dr. Omalu, conducted an autopsy on a

retired fifty-year-old NFL Hall of Fame football player, Mike Webster, and

found clear evidence of CTE, the first confirmed finding of the disease in a

professional football player.

In 2012, a more extensive study of CTE occurred at the Center for the Study

of Traumatic Encephalopathy (CTSE) at the Boston University School of

Medicine. In 2008, the CTSE had established a brain bank at the Bedford VA

Hospital to conduct a post-mortem study of the brains and spinal cords of

athletes, military veterans and civilians who had suffered repetitive mild

traumatic brain injury while alive. Eighty-five TBI brains were studied and

compared to eighteen brains with no history of TBI. Of the eighty-five brain

donors, fifty-eight had played American football as their primary sport at the

high school or higher level.

The study was conducted on two levels. First, a neuropsychologist

conducted “post-mortem interviews with the next of kin” of the brain donor to

obtain information on brain injury history, cognitive and behavioral changes,

and clinical status prior to death.

The neuropsychologist was unaware of the

neuropathological results at the time of the interviews.

Second, a

neuropathological study of the brains was conducted and the diagnoses were

made without any knowledge of the clinical histories of the donors.

The researchers divided the subjects with CTE into four progressive stages

of disease. Stage I CTE was the mildest with symptoms including headache,

loss of attention and concentration, difficulty with short-term memory,

aggression, depression, executive dysfunction and explosivity.

Stage II CTE

clinical symptoms included those from Stage I as well as some subjects

identified as having motor neuron disease. At this stage there were reports of

“executive dysfunction, impulsivity, suicidality, and language difficulties.”

The Stage III clinical symptoms commonly include “memory loss, executive

. Id.

. Id. This study was the subject of the film Concussion, starring Will Smith as Dr. Omalu.

. McKee et al., supra note 65, at 45.

. Id.

. Id. at 52.

. Id. at 55.

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2018] POPULAR CULTURE AND THE NFL 29

dysfunction, . . . and attention and concentration difficulties.”

Other issues

found were “depression or mood swings, visuospatial problems, and

aggression.”

“Seventy-five [percent] of [these] subjects were considered

cognitively impaired.”

Lastly, Stage IV subjects exhibited “severe memory

loss with dementia,” as well as “profound loss of attention and concentration,

executive dysfunction, language difficulty, explosivity, aggression . . . ,

paranoia, depression, gait and visuospatial difficulties.”

Thirty-one percent of

Stage IV subjects were suicidal at some stage in the course of the disease.

Of the fifty-eight subjects identified as having played football, thirty-five

were professional football players. Of those, only one showed no disease, while

the remainder showed CTE of varying stages of severity or CTE plus another

disease diagnosis such as Alzheimer’s.

Importantly, the “pathological stage

correlated with duration of exposure to American football, survival after

football and age at death in those who played football.”

The study concluded that although much more research was required, CTE

was a condition clearly associated with repetitive mild traumatic brain injury.

Therefore, both athletes and military personnel could be subjected to “severe

and devastating long-term consequences of repetitive brain trauma that has

traditionally been considered only mild.”

By 2017, the VA-BU-CLF Brain Bank in Boston had swelled to 202

donations by deceased football players and their next of kin.

This gave the

researchers in Boston a much larger sample for study than was available in 2012.

The results were startling: of the 202 football players, 177 were diagnosed with

CTE (87%). Further, the severity of the disease corresponded with the level and

duration of playing football. All those who had played football on the high

school level demonstrated mild levels of CTE, while the majority of college and

professional players displayed the severest level of the disease. Further,

behavior, mood and cognitive symptoms were common among both mild and

severe cases, while dementia was commonly exhibited by the severe cases. Of

. Id. at 56.

. Id.

. Id. at 59.

. Id.

. Id. at 60.

. Id. at 43-44.

. Id. at 62.

. Jesse Mez et al., Clinicopathological Evaluation of Chronic Traumatic Encephalopathy in Players of

American Football, 318 JAMA 360 (2017).

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30 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

the professional football players, 99% had CTE. The study concluded that

“CTE may be related to prior participation in football.”

Although much of the prior discussions had focused on the effect of

concussive impacts, recent research suggests that even non-concussive brain

trauma may result in CTE.

This recent study concluded that “closed-head

impact injuries, independent of concussive signs, can induce traumatic brain

injury as well as early pathologies and functional sequelae associated with

chronic traumatic encephalopathy.”

Although the previous research relied on post-mortem examination of the

brain, recent research results indicate that there may be a way to diagnose CTE

while the patient is alive. For example, Dr. Ann McKee of Boston University,

and her team of researchers, discovered a key biomarker in the brains of

twenty-three former football players diagnosed with CTE post-mortem.

The

research team found that the CTE brains had a significantly elevated level of a

protein called CCL11, which was not present in the brains of non-athletes or

those with Alzheimer’s disease.

The identification of this unique protein

might lead to the ability to diagnose the disease in living patients.

Dr. Bennet Omalu diagnosed CTE in a living patient for the first time in

2015 when he examined a fifty-nine-year-old retired football player, Fred

McNeill, who had played linebacker for the Minnesota Vikings for twelve

years.

Omalu conducted positron emission tomography (PET) imaging using

a FDDNP tracer, which was able to identify the distinctive brain tau pathology

of chronic traumatic encephalopathy.

When McNeill died two years later, the

autopsy confirmed the presence of CTE.

In addition to sub-concussive head impacts eventually leading to CTE,

recent research shows that those impacts can also contribute to mood and

behavior issues in younger children who play contact football. Dr. Robert Stern,

. Id.

. Chad A. Tagge et al., Concussion, Microvascular Injury, and Early Tauopathy in Young Athletes

After Impact Head Injury and an Impact Concussion Mouse Model, 141 BRAIN 422 (2018).

. Id. at 423.

. Rick Maese, Breakthrough May Lead to Ability to Diagnose CTE in Living Football Players, WASH.

POST, Sept. 26, 2017, https://www.washingtonpost.com/sports/breakthrough-may-lead-to-ability-to-diag-

nose-cte-in-living-football-players/2017/09/26/a6e1e8c4-a2bb-11e7-ade1-

76d061d56efa_story.html?utm_term=.43db3e261e38.

. Id.

. Pauline Anderson, Brain Imaging Identifies CTE in a Living Person, MEDSCAPE (Nov. 17, 2017),

https://www.medscape.com/viewarticle/888817.

. Id.

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2018] POPULAR CULTURE AND THE NFL 31

of Boston University’s Chronic Traumatic Encephalopathy Center, found that

“those who participated in football before age 12 [during which time the human

brain undergoes significant development] [are] twice as likely to have problems

with behavior regulation, apathy and executive functioning” when they became

older.

Further, they “were three times more likely . . . to experience symptoms

of depression” as peers who took up the sport after twelve.

Importantly, these

findings were not affected by the number of concussions the player had suffered,

but appeared to be the result of an accumulation of sub-concussive injuries.

In an unrelated study, researchers at Wake Forest School of Medicine

tracked a group of twenty-five football players between the ages of eight and

thirteen for one year, measuring the frequency and severity of head impacts. A

comparison of MRI exams done before and after the football season revealed

significant changes in the brain’s white matter. Further, while none of the

players had sustained a concussion during the season, those who suffered the

most hits demonstrated the most significant changes to the brain.

The newest study by CTE researchers, including noted expert Dr. Ann

McKee, indicates “a strong correlation between the age at which some athletes

begin playing tackle football and the onset of behavioral and cognitive problems

later in life, findings that become significantly more pronounced for those who

take up the sport before age 12.”

100

After examining the brains of 246 former

football players and their social histories, researchers concluded that for every

year earlier that a player began playing tackle football in their youth, the

symptoms associated with CTE began showing two and a half years earlier

during adulthood.

101

And for those who played tackle football before twelve,

the symptoms could arise more than thirteen years earlier.

102

Essentially,

“[y]outh exposure to repetitive head impacts in tackle football may reduce one’s

resiliency to brain diseases later in life, including, but not limited to CTE.”

103

Therefore, the authors of the study concluded that the rapidly developing brains

. Rick Maese, Study Shows Playing Football Before Age 12 Can Lead to Mood and Behavior Issues,

WASH. POST, Sept. 19 2017, https://www.washingtonpost.com/sports/study-shows-playing-football-before-

age-12-can-lead-to-mood-and-behavior-issues/2017/09/18/1b3ebc1c-9cac-11e7-8ea1-

ed975285475e_story.html?utm_term=.e2fdb0c43a31.

. Id.

100

. Rick Maese, Tackle Football Before Age 12 Could Result in Earlier CTE Symptoms, New Study

Finds, WASH. POST, Apr. 30 2018, https://www.washingtonpost.com/news/sports/wp/2018/04/30/new-study-

tackle-football-before-age-12-could-result-in-earlier-cte-symptoms/?noredi-

rect=on&utm_term=.1621cf228f08.

101

. Id.

102

. Id.

103

. Id.

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32 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

of youths should not be exposed to the head impacts associated with tackle

football.

104

The above medical studies support the premise that the head trauma

inherent in the sport of football can cause lasting and life-threatening damage to

the human brain. Further, the earlier a person plays football and the longer one

plays it, the more severe the injury and possibility of brain trauma. The thread

that runs through all of these studies is that more research needs to be done to

explore possible diagnoses and treatments, and that requires major funding.

Further, until science catches up to society, precautions should be taken to shield

the nation’s youth from potential brain damage.

C. Litigation and Settlement

1. Timeline of Events

Before the concussion litigation and settlement is addressed, it would be

useful to outline the sequence of events leading up to it so one can appreciate

the claims and defenses asserted by the parties. The following demonstrates

that the NFL either ignored or, worse, actively tried to minimize the health

effects of concussions from at least 1994, when the National Collegiate Athletic

Association (NCAA) adopted the first official return-to-play guidelines for a

concussion.

105

Despite mounting evidence that football players were having

severe health effects tied to their playing careers, as legendary players suffered

publicly from dementia, Alzheimer’s, Parkinson’s, depression, and suicide, the

NFL was truly a League of Denial.

106

Timeline of Major Events:

• March 1994: NFL creates Mild Traumatic Brain Injury (MTBI)

committee chaired by New York Jets team physician Dr. Elliot

Pellman, who has no experience in brain science. When

interviewed about the committee’s work, he characterized

concussions as “part of the profession, an occupational risk”

that was not as important as knee injuries, drugs, steroids and

drinking.

107

104

. Id.

105

. See Concussion Timeline, NCAA, http://www.ncaa.org/sport-science-institute/concussion-timeline

(last visited Dec. 13, 2018).

106

. See MARK FAINARU-WADA & STEVE FAINARU, LEAGUE OF DENIAL: THE NFL, CONCUSSIONS AND

THE BATTLE FOR THE TRUTH (Crown Archetype 2013). This Pulitzer Prize winning bestseller is an

exhaustive-study of the scientific research on concussions and the NFL’s response to it.

107

. Lauren Ezell, Timeline: The NFL’s Concussion Crisis, PBS: FRONTLINE (Oct. 8, 2013),

https://www.pbs.org/wgbh/pages/frontline/sports/league-of-denial/timeline-the-nfls-concussion-crisis/.

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2018] POPULAR CULTURE AND THE NFL 33

• December 1994: “NFL Commissioner Paul Tagliabue [calls]

concussions a “pack journalism issue,” stating that “the number

[of concussions] is relatively small” and blaming the

exaggeration on journalists.

108

• February 1995: NFL agent Leigh Steinberg “holds a seminar

[for his clients] on the effects of concussions” employing a

panel of medical experts.

109

• March 1997: The American Academy of Neurology issues

guidelines for concussed players returning to play. Their report

recognizes that multiple “concussions can cause brain damage

and suggest[s] that players be removed” from play following

loss of consciousness or if any symptoms are displayed fifteen

minutes post-concussion.

110

• April 1999: Mike Webster, Hall of Fame linebacker for the

Chicago Bears, files a disability application with the NFL

asserting that his football career caused dementia.

111

• October 1999: “The NFL Retirement Board rules that Mike

Webster . . . is ‘totally and permanently’ disabled as [a] ‘result

of head injuries’” sustained during his NFL career.

112

• December 1999: Dr. Pellman, New York Jets team physician

and head of the NFL MTBI committee, states that the

committee’s studies show that the incidence of brain injuries in

football are relatively uncommon and are usually minor in

nature.

113

• May 2000: The NFL rejects the guidelines from the American

Academy of Neurology citing a lack of research to support

those conclusions.

114

• May 2000: Based on survey data two neurologists report to the

American Academy of Neurology, players with one or more

concussions report a significant number of neurological

108

. Id.

109

. Id.

110

. Id.

111

. Id.

112

. Id.

113

. Id.

114

. Id.

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34 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

problems compared to those who had not suffered

concussions.

115

• September 2002: Pathologist Bennet Omalu conducts a

post-mortem examination of Hall of Famer Mike Webster’s

brain and finds CTE.

116

• October 2003: Dr. Elliot Pellman and the NFL MTBI

Committee publish the first of sixteen scientific papers in the

journal Neurosurgery downplaying the risks of head trauma in

football.

117

• January 2004: NFL MTBI Committee publishes another paper

in Neurosurgery stating that the risk of serious head injury in

football is relatively mild: “A total of 92% of concussed players

returned to practice in less than seven days . . . More than

one-half of the players returned within one day, and symptoms

resolved in a short time in the vast majority of cases.”

118

• November 2003: Researchers at the University of North

Carolina (UNC) find that football players with a history of prior

concussions were more likely to sustain repeat concussions and

have slower recovery time.

119

• October 2004: NFL MTBI pushes back and publishes a paper

in Neurosurgery disputing the results of the UNC study and

asserting that while brain disease has been noted in boxers,

there was no sign of the disease in football players.

120

• November 2004: NFL MTBI committee publishes its fifth

article in Neurosurgery suggesting that professional football

players “are probably less susceptible to MTBI and prolonged

post-concussion syndrome than the general population”

115

. Id.

116

. Id.

117

. Id. In 2016, the New York Times revealed that the database that served as the underlying research

for the papers was deeply flawed. Alan Schwartz et al., N.F.L.’s Flawed Concussion Research and Ties to

Tobacco Industry, N.Y. TIMES, Mar. 24, 2016, https://www.nytimes.com/2016/03/25/sports/football/nfl-con-

cussion-research-tobacco.html. The study purported to include all concussions sustained over the course of

six seasons by all NFL teams. Id. However, the Times analysis revealed that at least 100 concussions, ap-

proximately 10%, were unreported in the database. Id. For example, the Dallas Cowboys did not report a

single concussion for those six seasons, including the notorious injuries to quarterback Troy Aikman. Id. The

result was that the study made concussions “appear less frequent than they actually were.” Id.

118

. Ezell, supra note 107.

119

. Id. See Kevin M. Guskiewicz et al., Cumulative Effects Associated with Recurrent Concussion in

Collegiate Football Players: The NCAA Concussion Study, 290 JAMA 2549 (2003).

120

. Ezell, supra note 107.

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2018] POPULAR CULTURE AND THE NFL 35

because the MTBI prone players have been winnowed out

during high school and college athletics.

121

• January 2005: NFL MTBI committee continues its assault on

concussion injuries in football by suggesting in Neurosurgery

that return to play after a concussion does not increase the risk

of injury either in the same game or during the season.

122

• July 2005: Dr. Bennet Omalu publishes his research findings

from the Mike Webster autopsy in Neurosurgery, the first

confirmed finding of CTE in a professional football player.

123

• October 2005: Dr. Julian Bailes and Dr. Kevin Guskiewicz

publish a study in Neurosurgery concluding that concussions

suffered by professional football players could result in

dementia syndromes.

124

• January 2006: Dr. Joseph Maroon, team doctor for the

Pittsburgh Steelers, says that Dr. Omalu’s conclusion relating

football head injuries to Terry Long’s depression and suicide

rests on “fallacious reasoning” and is “purely speculative.”

125

• May 2006: Dr. Elliot Pellman and the NFL MTBI committee

demand that Neurosurgery retract Dr. Omalu’s paper on CTE

saying it is “completely wrong” and not supported by the

required medical history indicating a long-standing illness.

126

• November 2006: Dr. Omalu publishes his second paper in

Neurosurgery after finding CTE in former Steelers player Terry

Long, observing that both Long and Webster had lengthy

careers, sustained multiple concussions, and had Major

Depressive Disorder until they died.

127

• February 2007: Dr. Elliot Pellman resigns as head of the NFL

MTBI committee. After new co-chairs are appointed, the

committee is renamed the “Head, Neck and Spine”

committee.

128

121

. Id.

122

. Id.

123

. Id.

124

. Id.

125

. Id.

126

. Id.

127

. Id.

128

. Id.

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36 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

• May 2007: Dr. Julian Bailes and Dr. Kevin Guskiewicz publish

a paper on the risks of depression in former NFL players,

concluding that “[f]ootball players with a history of three or

more concussions are at a significantly greater risk for having

depressive episodes later in life compared with those players

with no history of concussion.” This research was based on a

survey of more than 2,500 former players.

129

• May 2007: Members of the NFL MTBI committee criticize the

Bailes and Guskiewicz paper on the grounds that “[s]urveys . .

. are the weakest type of research” and “virtually worthless.”

130

• May 2007: NFL MTBI committee chair Dr. Ira Casson

steadfastly denies any link between head trauma and long-term

brain damage. His repeated denials during a media interview

earn him the nickname “Dr. No.”

131

• June 2007: The NFL hosts a “Concussion Summit” where

outside researchers are invited to present their findings.

Commissioner Goodell tells the media that the MTBI

committee is an example of the longstanding concern the

league has had regarding the issue. MTBI chair Ira Casson

states that CTE has only been found “in boxers and in some

[s]teeplechase jockeys” and has not been scientifically

documented in other athletes.

132

• September 2007: The NFL issues a pamphlet on concussions

stating that the research is inconclusive and that having more

than one or two concussions does not lead to permanent injury

if “managed properly.”

133

• January 2009: Doctors from the new Center for the Study of

Traumatic Encephalopathy in Boston, including researcher Dr.

Ann McKee, hold a press conference during the Super Bowl in

Tampa to announce the discovery of several new cases of CTE

in former football players.

134

• May 2009: Dr. Ann McKee addresses the NFL MTBI

committee at NFL headquarters in New York City to present

129

. Id.

130

. Id.

131

. Id.

132

. Id.

133

. Id.

134

. Id.

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2018] POPULAR CULTURE AND THE NFL 37

her findings on CTE. She feels the panel was dismissive of her

and her research. One committee member indicated that Dr.

McKee’s research was flawed because there was no evidence

of cause and effect, it was only based on individual case studies

and there were most likely thousands of players who were

unaffected.

135

• September 2009: A study of players funded by the NFL showed

that former players were “nineteen times more likely than the

general population to [suffer from] dementia, Alzheimer’s or

other memory-related diseases.”

136

• September 2009: The NFL criticized its own funded study

stating that it relied on telephone surveys, which were

inadequate, and that there were “thousands of retired players

who did not have memory problems.”

137

• October 2009: Congress holds a hearing on the concussion

crisis. Dr. Ann McKee testifies that the NFL is behaving like

the tobacco industry during the 1990s when confronted by the

link between smoking and health problems. Commissioner

Goodell is asked if there is a link between football and brain

damage. He responds that they are still studying the issue, but

the league is committed to player safety.

138

• November 2009: Dr. Ira Casson and another member resign

from the NFL MTBI committee at the request of Commissioner

Goodell.

139

• December 2009: An NFL spokesman acknowledges for the

first time that concussions could have long-term effects on the

health of players.

140

• December 2009: The NFL announces new return to play

guidelines that prohibit players with symptoms of a concussion

from returning to play the same day.

141

135

. Id.

136

. Id.

137

. Id.

138

. Id.

139

. Id.

140

. Id.

141

. Id.

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38 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

• January 2010: The NFL donates $1 million to the Center for the

Study of Traumatic Encephalopathy for future research and

names it the “preferred brain bank of the NFL.”

142

• July 2010: The NFL provides a locker room poster warning of

the dangers of concussions, which “may lead to problems with

memory and communication, personality changes, as well as

depression and the early onset of dementia.”

143

• September 2010: Dr. Ann McKee reports the first case of CTE

in a college football player, a twenty-one-year-old who had

never been diagnosed with a concussion. This raised the

prospect that CTE could be caused by sub-concussive brain

trauma.

144

• September 2010: The NFL donates “$30 million . . . to the

National Institutes of Health for research into brain trauma.”

145

• March 2011: The NFL changes its kickoff rule to reduce high

speed collisions. Kick-offs are moved up five yards to the

thirty-five-yard line.

146

• August 2011: The first federal concussion litigation is filed by

former Atlanta Falcons safety Ray Easterling “who claim[s]

that the [NFL] engaged in a ‘concerted effort of deception and

denial’” regarding concussions and brain trauma. Eventually,

4,500 players join the litigation.

147

• October 2011: Dr. Ann McKee appears before Congress to

testify regarding the Owen Thomas case. Dr. McKee “warns

of the dangers of sub-concussive hits,” and oberves that “[w]e

really have to address the way sports are played.”

148

• 2012: Despite rule changes intended to reduce the number of

concussions, the 2012 football season showed an increase of

14% over the prior season.

149

142

. Id.

143

. Id.

144

. Id.

145

. Id.

146

. Id.

147

. Id.

148

. Id.

149

. Id.

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2018] POPULAR CULTURE AND THE NFL 39

• August 2012: The NFL funds a new USA Football program

called Heads Up Football, designed to promote concussion and

injury awareness in youth football.

150

• November 2012: Dr. Ann McKee presents her CTE research at

the Conference of Concussion in Sport hosted by the

international soccer federation in Zurich. Despite finding CTE

in thirty-three out of thirty-four brains of deceased football

players, she is sharply questioned by attendees over the causal

relationship between CTE and football.

151

• November 2012: Commissioner Goodell speaks about player

safety at the Harvard School of Public Health and observes

“that there are still unanswered questions when it comes to the

long-term impact of concussions,” but the league is focused on

making the game safer for players.

152

• January 2013: NFL Players Association funds a $100 million

research project at Harvard Medical School to study health

problems in football players, including heart issues, joint

problems, and head trauma.

153

• January 2013: NFL announces new concussion safety measures

requiring an independent neurologist to be on the sidelines at

every game, as well concussion assessment protocols, such as

a symptom checklist and neurological examination.

154

• April 2013: In court hearings during the concussion litigation,

lawyers for the players argue that the league “set up a sham

committee” that spread false information about the inherent

risks of playing football. Lawyers for the NFL deny the

allegations.

155

• August 2013: The NFL issues rule changes banning “‘crown of

the helmet’ hits outside . . . the tacklebox – designed to reduce

high impact hits to the head.

156

150

. Id.

151

. Id.

152

. Id.

153

. Id.

154

. Id.

155

. Id.

156

. Id.

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40 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

• August 2013: The NFL settles the concussion litigation brought

by former players for $765 million with no admission of

wrongdoing.

157

In the ensuing years, additional medical research continued to point to head

trauma as a factor in CTE, including concussions as well as sub-concussive

impacts. Despite the efforts of the NFL to implement rule changes giving

players more protection, the number of concussions rose. For example, there

were 281 concussions during the 2017 season, a 13.5% increase over the

previous season. In fact, the number of concussions in the 2017 season was the

highest of the past six years, with a nearly 16% increase over the five-year

average.

158

Still, the NFL continues to tinker with the rules on contact, recently

voting to make it a foul to lower the head to initiate contact with the helmet. It

remains to be seen whether the penalty will be ejection from the game, as it is

in college football, a practice called targeting.

159

Starting with Dr. Omalu’s report in 2005, a review of the history of highly

persuasive medical evidence tying concussions to CTE makes it clear that the

NFL resisted recognizing the health dangers inherent in the sport until

December 2009 when a spokesman finally admitted the connection. Further,

the NFL did not just ignore the problem, but actively tried to discredit the

research that brought the issue to light. It is no surprise that the NFL became a

target of litigation by former players who felt abandoned by the league to which

they had given so much of their lives.

2. Initial Litigation

The very first lawsuit against the NFL, and helmet maker Riddell, Inc., was

brought by retired players over the issue of concussions on July 19, 2011. The

action was filed in the Superior Court of California by seventy-three former

players.

160

The first federal class action came about a month later in the Eastern

District of Pennsylvania.

161

Shortly thereafter, hundreds of cases were filed in

157

. Id.

158

. Paulina Dedaj, NFL Releases Injury Report Showing Increase in Number of Concussions, FOX

NEWS (Jan. 26, 2018), http://www.foxnews.com/sports/2018/01/26/nfl-releases-injury-report-showing-in-

crease-in-number-concussions.html.

159

. Khadrice Rollins, NFL New Rules: List of Changes for 2018 Season, SPORTS ILLUSTRATED, Mar.

28, 2018, https://www.si.com/nfl/2018/03/28/new-rules-next-season-catch-targeting-lowering-head.

160

. Plaintiffs’ Complaint for Damages and Demand for Jury Trial, Maxwell v. Nat’l Football League,

No. BC465842, (Cal. Super. Ct. July 19, 2011).

161

. Class Action First Amended Complaint, Easterling v. Nat’l Football League, Inc.,

No. 11-cv-05209-AB, (E.D. Pa. Oct. 5, 2011).

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2018] POPULAR CULTURE AND THE NFL 41

state and federal courts around the country.

162

The California case was removed

to federal court on the theory that federal labor law, which governed the NFL’s

Collective Bargaining Agreement (CBA) with the NFL Players Association,

preempted state law claims.

163

Eventually, the cases were consolidated by the

Judicial Panel on Multidistrict Litigation and assigned to Judge Anita Brody in

the Eastern District of Pennsylvania as a multidistrict litigation.

164

The litigation

encompassed over 300 state and federal lawsuits, and claims by more than 5,000

players.

165

3. Multidistrict Litigation

With the cases now consolidated, the District Court Judge then took steps

to bring order to the massive litigation: (1) she appointed co-lead counsel; (2)

she appointed a Steering Committee to accomplish or delegate pretrial work; (3)

she appointed a smaller Executive Committee to coordinate the proceedings;

and (4) she ordered the plaintiffs to submit a Master Administrative Long-Form

Complaint (Complaint) and a Master Administrative Class Action Complaint to

consolidate the claims made in the various proceedings.

166

In their Complaint, the plaintiffs essentially alleged that the NFL long knew

of the dangers of mild traumatic brain injury in professional football, dating

back to at least the 1950s. Further, the NFL assumed the responsibility for

protecting players through the implementation of safety rules.

167

Despite this

knowledge and duty the NFL actively concealed the dangers of MTBI, even

going so far as to propagate “junk science” dispelling and downplaying the

safety risks through its MTBI Committee.

168

The Player’s Complaint therefore

asked the court for a declaratory judgment as to liability on counts of wrongful

death and survival, fraudulent concealment, fraud, negligent misrepresentation,

negligence, loss of consortium, negligent hiring, and negligent retention. The

Complaint also requested the institution of a medical monitoring program

162

. See Court Documents, NFL CONCUSSION LITIG., http://nflconcussionlitigation.com/?page_id=18

(last visited Dec. 13, 2018).

163

. In re: Nat’l Football League Players Concussion Injury Litig., No. 15-2206 at 15 (3d Cir. April 18,

2016).

164

. Id. at 16 (citing In re Nat’l Football League Players’ Concussion Injury Litig., 842 F. Supp. 2d 1378

(J.P.M.L. 2012)).

165

. Id.

166

. Id.

167

. Id.

168

. Id. at 17.

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42 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

funded by the NFL that would allow the players to monitor the progress of their

diseases related to MTBI.

169

The next major development in the concussion litigation was the filing of a

Motion to Dismiss by the NFL. It argued that federal labor law preempted the

state law claims pursuant to Section 301 of the Labor Management Relations

Act because the resolution of the players’ claims would necessitate an

interpretation of the CBA. Under that agreement, players would be compelled

to arbitrate any claims arising out of their employment. If successful, that

argument would force the players out of court and into binding arbitration.

170

The players responded that the CBAs did not cover all retired players, and that

both negligence and fraud claims did not require federal courts to interpret the

CBAs.

171

While the Motion to Dismiss was still pending, Judge Brody ordered the

parties to mediation on July 8, 2013.

172

For that purpose, she appointed retired

District Court Judge Layn Phillips as mediator, with Perry Golkin later

appointed as Special Master to assist in analyzing the financial aspects of the

settlement.

173

After two months of negotiation and formal mediation, the parties

agreed to a capped payment of $765 million for all retired NFL players.

174

However, in January 2014, the district court rejected the settlement amount on

the grounds that it was probably insufficient to pay all claims.

175

With the

assistance of the Special Master and after another five months of negotiation,

the parties agreed to uncap the compensation fund. A second request for

preliminary approval was granted, the class was conditionally certified and a

fairness hearing was scheduled.

176

Although seven players requested an

169

. Plaintiffs’ Amended Master Administrative Long-Form Complaint at 52-53, In re Nat’l Football

League Players’ Concussion Injury Litig., No. 2:12-md-02323-AB (E.D. Pa. July 17, 2012).

170

. In re Nat’l Football League Players Concussion Injury Litig., No. 15-2206 at 18.

171

. Id. at 18-19 (noting that some federal district courts had already embraced the NFL’s labor law

preemption argument in denying player requests to remand their cases to state court, and that one federal court

had rejected that argument).

172

. Id. at 19. The Complaint further asserted various counts against the helmet manufacturer, Riddell,

Inc., the “official helmet of the NFL,” for strict liability for defects in design and manufacturing, failure to

warn and negligence. Plaintiffs’ Amended Master Administrative Long-Form Complaint, supra note 169, at

76-82. The Riddell Defendants were not part of the settlement to be discussed later, and were eventually

severed from the NFL Defendants into a separate action. In re Nat’l Football League Players Concussion

Injury Litig., No. 15-2206 at 19.

173

. Sarah James, Comment, Ringing the Bell for the Last Time: How the NFL’s Settlement Agreement

Overwhelmingly Disfavors NFL Players Living with Chronic Traumatic Encephalopathy (CTE), 11 J.

HEALTH & BIOMEDICAL L. 391, 408 (2016).

174

. In re Nat’l Football League Players Concussion Injury Litig., No. 15-2206 at 19.

175

. Id.

176

. Id.

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2018] POPULAR CULTURE AND THE NFL 43

interlocutory appeal, the court of appeals denied the relief on the grounds that

the district court’s order was merely preliminary.

177

The district court held the fairness hearing in November 2014, and

suggested several changes to the settlement after hearing the arguments of the

parties. An amended settlement agreement was finally approved by the court in

February 2015, and the motion for class certification was granted in April 2015.

Twelve appeals from the final order approving the amended settlement were

filed with the United States Court of Appeals for the Third Circuit and

consolidated by the court.

178

4. On Appeal

Reviewing the district court for abuse of discretion, the Third Circuit framed

the appeal as presenting two main issues: (1) whether the class certification was

appropriate, and (2) whether “the terms of the settlement were fair, reasonable,

and adequate.”

179

The Third Circuit affirmed the district court on both issues.

In reaching its conclusion, the Third Circuit provided a synopsis of the

settlement agreement, noting that it had essentially three components: (1) an

unlimited Monetary Award Fund that would compensate retired players with

qualifying medical conditions for a span of sixty-five years; (2) a Baseline

Assessment Program that would allow retired players to obtain independent

neurological testing; and (3) an Education Fund for purposes of informing

football players regarding injury prevention.

180

The Monetary Award Fund gave retired players, or their beneficiaries,

varying levels of maximum compensation for the “Qualifying Diagnoses”: (1)

Level 1.5 Neurocognitive Impairment ($1.5 million); (2) Level 2

Neurocognitive Impairment ($3 million); (3) Alzheimer’s ($3.5 million); (4)

Parkinson’s ($3.5 million); (5) Death with CTE ($4 million); and (6) ALS ($5

million).

181

These maximum awards can be decreased by several factors: (1) a

diagnosis later in a player’s life; (2) participation in less than five eligible

seasons; (3) a baseline assessment examination had not been performed; and/or

(4) the player had a traumatic brain injury unrelated to playing football. The

settlement also set forth filing deadlines and appeal procedures.

182

177

. Id. at 19-20.

178

. Id. at 20.

179

. Id. at 26.

180

. Id. at 20-21.

181

. Id. at 21.

182

. Id. at 22.

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44 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

The Baseline Assessment Program was funded with a maximum of $75

million for a duration of ten years. The purpose was to detect the initial level

of neurological deterioration in a retired player to determine if that person

initially qualified for an impairment award and to track any future decline in

cognitive abilities. If the player demonstrated a Level 1 Neurocognitive

Impairment, he could not collect an award, but would still be able to obtain

medical benefits such as testing, treatment and medication.

183

The Education Fund of $10 million was targeted at injury prevention in

youth football, as well as educating retired NFL players about their medical and

disability options under the CBA.

184

The proposed class of claimants included all NFL football players who

retired before July 7, 2014, their representatives, and descendants. However,

the class was further divided into two subsets: (1) those players who had a

Qualifying Diagnosis prior to July 7, 2014, and were therefore immediately

entitled to an award; and (2) those retired players who had not yet had a

Qualifying Diagnosis. The NFL estimated that out of 21,070 retired players

28% were expected to qualify for the settlement, while the remaining 72% were

not expected to develop a qualifying disease.

185

There were a number of challenges to the district court’s decision. The first

was that the requirement of commonality was lacking among the putative class

members because the players were injured at varying periods of time and in

varying ways, and the class members therefore did not share common issues of

fact or law necessary to a class action.

186

The Third Circuit rejected that

argument because the NFL allegedly injured the players through the same

course of conduct, such as concealing the risk of concussion and failing to

adequately protect players. Even though the extent of player injury varied

greatly, the conduct of the NFL was common to the class.

187

A related objection was that the claims of the class representatives were not

typical of the class due to factual differences such as the amount of playing time

and the extent of head trauma. The two class representatives were Shawn

Wooden, a retired player with no Qualifying Diagnosis, who sought the

Baseline Assessment Examination, and Kevin Turner, a retired player with ALS

who sought a monetary award. The Third Circuit held that class representatives

did not need to share identical claims, but needed to seek redress under the same

legal theories as the members of the class. The appellate court agreed with the

183

. Id. at 23.

184

. Id. at 24.

185

. Id. at 24-25.

186

. Id. at 28; see FED. R. CIV. P. 23.

187

. In re Nat’l Football League Players Concussion Injury Litig., No. 15-2206 at 29.

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2018] POPULAR CULTURE AND THE NFL 45

district court that the class representatives were “typical of those they

represent.”

188

The appellants also challenged the adequacy of representation, advancing

two arguments. First, they asserted that when the district court divided the class

into subclasses (those players who already had Qualifying Diagnoses versus

those who did not), class counsel for those players who did not have a

Qualifying Diagnosis should not have been selected from the lawyers already

litigating with the NFL. In light of the fact that the district court found the

counsel experienced in multi-district litigation and class actions, the Third

Circuit could find no abuse of discretion.

189

Secondly, neither did the fact that

the class counsel represented both types of claimants constitute a conflict of

interest. The attorney, Arnold Levin, disclosed that representation to the

District Court and no abuse of that discretion was found.

190

The appellants further asserted that there was a conflict of interest between

the two classes of claimants: those who immediately qualified as a result of a

Qualifying Diagnosis and those who had not yet exhibited symptoms. However,

the Third Circuit disagreed, noting that the interests of both classes were aligned

because they had been injured by the same actions of the NFL, both classes

benefitted from the settlement, and there were structural safeguards built into

the settlement such as uncapping the injury fund, adjusting it for inflation, a

guaranteed Baseline Assessment Examination, and the appointment of a

mediator and special master.

191

Perhaps the most interesting assertion by the appellants was that, in

approving the settlement, the District Court did not adequately take into account

the likelihood of the plaintiffs’ success on the merits and the potential damage

award.

192

The Third Circuit noted that if the NFL prevailed on its federal labor

law preemption defense, all but a small subset of claims would probably be

dismissed.

193

Further, the Third Circuit agreed with the District Court that

causation likely presented a severe obstacle to recovery against the NFL, with

players having to prove both general causation (MBTI causes Alzheimer’s) and

specific causation (a concussion in the NFL caused the disease versus a

concussion suffered in college or high school).

194

188

. Id. at 30 (quoting In re Nat’l Football League Players’ Concussion Injury Litig., 307 F.R.D. 351,

371 (E.D. Pa. 2015)).

189

. Id. at 31-32.

190

. Id. at 34-35.

191

. Id. at 38-39.

192

. Id. at 53.

193

. Id.

194

. Id.

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46 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

The appellants also challenged the settlement on the basis that it excluded

CTE as a Qualifying Diagnosis, which was unfair because CTE “was the

industrial disease of football.”

195

Note that the settlement only compensated

players who were diagnosed postmortem after 2006 and prior to the settlement

date of July 17, 2014.

196

The Third Circuit agreed with the district court that it was reasonable to

exclude CTE from the settlement, noting that the science behind CTE was still

relatively novel, that the studies of CTE were problematic due to selection bias

(the postmortem studies only involved those with repetitive head injuries

instead of the population as a whole), and the studies did not rule out other

possible causes of CTE.

197

Further, the district court had noted that certain

symptoms of CTE were covered by the Qualifying Diagnoses such as “memory

loss, executive dysfunction, and difficulty with concentration.”

198

Additionally,

players eventually diagnosed with CTE after death suffered from compensable

diseases such Parkinson’s and Alzheimer’s while alive. The district court found

that 89% of the players examined in the CTE studies would have been

compensated under the settlement agreement.

199

The Third Circuit admitted that

symptoms such as aggression, depression and suicidal thoughts that are

associated with CTE would not be compensable, but observed that those

symptoms were “common in the general population”

200

Even the March 2016 admission of the NFL before Congress that “there

was a link between football and degenerative brain disorders like CTE” could

not persuade the Third Circuit that the settlement was unfair.

201

Despite the

admission, the court believed that CTE would still present a causation obstacle

at trial. The court observed: “[t]his settlement will provide significant and

immediate relief to retired players living with the lasting scars of an NFL career,

including those suffering from some of the symptoms of CTE.”

202

The appellants filed for a petition for certiorari to the United States Supreme

Court, which was denied on December 12, 2016.

203

195

. Id.

196

. Id. at 57.

197

. Id. at 58-59.

198

. Id. at 58.

199

. Id.

200

. Id.

201

. Id. at 61.

202

. Id. at 61-62.

203

. Gilchrist v. Nat’l Football League, 137 S. Ct. 591 (2016), cert. denied (listing the Memorandum

Decisions).

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2018] POPULAR CULTURE AND THE NFL 47

5. Attorney Fees

The denial of certiorari did not end the issues before the district court, for

there was still the matter of attorneys’ fees and third-party claims against the

settlement fund.

The settlement agreement also contained a clause regarding attorney fees

that provided for a capped maximum payment of $112.5 million, separate and

apart from the awards made to the players. The agreement also allowed plaintiff

attorneys to petition the district court in the future for a 5% set aside from player

awards to pay the costs of administering the settlement. Class counsel were to

petition the district court for a fee award after the class action was certified and

the settlement approved.

204

The Third Circuit rejected the appellants’ claim that

the matter of the amount of attorney fees should have been decided at the same

time as the settlement agreement, writing that the deferral of the determination

of attorney fees neither violated the Federal Rules of Civil Procedure nor the

plaintiffs’ right to due process of law. The plaintiffs would have ample

opportunity to challenge any fee award once the fee petition was submitted by

counsel.

205

The appellants further objected to the potential for collusion

inherent in a “clear sailing provision,” so named because the defendant agrees

not to object to a certain amount of attorney fees as part of the overall settlement.

The concern was that class counsel may have bargained away something

beneficial to the class in return for a guaranteed fee. On the other hand, the

defendant doesn’t care where the money is allocated as long as the overall

liability is defined. The Third Circuit joined other circuit courts that had held

that clear sailing provisions were not per se invalid, but should be subjected to

scrutiny by the district court. In any event, the district court had found that the

attorney fees had not even been discussed in the settlement negotiations until

after the plaintiffs’ recovery fund had been agreed upon, the attorney fees would

not diminish the recovery fund, and the fees were only approximately 10% of

the forecasted recovery, which was not unreasonable.

206

The attorneys for the class filed their petition for fees on February 13, 2017,

claiming the entirety of the $112.5 million and asking for a 5% set-aside from

the claimant awards for future attorneys’ fees and costs. Judge Brody appointed

a Special Master to make recommendations on attorneys’ fees and to review the

petition for fees filed by counsel. The Special Master, Harvard Law School

Professor William B. Rubenstein, is one of the foremost experts in the nation

on class action litigation and lawyer fees. His opinion was that the court should

204

. In re Nat’l Football League Players Concussion Injury Litig., No. 15-2206 at 63.

205

. Id. at 63-64.

206

. Id. at 69.

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48 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

set a “presumptive 15% cap on all contingent fee contracts” and that there

should not be a 5% set-aside for future legal work.

207

He reasoned that the

$112.5 million paid to class counsel constituted approximately 15.6% of the

total award to players. Combining that figure with a fifteen percent cap on

contingency arrangements would give class counsel a payment of 30.6% of the

award.

208

He argued that the 5% set-aside would be additional payment for work

for which the attorneys had already been compensated. Rather, the class

counsel award of $112.5 million should encompass payment not only for

securing the settlement, but implementation of it in the future. Essentially,

counsel wanted to be paid in full at the present for work to be performed in the

future. He suggested that the court take $22.5 million of the class counsel

payment and put it in a separate account for future payments to attorneys for

implementation of the award in the sixty-five years it was to last.

209

The Expert Report noted that “class counsel,” as defined by the Settlement

Agreement, included six attorneys: two Co-Lead Counsel, two Subclass

Counsel, and two additional attorneys.

210

These attorneys presented the entire

class action in the litigation and performed work for the “common benefit” of

the whole, as well as representing the interests of their own individual clients

on a contingency fee basis. Other lawyers representing players did not

participate as class counsel and were therefore not entitled to seek fees from the

NFL funded fees, but would have to seek payment from their clients’ individual

recoveries. Thus, class counsel was entitled to payment from both the NFL

funded fees and from players, while the non-lead lawyers would only recover

from the players. The Special Master did not have access to all the contingency

agreements signed by the players, but a review of about 6% of them showed

fees ranging from a low of 15% to a high of 40%.

211

The Special Master first pointed out that Rule 23 of the Federal Rules of

Civil Procedure required the district court to supervise and approve the payment

of attorney fees in class actions. This is because in class actions, the fiduciary

interests of class counsel are adverse to the interests of the plaintiffs during the

fee calculation process.

212

As for the separate contingency agreements with

class members, the Special Master observed that the district court had inherent

authority to regulate attorneys appearing before the court, including the ability

207

. Expert Report of Professor William B. Rubenstein at 1, In re Nat’l Football League Players’

Concussion Injury Litig., No. 2:12-md-02323-AB (E.D. Pa. Dec. 3, 2017).

208

. Id. 30-31.

209

. Id. at 1.

210

. Id. at 3.

211

. Id. at 10.

212

. Id. at 12-13; see FED. R. CIV. P. 23.

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2018] POPULAR CULTURE AND THE NFL 49

to review the reasonableness of contingency fee arrangements, and institute a

cap on those fees if necessary. In this case, the incapacity of many of the players

due to illness heightened the duty of the court to prevent overreaching.

213

The Special Master believed that the circumstances of the case justified the

imposition of a cap on contingency fee contract. If a player was represented by

one of the class counsel, the payment of the 15.6 % out of the NFL fee,

combined with a contingency fee of 45%, could result in a player forfeiting

nearly two-thirds of his recovery in fees. He noted that class actions typically

resulted in lower fees, about 13% for class counsel, and the typical class action

did not employ non-lead counsel. He also observed that this case was resolved

long before trial, without any discovery, significant motion practice, or any of

the pre-trial practice, and the fees should reflect the amount of work necessary

to secure settlement.

214

In sum (1) players with IRPAs [Independently Retained

Plaintiff Attorneys] are paying two lawyers’ fees (2) in a case

settled on an aggregate basis (3) following relatively little

litigation (4) requiring IRPAs to undertake a modest amount of

work (5) that will likely generate small recoveries for (6)

vulnerable clients (7) who may be subject to contingent fees

contracts that were either problematic at time of formation or

are no longer reasonable.

215

For those reasons, the Special Master believed that all the circumstances

favored capping the contingency awards at 15%, although class counsel would

receive another 15.6% for their work done for the common benefit of the class;

bringing their clients’ total payment to 30.6% of their overall recovery.

216

The Special Master further found the 5% set-aside to be meritless, first

noting that it made no sense for the NFL to negotiate this set-aside when it

would not be liable to pay for it separately. He thought it was evident that class

counsel “sought to significantly enhance their own fees without significantly

enhancing their own work or, most importantly, their clients’ recoveries.”

217

also found class counsel’s argument to be spurious that the NFL fee fund was

213

. Expert Report of Professor William B. Rubenstein at 17 n.62, In re Nat’l Football League Players’

Concussion Injury Litig., No. 2:12-md-02323-AB.

214

. Id. at 21-22.

215

. Id. at 26.

216

. Id. at 1. It should be noted that for purposes of calculating the total award, the NFL fee fund of

$112.5 million was added to the recovery fund of net present value $720.5 million on the grounds that when

the settlement fund and fee are paid by the same entity, it amounts to a “constructive common fund” for

purposes of determining fees. Id. at 4-5.

217

. Id. at 36.

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50 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

fully earned by reaching the settlement, while another $47 million was needed

to implement it. He noted that the law is clear that fee awards are paid for both

reaching and implementing settlement until claims are satisfied.

218

The

settlement agreement merely stated that the NFL would not oppose payment of

$112.5 million in costs and fees. If class counsel did not believe that was

sufficient to cover all fees, they should have gone back to the negotiating table

with the NFL or petitioned the court to increase the overall award.

219

Rather

than pay class counsel the full amount of their fees now, when the settlement

fund would span another sixty-five years, the Special Master thought $22.5

million of the fees should be held in reserve for future implementation work and

attorneys could bill the fund when the fees were earned.

220

Setting 5% aside for

implementation would amount to the attorneys “getting paid twice for the same

work.”

221

This filing of fees and subsequent expert report ignited a great deal of

controversy among the attorneys who stood to benefit from the settlement. For

example, one of the Co-Lead Counsel, Christopher Seeger, filed the petition for

distribution of the $112.5 million in NFL fee funds, on behalf of twenty-four

law firms who he stated had done work benefitting the class. However, many

of those firms protested their proposed allocation of fees. Three additional

attorneys applied for fees as well on the grounds that they had done work

benefitting the class but had not been included in Seeger’s calculations.

222

Additionally, many attorneys filed liens with the court on their former clients’

recoveries after they had been discharged and the clients obtained new

counsel.

223

In desperation, even the wives of two dozen former players wrote a group

letter to the judge complaining of excessive legal fees that would reduce the

eventual recovery, particularly citing the inequity of the class counsel receiving

the $112.5 million from the NFL fund fee and then also receiving a 5%

set-aside.

224

Poaching of clients by competing attorneys was also a concern,

218

. Id. at 37-38.

219

. Id. at 40.

220

. Id. at 42.

221

. Id. at 46.

222

. Id. at 6.

223

. Id. at 10.

224

. Mark Fainaru-Wada, Billion-Dollar NFL Concussion Settlement Turns Nasty as Lawyers, Others

Vie for Pieces of Payouts to Players, ESPN (Mar. 29, 2017),

http://www.espn.com/espn/otl/story/_/id/19029607/billion-dollar-nfl-concussion-settlement-turns-nasty-

lawyers-others-vie-pieces-payouts-players.

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2018] POPULAR CULTURE AND THE NFL 51

resulting in liens being filed by the former attorney and leaving families worried

they would have to pay two attorneys before receiving any recovery.

225

One plaintiff attorney who had been among the first to file a complaint, John

Luckasevic, was especially vocal about the manner in which Co-Lead Counsel,

Christopher Seeger, was dividing up the $112.5 million in NFL funded fees:

“[w]hat the hell, I have $1.7 million of my firm’s costs into this case, and I’m

gonna get $700,000?”

226

He also objected to the 5% set-aside from player

recoveries, stating:

You want my $700,000, Chris, have it, choke on it . . . . Just

don’t take 5% of my hard work. You didn’t put this case

together, you didn’t sign up guys who were truly injured. You

didn’t rep them five and a half years. I did that work; don’t go

reaching into my pants.

227

On the other hand, Seeger’s firm billed for over 21,000 hours of work for

the previous four years, with Seeger personally billing at $985 per hour, for a

total claim of $51 million out of the fund.

228

The disposition of the issues

surrounding attorney fees is still pending before the district court.

6. Third-Party Claims

Another unseemly issue that came out of this case was the “cottage industry

of opportunist lawyers, doctors, predatory lenders and other professionals” who

sought to capitalize on the settlement.

229

The retired players were so barraged

with offers of “help” and predatory loans in advance of the settlement, it caused

Judge Brody to order a notice to settlement class members that “claims service

companies” offering assistance were not affiliated with the court, that no such

services were required because the website for claims offered an easily

navigable claims process, and only court approved physicians were able to make

a Qualifying Diagnosis for purposes of the settlement. Further, she noted that

emails were being sent out in the name of retired NFL players that were, in

reality, mass solicitations by private lawyers or third-party companies.

230

Co-Lead Counsel, Christopher Seeger, estimated that almost 1,000 players

had signed contracts with lawyers and lenders seeking to capitalize on the

225

. Id.

226

. Id.

227

. Id.

228

. Id.

229

. Id.

230

. Notice & Order at 5, In re Nat’l Football League Players’ Concussion Injury Litig.,

No. 2:12-md-02323-AB (E.D. Pa. July 19, 2017).

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52 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

litigation. Some lenders charged rates of up to 50% payable out of the

settlement. Some firms hired former players with promises of bonuses for

signing up other players. Some firms promised to introduce the players to

doctors who could exaggerate their symptoms to increase the size of the

award.

231

The district court sought to counter these problems by prohibiting

assignments to predatory lenders and voiding all such third-party contracts.

Judge Brody also prohibited the Claims Administrator from paying a class

member’s monetary award to these predatory lenders on the grounds that the

class members were by definition impaired, and the settlement agreement

expressly forbid the assignment of monetary awards to third parties.

232

7. Payouts

Despite the district court’s approval of the settlement and confirmation by

the Court of Appeals, the funds have been slow to reach the players. As of

November 2017, only a small percentage of players had been approved for

compensation: 140 notices of monetary awards for a total of $195 million, with

only $100 million actually distributed. This was despite the NFL’s assertion

that approximately 665 settlement claims would be paid out within the first

year.

233

Although the district court appointed an independent claims

administrator, BrownGreer,

234

there have still been complaints that the claims

process is slow, that applications are unreasonably delayed, and that claims have

been unnecessarily kicked back requesting more information or additional

evidence. One of the league’s approved neurologists believed that his medical

judgment was being unfairly questioned by claim administrators without a

medical background.

235

One of the most problematic areas in the payment process were dementia

claims, which were being rejected by the claims administrator at a higher rate

than any other. Dementia cases make up the bulk of the claims: out of 1,712

claims made in the first year, 1,113 were based on neuro-cognitive impairment.

231

. Ken Belson, Widespread Deceptive Practices May Reduce Payouts in N.F.L. Concussion Settlement,

N.Y. TIMES, Sept. 19, 2017, https://www.nytimes.com/2017/09/19/sports/football/nfl-concussion-settle-

ment.html.

232

. Explanation & Order, In re Nat’l Football League Players’ Concussion Injury Litig.,

No. 2:12-md-02323-AB, 2017 WL 8785717, at *1 (E.D. Pa. Dec. 8, 2017).

233

. Rick Maese, Ten Months After NFL Concussion Settlement, Most Players Haven’t Seen a Dime,

WASH. POST, Nov. 10, 2017, https://www.washingtonpost.com/sports/ten-months-after-nfl-concussion-set-

tlement-most-players-havent-seen-a-dime/2017/11/10/9df64c28-c56b-11e7-afe9-

4f60b5a6c4a0_story.html?utm_term=.714a8ad7c2d6.

234

. Id. (explaining that BrownGreer is a Richmond, Virginia, company that served as claims administer

for the Vioxx and the BP oil spill litigation).

235

. Id.

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2018] POPULAR CULTURE AND THE NFL 53

Only six of those dementia cases have actually been paid.

236

Class Counsel filed

a motion with the district court alleging that the NFL was “failing to provide a

fraction of what [it] promised” and would “argue virtually anything to evade

payments.”

237

The claims administrator stated that the NFL had no role in the

claims process, but Class Counsel noted that the NFL has the right to appeal any

award, which resulted in further delays. Although the NFL had not filed appeals

in the majority of awards, thirty-five cases were approved by the claims

administrator and appealed by the NFL. Most claims for Parkinson’s,

Alzheimer’s, and CTE had been paid, but 60% of the dementia cases had been

red-flagged and referred for “indefinite review.”

238

One expert in brain injury

law, Michael Kaplan, stated that “[t]hese players are beginning to wake up and

understand the settlement is a fraud. The majority of players who deserve

compensation are not going to get compensation.”

239

The NFL countered that

their concern was fraudulent claims by unscrupulous lawyers, doctors who

coached players to make their symptoms seem worse than they were, so they

could qualify for a higher payout.

240

Although the original settlement was hailed as a “historic” breakthrough in

concussion litigation, it has descended into a demeaning squabble between

greedy plaintiff attorneys, the NFL that continues to use “scorched earth” tactics

to avoid liability, and predatory lawyers, doctors, and lenders, while the players

and their families continue to suffer the effects of serious brain damage resulting

from playing a game they loved, but showed no love in return. Meanwhile, the

medical evidence continues to pile up. A recent study, the largest of its kind,

found that the risk of dementia was highest among those who suffered from

traumatic brain injury. Using a Danish health database of 2.7 million people,

scientists found that those who had suffered even a single traumatic brain injury

were at a 24% increased risk of dementia. While those with five or more

traumatic brain injuries had triple the risk.

241

That raises the question of how to

prevent concussions or at least minimize the effects of them.

236

. Rick Maese, Dementia Claims in NFL Concussion Settlement Are Going Unpaid, Lawyers Say,

WASH. POST, Mar. 20, 2018, https://www.washingtonpost.com/sports/redskins/dementia-claims-in-nfl-con-

cussion-settlement-are-going-unpaid-lawyers-say/2018/03/20/00e635bc-2c7f-11e8-8ad6-

fbc50284fce8_story.html?utm_term=.0a5641437566.

237

. Id.

238

. Id.

239

. Id.

240

. Ken Belson, N.F.L. Says Fraud Plagues the Concussion Settlement, N.Y. TIMES, Apr. 13, 2018,

https://www.nytimes.com/2018/04/13/sports/nfl-concussion.html.

241

. Nicholas Bakalar, Traumatic Brain Injuries Are Tied to Dementia, N.Y. TIMES, Apr. 10, 2018,

https://www.nytimes.com/2018/04/10/well/mind/traumatic-brain-injuries-are-tied-to-dementia.html.

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54 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

D. Concussion Protocols

“‘They ask you, ‘Where are you? What day is it? What’s your mom’s name?

Where are you from?’ . . . . Just basic questions and hopefully you can answer

them.’ This describes the extent of concussion testing Levens underwent during

his tenure in the league.”

242

The general debate over the degree of violence in the game of football is

certainly nothing new, and goes back to the early years of the sport. One famous

example was the 1894 “Bloodbath at Hampden Park” between rivals Harvard

and Yale in which so many players were injured that it drew a national outcry.

243

In 1904, the Chicago Tribune reported eighteen deaths and 159 serious injuries

from playing football, which prompted President Theodore Roosevelt to

summon Ivy League representatives to the White House in an attempt to curb

the violence. It may not have been a coincidence that Roosevelt’s son played

on the Harvard team that year and suffered a broken nose. Despite Harvard,

Yale, and Princeton pledging to clean up the game, the 1905 season resulted in

219 player deaths and 137 serious injuries.

244

With some schools dropping the

game of football and others threatening to do so, President Roosevelt again

pushed for rule changes, resulting in the establishment of the Intercollegiate

Athletic Association of the United States (the pre-curser to the NCAA), which

established safety oriented rules such as legalizing the forward pass, eliminating

mass formations, such as the “flying V,” and creating a neutral zone between

the two sides. The result was a decline in deaths and injuries for the 1907

season, although an increase in traumatic injuries in 1909 lead to further rule

reforms aimed at player safety.

245

Therefore, player safety has long been a concern in the game of football,

including head injuries, which caused the first leather football helmets to be

adopted in 1893.

246

Although the NFL began in 1920 as the American

Professional Football League, it was the NCAA that led the way in terms of

player safety, particularly in regard to the effect of concussions. In 1933, the

NCAA warned of the dangers of concussions in its Medical Handbook for

242

. Dylan Desimone, NFL Concussion Awareness: An Exclusive with Dorsey Levens, BLEACHER

REPORT (Mar. 15, 2013), http://bleacherreport.com/articles/1564720-nfl-concussion-awareness-an-exclu-

sive-with-dorsey-levens (explaining that Levens is a former NFL running back who played for the Green Bay

packers, Philadelphia Eagles, and New York Giants, and who is working on a documentary entitled

Bell-Rung: An Alarming Portrait of Professional Football).

243

. Bernard Corbett & Paul Simpson, When Men Were Men and Football Was Brutal, YALE ALUMNI

MAG., Dec. 2004, http://archives.yalealumnimagazine.com/issues/2004_11/football.html.

244

. Id.

245

. Id.

246

. Concussion Timeline, supra note 105.

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2018] POPULAR CULTURE AND THE NFL 55

Schools and Colleges, establishing the first recommendations that could be

considered a protocol: immediate treatment such as rest, continual supervision,

and brain x-rays. For those players with recurring symptoms, the guidelines

indicated hospitalization until they were symptom free for a forty-eight-hour

period. If symptoms continued, they “should not be permitted to compete for

21 days or longer, if at all.”

247

By 1939, all NCAA players were required to

wear helmets,

248

while helmets were not mandatory in the NFL until 1943.

249

Again, it was the NCAA that adopted the first official return-to-play

guidelines for a concussion in 1994.

250

Although the NFL established the MTBI

Committee that same year, its chair, a rheumatologist named Dr. Elliot Pellman,

spent the following years fighting the link between serious brain disease and

concussions, despite all credible medical evidence to the contrary. It was only

after Commissioner Roger Goodell ordered mandatory neurological baseline

testing for the 2007 season that the NFL began to take concussions seriously as

a specific health concern.

251

To be fair, the NFL had been trying to limit head

injuries through rule changes for years. For example, in 1982 it became illegal

“to use the crown or the top of [the] helmet against a passer, a receiver in the

act of catching a pass, or a runner who is in the grasp of a tackler.”

252

In 1995,

the rule was expanded to prevent defensive players from lowering their heads

and using the facemask and forefront of their helmet against the opponent.

253

However, it was only after Roger Goodell testified before Congress in 2009,

where members of Congress had accused the league of denying proper care to

players and comparing the NFL to the tobacco industry, that the NFL really

began to move forward to implement proper safeguards, requiring teams to

obtain the services of an independent neurologist to examine players suspected

of a concussion, rather than just relying on the team physician.

254

That same

year, Commissioner Goodell disbanded the discredited MTBI Committee and

instituted a new panel, the Head, Neck and Spine Committee (HNS) headed by

247

. CONCUSSIONS & THE COURTHOUSE 24 (AM. ASS’N FOR JUSTICE 2015), available at

https://www.justice.org/research/concussions-and-courthouse.

248

. Concussion Timeline, supra note 105.

249

. Evolution of the Rules: From Hashmarks to Crackback Blocks, NFL (Aug. 2, 2013),

http://www.nfl.com/news/story/0ap1000000224872/article/evolution-of-the-rules-from-hashmarksto-crack-

back-blocks.

250

. Concussion Timeline, supra note 105.

251

. Dave Goldberg, Goodell Pushes for NFL Concussion Summit, WASH. POST, May 3, 2007,

http://www.washingtonpost.com/wp-dyn/content/article/2007/05/03/AR2007050300031.html.

252

. Evolution of the Rules: From Hashmarks to Crackback Blocks, supra note 249.

253

. Id.

254

. Alan Schwarz, N.F.L. to Shift in Its Handling of Concussions, N.Y. TIMES, Nov. 22, 2009,

https://www.nytimes.com/2009/11/23/sports/football/23concussion.html.

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56 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

noted neurological surgeons and granted autonomy to operate without undue

influence from the league.

255

The HNS eventually published the NFL’s first

true concussion protocol in 2011, adopting the “Madden Rule,” named after

famed football coach and sports analyst John Madden, which required

concussed players to be removed from the game, taken into the locker room

with medical staff in attendance, and not be permitted to return to play. The

HNS adopted the motto, “when in doubt, leave them out.”

256

The HNS also

adopted a new sideline concussion assessment protocol utilizing a symptoms

checklist, a neurological evaluation, a cognitive evaluation, and a balance

assessment. These assessments were based on two sources: (1) a survey of NFL

team medical staff completed the prior season, and (2) recommendations from

the 3

International Consensus Conferences on Concussion in Sport, which had

met in Zurich in 2008.

257

In 2013, the NFL refined its protocol to include an “eye in the sky”—a

certified athletic trainer who scanned the field for injured players while sitting

in a stadium box and monitoring video feeds. Each team was also required to

have a neuro-trauma expert physician on the sidelines who was unaffiliated with

the team, and who could be consulted by the team or a player. A concussed

player was required to be evaluated by an independent unaffiliated concussion

expert before the player was allowed to return to play.

258

255

. Alan Schwarz, N.F.L. Picks New Chairmen for Concussion Committee, N.Y. TIMES, Mar. 16, 2010,

https://www.nytimes.com/2010/03/17/sports/17concussions.html.

256

. Michael David Smith, NFL to Teams: Pull Players If You Even Suspect a Concussion, NBC SPORTS

(Sept. 1, 2011), http://profootballtalk.nbcsports.com/2011/09/01/nfl-to-teams-pull-players-if-you-even-sus-

pect-a-concussion/.

257

. National Football League, NFL Announces New Sideline Concussion Assessment Protocol, NFL

(July 26, 2012), http://www.nfl.com/news/story/09000d5d81e78cc4/article/nfl-announces-new-sideline-con-

cussion-assessment-protocol. The first International Symposium on Concussion in Sport was held in Vienna,

Austria, in 2001, organized by the International Ice Hockey Federation, the Federation Internationale de

Football Association Medical Assessment and Research Centre, and the International Olympic Committee

Medical Commission. Mark Aubry et al., Summary & Agreement Statement of the First International

Conference on Concussion in Sport, Vienna 2001, 36 BRIT. J. SPORTS MED. 6 (2002). The recommendations

that grew out of this Symposium included a wide-ranging protocol that included obtaining clinical histories

of players; sideline evaluation with neurological assessment and mental status testing; post-concussion

neuroimaging; a stepwise return to play protocol, consideration of rule changes for safer play; and player

education. Id. The authors of the recommendations included some of the leading neurosurgeons and scientists

around the world, including the United States, Canada, and Australia. Id. The symposium was held again in

2004 (Prague), 2008 (Zurich), 2012 (Zurich), and 2016 (Berlin). See generally Paul McCrory et al.,

Consensus Statement on Concussion in Sport—the 5

International Conference on Concussion in Sport Held

in Berlin, October 2016, 51 BRIT. J. SPORTS MED. 838 (2016).

258

. NFL’s 2013 Protocol for Players with Concussions, NFL (Aug. 22, 2014),

http://www.nfl.com/news/story/0ap2000000253716/article/nfls-2013-protocol-for-players-with-concus-

sions.

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2018] POPULAR CULTURE AND THE NFL 57

Further refinements to the protocol were made in 2015 to connect the NFL

Team Physician, the Athletic Trainer Consultant, and the Unaffiliated

Neurological Consultant by radio, and to give the Athletic Trainer Consultant

in the booth a radio connection to the Side Judge so play could be immediately

stopped for a player evaluation. The Team Physician was also required to

consult with his “concussion team” regarding a player’s return to play, but

retained the ultimate decision-making authority.

259

Most recently, the HNS altered the protocol to define “fencing responses”

260

and “impact seizure”

261

as two new “No-Go” criteria that justify immediate

removal from play without return to the game. Further, the changes established

a pilot program to require an Unaffiliated Neurological Consultant to monitor

all games from the league office, who could contact the team medical staff if a

player was spotted who might require an evaluation.

262

The above shows that, while slow to join the party, the NFL eventually

stopped refuting the scientific evidence and is following other sports in

implementing and refining concussion protocols to improve player safety.

263

However, in light of the more recent evidence that even sub-concussive hits can

contribute to CTE, it can be argued that the protocols are insufficient to prevent

brain damage and the sport must be fundamentally altered to protect the players.

259

. 2015 Concussion Protocol Checklist, NFL (Oct. 10, 2015),

http://www.nfl.com/news/story/0ap3000000553510/article/2015-concussion-protocol-checklist.

260

. Dustin Fink, The Fencing Response, CONCUSSION BLOG (May 9, 2015), https://theconcus-

sionblog.com/2015/05/09/the-fencing-response/.

The fencing response is an unnatural position of the arms following a concussion.

Immediately after moderate forces have been applied to the brainstem, the forearms are

held flexed or extended (typically into the air) for a period lasting up to several seconds

after the impact. The Fencing Response is often observed during athletic competition

involving contact, such as football, hockey, rugby, boxing and martial arts. It is used as an

overt indicator of injury force magnitude and midbrain localization to aid in injury

identification and classification for events including, but not limited to, on-field and/or

bystander observations of sports-related head injuries.

Id.

261

. Jeffrey Englander et al., Seizures After Traumatic Brain Injury, 95 ARCHIVES PHYSICAL MED. &

REHABILITATION 1223 (2014) (explaining that players whom have a traumatic brain injury can have seizures

post-impact, signaling the likelihood of a concussion).

262

. NFL Implements Modifications to League’s Concussion Protocol, NFL (Dec. 24, 2017),

http://www.nfl.com/news/story/0ap3000000897109/article/nfl-implements-modifications-to-leagues-con-

cussion-protocol.

263

. Concussion protocols were instituted in world soccer play, the NHL, NBA, MLB, NCAA, and even

high school and youth sports.

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58 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

E. The Enlightened Fan

Portrayals of football in popular culture have played a multi-facetted role in

elevating the game of football from a pastime to an addiction and in bringing

about the CTE crises. In terms of educating and warning viewers about the

current risks of brain damage from playing the sport, the primary piece of

popular culture in terms of major motion pictures is the 2015 film

Concussion.

264

Based on a true story, this film tells the dramatic story of Dr.

Bennet Omalu’s discovery of the disease in football players, his naming of this

killer, and his fight for the NFL to recognize and take responsibility for the toll

the game of football takes upon some of its best players. In one of the most

powerful scenes in the film, Dr. Omalu (Will Smith) stands up for the truth in

the face of those who want to silence him.

265

The following dialogue takes

place when Omalu and his ally, Dr. Julien Bailes (Alec Baldwin), a former team

physician for the Pittsburgh Steelers, meet with Dr. Joseph Maroon (Arliss

Howard), the current neurosurgeon for the Steelers, to discuss how to proceed

in light of Dr. Omalu’s findings:

DR. OMALU:

Dr. Maroon, would you like a drink?

DR. MAROON:

I said 5 minutes.

DR. BAILES:

He doesn’t want a drink.

DR. MAROON (to Omalu):

Your conclusions totally misrepresent the facts. To say that

Webster, and Long, and Waters were killed by football is . . .

DR. OMALU (interrupting):

Is fallacious reasoning. Yes, I know.

DR. MAROON (to Bailes):

Where’s he going with this?

DR. BAILES:

Just hear him out.

264

. CONCUSSION (Columbia Pictures 2015).

265

. Id. A clip of this scene is available at Jodi Guglielmi, Will Smith Takes on the Football

Establishment in Exclusive Clip From Concussion, PEOPLE, Nov. 17, 2015, http://people.com/movies/will-

smith-takes-on-the-football-establishment-in-exclusive-clip-from-concussion/.

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DR. OMALU:

I would like to propose a formal, controlled study of former and

current NFL football players. We will bring together the

greatest minds in America to solve the problem. We should be

working together.

DR. MAROON:

Who do you think you’re talking to?

DR. OMALU:

Excuse me?

DR. MAROON:

I was the President of the Congress of Neurological Surgeons.

DR. OMALU (interrupting):

And I was the man who performed the autopsies on Mike

Webster, Terry Long. Your men. Men under your care. Do you

know what Mike Webster’s wife said? She said that if she had

known that Mike was sick, she would have done more for him.

But he died in disgrace. Your man. You took an oath. Tell the

truth.

DR. MAROON:

The truth? . . . . The truth is that the NFL is a blessing and a

salvation, my friend. We employ hundreds of thousands of

people. We send thousands and thousands of poor kids to

school. The ownership of this football club has donated

millions of dollars to countless charities. Do you want me to

go on?

DR. OMALU:

That won’t be necessary.

DR. MAROON:

Oh, it is necessary. Football is the most popular sport in

America because it is so goddamn fantastic!

(pointing out the window of the restaurant which offers a

panoramic view of Pittsburgh)

And that right there? (pointing to the Steelers football stadium)

That is the beating heart of this city. And you want to, what,

end it? You want to fold up the National Football League?

DR. OMALU:

I want to solve a problem.

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DR. MAROON:

Who are you?

DR. OMALU:

What are you asking?

DR. MAROON:

You’re a pathologist. You perform autopsies.

DR. OMALU:

Yes, I am a mere pathologist. That’s it. That’s all I am.

DR. MAROON:

Do you have any idea of the impact of what you’re doing?

DR. OMALU:

Yes, I do.

DR. MAROON:

Do you understand the impact of what you are doing? If just

10% of mothers in America decide that football is too

dangerous for their sons to play, that is it. It is the end of

football. Kids, colleges, and eventually, it’s just a matter of

time, the professional game.

DR. BAILES:

Joe, he does autopsies. He’s not in the outcome business.

DR. MAROON:

He has no business.

DR. OMALU:

Do you know what history does to people, trained physicians

who ignore science?

DR. MAROON (interrupting):

Well . . .

DR. OMALU (angry):

Sir, I am not done! History laughs. If you continue to deny my

work, the world will deny my work. But men, your men

continue to die, their families left in ruins. Tell the truth.

(Omalu points his finger at Maroon’s face) Tell the truth.

DR. MAROON:

You sure . . . you sure you want to do this?

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2018] POPULAR CULTURE AND THE NFL 61

DR. OMALU:

I would ask you that same questions, Dr. Maroon.

266

Perhaps Dr. Omalu’s passion and tenacity portrayed in the prior scene is not

all that surprising given that his true surname of Onyemalukwube translates as:

“If you know, come forth and speak.”

267

The film Concussion also reminds viewers that the bottom-line for the NFL

is profit, and how much pressure is placed on team doctors to keep the game

going. In the following scene, Dr. Omalu takes Dr. Bailes to the lab so he can

view the slides of Dr. Omalu’s brain autopsies on deceased players. Dr. Cyril

Wecht (Albert Brooks), Dr. Omalu’s boss at the Allegheny County Coroner in

Pittsburgh, is also present.

268

(after viewing the slides of the brains of Andre Waters and Justin Strzelczyk)

DR. BAILES:

I just kept sending them back out there.

DR. WECHT:

What the hell were you thinking?

DR. BAILES:

You’ve got to be a part of it. You’ve got to be on the sidelines

with them to understand. Whatever it takes to keep them in the

game, to keep the whole thing going. Tape, needles, Vicodin,

Toradol, Lidocaine, Percocet, Lexapro, Zoloft. Have I left

anything out? It’s tires and oil. Just mechanics trying to keep

the cars on the racetrack.

266

. CONCUSSION, supra note 264; Concussion (2015) Movie Script, supra note 62. In 2002, the real Dr.

Bailes “cheered the portrayal of the disease’s emergence,” characterizing it as “‘very accurate.’” Adam Smeltz,

‘Concussion’ Takes Few Detours From Reality, Former Steelers Physician Says, PITTSBURGH

POST-GAZETTE, Dec. 25, 2015, http://www.post-gazette.com/ae/movies/2015/12/26/Former-Pittsburgh-

Steelers-team-physician-Julian-Bailes-Concussion-movie-takes-few-detours-from-reality/sto-

ries/201512260025. However the film is not “perfect, especially in its portrait of longtime Steelers neurosurgeon

Joseph Maroon . . . . While the screenplay shows Dr. Maroon resisting Bennet Omalu, the former Allegheny

County pathologist who discovered CTE, Dr. Bailes said Dr. Maroon was neither an obstructionist nor a villain.”

Id. According to Bailes:

‘Once [Dr. Maroon] understood what we were dealing with, he really brought it to the NFL.

That shone a light and helped us get to the bottom of the science and ultimate acceptance,’

said Dr. Bailes, a neurosurgeon who collaborated with Dr. Omalu. ‘He facilitated that once

he understood what we were dealing with.’

Id.

267

. JEANNE MARIE LASKAS, CONCUSSION 139 (Random House 2015).

268

. CONCUSSION, supra note 264.

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DR. WECHT:

Yeah, well, it’s not medicine. I don’t know what it is.

DR. BAILES:

It’s business.

269

While Concussion made a mark, it was not the success predicted. The

movie fumbled at the box office, earning only $48 million on a film with a $35

million budget.

270

In an interview with Vanity Fair, actor Will Smith, who stars

as Dr. Omalu, expressed his surprise and concern that Concussion had not had

a bigger influence on the public’s view of the game in light of the strong medical

evidence, which clearly showed there were important issue surrounding the

player health.

271

“I thought Concussion would have a bigger impact. I knew it

would be hard because people love the game, but the science is so

overwhelming, and it’s something that we really need to take a look at,” Smith

explained. He had anticipated “that people would get behind the mission” of

changing the way football is played to make it safer.

272

He was surprised that

fans just wanted to ignore the truth and pretend there was no problem.

273

“[P]eople were absolutely like, ‘Nope, I’m not stopping watching football, so I

don’t want to know.’”

274

It has been suggested that the reason Concussion did not live up to the

expectation that its release would result in a major public relations crises by

damaging the NFL brand was that the final script of the film was not “nearly as

damning to the sport as some believed it would be.”

275

It is certainly true that

film scripts go through numerous drafts and that even filmed scenes end up on

the cutting room floor for editing reasons, sometimes scenes in early drafts of a

script can be more enlightening than the ones which eventually make it to the

screen. Not surprisingly, a number of scenes where removed from earlier drafts

of Concussion.

276

In this instance, however, the media scuttlebutt was that Sony

269

. Id.

270

. Erika Harwood, Will Smith Thought Concussion Was Going to “Have a Bigger Impact”, VANITY

FAIR, Sept. 27, 2016, https://www.vanityfair.com/hollywood/2016/09/will-smith-concussion-reaction.

271

. Id.

272

. Id.

273

. Id.

274

. Id.

275

. Abraham D. Madkour, Why ‘Concussion’ Did Not Have Impact Many Expected, SPORTS BUS. J.

(Jan. 18, 2016), https://www.sportsbusinessdaily.com/Journal/Issues/2016/01/18/Opinion/From-The-Execu-

tive-Editor.aspx.

276

. Daniel Roberts, Sony Cut Scenes From Will Smith’s ‘Concussion’ to Avoid Angering NFL,

FORTUNE, Sept. 2, 2015, http://fortune.com/2015/09/02/sony-concussion-cut-scenes-nfl/.

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2018] POPULAR CULTURE AND THE NFL 63

had cut scenes in order to pacify the NFL.

277

The New York Times broke the

story, which quoted a July 30, 2014, email saying a Sony lawyer had “taken

most of the bite” out of the movie. In addition, the article referenced an August

1, 2015 email that stated some “unflattering moments for the NFL” had been

removed or changed.

278

For example, a scene implying that the Commissioner of the NFL, Roger

Goodell (Luke Wilson) was “part of a wide NFL scheme to cover up the

connection between professional football and brain damage” never made it to

the screen. Peter Landesman, the writer and director of the film, revealed to The

Hollywood Reporter that the scene “had been cut from the film” due to “legal

concerns.”

279

Because Concussion is based on a true story, Landsman cut the

scene from the shooting script due to concerns that the scene, which “was based

on a second-hand account,” could possibly result in a defamation suit.

280

A script titled “Untitled Concussion,” dated May 30, 2014 that contains the

scene was obtained by The Hollywood Reporter.

281

The scene opens with the

commissioner taking a midnight phone call.

282

On the other end of the phone is

Dr. Maroon (Arliss Howard), the Steelers’ team neurosurgeon, and Dr. Elliott

Pellman (Paul Reiser), the former chairman of the NFL Mild Traumatic

Brain-injury Committee.

283

Arguably, criticisms of the 1994 appointment of

Pellman as an odd choice for the position were well placed given that he was a

rheumatologist; not a neuropsychologist nor a neurologist.

284

184

OVER BLACK SCREEN WE HEAR A PHONE RINGING.

Two rings, three. SNAP. Light comes on. Revealing—

277

. Id.

278

. Ken Belson, Sony Altered ‘Concussion’ Film to Prevent N.F.L. Protests, Emails Show, N.Y. TIMES,

Sept. 1, 2015, https://nyti.ms/1KpMX4V.

279

. Seth Abramovitch, ‘Concussion’ Script: The Explosive Roger Goodell Scene That Sony Cut,

HOLLYWOOD REPORTER (Sept. 2, 2015), https://www.hollywoodreporter.com/news/concussion-script-explo-

sive-roger-goodell-819850.

280

. Id.

281

. Id.

282

. Peter Landsman, Scene From “Untitled Concussion”, HOLLYWOOD REPORTER, May 30, 2014,

https://www.hollywoodreporter.com/sites/default/files/cus-

tom/PDF/Goodell%20Concussion%20Watermark.pdf (last visited Dec. 13, 2018).

283

. Abramovitch, supra note 279.

284

. Id. Pellman’s “name would later appear 26 times in a lawsuit contending the NFL attempted to

conceal connections between football and CTE.” Id. In 2007, “Pellman resigned from the committee, less

than one year after” Goodell became commissioner. Id.

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64 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

185

INT. BEDROOM – ROGER GOODELL’S MANSION –

GREENWICH, CT – NIGHT. Clock reads midnight.

GOODELL (picking up):

What is it?

MAROON/PHONE (Over):

It’s Joe. I have Elliot on. We have a serious problem.

(and we INTERCUT--)

PELLMAN: (in his den, in a robe)

Dave Duerson killed himself today.

Goodell slips out of bed away from his sleeping wife. Takes

the phone call into the hall. Now ADD--

MAROON: (in running clothes, in his kitchen)

He didn’t just kill himself. He shot himself in the chest,

Roger. In the heart.

GOODELL:

Jesus Christ.

MAROON:

He left a note. He wanted his brain donated. To be

looked at. For CTE.

GOODELL:

Good God. Was he symptomatic?

MAROON:

I thought he was just an asshole.

Goodell’s gone to stand at a window looking out on a

massive lawn sloping down to the Long Island sound.

MAROON (CONT’D):

Roger.

GOODELL:

Yeah.

MAROON:

For the brain’s last act to not just die, but preserve itself

in the act of killing, humans don’t do that. (then) We

can’t explain it. This is going to unravel.

285

. Landsman, supra note 282.

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2018] POPULAR CULTURE AND THE NFL 65

In the prior scene in the earlier script, the viewer sees Duerson’s

kitchen and laid out on his kitchen table is an issue of Sports

Illustrated. The cover piece says “CONCUSSIONS” (the word

superimposed over Steelers linebacker JAMES HARRISON

mercilessly spearing a receiver). And photos of an ex-wife.

Children. Parents. A portrait of himself in a Chicago Bears

uniform. A typed note:

My mind slips. Thoughts get crossed. Cannot find words.

Feel really alone. Eyesight blurry. Something is seriously

damaged in my brain. I’m thinking of all the NFL

players. I cannot tell you how many times I saw stars in

games, but I know there were times I “woke up” hours after

a game, and we were all at dinner.

Now [Duerson] goes from mirror to the note, adds: “Please,

give my brain to be examined. They were right.”

Now we see the gun. .38 Special. Duerson palpates his breast

bone for his heart. Puts the gun muzzle there. Eyes wide.

Crying. Goodbye. And--

CUT TO BLACK

Pause, then-- BANG!

286

Additional scenes from this earlier script were also published by USA

Today. In an email to For The Win, USA Today Sports, Landesman called this

version the “first draft” and cautioned while it was the “[s]ame bones as the

movie,” the first draft and final script contained too many differences “to even

address.”

287

The writer-director also admonished that “any changes made to the

film should not be portrayed as cowering to the NFL but rather as a way of

making the movie ‘better, richer and fairer’ by removing scenes that may have

left it open to criticism from a league notorious for its aggressive media arm.”

288

While there are no scenes in the film that really focus on the legal and

monetary concerns surrounding the CTE crises, the “draft” script contained an

interesting conversation among officials from the NFL, Fox Sports, ESPN, and

the lawyers:

286

. Id.

287

. Chris Korman, The Chilling First Script of ‘Concussion’ Is Everything the NFL Doesn’t Want You

to See, USA TODAY: FOR THE WIN, Sept. 2, 2015, https://ftw.usatoday.com/2015/09/the-chilling-first-script-

of-concussion-is-everything-the-nfl-doesnt-want-you-to-see.

288

. Id.

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FOX SPORTS LAWYER (without inflection or emotion):

What’s the prognosis. How many years before this dam

breaks?

(INTERCUTTING with--)

BERN:

What you’re asking is, how many more clean years of profit

can you get out of professional football?

(now adding)

ESPN LEGAL – BRISTOL, CONNECTICUT (AND ITS

LEAFY VIEW)

ESPN LAWYER (with his own crew):

Before people stop buying team jerseys--

HICKS:

Before we have to put warning labels on our sport.

ASSOCIATE:

Sixteen years. Give or take. (prepared for this)

We expect television ratings to steadily rise for ten, then hit

a steep decline in year eleven. Merchandise – hats, player

jerseys, etcetera – start sliding in five. League and team

profits are currently at 9-billion. Ancillary profits –

concessions, third-party product boost, endorsement deals

– at roughly 11-billion per annum. Television advertising

dollars is at 4.6-billion. Average team value is currently at

1.4-billion. Dallas Cowboys the high at 2.1, Oakland

Raiders low at 825-million. We expect all those

benchmarks to rise over the next five years, skid sideways

for three, then start to slide.

HICKS (dutifully taking notes):

When we go off a cliff. No one denies that. They all let it

sink in.

289

It has also been surmised that the repercussions of the film were far from

what was anticipated due to the NFL’s smart strategy of basically ignoring the

pre-release publicity for the film.

290

While Concussion “was positioned early

289

. Id.

290

. Madkour, supra note 275.

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2018] POPULAR CULTURE AND THE NFL 67

as a film that would damage the NFL brand, the league didn’t fight it.”

291

Instead, it engaged in “a disciplined approach of not attacking the plot” thereby

“preventing any controversial news stories to build.”

292

Rather than focusing

on the film, the NFL chose to focus on the future by highlighting its efforts to

make the game safer. When asked about the film after attending an event

recognizing “the three winners of the second Head Health Challenge, an open

innovation program sponsored by the NFL and GE to invest up to $20 million

in new technologies that might be better able to diagnose or prevent brain

injuries,” NFL Commissioner, Roger Goodell, simply replied:

We are not focused on a movie, we’re focused on continuing to

make progress . . . . We have incredible progress that has been

made, not only in rule changes, but also in what we saw today

with materials and protection that will prevent these injuries

from happening. From protocols that we implemented,

research we are doing, coaching changes we have had, in taking

certain techniques out of the game. What you are seeing is an

incredible amount of progress and real impact.

293

If the league had chosen to “loudly criticize the film’s merits” it is likely it

would simply have piqued “public curiosity” the accuracy of the film, which

ultimately would only have increased ticket sales.

294

Perhaps the NFL’s

concerns about the film were not unfounded. Prior to the film’s general release

to the public, there was a special screening of Concussion by Sports Illustrated’s

Monday Morning Quarterback for “70 former NFL players and their

families.”

295

After watching the film, Keith McCants, a former linebacker,

reacted by noting “I watch[ed] this movie and I know we were paid to hurt

people . . . . We were paid to give concussions. If we knew that we were killing

people, I would have never put on the jersey.”

296

291

. Id. Brand image is extremely important, in that it has a direct correlation with fan loyalty and

behavior. Hans H. Bauer et al., Brand Image and Fan Loyalty in Professional Team Sport: A Refined Model

and Empirical Assessment, 22 J. SPORT MGMT. 205, 205-07 (2008). Branding also plays a role in creating

“emotionally engaged fans, increased game viewership, and increased purchases of licensed merchandise.”

Robert Passikoff, NFL Teams By the (Loyalty) Numbers, BRAND KEYES (Sept. 11, 2015), https://brand-

keys.com/nfl-teams-by-the-loyalty-numbers/.

292

. Id.

293

. Jenny Vrentas, The NFL’s Reaction to the ‘Concussion’ Movie Starring Will Smith, SPORTS

ILLUSTRATED, Dec. 23, 2015, https://www.si.com/mmqb/2015/12/23/nfl-reaction-concussion-movie-will-

smith-bennet-omalu.

294

. Madkour, supra note 275.

295

. Chris D’Angelo, Will Smith Disappointed ‘Concussion’ Didn’t Have More Impact on NFL,

HUFFINGTON POST (Sept. 28, 2016), https://www.huffingtonpost.com/entry/will-smith-concussion-

nfl_us_57eb147ce4b024a52d2b6e56.

296

. Id.

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The NFL’s approach to Concussion may simply have resulted from the

lesson it learned from its earlier response to another movie, League of Denial,

which raised the clarion call about the link between CTE and football and the

dangers of concussions. Aired by PBS Frontline in 2013, this powerful

documentary investigates the growing link between CTE and concussions

incurred while playing football, telling the story “through the people who

discovered . . . [the] size, seriousness and specific shape”

of the CTE crises.

297

It also highlights the NFL’s efforts “to obfuscate, obscure, bury and discredit

the[] hard truths” revealed in the film.”

298

Originally, ESPN collaborated with

PBS Frontline on the documentary project. However, in 2013, “NFL officials

met with ESPN executives . . . and voiced concern over the documentary’s

portrayal of the league.”

299

In response, ESPN dropped the project, thus creating

public perception that League of Denial was the film “the NFL didn’t want

viewers to see.”

300

Arguably, NFL executives did not want to make the same

public relations error by reacting to the content of Concussion.

Unfortunately, in addition to serving as the Hermes of CTE, popular culture

has played an important role in creating a climate in which players are

encouraged to fall victim to the disease. While the NFL is certainly culpable

for the plight that players face today, through film and television, popular

culture is also one of the primary suspects due to its contribution of creating a

passion for the game of football that has elevated it to America’s number one

pastime.

301

In addition, popular culture has arguably assisted in the

de-sensitization of fans and viewers to the plight of their gridiron heroes. The

primary suspect for creating this change is television.

297

. David Roth, Into the Light, SB NATION (Oct. 9, 2013), https://www.sbna-

tion.com/nfl/2013/10/9/4817818/league-of-denial-nfl-concussion-crisis-authors-interview-pbs-frontline. See

League of Denial: The NFL’s Concussion Crisis, PBS: FRONTLINE (Oct. 8, 2013),

https://www.pbs.org/wgbh/frontline/film/league-of-denial/.

298

. Id.

299

. Madkour, supra note 275.

300

. Id. The League’s conduct regarding League of Denial is not the only time that the NFL has pressured

companies to drop films or shows which portray the League in an unfavorable light. See generally James

Andrew Miller & Ken Belson, N.F.L. Pressure Said to Lead ESPN to Quit Film Project, N.Y. TIMES, Aug.

23, 2013, https://www.nytimes.com/2013/08/24/sports/football/nfl-pressure-said-to-prompt-espn-to-quit-

film-project.html?pagewanted=all. “In 2004, the N.F.L. complained to the chief executive of the Walt Disney

Company, the parent company of ESPN, about a hard-hitting television series on the sports network that

delivered an unsavory depiction of professional football players. The show ended after one season.” Belson,

supra note 278.

301

. Norman, supra note 1. “American football, under attack from critics in recent years, has lost some

of its popularity but is still the champion of U.S. spectator sports—picked by 37% of U.S. adults as their

favorite sport to watch. The next-most-popular sports are basketball, favored by 11%, and baseball, favored

by 9%.” Id.

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F. A Match Made in Heaven

In American society today, media sources have grown in impact. Almost

from the moment of their first cry of victory, potential sports fans are surrounded

by a world replete with a plethora of electronic gadgets, tools, and avenues of

technology, which promulgate popular culture.

302

In addition to, perhaps

playing football or attending games with family of friends, chances are that the

budding fan’s most frequent exposure to a major component of popular

culture—the game of football—will be via the powerful device of the

television.

303

It is interesting to note that a 1998 ESPN poll revealed that 54%

of NFL fans would rather attend a football game in person than see the game at

home.

304

In 2011, the poll revealed “a precipitous drop,” with only 29%

preferring to actually attend games.

305

According to the owner of the Miami

Dolphins, Steve Ross, “I think the biggest challenge an owner of any sports

team in any league today has today is knowing that the fan experience at home,

watching [the game] on TV, is probably a better experience today than it is

going there live.”

306

And no sport is better suited for television viewing than

football.

1. Football and Television: The Perfect Union

It has been observed that not “all sports” are “created equal” when it comes

to television viewing.

307

“The most popular sports on television are those best

served by the medium’s limitations” in terms of what cameras and microphones

can do.

308

Further, the characteristics of certain sports make them ideal

302

. GERBNER ET AL., Living with Television: The Dynamics of the Cultivation Process, in PERSPECTIVES

ON MEDIA EFFECTS 17, 23 (1986), available at http://wiki.commres.org/pds/CultivationTheory/Liv-

ingWithTelevision_TheDynamicsoftheCultivationProcess.pdf.

303

. L.J. Shrum, Effects of Television Portrayals of Crime and Violence on Viewers’ Perceptions of

Reality: A Psychological Process Perspective, 22 LEGAL STUD.F. 257, 257 (1998) (noting that “[f]ew would

argue that television is not a powerful medium” with “its ability to capture both our attention and our

imagination. Empirical evidence of this power is demonstrated not only by the sheer frequency with which

Americans view television . . . , but also by its centrality in American life.”).

304

. Darren Rovell, NFL Taking Note That for Many Fans, Watching Games on TV Beats Going to

Stadiums, ESPN (Nov. 16, 2012), http://www.espn.com/espn/otl/story/_/id/8636927/nfl-taking-note-many-

fans-watching-games-tv-beats-going-stadiums.

305

. Id.

306

. Id.

307

. Stanley J. Baran, Sports and Television, in THE BUSINESS OF SPORTS 143-146 (Jones & Bartlett

Learning 2d ed., 2004). See Stanley J. Baran, Sports and Television, MUSEUM OF BROADCAST

COMMUNICATIONS – ENCYCLOPEDIA OF TELEVISION, http://www.museum.tv/eotv/sportsandte.htm (last

visited Dec. 13, 2018).

308

. Baran, Sports and Television, supra note 307 (quoting Julie Talan).

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70 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

candidates to be broadcast.

309

According to long-time director of Monday Night

Football, Chet Forte, “It’s impossible to blow a football game . . . . Football

works as a flattened sport. Its rectangular filed fits on the screen far more readily

than, for example, golf’s far-flung woods and sand traps. The football moves

right or left on the screen and back again.”

310

Further, football’s “limited

repertoire - kick, pass, and run--sets it apart from, say, baseball, where the range

of possibilities for the ball and the players at any given moment is enormous.”

311

Emmy award winning football director, Sandy Grossman,

312

found that “[t]he

reason (the gridiron) is easier to cover is because every play is a separate story.

There’s a beginning, a middle, and an end, and then there’s 20 or 30 seconds to

retell it or react to it.”

313

Sustaining the interest of the viewer is also of

paramount importance to the success of a televised sport. Arguably, one of the

reasons football is so exciting is that:

Any pass can produce a touchdown or an interception. In

contrast, the first three quarters of a basketball game usually

serve only to set up the last three minutes and much of soccer’s

action happens at mid-field, yards and yards away from the goal

(and a potential exciting save or game-saving score).

314

Another characteristic of football that makes it ideal for television is its

structure of time-outs, quarters, and a half-time. “Those covering and those

watching the event can establish a rhythm that allows for more-or-less natural

insertion of commercials and visits to the refrigerator.”

315

In contrast, “[s]occer

has continuous action, as does hockey, which makes commercial insertion more

complex.”

316

Also, as a “visual medium,” television “lives by the pictures it offers its

viewers . . . . [F]ootball offers spectacle -big, full, beautiful stadiums, lovely

playing surfaces, the blimp and cheerleaders . . . .”

317

Finally, “[n]othing adds

to visual variety like physical action, people moving and competing. In football

there are incredible tests of strength and aggression.”

318

In 2012, legendary

309

. Id.

310

. Id.

311

. Id.

312

. Richard Sandomir, Sandy Grossman, Maestro of N.F.L. on TV, Dies at 78, N.Y. TIMES, Apr. 3, 2014,

https://www.nytimes.com/2014/04/04/sports/sandy-grossman-maestro-of-nfl-on-tv-dies-at-78.html.

313

. Baran, Sports and Television, supra note 307.

314

. Id.

315

. Id.

316

. Id.

317

. Id.

318

. Id.

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2018] POPULAR CULTURE AND THE NFL 71

sports dealmaker, Barry Frank, noted that the game of football “is tailor-made

for television.”

319

2. The Man Who Officiated at the Marriage Between Football and Television

It is hard to imagine, but the NFL was not always America’s game. At the

start, “pro football was plagued by fan apathy” and was slow to grow in

popularity.

320

In fact, the game used to be “equated to pro wrestling in terms of

national respect.”

321

The mastermind behind the game’s titanic success was Pete

Rozelle, who became commissioner of the NFL in 1960.

322

Known as “the Boy

Czar,” Rozelle’s most important achievement was “wedding his league to that

great American pastime -television.”

323

Ultimately this union empowered the

NFL via television and paid commentators to dictate the way fans watch football

and believe the game should be played.

Rozelle’s powerful public relations campaign for the NFL was to transform

every game “into Waterloo and every player into an epic hero,”

324

including

creating its own “greatest hits” via NFL Films.

325

NFL films has been described

as “perhaps the most effective propaganda organ in the history of America.”

326

Currently owned by the NFL, “[s]ince the early 1960s . . . . NFL Films [has

been] a corporate tool proclaiming the professional football exemplifies

American society by embodying the characteristics of teamwork, manliness,

perseverance, courage, discipline, sacrifice, and leadership.”

327

Over 10,000

319

. Rovell, supra note 304.

320

. Peter King, The Path to Power How Did Pro Football Become, At Century’s End, the Titan of

American Sports? Eight Landmarks, One from Each Decade of the NFL’s Existence, Were Critical to Its

Success, SPORTS ILLUSTRATED, Aug. 30, 1999, https://www.si.com/vault/1999/08/30/265643/the-path-to-

power-how-did-pro-football-become-at-centurys-end-the-titan-of-american-sports-eight-landmarks-one-

from-each-decade-of-the-nfls-existence-were-critical-to-its-success. The first professional football game

took place on November 12, 1892, when the Pittsburgh Athletic Club was defeated by the Allegheny Athletic

Association (AAA) football team. Birth of Pro Football, PRO FOOTBALL HALL OF FAME, http://www.profoot-

ballhof.com/football-history/birth-of-pro-football/ (last visited Dec. 13, 2018). What made the game

memorable was that—for the first time one—of the AAA players, William (Pudge) Heffelfinger, was paid

$500.00 to play in the game. Id. As a result, the game of professional football was born.

321

. Id. (quoting Wellington Mara, co-owner of the Giants and the franchise founder’s son).

322

. Id.

323

. Id.

324

. Rich Cohen, They Taught America How to Watch Football, ATLANTIC, October 2012,

https://www.theatlantic.com/magazine/archive/2012/10/they-taught-america-to-watch-football/309083/.

325

. TRAVIS VOGAN, KEEPERS OF THE FLAME: NFL FILMS AND THE RISE OF THE SPORTS MEDIA (2014).

326

. King, supra note 320.

327

. Id. at 5. See Ron Briley, Keepers of the Flame: NFL Films and the Rise of Sports Media by Vogan,

Travis, 42 J. SPORT HIST. 285, 285-86 (2015) (book review) (discussing how “NFL Films was the brainchild

of Ed Sabol,” and how “the Sabol family convinced [NFL Commissioner] Rozelle and the NFL to purchase

their company so that the league would have control over representation of its image and history.”); see also

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72 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

features have been produced by NFL Films since 1964, each with a “signature

style” that creates a “dramatic storyline” by employing microphones, close-ups,

and slow motion in order to “convey professional football’s pain and emotion

by situating the male body as an object of pleasure, desire, and consumption.”

328

Chris Wesseling, Ed Sabol, Founder of NFL Films, Dies at Age of 98, NFL (Feb. 10, 2015),

http://www.nfl.com/news/story/0ap3000000469569/article/ed-sabol-founder-of-nfl-films-dies-at-age-of-98.

328

. VOGAN, supra note 325 at 286. As portions of the Amended Master Complaint filed by the players

in the United States District Court for the Eastern District of Pennsylvania highlight:

• NFL Films focuses on violence as one of the NFL’s greatest selling points: the football

player as gladiator. To advance the NFL Defendants’ purpose, NFL Films has created

numerous highlight features that focus solely on the hardest-hits in pro football. These

featured videos are marketed and sold to advance the NFL’s culture of violence as

entertainment.

• The list of videos created by NFL Films glorifying violent plays includes, but is not limited

to, the following titles: “NFL: Moment of Impact” (2007); “NFL’s 100 Greatest Tackles”

(1995); “Big Blocks and King Size Hits” (1990); “The Best of Thunder and Destruction –

NFL’s Hardest Hits”; “NFL Films Video: Strike Force” (1989); “The NFL’s Greatest Hits”

(1989); “Crunch Course”; “Crunch Course II” (1988); “Crunch Masters”; “In the Crunch”

(1987); “NFL Rocks”; “NFL Rocks: Extreme Football” (1993).

• NFL Films created the “Top Ten Most Feared Tacklers” series that was shown on the NFL

Network. Now, it has its own section on the NFL’s website. These features are comprised

of videos highlighting the most vicious tacklers the NFL has ever seen. These videos

contain numerous explicit examples of how the NFL Defendants market and glorify the

violent nature of the NFL. The back cover of 2007 film “Moment of Impact” advertises the

film as follows: “First you hear the breathing, then you feel the wind coming through your

helmet’s ear hole. Suddenly you’re down, and you’re looking through your helmet’s ear

hole. Pain? That’s for tomorrow morning. Right now you’ve gotta focus – focus on the

play and try not to focus on the next moment of impact.”

• The entire message deemphasizes the acute and chronic risks associated with head impacts.

The 1990 film “Big Blocks and King Size Hits” prominently features a head-to-head

collision between Minnesota Vikings’ defender Jack Tatum and Oakland Raiders’ receiver

Sammy White in Super Bowl XI in which White’s helmet is knocked clear off his head. In

1993’s “NFL Rocks,” the late Junior Seau offers his opinion on the measure of a punishing

hit: “If I can feel some dizziness, I know that guy is feeling double [that].” In a segment of

the same film, glorifying gutsy receivers who expose themselves to big hits by going “over

the middle” of the field, former Houston Oilers receiver Ernest Givens is quoted as saying:

“I get knocked out a lot, I get concussions, I get broken noses, that is part of being a receiver,

that’s what separates you from being a typical receiver than a great receiver.” Former

Dallas Cowboys receiver Michael Irvin recites a similar unawareness of the risks of

concussions: “Before the game, I go to the [defensive backs] and tell them, ‘Hey, you know

I’ll trade a concussion for a reception!’”

• NFL Films, therefore, advances the NFL Defendants’ agenda to promote the most violent

aspects of NFL football and to urge players at every level of the game to disregard the

results of violent head impacts.

• The NFL Defendants, through NFL Films, promote a culture in which playing hurt or with

an injury is both expected and acclaimed in a mythical gladiator world. Through NFL

Films, the NFL has produced videos that praise players who embody the ethos of playing

hurt (for example, “Top Ten Gutsiest Performances”). This film and others like it celebrate

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2018] POPULAR CULTURE AND THE NFL 73

In essence, the films produced represent the ideology of “hegemonic

masculinity” which “refers to the social ascendancy of a particular version or

model of masculinity that, operating on the terrain of common sense and

conventional morality, defines what it means to be a man.”

329

The portrayals of

professional football players by NFL Films constitute a “culturally idealized

form of masculine character” which connects “masculinity to toughness and

competitiveness.”

330

As much as famous coaches or players, NFL Films has shaped the modern

game of football into “a contest more in tune with the speed and violence of

modern America than any other sport . . . . Football is blood and guts, the ticking

clock, sudden death, the sack, the blitz, the bomb -symbols of a nation locked

in endless wars.”

331

It also brilliantly manages to extol the virtues of the NFL,

while avoid all “[i]ssues that might cast the NFL in a negative light, such as the

impact of concussions or criminal activities beyond the playing field . . . .When

a topic such as racism was depicted, it was to celebrate the league’s success in

addressing prejudice.”

332

Pete Roselle’s NFL public relations campaign was also successful as a

result of the abilities of the TV sportscaster. “Sportscasters and their entire

apparatus involved in producing programs have become the definers” of pro

football and are “the interpreters of its meaning, and most important, a crucial

means by which hegemonic ideology is propagated and reproduced.”

333

players’ ability to play through the pain and injury and promote an expectation among

players and fans that players must and often do play through any injury, including MTBI.

• This culture encourages NFL players to play despite a head injury. Moreover, failure to

play through such an injury creates the risk that the NFL player will lose playing time, a

starting position, and possibly a career.

• Within this culture, the NFL Defendants purposefully profit from the violence they

promote.

• This culture of violence, sponsored and encouraged by the NFL Defendants, has too many

examples to provide in this Complaint.

Plaintiffs’ Amended Master Administrative Long-Form Complaint at ¶55-59, 61-64, In re Nat’l Football

League Players’ Concussion Injury Litig., No. 2:12-md-02323-AB (E.D. Pa. July 17, 2012).

329

. Robert Hanke, Hegemonic Masculinity in Thirty Something, 7 CRITICAL STUD. IN MASS COMM. 231,

232 (1990).

330

. Raewyn W. Connell, An Iron Man: The Body and Some Contradictions of Hegemonic Masculinity,

in SOCIOLOGICAL PERSPECTIVES ON SPORT: THE GAMES OUTSIDE THE GAMES 141, 141, 148 (Routledge

2015).

331

. Cohen, supra note 324.

332

. Briley, supra note 327.

333

. GEORGE H. SAGE, POWER AND IDEOLOGY IN AMERICAN SPORT: A CRITICAL PERSPECTIVE 129

(1990).

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3. Raised on Madden: The Tougher You Are, the Cooler You Are

Another prime illustration of how the NFL and its marriage to television

encouraged fans to worship and glorify those players who can have “their bell

rung” and keep on going was the All-Madden team.

In 1984, Rams coach, John Robinson, suggested to his lifelong friend, John

Madden, that he create his own roster “that . . . best represented pro football”

with member who “played the game the way he thought it should be played.”

334

Thus was born the “The All-Madden” team. Madden, the former head coach

who lead the Oakland Raisers to a Super Bowl XI victory in 1976, turned color

commentator for NFL telecasts following his retirement from football in

1978.

335

He worked for all four major networks during his career as a

broadcaster.

336

When creating the All-Madden team, Madden would pick his

favorite players from the season at each position, interview players and talk

about hard-nosed football. In addition to selecting the best players for each

position, he would sometimes simply include a player because of how tough he

was. One year, he included Craig “Iron Head” Heyward because a 275-pound

running back named “Iron Head” just needed to be on the All-Madden team.

337

In 1991, the Hall of Famer

338

praised how Bears wide receiver, Tom Waddle,

was administered more smelling salts than any other player in the league.

According to Madden, Waddell was “amazing . . . he took every hit they could

give him” and “it was once of the gutsiest performance by a wide receiver that

I have ever seen. It seemed that every time he would catch a ball he would get

knocked every way but loose.”

339

According to Madden, to be “All-Madden”

meant “a whole range of things. For defensive linemen and linebackers, it’s

about Jack Youngblood playing with a busted leg, Lawrence Taylor wreaking

havoc on the offense and Reggie White making the other guy wish he put a little

334

. John Turney, Pro Football Journal: The First All-Madden Team - 1984, PRO FOOTBALL J. (May 18,

2016), http://nflfootballjournal.blogspot.com/2016/05/the-first-all-madden-team-1984.html; JOHN MADDEN

WITH DAVE ANDERSON, ALL MADDEN: HEY, I’M TALKING PRO FOOTBALL! 19 (HarperCollins Publishers

1996).

335

. Len Pasquarelli, Young Fans Introduced to NFL Through Madden Games, ESPN (Feb. 4, 2006),

http://www.espn.com/nfl/columns/story?columnist=pasquarelli_len&id=2319004.

336

. Id.

337

. Matthew Coller, If the All-Madden Team Still Existed, Who Would Make It?, 1500 ESPN TWIN

CITIES (Jan. 29, 2017), http://www.1500espn.com/vikings-2/2017/01/madden-team-still-existed-make/.

338

. Madden was inducted into the Pro Football Hall of Fame in 2006. Pasquarelli, supra note 335.

339

. Coller, supra note 337. See Mike Waddell, Tom Waddle 1991 Season All-Madden Show, YOUTUBE

(Jan. 16, 2008), https://www.youtube.com/watch?time_continue=4&v=gRpAApFyokU.

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2018] POPULAR CULTURE AND THE NFL 75

more in the collection plate at church. It’s about a guy who’s got a dirty uniform,

mud on his face and grass in the ear hole of his helmet.”

340

Madden also created a special 10th Anniversary All-Madden team in 1994,

an All-Madden Super Bowl Team in 1997 and an All-Time All-Madden team

in 2000.

341

In fact, Coach Madden is still with sports fans today, but it is due to

his move into the video game market. In 1988, the first version of the

long-running Madden Football video game series was released.

342

For almost

thirty years, Madden Football has influenced the way the actual game of

football is played.

343

In addition, the NFL “takes Madden [Football] very

seriously. The game has become a way for the league to hold back encroaching

hordes of young, shaggy, soccer-loving misfits and hook yet another generation

on pigskin.”

344

In fact, it has even been surmised “that the Madden franchise is

regarded by the NFL as the league’s ‘33rd franchise.’”

345

It appears that Coach Madden was always proud of each version of the

video game bearing his name, commenting that “‘[i]t’s a way for people to learn

the game and participate in the game at a pretty sophisticated level.’” One

particular ramification of Madden Football about which the Hall of Famer has

paternal pride is how the video game changed the way fans now watch live

football games at home.

346

“‘I really knew [what Madden Football

accomplished] when I was at Fox,” Coach Madden expressed to one

interviewer.

347

“‘David Hill, the president of Fox Sports at the time, had a

meeting with a bunch of us, and he said, ‘What we want to do is make our game

on television look like the video game.’”

348

It was clear which video game Hill

was referencing.

349

The game which “showed visible lines of scrimmage

340

. JOHN MADDEN WITH DAVE ANDERSON, supra note 334, at 18. See Justin Block, The 25 Gutsiest

Performances in Sports History, COMPLEX (June 19, 2013), http://www.complex.com/sports/2013/06/the-25-

gutsiest-performances-in-sports-history/. The article discusses how Los Angeles Rams player, Jack

Youngblood, broke his leg in a game against the Dallas Cowboys and still finished the game, “played in the

NFC Championship a week later, and then in the Super Bowl a week after that.” Id. The article also

recognizes other football greats who played injured, including San Francisco 49ers defensive back, Ronnie

Lott, who finished a game with a crushed pinky that had to be amputated later. Id.

341

. JOHN MADDEN WITH DAVE ANDERSON, supra note 334, at 18.

342

. Madden NFL All-25: Coach John Madden, EA SPORTS (July 25, 2013), https://www.ea-

sports.com/madden-nfl/news/2013/all-25-john-madden.

343

. Tom Bissell, Kickoff: Madden NFL and the Future of Video Game Sports, GRANTLAND (January

26, 2012), http://grantland.com/features/tom-bissell-making-madden-nfl/.

344

. Id.

345

. Id.

346

. Id.

347

. Id.

348

. Id.

349

. Id.

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floating beneath players’ feet . . . and the forward-pointing yardage arrows.”

350

This “visual language” could only be traced directly to one football video game

- Madden Football.

351

Clearly, “[h]ow professional football is played from year

to year is reflected in Madden, and how Madden is experienced is reflected in

how professional football is watched. That cannot really be said about any other

sports-game franchise.”

352

II. PART II

A. The Intersection Between Football and Popular Culture

Commissioner Pete Rozelle and Coach John Madden didn’t create the

current football culture in America alone. They were assisted by a three-step

process composed of (1) the cultivation theory, (2) heuristic reasoning, and

(3) resonance.

1. Football, the Cultivation Theory, and Heuristic Reasoning

When televised football becomes a viewer’s primary source of information

about the game, “continued exposure to its messages is likely to reiterate,

confirm, and nourish (i.e.” cultivate”) their values and perspectives.”

353

This

process is identified as the “cultivation theory” or “cultivation effect.”

354

This

phenomenon serves as a link between fans and the exciting, though fabricated,

world of football that is the brainchild of the television industry.

Underlying the cultivation theory is a mental process known as heuristic

reasoning.

355

Heuristic reasoning comes into play when viewers make “a social

350

. Id.

351

. Id.

352

. Id.

353

. Id.

354

. The “cultivation theory” is also sometimes referred to by various scholars as the “cultivation effect”

or the “cultivation hypothesis.” See, e. g., W. James Potter & Ik Chin Chang, Television Exposure Measures

and the Cultivation Hypothesis, 34 J. BROADCASTING & ELECTRONIC MEDIA 313 (1990). While scholars

have advanced a number of theories to explain the influences of television on a viewer’s perception, beliefs,

and attitudes, the “cultivation theory” or “cultivation effect” is the most prominent. See Steven Eggermont,

Television Viewing, Perceived Similarity, and Adolescents’ Expectations of a Romantic Partner, 48 J.

BROADCASTING & ELECTRONIC MEDIA 244, 248 (2004). One alternative approach to the cultivation theory

to determine how viewers process legal popular culture is the Elaborative Likelihood Model. For an excellent

discussion of this method, see Richard E. Petty & John T. Cacioppo, The Elaboration Likelihood Model of

Persuasion in 19 ADVANCES IN EXPERIMENTAL SOCIAL PSYCHOLOGY 123 (discussing the central and

peripheral routes to persuasion to explain how attitudes are shaped, formed and reinforced by persuasive

arguments to determine the effectiveness of persuasive communication).

355

. Shrum, supra note 303, at 262 (1998) (Heuristic reasoning or the heuristic process model “refers to

a limited mode of processing that is relatively effortless and expends few cognitive resources.”).

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2018] POPULAR CULTURE AND THE NFL 77

judgment relying upon “rules of thumb” instead of engaging in an in-depth

memory search to make a decision or form a judgment.”

356

Examples of using

such simple rules to make judgments might be “ all football players are tough”

or “no gain without pain.” To pare the concepts down, the cultivation/heuristic

reasoning theory suggests that over time, exposure to films about football or

consistently viewing televised games will subtly “cultivate” or influence

viewers’ perceptions of the reality of playing the game.

357

Essentially, the more

fans watch football, the more likely they are to believe what is shown on the

screen.

358

For example, for over twenty years, between 1986 - 2010, “a

recurring opening sequence on ‘Monday Night Football’ featured an image of

two helmets crashing into each other and exploding into smithereens.”

359

When

viewers are repeatedly exposed to such a particular television image, their views

of social reality are “cultivated” and eventually the viewer will presume that the

television depiction of violence is not a product of someone’s imagination, but

rather is a reflection of the truth about the way the a talented, dedicated player

should play the game.

360

If viewers also employ heuristic “rules of thumb” reasoning “as mental

short-cuts to come up with quick answers,” they will gravitate towards the

information that is the most accessible to them.

361

Arguably, the information

stored in their memories about how football should be played which is readily

available comes from television viewing.

362

Depending on how recently a

football game was seen, how often football is watched, and the extent of the

game’s “dramatic nature” and the “vividness” of the coverage of the play, in

particular the coverage of tackles, sacks, hits, and injuries on the field, the more

accessible this information about the game of football will be to the viewer when

356

. Taylor Simpson-Wood, The Rise and Fall of Bad Judge: Lady Justice is No Tramp, 17 TEX. REV.

ENT. & SPORTS L. 1, 8 (2015) (citing Shrum, supra note 303, at 262) (When viewers make “an exhaustive

search of memory for information pertaining to a particular decision,” they are engaging in “systematic

processing” in order to “scrutinize a great deal of information in an effort to form a judgment.”).

357

. GERBNER ET AL., Growing Up With Television: The Cultivation Processes, in MEDIA EFFECTS:

ADVANCES IN THEORY AND RESEARCH 43, 46-47; JAMES SHANAHAN & MICHAEL MORGAN, TELEVISION

AND ITS VIEWERS: CULTIVATION THEORY AND RESEARCH (1999).

358

. See Potter & Chang, supra note 354, at 5 (discussing “that within mass media studies, [the] social

construction of reality perspective has been called the cultivation hypothesis” and that “[i]ts proponents argue

that the more people are exposed to the mass media, especially television, the more they will come to believe

that the real world reflects media content.”).

359

. Katie Thomas, N.F. L.’s Policy on Helmet-to Helmet Hits Makes Highlights Distasteful, N.Y. TIMES,

Oct. 21, 2010, https://www.nytimes.com/2010/10/22/sports/football/22hits.html.

360

. Id.

361

. Simpson-Wood, supra note 356, at 9.

362

. Id.

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78 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

forming an opinion or making a judgment about how players should play the

game.

363

Of key importance to this process is the omission by viewers to consistently

store the information learned as fact or fiction.

364

This failure to “source

discount” means that the viewer may not recall that the information being

accessed to make a judgment came from an announcer who works for the

network and is paid to make the brutal game exciting, acceptable, and the norm.

Instead, viewers tend to treat the commentary as truth.

365

The reality of this

brutality and dangers of the game in terms of concussions and CTE has resulted

in some football analysts and commentators resigning, or perhaps been given

the opportunity to depart, from jobs previously held for years.

For example, the main reason that Bob Costas retired early and did not host

a final Super Bowl was his “dampening enthusiasm for football.” According to

Costas, “[t]he decision” between Costas and NBC “was mutually agreeable”

and he expressed that he was “actually happy about it” because he had “long

had ambivalent feelings about football . . . .”

366

Those feelings were amply

expressed in November 2017, at a seminar held at the University of Maryland,

in which Costas “offered a bleak assessment of football’s future.”

367

According

to Costas, even prior to the seminar, he had expressed his concerns about the

“undeniable connection” between foot and brain trauma a number of times over

the past several years.

368

He felt compelled to speak out “[b]ecause the evidence

is overwhelming and the effects are often devastating. It’s the elephant in the

stadium at every game whether others choose to acknowledge it or not. And

it’s not going away.”

369

Another well-known ESPN analyst for college football, who walked away

from one of the most coveted jobs in sports—broadcasting as a color

commentator, is former professional player Ed Cunningham.

370

According to

Cunningham, “the hits kept coming, right in front of him, until . . . he could not,

363

. Id.

364

. See MICHAEL ASIMOW & SHANNON MADER, LAW AND POPULAR CULTURE 56 (Peter Lang Inc.,

International Academic Publishers 2d ed. 2013).

365

. Id.

366

. John Ourand, NBC’s Bob Costas: Decision to Skip Super Bowl “Mutually Agreeable”,

SPORTSBUS. DAILY (Jan. 24, 2018), https://www.sportsbusinessdaily.com/Daily/Morning-

Buzz/2018/01/24/Costas.aspx.

367

. Id.

368

. Id.

369

. Id.

370

. John Branch, ESPN Football Analyst Walks Away, Disturbed by Brain Trauma on Filed, N.Y.

TIMES, Aug. 30, 2017, https://www.nytimes.com/2017/08/30/sports/espn-ed-cunningham-football-concus-

sions.html.

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in good conscience, continue his supporting role in football’s multibillion-dollar

apparatus.”

371

Cunningham’s ethical concerns are not hypothetical. They are

personal. In an interview with the New York Times, he expressed that he

“know[s] a lot of people who say: ‘I just can’t cheer for the big hits anymore. I

used to go nuts, and now I’m like, I hope he gets up . . . . It’s changing for all

of us. I don’t currently think the game is safe for the brain.”

372

Then he added

“[a]nd, oh, by the way, I’ve had teammates who have killed themselves. Dave

Duerson put a shotgun to his chest so we could study his brain.”

373

In addition

to former teammate Duerson, who was diagnosed posthumously with CTE,

Cunningham also played with Andre Waters and “has vivid memories of being

humiliated in his first college start by future Hall of Fame linebacker Junior

Seau.”

374

Both Waters and Seau committed suicide and were later diagnosed

from suffering from CTE.

375

In response to Cunningham’s resignation, play-by-play announcer, Mike

Patrick, who was usually paired with Cunningham to cover the Saturday

afternoon games on ESPN and ABC, explained that from his perspective, “[t]he

sport is at a crossroads. I love football - college football, pro football, any kind

of football. It’s a wonderful sport. But now I realize what it can do to people,

that it can turn 40-, 50-year-old-men into walking vegetables, how do you stay

silent?”

376

Cumulatively, however, the greater the amount of football consumed, the

more viewers will adopt the simulated values, attitudes, beliefs, and perceptions

371

. Id.

372

. Id.

373

. Id.

374

. Id.

375

. Id.

376

. Id. Even former players have expressed that if they knew what they know now about the danger of

the game in terms of causing head trauma, they might well have never played. In an interview with USA

Today, former Oakland Raiders star, Bo Jackson, told the reporter, “If I knew back then what I know now . .

. I would have never played football. Never. I wish I had known about all of those head injuries, but no one

knew that. And the people that did know that, they wouldn’t tell anybody.” Bob Nightengale, Bo Jackson’s

Startling Hindsight: ‘I Would Have Never Played Football’, USA TODAY, Jan. 13, 2017, https://www.usato-

day.com/story/sports/mlb/columnist/bob-nightengale/2017/01/12/bo-jackson-football-cte-mlb/96492338/.

Jackson went on to note:

The game has gotten so violent, so rough. We’re so much more educated on this CTE stuff

. . . , there’s no way I would ever allow my kids to play football today. Even though I love

the sport, I’d smack them in the mouth if they said they wanted to play football. I’d tell

them, ‘Play baseball, basketball, soccer, golf, just anything but football.’

Id.

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80 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

portrayed on screen as their own.

377

The ramification of this “internalization”

of the football images and messages of a televised game is that viewers now see

this information as fact.

378

Violence is not only acceptable, it is glorified.

2. Resonance and Disturbing Tales

Basically, there are three main ways that fans may gain knowledge about

football. First, they could actually be playing the game or be close to someone

who does. This clearly provides a first-hand experience of the physical aspects

of the sport. Second, this knowledge may be acquired through attending games.

Finally, they can watch the games on television or see the game portrayed in a

film. It is interesting to note that the majority of fans today would rather watch

a football game from the comfort of their own living room rather than attend the

game.

379

In light of the cultivation effect and heuristic reasoning, this is an

important development.

As previously discussed, over time, heavy consumption of football by a

viewer with little or no direct experience with the game produces long-term

effects which, while small, gradual and indirect, are cumulative and significant.

Ultimately, viewer beliefs, feelings, and attitudes about those who play

professional football are altered.

380

Finally, certain fans will form their opinion of the game from a combination

of attending games and television. When the perceptions about the sport of fans

are formed by simply being a spectator, whether from attending a game or

watching it electronically, reinforced by actual incidents of player violence off

the field, the result is another facet of the cultivation process known as

resonance.

381

In essence, resonance refers to an intensified effect on viewers when what

they see on television, i.e., player violence during a game, is confirmed by what

they experienced in real life.

382

Such a confirmation by the news or social media

377

. L.J. Shrum et al., A Process Model of Consumer Cultivation: The Role of Television Is a Function

of the Type of Judgment, in THE PSYCHOLOGY OF ENTERTAINMENT MEDIA: BLURRING THE LINES BETWEEN

ENTERTAINMENT AND PERSUASION 177, 179 (Lawrence Erlbaum Associates 2003).

378

. Id.

379

. Rovell, supra note 304.

380

. Shrum et al., supra note 377.

381

. See L.J. Shrum & Valerie Darmanin Bischak, Mainstreaming, Resonance, and Impersonal Impact:

Testing Moderators of the Cultivation Effect for Estimates of Crime Risk, 27 HUM. COMM. RES. 187 (2001).

382

. Michael Pfau et al., Television Viewing and Public Perceptions of Attorneys, 21 HUM. COMM. RES.

307, 310 (1995). (“[W]hen experiences and television images are consonant, people’s experiences ‘resonate

and amplify’ cultivation patterns. This involves the cultivation process termed “resonance,” and explains the

way that direct experience and TV play off of each other, thus reinforcing the social order and the power

structure.”).

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2018] POPULAR CULTURE AND THE NFL 81

amplifies the cultivation effect. While viewers may not have directly witnessed

the violent actions of a player, when such factual information is learned from a

reliable source, arguably it is basically synonymous to a viewer gaining

first-hand knowledge. Consequently, off-field domestic violence involving

players is extremely influential in terms of creating a resounding resonance for

fans in two respects: because football players are inherently violent outside of

the game, if they are injured on the field, they brought it upon themselves; ergo,

the fans bear no responsibility nor are they complicit in encouraging the violent

nature of the game.

383

a. Actions Speak Louder Than Words: Examples of Violence on the Field

For fans, a prime example of players being encouraged to commit acts of

violence on the field is the bounty system. In 2007:

ESPN reported that [Green Bay] Packers defenders were paid

$500 each by members of the team if they could hold Adrian

Peterson to less than 100 yards rushing, and that defenders later

were offered $500 each if they could hold the

Carolina Panthers to under 60 yards rushing as a team.

384

After an investigation, the NFL declined to punish the Packers and released

the following statement: “The club has handled the matter with the players and

the incentive pool has been discontinued.”

385

383

. Id.

384

. NFL, ‘Bounty’ System Probe is Well-Worn Territory for NFL, NFL (July 26, 2012),

http://www.nfl.com/news/story/09000d5d827678cd/article/bounty-system-probe-is-wellworn-territory-for-

nfl (finding that in addition to a bounty program by the New Orleans Saints which ran from 2009-2011, at

least four other teams in league history have been investigated for suspected ties to “bounty” systems,” the

1985 Chicago Bears, 1989 Philadelphia Eagles, 2007 Green Bay Packers, and the 2008 Baltimore Ravens).

Although ultimately escaping punishment, according to former players, the Washington Redskins also

employed a similar bounty system to that of the Saints where they were “compensated more for a kill shot [a

hit that knocks another player out of the game] than you did other hits” with “compensation ranging from

“hundreds to thousands of dollars” and the largest some received estimated to be around $8,000. Mark Maske,

Washington Redskins, New Orleans Saints Had Bounty Systems that Paid for Big Hits, WASH. POST, Mar. 22,

2012, https://www.washingtonpost.com/blogs/football-insider/post/new-orleans-saints-had-bounty-system-

that-paid-for-injuring-opponents-nfl-announces/2012/03/02/gIQAP-

NDDnR_blog.html?utm_term=.fd3ee25047ee. Matt Bowen, a former Redskins defender, wrote the

following in the Chicago Tribune:

We targeted big names, our sights set on taking them out of the game. Price tags started

low during regular season – a couple hundred bucks for going after the quarterback hard or

taking a running back out below the knee. Chop him down and give a quick smile when

you got back to the huddle. You just got a bonus.

Matt Bowen, Bounties Part of Game Across the NFL, CHI. TRIB., Mar. 2, 2012, https://www.chicagotrib-

une.com/sports/ct-xpm-2012-03-02-ct-spt-0304-bowen-nfl-20120304-story.html.

385

. NFL, supra note 384.

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Again, in 2008, Terrell Suggs, a linebacker for the Baltimore Ravens, made

waves when he shared “on an Atlanta sports talk show that the Ravens had a

‘bounty’ on Pittsburgh Steelers wide receiver Hines Ward and running

back Rashard Mendenhall. Mendenhall left the game against the Ravens with

a season-ending shoulder injury from a Ray Lewis tackle.”

386

After Sugg’s

comments were made, “former Ravens coach Brian Billick confirmed that there

had been bounties during his nine seasons leading the team. ‘Every team does

it,’ Billick said on “The Dan Patrick Show.” Now, to go out and talk publicly

about it is about as foolish a thing as I’ve ever heard.”

387

Later, Suggs “said he

misspoke when he used the word bounty with respect to Ward and Mendenhall.

No punishment was handed down, but the league said the second meeting of

these teams would be watched very closely.”

388

A final example of brutality as the mentality of the game of football is an

episode referred to as “Bountygate,” which involved the New Orleans Saints

engaging in a bounty program.

389

Commissioner Roger Goodell concluded that

that between 2009 though 2011, “coaches and 22-27 players participated in a

bounty system that gave cash rewards for knocking opponents out of games

. . . .”

390

In a written statement, Goodell made it clear that in the NFL, there is no

place “for deliberately seeking to injure another player, let alone offering a

reward for doing so. . . . Programs of this kind have no place in our game and

we are determined that bounties will no longer be a part of the NFL.”

391

Some players viewed the league’s investigation of the Saint’s bounty

system as an attempt to change what they considered an “on-field code, one that

attempts to take star and others off the field with crushing, but legal blows.”

392

Former Redskins cornerback, Shawn Springs, explained that, from a player

point of view, it’s impossible to play in the NFL unless you realize:

[A]t some point, you’re gonna go out there and try to knock the

[wind] out of somebody . . . . We all know that. That’s the

386

. Id.

387

. Id.

388

. Id.

389

. Id.

390

. Id.

The sanctions levied against the Saints “were unprecedented” and included a $500,000 fine,

losing a 2013 second-round draft pick, and the suspension of Coach Sean Payton for all of the 2012 season.

Id.

391

. Mark Maske, NFL Hits Saints with Harsh Penalties for Bounty System; Redskins Cleared for Now,

WASH. POST, Mar. 21, 2012, https://www.washingtonpost.com/sports/redskins/nfl-hits-saints-with-harsh-

penalties-for-bounty-system-redskins-cleared-for-

now/2012/03/21/gIQA22dbSS_story.html?utm_term=.b18d6cfa1f44.

392

. Id.

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2018] POPULAR CULTURE AND THE NFL 83

underlying rule of the NFL. So when it comes down to it, it’s

gonna be him or me. But that’s within the rules of the game.

393

He went on to support his position by pointing out that the “the first thing

coaches say to kids in Pop Warner [youth football]” is “‘Go in there and hit

somebody.’ They say, “You gotta knock his head off.” And you know how

many coaches and dads go out there and yell, ‘You gotta get him.’ So that’s

instilled in you at an early age.”

394

Perhaps even more telling were the comments by Pete Kendall, a former

Redskins offensive lineman, during a phone interview with the Washington

Post:

When you boil it right down to it, violence is obviously a large

part of what the game is . . . . It’s a game where you’ve got 11

guys trying to overwhelm another group of 11 guys. And

intimidation is part of that. But that being said, going out of

one’s way to specifically incentivize and reward somebody for

injuring another player . . . that makes me a little bit

uncomfortable.

395

Arguably, all fans and viewers of the game of football should be a bit more

than just “a little bit uncomfortable” with a game which encourages hits which

take opponents out of the game. Ironically, most fans feel they bear no

responsibility for engaging in what could be viewed as unethical behavior by

“paying money to persuade” players “to permanently damage themselves” for

the fan’s entertainment.

396

According to ethicist, Jack Marshall, the president

and founder of ProEthics, football fans avoid facing that reality by rationalizing

the situation. Irrespective of the violent nature of the game, at the end of the

day, a football player is not conscripted. It is his voluntary decision to place

himself in harm’s way, even in situations where the ramifications of injury

might be fatal.

397

Consequently, because it is the player’s choice to play, it is

fine for fans to watch. In other words, if the players are “happy for us to pay

them to cripple themselves, ergo, we shouldn’t care about it. If they want to do

393

. Jason Reid, Gregg Williams’s Bounty System Flourished in Warped NFL Culture, WASH. POST,

Mar. 6, 2012, https://www.washingtonpost.com/sports/redskins/gregg-williamss-bounty-system-flourished-

in-warped-nfl-culture/2012/03/06/gIQA1T3ZvR_story.html?utm_term=.f36e887df967.

394

. Id.

395

. Id.

396

. Michel Martin, Are Fans to Blame for Violence in NFL?, NPR (Mar. 8, 2012),

https://www.npr.org/2012/03/08/148226481/are-fans-to-blame-for-violence-in-nfl (interview between

Michel Martin, host of “Tell Me More,” and Jack Marshall, president and founder of ProEthics).

397

. Sacks et al., Aggression and Violence in Sport: Moving Beyond the Debate, 1 INT’L J. SPORT &

EXERCISE PSYCHOL. 167, 175 (2003), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4743757/.

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84 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

it, that’s fine.”

398

But as Marshall points out, “[e]verybody will have a price and

they may feel-now, when they’re crippling themselves -that it’s a good buy.”

However, “later on, when their families have to care for them when they’re in

their 50s and they’re . . . suffering premature dementia and simply can’t

function” the cost paid may seem way too high.

399

Further, fans often have the benefit of distance. While the game may be

“live” on TV, seeing a rookie cornerback down and out as a result of being

blindsided by an opposing blocker with a helmet-to helmet hit or witnessing an

injury causing tackled resulting in a broken leg arguably has a different impact

when viewed on TV as compared to being on the sidelines and hearing the hit.

There is even some cushioning from the actual level of violence occurring on

the field when sitting in the stands. But, when watching the game on television,

which most fans do, the screen, the input of the announcers, and often a

commercial break after an injury, create a distance or a barrier between the

viewer and the true nature of the game.

400

b. Actions Speak Louder Than Words: Instances of Violence Off-the-Field

Imagine the following:

A couple is arguing as they cross a casino lobby in Atlantic

City, heading for the elevator. You see her push at him. They

enter, she pushes the button for their floor, but before the

elevator doors even close, the elevator surveillance camera

catches the man slapping the woman across the head. She

quickly launches herself at him and he punches her in the

temple. As she falls, her head connects with the elevator’s metal

safety rail, knocking her unconscious. The elevator door opens

and the man tries to pick the woman up, but he is unable to lift

her unconscious body. Dead weight is hard to move even for

5- foot-8, 206- pound running back in the NFL.

401

Eventually,

he is able to drag her part way out of the elevator, with her dress

riding up above her thighs.

402

398

. Martin, supra note 396.

399

. Id.

400

. Id.

401

. Ray Rice, RB, NFL, http://www.nfl.com/player/rayrice/941/profile (last visited Dec. 13, 2018).

402

. See e.g., Ray Rice – ELEVATOR KNOCKOUT … Fiancee Takes Crushing Punch [Video], TMZ

SPORTS, http://www.tmz.com/videos/0_ekaflcqq/ (last visited Dec. 13, 2018).

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2018] POPULAR CULTURE AND THE NFL 85

Such was the footage contained in the shocking, graphic video catching Ray

Rice knocking out his then fiancée, now wife, Janay Rice.

403

Not surprisingly,

the video went viral, and currently has garnered over twelve million hits on

YouTube.”

404

More recently, in April 2018, Reuben Foster, a linebacker for the San

Francisco 49ers, was “charged with three felonies stemming from an incident

with his girlfriend” in February 2018.

405

Specifically, he is charged with “felony

charges of domestic violence with an allegation of inflicting great bodily injury,

forcefully attempting to prevent a victim from reporting a crime, and possession

of an assault weapon.”

406

Tramaine Block, a cornerback for the Minnesota

Vikings, was luckier. In April 2017, Brock “was arrested on suspicion of felony

domestic violence” after being “accused of punching his girlfriend and

attempting to strangle her.”

407

In a letter dated January 5, 2018, league

investigators determined that there was “insufficient evidence” to find that he

had violated the NFL Personal Conduct Policy.

408

Not an odd outcome

considering that Brock’s girlfriend ultimately “refused to cooperate in the

investigation.”

409

In response to the Rice incident, Commissioner Goodell announced a new

Personal Conduct Policy relating to punishment for domestic violence:

Effective immediately, violations of the Personal Conduct

Policy regarding assault, battery, domestic violence or sexual

403

. Brittany Britto, Former Raven Ray Rice, Wife Janay Expecting Second Child, BALT. SUN, May 4,

2016, http://www.baltimoresun.com/features/baltimore-insider-blog/bal-former-ravens-player-ray-rice-and-

wife-janay-expecting-second-child-20160504-story.html (discussing that “[a]fter a domestic violence

incident in an Atlantic City casino in February 2014 . . . . Rice was indicted on aggravated assault charges on

March 27; the two married on March 28.”).

404

. TMZSports, Ray Rice Knocked Out Fiancee – FULL VIDEO, YOUTUBE (Sept. 8, 2014),

https://www.youtube.com/watch?v=VbwTMJroTbI (showing that as of November 10, 2018, the video has

been viewed 12,004,893 times).

405

. Scooby Axson, Reuben Foster: 49ers LB Charged with Domestic Violence, SPORTS ILLUSTRATED,

Apr. 12, 2018, https://www.si.com/nfl/2018/04/12/san-francisco-49ers-reuben-foster-domestic-violence-

charge.

406

. Id. For an excellent article on the history of the NFL and domestic violence, see Jerri Kay-Phillips,

Unnecessary Roughness: The NFL’s History of Domestic Violence and the Need for Immediate Change, 5

BERKELEY J. ENT. & SPORTS L. 65 (2016). See also SI WIRE, 15 NFL Players Arrested for Violence Against

Women in Last Two Years, SPORTS ILLUSTRATED, Sept. 11, 2014 (discussing the 33 players who were arrested

between Jan. 1, 2012 to Sept. 17, 2014, “on charges involving domestic violence, battery, assault and murder

. . . . [and] at least 15 of those players were arrested for violence against women.”).

407

. Adam Wells, Tramaine Brock Won’t Face NFL Punishment After Domestic Violence Arrest,

BLEACHER REPORT (Jan. 5, 2018), http://bleacherreport.com/articles/2752597-tramaine-brock-wont-face-nfl-

punishment-after-domestic-violence-arrest.

408

. Id.

409

. Id.

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86 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

assault that involve physical force will be subject to a

suspension without pay of six games for a first offense, with

consideration given to mitigating factors, as well as a longer

suspension when circumstances warrant.

410

A player who is guilty of a second violation, will be “ban[ned] from the

league, with the opportunity to apply for reinstatement after one year.”

411

While the words sound good, it does not seem that the League general

managers are taking the crime of domestic violence seriously. Why should they,

when for years the League’s “punishment of personal conduct violations has

been inconsistent and on average less harsh than its punishment of drug

offenses.”

412

Not surprising. Bashing a woman does not interfere with player

performance; drugs can.

The lack of respect given to Goodell’s new sanctions for violating the NFL

Personal Conduct Policy and the failure of teams to take domestic violence as

seriously as they should was evident at the 2017 draft. For example, “[i]n the

first round, the Oakland Raiders drafted Gareon Conley, who has been accused

of rape [and] [i]n the second round, the Cincinnati Bengals selected Joe Mixon,

who in a much-viewed video punches a woman so hard that she falls down

unconscious.”

413

It appears that general managers just do not care in light of the

drafting of “at least a half-dozen players who have been accused of physical or

sexual assaults.”

414

Instead, these players were welcomed into the league “with

little more than a shrug by their new teams.”

415

In response to why he drafted

Dede Westbrook, “whose talent as a wide receiver – he was a finalist for the

Heisman Trophy – apparently outweighed his two arrests for assaulting the

mother of his children,” Dave Caldwell, the general manager of the Jacksonville

Jaguars, replied “I think we have all been accused of things . . . . Not all of us,

. . . but many of us have been accused of things.”

416

The bottom line is that

football is a money-making proposition and teams will try to draft the most

talented, aggressive players they can.

410

. Allison McCann, The NFL’s Uneven History of Punishing Domestic Violence, FIVETHIRTYEIGHT

(Aug. 28, 2014), https://fivethirtyeight.com/features/nfl-domestic-violence-policy-suspensions/.

411

. Id.

412

. Id.

413

. Stephen L. Carter, The NFL Has a Serious Violence Problem, CHI. TRIB., May 2, 2017,

http://www.chicagotribune.com/news/opinion/commentary/ct-nfl-sexual-assault-violence-20170502-

story.html.

414

. Nancy Armour, NFL Draft Shows Teams Still Don’t Care About Domestic Abuse, USA TODAY,

May 2, 2017, https://www.usatoday.com/story/sports/columnist/nancy-armour/2017/05/01/nfl-draft-domes-

tic-violence-joe-mixon/101176656/.

415

. Id.

416

. Id.

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2018] POPULAR CULTURE AND THE NFL 87

Lack of respect for the required penalty of a six-game suspension has also

been evident by the stalling tactics used by the NFL’s office to keep players on

the field. A prime example is that of Dallas Cowboys running back, Ezekiel

Elliot. While he eventually was suspended for six games, it took over a year for

the suspension to go into effect. In July 2016, Elliot’s former girlfriend, from

Columbus, Ohio, filed a police report alleging domestic violence.

417

The NFL

took over a year to investigate these charges, and finally determined that Eliot

had committed violent acts toward his girlfriend on three separate occasions.

418

In August 2017, the suspension was issued. However, he was on the field

through Week 9 of the season as his suspension was repeatedly on-again,

off-again as a result of a suit filed by the NFL Players Association (NFLPA)

against the NFL which alleged that the league’s “disciplinary process was

fundamentally unfair.”

419

While the NFL ultimately prevailed, the victory is not

“one that will inspire a lot of confidence in the league’s ability to adjudicate

incidents of domestic violence.”

420

While the league has made strides by

forming a league-wide “Social Responsibility” team and is making a true effort

to educate its players and staff about domestic violence and sexual assault, the

take-away for fans is that “the state of the NFL’s domestic violence initiatives”

haven’t really changed much since 2015 or 2016.

421

They continue to be “[a]

work in progress whose future success is anything but guaranteed.”

422

For the fan who sees violence on the field and experiences resonance as he

or she reads about or sees videos showing the violence of the players off the

gridiron, violence has become the norm. As such, it is acceptable behavior.

423

This legitimizes the position that “Volenti non fit injutia - to one who consents

no injury is done.”

424

Fans bear no responsibility for the welfare of the players.

417

. Jeanna Thomas, The Ezekiel Elliot Suspension Explained in a 2-Minute Read, SB NATION (Dec. 24,

2017), https://www.sbnation.com/2017/11/19/16666714/ezekiel-elliott-nfl-suspension-cowboys-ex.

418

. Id.

419

. Id.

420

. Lindsay Gibbs, Three Years After Ray Rice, the NFL’s Domestic Violence Initiatives Are Still in

Flux, THINKPROGRESS (Nov. 3, 2017), https://thinkprogress.org/nfl-domestic-violence-year-3-1cddcfc8be60/

421

. Id.

422

. Id.

423

. Sacks et al., supra note 397.

424

. Id.

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B. That Unique Animal, the Fan-atical Football Fan

The word fan is derived from “the Modern Latin fanaticus, meaning . . .

‘insanely but divinely inspired.’”

425

Die-hard fans are “committed” to their

team almost from the “cradle to the grave.”

426

Psychologists have found that

this emotional tie is the result of a fan viewing his or her team as “an expression

of a fan’s sense of self.”

427

Consequently, when a fan uses the word “we” in

referring to his team, “[i]t is not an obnoxious affectation.”

428

Rather, the fan’s

brain is literally confused “about what is ‘me’ and what is ‘the team.’”

429

In a

variety of “unconscious ways, a fan mirrors the feelings, actions and even

hormones of the players.”

430

When their team wins, they experience

“BIRGing,” “Basking in Reflected Glory.”

431

When their team loses, they are

subject to “CORFing,” with the result that the fan “Cut off Reflected Failure.”

It is not “we” lost, but “they” who lost.

432

Not only are “BIRGing” and

“CORFing” a cognitive phenomenon, such behaviors are also the result of

“physiological changes.” A 1998 study found that there is approximately a 20%

increase in the testosterone levels of fans whose team won, while there is a

decrease of 20% in the fans of the team that lost.

433

Consequently, a fan’s

“self-esteem rides on the outcome of the game and the image of the

franchise.”

434

While there are positive results from this dependence on the

outcome of a football game, including not only “self-esteem,” but also a sense

of belonging, identity, and pride, there is a correlating downside.

435

In contrast

to fans who can boast about how “we won” and who feel “stronger and more

425

. Thomas Van Schaik, The Psychology of Social Sports Fans: What Makes Them So Crazy?, SPORTS

NETWORKER, http://www.sportsnetworker.com/2012/02/15/the-psychology-of-sports-fans-what-makes-

them-so-crazy/ (last visited Dec. 13, 2018).

426

. Id.

427

. Eric Simons, The Psychology of Why Sports Fans See Their Teams As Extensions of Themselves,

WASH. POST, Jan. 30, 2015, https://www.washingtonpost.com/opinions/the-psychology-of-why-sports-fans-

see-their-teams-as-extensions-of-themselves/2015/01/30/521e0464-a816-11e4-a06b-

9df2002b86a0_story.html?utm_term=.2448e7c41e3b.

428

. Id.

429

. Id.

430

. Id.

431

. Susan Krauss Whitbourne, The Psychology of Sports Fans, PSYCHOL. TODAY (Dec. 30, 2011),

https://www.psychologytoday.com/us/blog/fulfillment-any-age/201112/the-psychology-sports-fans.

432

. Id.

433

. Paul C. Bernhardt et al., Testosterone Changes During Vicarious Experiences of Winning and

Losing Among Fans at Sporting Events, 65 PHYSIOLOGY & BEHAV. 59 (1998).

434

. Simons, supra note 427.

435

. Id.

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2018] POPULAR CULTURE AND THE NFL 89

optimistic, and prouder of themselves,” the fan whose team lost “feels defeated,

depressed and angry.”

436

The early draft of the Concussion script contained a stunning speech by Dr.

Bailes that brilliantly captures the nature of the game and the symbiotic

relationship of fans to those they view as “their” players.

The entire life of the professional athlete – the football player

more than any other – is built on one principle: vanquish asnd

destroy. From the time he’s 14 or 15, the world treats him

different. His family re-forms around his needs. He becomes

larger than life, even to his parents, and what’s rewarded isn’t

grades or good behavior but his violence on the field. Most of

the time, his family doesn’t have much else going on, so they

put everything they have into this kid. By the time he’s 18,

there isn’t a thing he wants that he doesn’t get: girls, cars,

clothes, maybe money. He’s treated like a god. By the time

he’s 21, vanquish isn’t what he does, it’s literally oxygen. He

now lives in a world where nothing else matters. He’s not just

elite. He’s a deviant. (so) So you take that guy, and you give

him this disease? No one wants to know their gods can ___their

pants or drool like babies. They go die in the dark, and only

come out in a box.

437

The conversion to becoming a fan of a game and forming an attachment to

a particular team or player begins at a fairly early age. Somewhere between

seven and eleven years old, children have developed the skill of concrete

operational thinking.

438

At this point, they are capable of forming an emotional,

long-term attachment to a sport, team, or particular athlete.

439

During the

436

. Bernhardt et al., supra note 433. Another disturbing aspect of fan “team identification,” meaning

the degree of psychological dependency fans have on the whether their team is winning or losing, is that

“[s]tudies have shown that violence in the game, particularly if perceived [by the fan] as unfair, increases the

likelihood of violent acts by the spectators.” Leonard L. Glass, The Psychology of Violence in Sports – On

The Field and in the Stands, WBUR 90.9 (Mar. 18, 2014), http://www.wbur.org/cogno-

scenti/2014/03/18/sports-violence-psychology-leonard-l-glass. Even more concerning is the fact that family

violence can be linked to team performance on game days. A study has shown that “upset losses (defeats

when the home team was predicted to win by four or more points) lead to a 10% increase in the rate of

at-home violence by men against their wives and girlfriends.” David Card & Gordon B. Dahl, Family

Violence and Football: The Effect of Unexpected Emotional Cues on Violent Behavior, 126 Q.J. ECON. 103

(2011).

437

. Korman, supra note 287 (the redacted text appears in the original).

438

. Jeffrey D. James, Becoming a Sports Fan: Understanding Cognitive Development and Socialization

in the Development of Fan Loyalty 20-21 (1997) (unpublished Ph.D. dissertation, Ohio State University) (on

file with Ohio Department of Higher Education).

439

. Id.

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90 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

“formative years,” there are a number of factors that primarily influence the

development of fan loyalty, which include not only the child’s immediate

family, but also their “peers, school, community groups, and media sources.”

440

Fan loyalty, or “the degree to which an individual demonstrates continued

support for a sport, team and/or player,” has two dimensions: behavioral and

attitudinal.

441

The behavioral dimension of football fans is measured by how

often a fan purchases tickets to a game, the amount of sport related merchandise

purchased, and how frequently they watch football games.”

442

The attitudinal

dimension concerns the fan’s “psychological commitment” to a particular

football team or player.

443

Arguably, once that commitment is entrenched, fans

will never waiver in their loyalty.

444

In other words, they are “hooked.” This is

not surprising. It has been proposed that being an American football fan

satisfies some deep need in the human psyche to experience not just a football

game, but reenact a ritual similar to those practiced by our more primitive

ancestors.

445

Engaging in the ritual of watching your favorite team play is more

than just watching a sport; the experience is “both sacred and mysterious in the

sense that the football ritual celebrates the Harvest and the fruits of vegetation,

emphasizes the struggle between the forces of life and death, and re-enacts the

creation of the universe.”

446

One of the main values in being a sports fan is that, during this ritual, the

fan is allowed “to feel real emotional investment in something that has no actual

real-world consequences,” at least for the fan.

447

“As a fan, you will feel actual

joy or actual pain – this is precisely what non-sports-fans usually ridicule about

being a sports fan – in relation to events that don’t really affect your life at

all.”

448

The most traumatic event that evokes the strongest reaction is “the epic

collapse,” which occurs when there is an unexpected loss.

449

The results of the

game “fall[] outside [of] the emotional parameters of what the sports fan had

signed up for.”

450

440

. Id.

441

. Id.

442

. Id.

443

. Id.

444

. Krauss Whitbourne, supra note 431.

445

. Mark Axelrod, Popular Culture and the Rituals of American Football, 3 COMP. LITERATURE &

CULTURE 1 (2001).

446

. Id.

447

. Adam Sternbergh, The Thrill of Defeat for Sports Fans, N.Y. TIMES MAG., Oct. 21, 2011,

https://www.nytimes.com/2011/10/23/magazine/the-thrill-of-defeat-for-sports-fans.html.

448

. Id.

449

. Id.

450

. Id.

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C. Four Lessons in Seduction: How Popular Culture Assisted in Enshrining

Football As America’s Secular Religion

It is undeniable that witnessing the human spirit fight and often overcome

the odds is uplifting and inspiring. In sports, rooting for the underdog who

unexpectedly prevails makes fans feel good. “The brain processes this

situation as out of the ordinary, but positive, so the rewards center of your

brain is stimulated and releases hormones that make you happier.”

451

Not

surprisingly, such occurrences are one of the key ingredients to a successful

team sport film.

452

While such films include ennobling stories about players

and coaches from the stadiums and arenas of Americas most watched sports of

baseball

453

and basketball,

454

a large percentage of them focus on the game of

football.

455

Such films encourage the love affair between fans and football.

Four of the best examples of such films playing cupid are: Knute Rockne All

American;

456

Rudy;

457

Invincible;

458

and The Replacements.

459

451

. Julia Bernstein, Why Do We Root for the Underdog, BAYLOR C. OF MED. (Jan. 25, 2018),

https://www.bcm.edu/news/psychiatry-and-behavior/why-we-root-for-underdog.

452

. In addition to the rousing team sport films about baseball and basketball, there are also some very

heart-warming films in other sporting areas, including: Ice Hockey films, such as MYSTERY, ALASKA

(Baldwin/Cohen Productions 1999) and MIRACLE (Walt Disney Pictures 2004); boxing, with classics such as

THE CHAMP (Metro-Goldwyn-Mayer 1931), SOMEBODY UP THERE LIKES ME (Metro-Goldwyn-Mayer 1956),

ROCKY (Chartoff-Winkler Productions 1976), or THE FIGHTER (Closest to the Hole Productions 2010). Even

horse racing has its share of films that can arguably move an audience to tears, from NATIONAL VELVET

(Metro-Goldwyn-Mayer 1944) to SEABISCUIT (Universal Pictures 2003). It should be noted that the game of

soccer is also on the verge of surpassing America’s love of baseball. See Norman, supra note 1 (“Soccer now

nearly matches baseball’s popularity. Seven percent say it is their favorite sport to watch, the highest that

sport has registered to date.”).

453

. Films about baseball that are uplifting include: THE PRIDE OF THE YANKEES (Samuel Goldwyn

Company 1942), THE BINGO LONG TRAVELING ALL-STARS & MOTOR KINGS (Motown Productions 1976),

THE NATURAL (TriStar Pictures 1984), FIELD OF DREAMS (Gordon Company 1989), MAJOR LEAGUE (Mirage

Enterprises 1989), A LEAGUE OF THEIR OWN (Columbia Pictures 1992), ANGELS IN THE OUTFIELD (Walt

Disney Pictures 1994), THE ROOKIE (Walt Disney Pictures 2002), and THE PERFECT GAME (IndustryWorks

Pictures 2009).

454

. Rousing basketball films include: HOOSIERS (De Haven Productions 1986), COACH CARTER (MTV

Films 2005), and GLORY ROAD (Walt Disney Pictures 2006).

455

. Other football films, which would come under the heading of inspirational, include: THE LONGEST

YARD (Paramount Pictures 1974), REMEMBER THE TITANS (Jerry Bruckheimer Films 2000), GRIDIRON GANG

(Columbia Pictures 2006), WE ARE MARSHALL (Warner Bros. 2006), and THE BLIND SIDE (Alcon

Entertainment 2009).

456

. KNUTE ROCKNE, ALL AMERICAN (Warner Bros. 1940).

457

. RUDY (TriStar Pictures 1993).

458

. INVINCIBLE (Walt Disney Pictures 2006).

459

. THE REPLACEMENTS (Warner Bros. 2000).

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92 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

1. Lesson No. 1: Win One for the Gipper or How to Play America’s Heart

Strings

The 1940 film classic, Knute Rockne All American

460

is based on the true

life story and career of the Norwegian immigrant who played football at Notre

Dame and then went on to become head coach of the Fighting Irish of Notre

Dame from 1918 to 1930.

461

The film starred Pat O’Brien as Rockne and

Ronald Reagan as his star player, George Gipp.

462

Rockne’s success as a coach

helped to catapult football from simply “a game to a colossal money-making

enterprise” that “became a national craze with alarming rapidity just a few years

after World War I” which began to “rival[] baseball as America’s favorite team

sport.”

463

Perhaps the most moving scene in the film occurs when Rockne gives his

“Win One for the Gipper” half-time speech to inspire his team to re-group and

go on to victory to defeat Army in 1928.

464

The scene opens with the interior of the Notre Dame dressing

room [at half-time]. The players, seated with blankets draped

over their shoulders, are dejected and silent. The door pushes

open and Rockne is wheeled in. [The players] look at Rockne

(played by Pat O’Brien) in mute apology, then guiltily away, as

if to avoid his eyes. [Rockne’s] dark-circled eyes range over

the players for a full moment of unbroken silence. Then,

quietly, as if the game didn’t matter to him:

ROCKNE:

Well, boys . . . I haven’t a thing to say. Played a great game

. . . . all of you. Great game.

(He tries to smile.)

I guess we just can’t expect to win ‘em all.

(Rockne pauses and says quietly).

I’m going to tell you something I’ve kept to myself for

years -- None of you ever knew George Gipp. It was long

before your time. But you know what a tradition he is at

Notre Dame . . .

460

. KNUTE ROCKNE, ALL AMERICAN, supra note 456.

461

. Id.

462

. Id.

463

. Michael K. Bohn, Notre Dame vs. Army: The Game That Changed College Football 100 Years Ago,

INDYSTAR, Oct. 30, 2013, https://www.indystar.com/story/sports/college/2013/10/30/notre-dame-vs-army-

the-game-that-changed-college-football-100-years-ago/3313083/.

464

. KNUTE ROCKNE, ALL AMERICAN, supra note 456.

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2018] POPULAR CULTURE AND THE NFL 93

(There is gentle, faraway look in his eyes as he recalls the

boy’s words).

And the last thing he said to me -- “Rock,” he said -

“sometime, when the team is up against it -- and the breaks

are beating the boys -- tell them to go out there with all they

got and win just one for the Gipper . . .

(Knute’s eyes become misty and his voice is unsteady as he

finishes).

I don’t know where I’ll be then, Rock”, he said - “but I’ll

know about it - and I’ll be happy.”

There is a hushed stillness as Rockne and the crowd of boys

look at each other. In the midst of this tense silence, Rockne

quietly says “Alright,” to the men beside him, and his chair is

wheeled slowly out of the dressing room.

PLAYER #12:

Well, what are we waiting for?

With a single roar, the players throw off their blankets and rush

through the doorway.

465

A 1939 review of the film in Variety noted that it contained:

Highlights in the colorful life of Knute Rockne, one of the most

prominent figures in the world of football, [which] [were]

woven into a biographical film drama [based on private papers

of his wife and the University of Notre Dame] that carries both

inspirational and dramatic appeal on a wide scale . . . . Through

it all runs the theme of Rockne’s whole purpose in life –

moulding [sic] boys under his care to become good Americans

who are conscious of their responsibilities and opportunities.

466

More recent reviewers have accurately noted that while the film was

perhaps a bit “corny and sentimental” by today’s standards, it “set the bar for all

future sports films,”

467

especially the approach subsequent filmmakers have

taken when making “the Hollywood sports biography . . . .”

468

465

. See Knute Rockne’s “Win One for the Gipper” Speech, U. NOTRE DAME ARCHIVES, http://ar-

chives.nd.edu/research/texts/rocknespeech.htm (last visited Dec. 13, 2018).

466

. Variety Staff, Knute Rockne All American, VARIETY (Dec. 31, 1939), http://vari-

ety.com/1939/film/reviews/knute-rockne-all-american-1200413034/.

467

. Knute Rockne---All American (1940), ROTTEN TOMATOES, https://www.rottentoma-

toes.com/m/knute_rockne_all_american/ (last visited Dec. 13, 2018) (listing critic reviews of the film).

468

. Dennis Schwartz, Knute Rockne, All American, OZUS’ WORLD MOVIE REVIEWS (Mar. 14, 2005),

http://homepages.sover.net/~ozus/knuterockne.htm.

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94 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

2. Lesson No. 2: The Honor of Football – Sacrificing All for the Dream and

the Team

Notre Dame and the fighting Irish once again play a key role in Rudy, the

1993 biopic about Dan “Rudy” Ruettiger.

469

Sean Astin stars as Rudy, a

blue-collar kid whose father, portrayed by Ned Beatty, worships Notre Dame

football. Never in his father’s wildest dreams would one of his own sons be

able to attend Notre Dame and be part of the football team. The film follows

Rudy’s trials and tribulations as he strives to achieve that goal, despite

tremendous obstacles in physical stature, academics, and finances.

470

Perhaps the scene that best encapsulates Rudy overcoming the odds takes

place when, after making the scout (practice) team and giving 110%, he is ready

to quit when he finds out he will never be allowed to dress and run out onto the

field as a recognized player as promised by a prior coach. This means his father

will never be able to attend a game and see that he was actually on the team.

471

When learning of his decision to quit, Fortune (Charles S. Dutton), the Notre

Dame stadium grounds keeper with whom Rudy has become friends with,

basically reads him the riot act:

FORTUNE:

What are you doing here? Don’t you have practice?

RUDY:

Not anymore. I quit.

FORTUNE:

Well since when are you the quitting kind?

RUDY:

I don’t see the point anymore.

FORTUNE:

So you didn’t make the dress list. There are greater tragedies

in the world.

RUDY:

I wanted to run out of that tunnel for my dad. To prove to

everyone --

FORTUNE:

PROVE WHAT? (emphasis added)

469

. Id.

470

. Id.

471

. Id.

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2018] POPULAR CULTURE AND THE NFL 95

RUDY:

That I was somebody.

FORTUNE:

Oh you are so full of crap. You’re [five] feet nothing. A

hundred and nothing. And you’ve got hardly a speck of athletic

ability. You hung in with the best college football team in the

land for [two] years! And you’re gonna walk out of here with

a degree from Notre Dame. In this life you don’t have to prove

nothing to nobody except yourself. And after what you’ve gone

through, if you haven’t done that by now . . . it ain’t gonna

never happen. Now go on back.

RUDY:

I’m sorry I never got you to see your first game.

FORTUNE:

Hell, I’ve seen too many games in this stadium.

RUDY:

You said you never saw a game.

FORTUNE:

I’ve never seen one from the stands . . . . I rode the bench for

two years. Thought I wasn’t being played because of my color.

I got filled up with a lot of attitude, so I quit. Still not a week

goes by, I don’t regret it. And I guarantee a week won’t go by,

you won’t regret walking out . . . letting them get the best of

you. Now, you hear me clear enough?

RUDY:

Yeah.

472

3. Lesson No. 3: The Glorification of “We” and the Need for Community

In addition to having characteristics ideally suited to engaging fans while

they watch the game on their big-screen, high-definition television in their

living room from their favorite armchair, while, according to commercials,

eating pizza and/or ribs and drinking a coke or a beer, football also offers its

fans so much more psychologically and perhaps even atavistically. Televised

football is a powerful device that allow viewers vicariously to bond “with their

472

. Rudy Script, SCRIPT-O-RAMA, http://www.script-o-rama.com/movie_scripts/r/rudy-script-tran-

script-sean-astin.html (last visited Dec. 13, 2018).

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96 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

team, their favorite players, those warriors who carry the good name of their

city, college, conference, nation, ethnic heritage, or other characteristic, into

battle.”

473

In contrast to television shows, which only offer fictional characters,

every football game provides fans with real heroes to cheer for or, if your team

is losing, villains to boo.

474

It provides fans with the opportunity to make a deep

“emotional investment in something that has no actual real-world

consequences.”

475

Watching your team play “hinge[s] on the unpredictability

of real life.”

476

There are no guarantees of a happy ending where your time

carries the day.

477

Or, in the words of Jim McKay, the long-time Emmy award

winning host of ABC’s Wide World of Sports, fans are able to share “the thrill

of victory…and the agony of defeat…the human drama of athletic

competition”

478

as if they too had played in the game.

479

This vicarious, almost symbiotic, relationship between fan and player is

particularly appealing to “viewers, who find their own lives mundane or prosaic,

especially in comparison to the captivating and seductive world of [televised

football]. Some viewers may even come to rely on the medium as their primary

source of choice for cultural and community interaction.

480

For such viewers it

almost becomes a reality of “I am a fan, therefore I am.”

No film better exemplifies this concept of football generating a community

more than Invincible, the stirring tale of the true story of Vince Papale, who, at

the age of thirty, is an out of work teacher whose wife has just left him.

481

All

he really has in his life is working as a bartender and playing football with his

buddies who are all die-hard Philadelphia Eagles fans. In fact, for most of them,

football is the only thing that keeps them going in their lives as blue collar

workers. When the new coach of the Eagles, Dick Vermeil, announces that he

will hold open tryouts for the team, Vince reluctantly decides to give it his best

shot. One of the most moving scenes in the film takes place after Vince has

473

. Stanley J. Baran, Sports and Television, in THE BUSINESS OF SPORTS 143-146 (Jones & Bartlett

Learning 2d ed., 2004). See Stanley J. Baran, Sports and Television, MUSEUM OF BROADCAST

COMMUNICATIONS – ENCYCLOPEDIA OF TELEVISION, http://www.museum.tv/eotv/sportsandte.htm (last

visited Dec. 13, 2018).

474

. Id.

475

. Sternbergh, supra note 447.

476

. Id.

477

. Id.

478

. Dave Miller, Jim McKay: The Thrill of Victory…The Agony of Defeat, BLEACHER REPORT (June14,

2008), http://bleacherreport.com/articles/29612-jim-mckay-the-thrill-of-victorythe-agony-of-defeat.

479

. Id.

480

. SHANAHAN & MORGAN, supra note 357 (noting the viewers “with certain social and psychological

characteristics, dispositions, and worldviews, and fewer alternatives as attractive and compelling, use

television as their major vehicle of cultural participation.”).

481

. INVINCIBLE, supra note 458.

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2018] POPULAR CULTURE AND THE NFL 97

made the team. The scene encapsulates how football becomes the glue that

keeps a community together when Vince’s father, Frank Papale, tells his son

what the Eagles and Vince being on the team means to him.

FRANK:

You know how I used to tell you about Van Buren scoring that

touchdown back in ‘48?

[Chuckles]

VINCE:

Yeah, I know. [waving hands]

FRANK:

I know. That touchdown got me through 30 years at that

factory. Got me through all those times your mother being

sick. When I told you not to get your hopes up, didn’t mean

that I wasn’t.

482

Finally, there is no better illustration of the fanatical fan and just how

important team loyalty can be to a fan than the romantic tale in Diner of Eddie

(Steve Guttenberg) and Elyse (Sharon Ziman), a girl the viewer hears a great

deal about, but never actually sees.

483

Eddie is such a Baltimore Colts fanatic,

that he designs a quiz on the Colts for his fiancée. He plans to give it to her two

days before the wedding is scheduled. If she cannot pass, then the wedding is

off.

484

4. Lesson No. 4: Glorification of the Ultimate Underdogs – The Key to

Greatness Is Having Heart

No discussion of football films about underdogs would be complete without

including The Replacements.

485

Based loosely on the 1987 professional football

players’ strike, and the plight of the Washington Redskins, the film stars Gene

Hackman as Jimmy McGinty, a legendary coach who is brought in to put

together a professional football team, the Washington Sentinels.

486

He is given

exactly one week to achieve this task after the league players walk-out in a

strike. Against all odds, he succeeds in putting together a motley group of

players, which includes a “scab” quarterback named Shane Falco, played by

482

. Invincible Movie Script, SCRIPTS, https://www.scripts.com/script.php?id=invincible_10931&p=20

(last visited Dec. 13, 2018).

483

. DINER (Metro-Goldwyn-Mayer 1982).

484

. Id.

485

. THE REPLACEMENTS, supra note 459.

486

. Id.

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98 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

Keanu Reeves.

487

From the beginning of the film, the viewer is encouraged to

root for these underdogs, as Coach McGinty notes before their first game, while

the strike may be a disaster for fans and owners, it is a chance of a lifetime for

the replacement players.

An outstanding example of the motivational theme of football, which can

be quite attractive to fans, is Coach McGinty’s farewell pep talk to the team.

[McGinty walks into the middle of the locker room and goes into pre-game

speech mode.]

MCGINTY:

Alright, listen up. The strike is just about history. By

tomorrow, you will no longer be Sentinels. It’s important that

you leave here, however, with the knowledge that you have

made a difference in your own Life, in the owner’s life -- or

what’s left of it -- and especially the fans’. You have proven to

a skeptical America that sports is not about contracts, or agents

or shoe deals. Sports is about rising to the occasion. We have

one more opportunity tonight to do that, one more chance to

show what heart is all about. The Dallas Cowboys are waiting

out there to kill you. I expect nothing less than for you to win

even in your death throes. We have a powerful weapon on our

side tonight: there is no tomorrow for most of you. And that

makes you very dangerous people. Use it.

488

The film ends with an eloquent speech by McGinty that once again educates

viewers that playing football can be a marvelous, life changing sport which

allows players to experience greatness.

MCGINTY:

When the replacement players for the [Washington] Sentinels

left the stadium . . . there was no ticker-tape parade . . . no

endorsement deals for sneakers . . . or soda pop or breakfast

cereal. [J]ust a locker to be cleaned out[,] and a ride home to

catch. But what they didn’t know, was that their lives would

be changed forever . . . because they had been part of something

great. And greatness, no matter how brief[,] stays with a man.

Every athlete dreams of a second chance. These men lived it.

489

487

. Id.

488

. Id. See Replacements, The (2000) Movie Script, SPRINGFIELD! SPRINGFIELD!, https://www.spring-

fieldspringfield.co.uk/movie_script.php?movie=replacements-the (last visited Dec. 13, 2018).

489

. Id.

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2018] POPULAR CULTURE AND THE NFL 99

In reality, the contributions made by the actual replacement players, who

were Washington Redskins for a brief time during the stand-off between the

players’ union and the NFL, were not forgotten.

490

On March 6, 2018, the

Virginia General Assembly presented two of the replacements players, “with a

copy of House Joint Resolution No. 151.”

491

The two players, quarterback Tony

Robinson and defensive lineman Anthony Sagnella, helped the team win the

super bowl that year by leading Washington to a 3-0 record during the

twenty-four-day strike.

492

In response to the Resolution, which honored the

replacement players for the “critical role” they had played in the Redskins’

ultimate “Super-Bowl winning season” and the announcement from Bruce

Allen, the Redskin’s President “that all of the replacement players from the 1987

team would receive Super Bowl rings.”

493

Robinson commented:

Thirty-some years later, but hey, better late than never. It’s a

good feeling, a real good feeling. To be called Super Bowl

champion, a lot of people can’t say that. And a lot of people

can’t say they have a Super Bowl ring. It’s a big

accomplishment. I was just so happy and blessed to be a part

of that. I’ll cherish it for the rest of my life. It’s a great honor.

494

Once again, “Hail to the Redskins! Hail to Victory!” rang out, stirring the

hearts of worshipping fans across the U.S.A.

495

And once again what was seen

on the silver screen was reinforced by the resonance of real life events.

D. Four Reasons Players Are No Longer Gods, But Commodities: Films,

Television and Fantasy Football

Once fans are hooked on the game of football, over time their attitude

towards the players may change. It is this change in fan attitude that perpetuates

the violence in the game despite scientific evidence of dangers to player health

and well-being. While the reasons for such a shift are many, key premises are:

(1) it’s all about the money, not team loyalty; (2) you gotta dance for the fans;

490

. Scott Allen, Redskins to Honor 1987 Replacements with Super Bowl Rings, WASH. POST, Mar. 7,

2018, https://www.washingtonpost.com/news/dc-sports-bog/wp/2018/03/07/their-contributions-are-part-of-

redskins-history-1987-replacement-players-will-receive-super-bowl-rings/?utm_term=.43add978b8b6.

491

. Id.

492

. Id.

493

. Id.

494

. Id.

495

. Washington Redskins’ Fight Song - Hail to the Redskins, HOGS, http://www.thehogs.net/His-

tory/fightSong.php (last visited Dec. 13, 2018) (modern version of the Washington Redskins fight song).

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100 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

(3) the commodification

496

and fan objectification of their gridiron heroes; and

(4) football is no game, it is war and, as in any war, there will be casualties.

1. Reason No. 1: Show Me the Money

The film Jerry Maguire explores the bond between sports agent Maguire,

played by Tom Cruise, and his client Rod Tidwell, a professional football

player, portrayed by Cuba Gooding Jr.

497

When the audience first meet

Maguire, he is a successful agent at a major firm, Sports Management

International, where “[t]hirty-three . . . agents guide[] the careers of 2,120 of the

most finely-tuned athletes alive.”

498

However, his life radically changes when

he experiences an epiphany after an exchange with the son of one of his clients,

a hockey player, is put into the hospital injured with a concussion.

INT. HOSPITAL BEDROOM -- NIGHT

Hockey Player STEVE REMO, 33, is a big man in a small

bed. He is in traction, with concussion. DOCTOR stands

nearby, shoots Jerry a look of concern. Family is nearby.

DOCTOR:

Do you know your name?

REMO:

I uh. . . wait. Wait, here it comes. I have it. My name

is Steve Remo. I play for the Blackhawks. (now on a

roll) You are my son. This pretty lady is my wife.

And you are . . .

Jerry nods encouragingly, presents his best “familiar”

face.

My agent!

JERRY:

Yes!

REMO:

And I gotta play this weekend, Doc. If I play in 65%

of the games, I make my bonus.

496

. Ethan Sherwood Strauss, When Stats Turn Players Into Commodities, ESPN (Mar. 8, 2013),

http://www.espn.com/blog/truehoop/print?id=55625#.

497

. JERRY MAGUIRE (TriStar Pictures 1996).

498

. Jerry Maguire Script, INTERNET MOVIE SCRIPT DATABASE (IMSDb),

http://www.imsdb.com/scripts/Jerry-Maguire.html (last visited Dec. 13, 2018).

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2018] POPULAR CULTURE AND THE NFL 101

EXT. HOSPITAL HALLWAY -- NIGHT

Remo’s 14 year-old SON (JESSE) confronts Jerry outside

the hospital room. He’s a hulking kid, a Pop Warner

football player himself. His voice is in the process of

changing.

SON:

This is his fourth concussion. Shouldn’t somebody get

him to stop?

As he talks, Jerry’s cellular phone rings in his bag.

JERRY

(glib, easy)

Come on -- it’d take a tank to stop your dad. It would

take all five Super Trooper VR Warriors, right?

The kid stares at Maguire. It feels as if the kid is peering

into his soul . . . and all he sees is trash.

SON:

Fuck you.

The kid turns and exits in disgust. He leaves Jerry standing

in the hallway. Devastated.

499

As a result of this encounter, Jerry has an epiphany and writes a mission

statement entitled: “THE THINGS WE THINK AND DO NOT SAY” which

he proceeds to copy and distribute to all agents attending his company’s

corporate conference.

500

The thrust of the statement is that the key to being a

good sports agent are “personal relationships.” The ramifications of his action

is that he is fired. While he immediately scrambles to keep clients, he is

ultimately only able to hang on to one, Rod Tidwell, a wide-receiver for the

Arizona Cardinals, but only after he makes his client a promise.

501

Jerry on the phone.

JERRY: Rod! How ya doing? Jerry Maguire.

INTERCUT

INT. TIDWELL KITCHEN/HOUSE -- DAY

ROD TIDWELL, 27, begins this conversation in the

kitchen. He is a powerful physical presence, and he holds

a hot new cellular phone. He fixes [4 year old son] Tyson

499

. Id.

500

. Id.

501

. Id.

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102 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

a bowl of cereal as he talks. In the background, monitoring

the crisis is Marcee Tidwell [Rod’s wife who is 5 months

pregnant].

TIDWELL:

“How am I doing?” I’ll tell you. I’m sweatin, dude!

That’s how I’m “doin.” I’m sweatin my contract. I’m

sweatin’ Bob Sugar calling and telling me I’m blowing

the big endorsements if I stay with you. I’m sweatin’.

You hear what I’m saying?

JERRY:

I hear what you’re saying . . .

TIDWELL:

No. I hear that you hear what I’m saying. But do you

hear what I’m saying?

INT. JERRY’S OFFICE

Jerry is still on the same Tidwell call. Looking at his watch.

Alright, we’re just getting started on my list of things

you need to know. Take notes if you want to.

JERRY:

Okay.

INT. TIDWELL HALLWAY – NIGHT

Tidwell walks down the hallway, past clippings and

citations from his career. Marcee follows, always

listening.

TIDWELL:

Good, ‘cause see, I am a valuable commodity. I go

across the middle. I see the ball and a dude coming

right at me, wanting to kill me, I tell my brain “get

killed, catch the ball.” That’s New York Steak, baby.

Rare. And yet, nobody’s giving me LOVE. Nobody’s

giving me PROPS. Nobody. I went to Arizona State,

I’m from Arizona, I break Arizona records, I’m a Sun

Devil, man!!!

JERRY:

Now you want Arizona dollars.

TIDWELL:

Exactly. And I’m sitting here with an ant problem . . .

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2018] POPULAR CULTURE AND THE NFL 103

-- the house is fallin’ apart, we don’t even know where

we’re gonna live in a year, and I’m supposed to be a

“superstar,” man! Are you catching my flow, here?

Jerry looks at his watch. Doomed.

JERRY:

I need a decision from you, Rod.

TIDWELL:

-- now to recap, I want to stay in Arizona, I want my

new contract, I like you, you’re nice to my wife, I will

stay with you, that’s what I’m doing for you, but here’s

what you’re gonna do for me. You listening?

JERRY:

Mmm. Hmm.

TIDWELL:

It’s a very personal, very important thing. It’s a family

motto. So I want to share it with you. You ready?

JERRY:

Yes.

TIDWELL:

Here it is. “Show me the money.”

(pause) Show. Me. The. Money.

JERRY:

I got it.

TIDWELL:

Now doesn’t that just make you feel good to say it?

Say it with me.

JERRY:

Show. Me. The. Money.

TIDWELL:

Congratulations. You’re still my agent.

502

In many ways, Rod’s view of himself as a “valuable commodity” and his

concern about money are totally understandable. As he expresses to Jerry, his

days as a professional player are numbered, and he needs to make the most of

the time that he is young enough and healthy enough to play professional

502

. Id.

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104 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

football. In another scene, Tidwell clearly expresses the plight of the

professional football player to Jerry.

INT. AIRPLANE -- LATER DAY

They sit together. Jerry holds another drink.

TIDWELL:

Man, I got a shelf life of ten years, tops! My next

contract’s gotta bring me the dollars that’ll last me and

mine a very long time. I’m out of this sport in five

years. What’s my family gonna live on? What you get

me . . . . Anybody else would have left you by now,

but I’m sticking with you. I said I would. And if I got

to ride your ass like Zorro, you’re gonna show me the

money.

503

Compared to the average American, most NFL players are well

compensated for the years they can perform. Even practice squad players bring

home a nice weekly paycheck.

504

In 2018, the minimum salary for such players

will be $7,600 a week.

505

This amount will continue to increase under the

current CBA, with a minimum weekly salary of $8,400 a week by 2020.

506

terms of NFL minimum salaries, they “are determined in relation to a player’s

NFL experience.”

507

According to the CBA, “[t]he league measures time spent in relation to

minimum salary by the number of ‘Credited Seasons’ . . . a player has

completed,” which “sets the floor” for player compensation.

508

For example, in

2018, a player with zero Credited Seasons would receive a minimum salary of

$480,000 while a player with ten or more Credited Seasons would be paid a

minimum of $1,015,000.

509

In 2017-2018, the average salaries for NFL players ranged from $2.07

million (the San Francisco 49ers) to $2.99 million (the Oakland Raiders).

510

The

503

. Id.

504

. Tadd Haislop, NFL Practice Squads: Minimum Salary, Rules for 2018, SPORTING NEWS, Sept. 3,

2018, http://www.sportingnews.com/nfl/news/nfl-practice-squad-salary-minimum-pay-how-much-2017-

rules/1ogcj7f2emewr13zm4jrd0s45k.

505

. Id.

506

. Id.

507

. NFL Contracts Explained: NFL Minimum Salaries, FRONT OFFICE FOOTBALL (Mar. 10, 2017),

https://frontofficenfl.com/2017/03/10/nfl-contracts-explained-nfl-minimum-salaries/.

508

. Id.

509

. Id.

510

. Average Player Salary in the NFL 2017/18, STATISTA, https://www.statista.com/statis-

tics/675385/average-nfl-salary-by-team/ (last visited Dec. 13, 2018).

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2018] POPULAR CULTURE AND THE NFL 105

top five highest paid players in the 2017 season were: Kirk Cousins, former

quarterback for the Washington Redskins, who earned $23,943,600; Drew

Brees, quarterback for the New Orleans Saints, who was paid $24.25 million;

Andrew Luck, quarterback for the Indianapolis Colts, who, in 2016, signed a

six-year deal worth $122,970,000; Derek Carr, quarterback for the Oakland

Raiders, who, in June 2017, signed a contract extension for over five years for

a whopping $125,025,000; and finally, Mathew Stafford, quarterback for the

Detroit Lions, who made history in 2017 when he cut a $135 million deal,

making $27 million annually.

511

Not surprisingly, it is also more lucrative to play for a winning team.

Winning teams go on to the playoffs and perhaps even the Super Bowl. For

example, in 2018, the NFL players who advanced to—and won—the Super

Bowl earned $219,000 in bonuses.

512

So, Rod Tidwell’s command to his agent

to “show me the money” is an accurate depiction of the mindset of an NFL

player. It is also a lesson for fans. Arguably, when players are compensated so

highly, it makes it easier for fans to accept that injuries can come with the

territory. The players are choosing to play a high stakes game. And with high

stakes, comes high risk.

However, it can also be maintained that the players are not adequately

compensated in light of two considerations: (1) the fact that NFL players have

the greatest risk of being injured than any athlete in the other three major

professional sports, basketball, baseball and hockey,

513

and (2) that the majority

of NFL players do not have guaranteed contracts.

514

In March 2018, Kirk

Cousins may have changed the contract landscape in the NFL, at least for

superstars, with his “groundbreaking, fully guaranteed, three-year, $84 million

deal as the new quarterback of the Vikings.”

515

In addition, in 2016 and 2017,

the top twenty-one first-round draft picks received fully guaranteed four year

contracts, with a fifth-year option that must be exercised by the team before the

511

. Aric Jenkins, The 5 Highest-Paid NFL Players of 2018, MONEY, Jan. 29, 2018,

http://time.com/money/5120707/highest-paid-nfl-player-2018/.

512

. Ryan Dunleavy, Super Bowl 2018: How Much Will Eagles, Patriots Earn in Super Bowl LII?, NJ,

Jan. 29, 2018, http://www.nj.com/sports/index.ssf/2018/01/nfl_playoffs_2018_how_much_do_play-

ers_earn_for_eac.html.

513

. Ben Volin, Why All NFL Contracts Aren’t Fully Guaranteed, BOS. GLOBE, July 9, 2016,

https://www.bostonglobe.com/sports/patriots/2016/07/09/why-all-nfl-contracts-aren-fully-guaran-

teed/99WBMntCztfDjYr8et12qJ/story.html.

514

. Id.

515

. Albert Breer, NFL Contracts May Be Forever Altered After Kirk Cousins, SPORTS ILLUSTRATED,

Mar. 15, 2018, https://www.si.com/nfl/2018/03/15/kirk-cousins-contract-quarterbacks-guaranteed-money-

mmqb.

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106 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

player’s third regular season in the NFL is over.

516

But the majority of players

are playing in the league on a “year to year” basis, and few players have “more

than two or three years of job security.”

517

The reality is that the majority of

professional players need to make their money while they can, or as Tidwell

would say “show me the money.” Which means that Tidwell is going to have

to become a bit of a superstar with the fans if he wants management to give him

the contract he thinks he deserves.

2. Reason No. 2: You Gotta Dance for the Fans If You Want the Owners to

Pay

Having only one client, Jerry Maguire now devotes himself to Tidwell’s

career. Tidwell wants to continue to play for the Cardinals, but is unhappy with

the terms of his contract. Jerry has attempted to talk to the team’s General

Manager, Dennis Wilburn, but he is getting nowhere with re-negotiations.

INT. LOCKER ROOM SHOWER AREA -- DAY

Jerry stands in pre-season locker-room. Off-stage we hear

a shower. In the [background], one of those locker-room

psych-up signs like: Injuries happen first in the mind.

JERRY:

I started talking with Dennis Wilburn about your

renegotation.

Rod emerges naked, dripping wet, pissed.

TIDWELL:

Did you tell him about the “ten million for four years?”

JERRY:

Uh, not today, but --

TIDWELL:

John Taylor. J.J. Stokes. Andre Rison. I SMOKE all

these fools, and yet they’re making the big sweet

dollars. They’re making the money, and I got an agent

that ain’t even put the number on the table.

516

. Joel Corry, Agent’s Take: Here’s a Close Look at the Contracts First-Round Picks Are Expected to

Sign, CBS SPORTS (May 1, 2018), https://www.cbssports.com/nfl/news/agents-take-heres-a-close-look-at-

the-contracts-first-round-picks-are-expected-to-sign/.

517

. Volin, supra note 513.

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2018] POPULAR CULTURE AND THE NFL 107

JERRY:

Rod, I say this with great respect, but those players you

mentioned are marquee players and –

The conversation continues as Tidwell fixes hair in the

mirror. Jerry speaks to the reflection, taking him on,

gesturing passionately. Tidwell, still naked, may or may

not be listening.

JERRY:

Here’s what I’m saying. This is a renegotiation. We

want more from them, so let’s show them more from

us. Let’s show them your pure joy of the game, let’s

bury the Attitude a little, let’s show them --

TIDWELL (irritated):

You’re telling me to dance.

JERRY:

No, I’m saying to be --

[Tidwell] mimes a dainty little showboat-touchdown

dance.

TIDWELL (little voice):

“Love me love me love me. . . put me on t.v.”

(pissed)

That’s the iconography of racism, man!

JERRY:

Rod, I’m not a racist. I’m telling you to be the best

version of you, to get back to the guy who first started

playing this game. Way back when you were a kid. It

wasn’t just about the money, was it?

Tidwell gives him a look. Money was always a factor.

TIDWELL:

Do your job, man, don’t tell me to dance.

JERRY:

Fine.

He begins gathering his things.

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108 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

TIDWELL:

I’m an athlete, not an entertainer. These are the ABC’s

of ME. Get it? I don’t dance.

518

Unfortunately the terms and amount of the renegotiated contract, which is

only $1.7 million for three years, is nowhere near what Tidwell and Jerry had

hoped. On the advice and support of his wife, Marcee, who is also expecting

their second child, Tidwell decides to risk it all for a better deal.

Marcee is passionate. Focused on Rod.

MARCEE:

You know what you’re gonna do, Rodney. You’re

gonna reject this shitty contract. You’re gonna play out

your existing shitty contract and go be a free agent next

year and the hell with Arizona. This is us, and we

determine our worth. You’re a fine, proud, surviving,

splendid black man.

Beat. Truer words. . . The big man looks into his wife’s

eyes.

TIDWELL:

Honey, you are just --

No one else in the world exists. They are focused totally on

each other . . . .

JERRY:

If you get injured, you get nothing.

TIDWELL:

Won’t happen. I’m strong in my mind.

JERRY:

It’s a risk.

Jerry looks over to Dorothy, who grits her teeth at the

implications of the decision.

TIDWELL:

Bet on me, dude. Bet on me like I bet on you.

Tidwell puts his hand out. Maguire is conflicted, but he

takes a breath and shakes.

519

518

. Jerry Maguire Script, supra note 498.

519

. Id.

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2018] POPULAR CULTURE AND THE NFL 109

Ultimately, Rod’s future as a Cardinal all comes down to a Monday Night

Football match-up against the Philadelphia Eagles, which will determine

whether the Cardinals go to the playoffs.

INT. TIDWELL HOME -- NIGHT

They watch the game.

GIFFORD (ON T.V.):

It’s a bruiser out there tonight.

MICHAELS (ON T.V.):

Arizona refusing to go into the quiet night of this rough

football season. Come on, I’m trying to be poetic here.

Tidwell takes a rough hit, and they respond loudly.

DIERDORF (ON T.V.):

Ooof. Another rough hit across the middle on Rod

Tidwell. Nothing poetic about that.

INT. FIELD -- NIGHT

Tidwell takes a hit. Hangs onto the ball.

FRANK GIFFORD’S VOICE:

They don’t pay enough for a man to take that kind of

ugly hit –

INT. PRESS BOX -- NIGHT

Maguire watches as Arizona’s quarterback John Swenson

drops back for a pass, and is sacked. Philadelphia fans

cheer wildly. The game is turning uglier by the minute.

Jerry looks up to the monitor for a closer look at the next

play.

ON PRESS BOX MONITOR

Swenson, the Arizona quarterback, throws a wobbly pass

into the end-zone. Tidwell leaps for the catch, tucks the

ball in and is promptly and brutally hit by two defenders

from two different sides. This hit is bad. Worse than bad.

Tidwell flips and comes down like a sack of potatoes, with

a thud, ball still in his hands. His head hits the astroturf,

hard. Tidwell is out cold. And the ripple effect of the injury

shoots through the stadium. Jerry stares at the monitor,

stunned by the sudden brutality.

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EXT. ARIZONA FIELD -- NIGHT

We are thrust into the vortex, inside the game. Tidwell lies

still on turf. Overhead, the fight music continues for a few

seconds before disappearing abruptly. Players and

coaches begin to gather around the still body of Rod

Tidwell.

TV MONITOR -- SLO-MO

The hit in replay. It is brutal. And we can see a flash of his

pride as he catches the lousy pass, and then. . . like two

bulls, the Philadelphia defenders enter from each side.

One cuts his legs out from under him, and Rod’s taut body

literally flips. The second defender then hits him at the

shoulders. Tidwell lands on the back of his neck, crumpling

downwards. Still holding the ball. Still.

GIFFORD’S VOICE:

-- you sure hope his family wasn’t watching that.

EXT. CENTER OF PLAYING FIELD -- NIGHT

We’re now just a few inches in front of his peaceful,

sleeping face. They are all. YELLING, trying to pull him

out.

ON TIDWELL -- CLOSE

Dead to the world as sound disappears. There is now only

silence.

POV TIDWELL - SLO-MO -- SILENCE

The Doctors and the Trainers are now truly panicked. We

don’t hear them. We see them, their motions increasingly

manic. Shoving fingers in front of him. Screaming. We

read their lips. (“Rod!” “Rod can you hear us!”) We see

the anguish and escalating fear on their faces. The Trainer

leans in close, bellowing, he spreads his hands wide to clap

right in front of Rod’s still face. His hands head toward

each other . . . closer . . . bringing with them the first

inkling of sound . . . getting closer and then finally coming

together, bringing with him the sounds of the stadium.

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2018] POPULAR CULTURE AND THE NFL 111

ON TIDWELL

who blinks back to life. Concerned men are yelling very

loudly, right in his face. Tidwell becomes aware he is the

absolute center of attention of the entire stadium. As crowd

noise begins to rise.

TRAINER:

Let’s get you off the field!

TIDWELL:

Wait.

TRAINER:

Can you feel your legs?

TIDWELL:

Yeah. Just let me enjoy this for a minute.

He rises. Stadium explodes. At first on wobbly feet, he

raises the football and for the first time -- salutes the crowd.

Crowd noise doubles.

ON TIDWELL

Has never felt like this before in his life. It is the pure and

absolute love of the spotlight. And his fans. And then. . .

it’s real and he feels it. Tidwell breaks out in a small but

unmistakable move -- a flutter step. He does a

high-stepping move, all his own, for about ten yards.

ON JERRY MAGUIRE

who watches, now in complete disbelief. Tidwell will not

let go of the spotlight.

BACK ON TIDWELL -- CLOSE

Finishes his small but heartfelt dance. It is a personal

catharsis he is sharing now with 2 billion people.

TIDWELL (to himself):

Nike.

520

So in the end, despite being seriously injured, Tidwell is able to rise like a

phoenix from the ashes and do the dance. Jerry Maguire comes through for his

520

. Id.

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112 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

client with a signed deal memo with the Arizona Cardinals for four years for

$10.2 million. This also is not bad for Jerry in light of the commission he will

receive. In terms of the fans, the lessons learned from the film is that a player’s

future in the sport is short, players are in it to get as much money as they can

during this time period; money is more important than the team they play for;

being seriously injured should not keep a real player down; and while team

management may try to nickel and dime its players, it will ante up for those

who, like puppets on a string, please the fans by doing the dance.

3. Reason No. 3: The Commodification of the NFL Player

In 1979, the film North Dallas Forty came to the silver screen.

521

Based on

an autobiographical novel authored by Pete Gent, a former receiver for the

Dallas Cowboys, the film has been recognized as “a milestone in the history”

522

of the genre of football films by its effective conveyance of “the brutality,

racism, sexism, drug abuse, and callousness that were part of professional

football—just a part, but the part that the public rarely saw and preferred not to

acknowledge at all.”

523

It was unique in being “the first football movie in which

the games looked like real football (rather than the usual odd mix of newsreel

footage from actual games and ineptly staged shots of the actors in ‘action’).”

524

The movie highlights the physical pain, fear, and psychological damage that

players like the protagonist, Phil Elliott (Nick Nolte), have to endure not while

playing a game; but, upon entering into a field of battle which, although at times

exhilarating, can be destructive. It is also the story of one man’s rebellion

against the bureaucratic, manipulative world of professional football.

These themes are brilliantly captured in the scene where Elliot replies to

B.A. Strothers, the coach of the North Dallas Bulls, when he is lectured about

“discipline and giving back to the game.”

525

My nose is busted. I can’t even breathe through it . . . . I can

hardly stand up. I haven’t slept more than three hours at a

stretch in two years. Now isn’t that giving something back?

521

. NORTH DALLAS FORTY (Paramount Pictures 1979).

522

. Janet Maslin, Film: ‘Dallas Forty’: Cynicism and Comedy, N.Y. TIMES, Aug. 1, 1979,

https://www.nytimes.com/1979/08/01/archives/film-dallas-forty-cynicism-and-comedy.html

523

. Michael Oriard, The Impact and The Darkness: The Lasting Effect of Peter Gent’s North Dallas

Forty, DEADSPIN (Oct. 10, 2011), https://deadspin.com/5847792/the-impact-and-the-darkness-the-lasting-ef-

fect-of-peter-gents-north-dallas-forty.

524

. Id.

525

. Stefan Fatsis, What Curtis Painter and North Dallas Forty Tell Us About the Real NFL, DEADSPIN

(Oct. 4, 2011), https://deadspin.com/5846522/what-curtis-painter-and-north-dallas-forty-tell-us-about-the-

real-nfl.

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2018] POPULAR CULTURE AND THE NFL 113

For crissake, B.A., there’s pieces of me scattered from here to

Pittsburgh on these football fields! Now isn’t that giving

something back to the game? Isn’t it?

526

Equally powerful is the scene where Elliot, responding to the team doctor

who is twisting “a syringe filled with painkiller [into] his wrecked knee,” asks

“Christ, how often do you put this shit in the coaches’ hearts?”

527

But perhaps the most moving scene is when Elliot gives a speech about how

management is the “team” while players are just more pieces of equipment

owned by the club.

528

While North Dallas Forty is clearly geared toward showing the true

violence of the game, even films which glorifying the game of football, such as

Rudy

529

are also important reminders that the dangers from sub-concussive hits

and concussions are not limited to just professional football players.

530

This

reminder also contains the seeds for transforming a fan’s perspective of a player

not as a hero, but as a commodity. Consider the following speech from Rudy

made by Coach Warren to the potential players, including Rudy, who came to

the walk-on tryouts at Note Dame to make the team.

[addressing players at the walk-on tryouts]

COACH WARREN:

Let me tell it to you as clean as l can. We have 95 players here

. . . so accomplished as athletes in high school . . . they have

full scholarships to the best football program in the country.

NCAA regulations allow us to dress just 60 for home games . . .

which means at least 35 scholarship players . . . will be

watching the game from the stands.

So if any of you has any fantasies . . . about running out of that

tunnel with your helmet shining in the sun . . . you best leave

them right here. Of you 15 dreamers out there, maybe we’ll

keep one or two.

My job is to basically beat the shit out of you for the next five

days. And whoever is still standing at the end . . . maybe we’ll

use for our scout teams. You’ll be running the opposition’s

plays week in and week out. Your greatest value to us is, we

don’t care whether you get hurt. Our first teams are gonna

526

. Id.

527

. Id.

528

. Id.

529

. RUDY, supra note 457.

530

. Mez et al., supra note 86.

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114 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

pound on you like you’re their worst enemies. Like what you

hear so far? Any of you want to run home to Mama? Now’s

your chance.

531

The takeaway for the viewing fan is that a player is simply a commodity: a

necessary piece of team equipment that can be bought, discarded, or traded.

This takeaway is made abundantly clear in Draft Day when Kevin Costner,

portraying Sonny Weaver Jr., the General Manager of the Cleveland Browns,

has a terse conversation with his current starting quarterback, Brian Drew (Tom

Welling).

532

Drew is afraid he will be relegated to second string after Sonny

traded for the number one draft pick, Bo Callahan, the top NFL prospect for a

starting quarterback spot.

DREW:

I’ve been in this league for eight seasons. I’ve been to the

playoffs. I know the system that Penn wants to run and I know

I can make it work. I’ve busted my ass this off-season. I set

the bar high. I’m in great shape. I feel 10 years younger. I’m

tellin’ you, man, I swear to you, the best thing for this team,

this season, is me.

WEAVER JR.:

Are you finished?

DREW:

No.

WEAVER JR.:

Well, get finished. And then get back to work. If I trade you,

I trade you. If I don’t, I don’t. Do yourself a favor. Worry

about Brian. Don’t worry about Bo. And definitely, most

absolutely goddamn importantly, do not bother me with your

shit right now, Brian. I’m workin’ here!

533

But perhaps the greatest culprit in objectifying players and de-sensitizing

fans to the violence of the game is fantasy football. Indeed, a full discussion

about the place of sports within pop culture could not be complete without

considering fantasy football and the dehumanizing effect it has on public

perceptions of athletes.

531

. Rudy Script, supra note 472.

532

. DRAFT DAY (Summit Entertainment 2014).

533

. Draft Day (2014) Movie Script, SPRINGFIELD! SPRINGFIELD!, https://www.springfieldspring-

field.co.uk/movie_script.php?movie=draft-day (last visited Dec. 13, 2018).

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2018] POPULAR CULTURE AND THE NFL 115

Fantasy sport leagues are actually not the product of the modern digital age,

bur were born in the 1950’s, mostly the brainchild of a part-owner of the

Oakland Raiders, Wilfred “Bill” Winkenbach.

534

According to legend, on a

rainy day in 1962, Winkenbach was in a Manhattan hotel room passing the time

before a Raiders game with a Raiders staffer named Bill Tunnell and Oakland

Tribune sports writer Scotty Stirling. Winkenbach had previously invented a

fantasy game for professional golf where the gamers would draft professional

players each week and add up their scores to determine a winner.

535

He mused

whether the same could be done for football and the three stayed up most of the

night drinking, creating the rules for their new game. When he returned to

Oakland, he further refined the rules with Tribune sports editor George Ross.

That summer of 1963, a few friends joined Winkenbach in his basement to hold

the first fantasy football draft.

536

The first league fielded eight teams in what

was called the Greater Oakland Professional Pigskin Prognosticators League

(GOPPPL) and points were awarded only for touchdowns. However, what

brought the game to national attention was the opening of the Kings X Bar in

Oakland in 1968 by Andy Mousalimas, one of the original members of the

GOPPPL. He altered the rules to allow points for yardage, and created a game

with six divisions. To calculate standings in time for the Monday lunch crowd,

he would get the first edition of the local paper as it rolled off the presses early

in the morning. The bar customers were so enthused by the game, Mousalimas

had to create a waiting list. Word of the game spread and he soon was fielding

phone calls from bar owners all over the country who wanted to know how the

game worked. GOPPPL is also credited with creating the first fantasy baseball

league as well.

537

Over the ensuing decades fantasy sports was primarily an amateur hobby,

although it was slowly gaining in popularity. Consequently, many

entrepreneurs sought ways to commercialize it, publishing magazines and other

publications devoted to the topic, such as Fantasy Sports Magazine in 1989. By

1999, the Fantasy Sports Trade Association was founded due to the popularity

534

. Jon Wilner, Fantasy Football Was Born in Oakland, Original League Still Thriving, CHI. TRIB.,

Sept. 14, 2015, http://www.chicagotribune.com/sports/sns-tns-bc-fbn-fantasy-sportsplus-20150914-

story.html.

535

. Id.

536

. Id.

537

. Id. There are several origin stories for fantasy baseball. Most sources credit sportswriter Daniel

Okrent as the “father of fantasy sports” due to his invention of Rotisserie Baseball in 1979, which popularized

multiplayer gaming based on player statistics. Rick Burton et al., The Historical Development and Marketing

of Fantasy Sports Leagues, 2 J. SPORT 185, 194 (2013).

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116 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

of the pastime.

538

However, what fueled the boom in fantasy sports was the

creation of the internet and the World Wide Web. Prior to the advent of online

communication, fantasy players had to get their statistics through the sports

pages of the daily newspaper and tabulate standings by hand. The digitalization

of this information made tracking player performance infinitely easier, but

league commissioners still had to manually tabulate scores. It was ESPN that

offered the first online sports fantasy website in 1995, called ESPN

SportZone.

539

Similar services were launched such as Commissioner.com in

1997. The drawback was that these were pay for use services. It was in 1999

that Yahoo.com offered the first major free fantasy league hosting service,

funded by website advertising fees, to become the industry leader it still is

today.

540

As of 2017, some 59.3 million people play fantasy sports in the United

States and Canada. Of those, 71% are male and 29% female. The average age

is 32 years, 50% have a college degree and 53% have annual income in excess

of $75,000. The most popular fantasy sport is football.

541

As of 2015, some

89.8% of fantasy players were Caucasian and the revenue generated is estimated

to be approximately $11 billion dollars annually.

542

Although the professional leagues were at first suspicious of fantasy sports

drawing fans away from loyalty to individual teams, they eventually embraced

the fantasy fan as an additional revenue source. Studies indicate that “fantasy

football has been one of the best brand-building tools for the league during the

past decade, for fans around the world are watching the NFL more intently than

ever, and the continued growth of fantasy football translates into very real

advertising and merchandising dollars for the league.”

543

It is no wonder, then,

that the leagues, broadcasting companies, and advertisers now vie for a share of

this lucrative market. However, there is a darker side to this story: the

dehumanization and objectification of the players themselves.

For example, NFL.com created an advertisement for its online fantasy

football services, which depicted an injured player, Kansas City Chiefs running

back, Jamaal Charles, after he had suffered a torn ACL that ended his season.

538

. Louise Baker, The History and Evolution of Fantasy Sports, FUTURE OF FANTASY (Jan. 25, 2011),

http://futureoffantasy.com/the-history-and-evolution-of-fantasy-sports.

539

. Burton et al., supra note 537.

540

. Id. at 198.

541

. Industry Demographics, FANTASY SPORTS TRADE ASS’N, https://fsta.org/research/industry-de-

mographics/ (last visited Dec. 13, 2018).

542

. Jimmie Kaylor, Fantasy Sports Statistics: Facts About the Players, CHEATSHEET (May 25, 2016),

https://www.cheatsheet.com/sports/so-who-actually-plays-fantasy-sports.html/?a=viewall.

543

. Brendan Dwyer, Divided Loyalty? An Analysis of Fantasy Football Involvement and Fan Loyalty to

Individual National Football League (NFL) Teams, 25 J. SPORT MGMT. 445 (2011).

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2018] POPULAR CULTURE AND THE NFL 117

The ad copy read, “Injury ruined your fantasy season? Start again on

NFL.com.” The purpose was to promote fantasy leagues that began midseason.

Critics pointed out that the NFL was using the player’s injury for profit and

“dehumanizing” him as a mere fantasy football commodity.

544

Another such ad

for Sprint Wireless depicted a doctor treating an injured player, who asked what

his injury would mean for him, and the doctor responded, “it means I’m

dropping you from my fantasy team.”

545

Of course, there is not a more glaring example of the dehumanization of

football players than the mascot of Fox Sports, Cleatus the Robot.

546

This CGI

animated robot figure of a football player made his debut during the middle of

the 2005-06 football season and was named during a contest held by Fox

Television the following year. He was typically featured by the channel during

NFL football games before and after commercial breaks. Originally, he would

perform a warm up routine of jumping up and down, stretching his neck,

running in place, and pointing his finger at the camera. In the 2008-09 season,

he expanded his routine to include dance moves like the Swim and the Electric

Slide, as well as playing an electric guitar. In the years since, he has engaged

in physically violent confrontations with other mascots and movie characters

such as the Burger King, Iron Man, a dragon from Eragon, and a Terminator

robot. He has also been licensed by Fox to toy manufacturers who sell him in

NFL and collegiate logo designs.

547

This dehumanization of football players through fantasy football and

marketing imagery has a real-world effect on players. It has been observed that

fantasy football has actually changed how fans perceive athletes. That instead

of human beings, they are simply “cogs in a machine, chess pieces to move

around a virtual board.”

548

One player, Jonathan Stewart of the Carolina

Panthers, complained that fantasy football fans only cared about players to the

extent that they were productive for their fantasy team. If a player were injured,

the fan’s concern was not the well-being of the player, but the effect of his loss

on their fantasy roster. Stewart has also been subjected to harsh criticism on

social media for not scoring enough fantasy points despite being a valuable and

productive player for his NFL team. His reaction was, “I don’t think they look

544

. Burton et al., supra note 537.

545

. Id.

546

. Mark Coogan, Cleatus the Robot: The Unsung Hero of the NFL, ROUND TABLE (Nov. 18, 2011),

https://bcroundtable.wordpress.com/2011/11/18/cleatus-the-robot-the-unsung-hero-of-the-nfl/.

547

. Id.

548

. William C. Rhoden, Fantasy Sports’ Real Crime: Dehumanizing the Athletes, N.Y. TIMES, Nov. 25,

2015, https://www.nytimes.com/2015/11/26/sports/football/fantasy-sports-real-crime-dehumanizing-the-ath-

letes.html.

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118 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

at us as human anymore. I think they look at us as an opportunity [to make

money].”

549

Another former player, who wrote about his own experiences with fantasy

football after retirement commented that:

[I]t’s brutal the way we objectify these guys and the way we

treat them on our fantasy teams when they’re not working for

us. When a guy sustains some debilitating injury that’s going

to involve surgery, rehabilitation, medication for that human

being, we just cut him. He’s gone for us . . . I love the sport of

football. I don’t love the business. I don’t love the way it

objectifies the players.

550

The question also arises as to whether this dehumanization by fantasy

football fans and others is a result of racial bias. African American players

account for 69.70% (1,573) of the NFL players in 2017, while 27.40% (618)

identified as white.

551

This means that black players are highly over-represented

relative to their share of the US population (13%), while white, Latino, and

Asian/Pacific Islanders are all extremely under-represented in the NFL relative

to their shares of the US population (63%, 17%, and 5% respectively).

552

Add

to this lopsided racial imbalance the demonstrated stereotype that whites often

see black athletes as “superhuman” as opposed to white athletes.

553

Furthermore, “people assume that, relative to Whites, Blacks feel less pain

because they have been exposed to hardship.”

554

549

. Id.

550

. Michel Martin, Former NFL Player Nate Jackson Wades Into the ‘Brutality’ of Fantasy Football,

NPR (Oct. 1, 2016), https://www.npr.org/2016/10/01/496226390/former-nfl-player-nate-jackson-wades-

into-the-brutality-of-fantasy-football (interview between Michel Martin, host of “All Things Considered,” and

Nate Jackson, former NFL player).

551

. Richard Lapchick & Saahil Marfatia, The 2017 Racial and Gender Report Card: National Football

League, INST. FOR DIVERSITY & ETHICS IN SPORT (Oct. 18, 2017), http://neb-

ula.wsimg.com/1a7f83c14af6a516176740244d8afc46?Access-

KeyId=DAC3A56D8FB782449D2A&disposition=0&alloworigin=1.

552

. Mark J. Perry, Overall the NFL Gets a Letter Grade of A+ for Players’ Race, But an F- for Kickers

and Punters, AEI (Aug. 23, 2017), http://www.aei.org/publication/overall-the-nfl-gets-a-letter-grade-of-a-

for-players-race-but-for-kickers-and-punters-it-gets-an-f/.

553

. Matthew Hutson, Whites See Blacks as Superhuman: Strength, Speed, Pain Tolerance, and the

Magical Negro, SLATE (Nov. 14, 2014), http://www.slate.com/articles/health_and_science/sci-

ence/2014/11/whites_see_blacks_as_superhuman_strength_speed_pain_tolerance_and_the_magical.html.

554

. Sophie Trawalter et al., Racial Bias in Perceptions of Others’ Pain, PLOS ONE (Nov. 14, 2012),

http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0048546. The study utilized NFL injury

reports for the 2010 and 2011 seasons to study how coaches and medical staff evaluated player injuries in

relation to how soon they would be able to return to play. Id. The study found a bias that favored black

players returning to play sooner than whites based on the amount of pain they experienced based on the

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2018] POPULAR CULTURE AND THE NFL 119

This means that a fantasy football audience that is 89% Caucasian is making

a roster that is almost 70% black players. It would be logical to conclude that

the racial bias shown by whites generally carries over into the perception of

black athletes on the fantasy roster, and the result is the perception of a

superhuman, pain-free robot whose only purpose is to win points for the fantasy

manager.

Perhaps there is no better illustration of the influence of fantasy football on

de-humanizing players than an episode from the first season of The League in

which Antonio Gates makes an appearance, the first by an NFL player on the

series.

555

This particular episode illustrates how an actual player might respond

to a Fantasy team manager/owner for getting angry at them for costing the

manager a win.

In a previous scene, the fantasy players meet in a bar and Ruxin complains

bitterly about Antonio Gates wrecking his fantasy standings by playing too well.

Now, one of the friends whose team is part of the league, Ruxin, sits alone in a

hotel hot tub mumbling to himself about his fantasy picks when Gates enters the

spa.

RUXIN:

How are you, man?

GATES:

Nice to meet you, man.

RUXIN:

I cannot believe you just got into this hot tub. What are you

doing here?

GATES:

Just bye week. Visiting some family.

RUXIN:

All right.

subjective judgment of the coaches and staff. Id. However, when more objective criteria, such as criteria

used for concussions, was used to determine next game status for players, the bias disappeared. Id.

555

. The League: Mr. McGibblets (FX Networks television broadcast Nov. 19, 2009); The League s01e04

Episode Script, SPRINGFIELD! SPRINGFIELD!, https://www.springfieldspringfield.co.uk/view_epi-

sode_scripts.php?tv-show=the-league&episode=s01e04 (last visited Dec. 13, 2018). The League, which ran

from 2009-15, was a television series about a group of friends who are all avid fantasy football fans, and who

annually form a league. In each episode, viewers watch as the friends try to balance their time between the

league and their real lives. Throughout the season, what starts out as good-natured competition, gives way to

a cutthroat mentality, which begins to affect friendships, home life, and even the work place as each owner

tries to win the league—and the bragging rights that come with such a victory.

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120 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

GATES:

Relaxing.

RUXIN:

Chilling.

GATES:

Yeah.

RUXIN:

Well, I can’t tell you how excited I am to meet you. Because I

have been cursing your name all week long. And now I get to

yell at you in person.

GATES:

Excuse me?

RUXIN:

Excuse me? You ruined my Fantasy Football team this week.

GATES:

I’m just doing my job. My job is to go play football.

RUXIN:

Well, when you catch balls, it has a negative effect on my team.

You ravaged my Fantasy Football team.

GATES:

You know what?

RUXIN:

What?

GATES:

I didn’t know that. But now that I met you, I’m happy that it

turned out that way.

RUXIN:

I don’t like your tone, sir.

GATES:

You’re an angry little man.

RUXIN:

I’m about to get angry all up in your face.

GATES:

Yeah?

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2018] POPULAR CULTURE AND THE NFL 121

RUXIN:

Yeah.

Ruxin lunges towards Gates and the scene cuts to the

outside of the hotel with the whole group of friends leaving

PETE:

I told you Ruxin would wreck the weekend.

KEVIN:

Wrecked? The guy took a punch in the face from

Antonio Gates. Put it up.

RUXIN:

Well, actually I slapped him and then fell running

away. But . . .

KEVIN:

Hey, it counts.

TACO:

You know. I like this spa. That was relaxing.

PETE:

Shut up, Taco.

KEVIN:

Yeah, we’re never gonna hear the end of this

Ruxin-Antonio Gates thing . . . .

556

Arguably, Gates is not an “individual” to Ruxin. He represents a valuable

commodity, one that can be bought, sold or traded. It is his performance that

matters. He is a statistic, and in this case, his stats did not turn out to be in

Ruxin’s favor. When a manager/owner selects his or her team, the focus is not

on the athlete’s personhood. The focus is on how to successfully use the

player.

557

The player becomes a “data point. A number. A series of values that

can be compared against other values in the dry, info-rich process of reducing

gamble to certainty, of taking human performance and extracting every last win

from it.”

558

The reality is that in current society, where access to reliable

information can be gleaned quickly, “better information means a greater

commodification of athletes.”

559

It is such commodification that allows fans to

feel justified in cheering when a player exits the game with an injury, to going

556

. Id.

557

. Sherwood Strauss, supra note 496.

558

. Id.

559

. Id.

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122 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

to the home of an “underperforming player . . . and burn his jersey,” or to do the

wave as a player for the other team is carried off the field “on a stretcher with a

neck injury.”

560

Clearly, some fans now view NFL players in a manner similar

to the position of Karl Marx “that members of the bourgeois the upper class

came to view members of the proletariat working class as mere commodities, or

material possessions whose value is only as good as what they were worth to

them . . . .”

561

This deplorable state of affairs is one which all true fans of NFL

and members of the media need to remedy.

4. Reason No. 4: Fallen Players Are Simply Casualties of War

Twenty years after North Dallas Forty, Oliver Stone’s Any Given Sunday

was released in December 1999. An important sports film that continues to be

just as relevant and timely today as at the time of its release; the film is one of

the grittiest and most realistic football pictures ever to have been made.

562

provides a unique portrayal of the violence on the field from the perspective of

the players.

563

Tony D’Amato (Al Pacino), the coach of the Miami Sharks (the

fictional pro team in the film), instructs his players:

I don’t know what to say, really. Three minutes till the biggest

battle of our professional lives. All comes down to today.

Either we heal as a team, or we’re gonna crumble. Inch by

inch, play by play, till we’re finished. We’re in hell right now,

gentlemen. Believe me. And we can stay here, get the shit

kicked out of us, or we can fight our way back into the light.

We can climb out of hell . . . one inch at a time . . . . I’ll tell

you this. In any fight it’s the guy who’s willing to die who’s

gonna win that inch. And I know if I’m gonna have any life

anymore it’s because I’m still willing to fight and die for that

inch. Because that’s what living is! The six inches in front of

your face! Now, I can’t make you do it! You gotta look at the

guy next to you! Look into his eyes! I think you’re gonna see

a guy who’ll go that inch with you! You’re gonna see a guy

who will sacrifice himself for this team because he knows,

when it comes down to it you’re gonna do the same for him!

That’s a team, gentlemen! And either we heal now, as a team

560

. Matt Harmon, The Commodification of NFL Players, BACKYARD BANTER (Oct. 17, 2013),

https://www.thebackyardbanter.com/the-commodification-of-nfl-players.html.

561

. Id.

562

. ANY GIVEN SUNDAY (Warner Bros. 1999); Oriard, supra note 523.

563

. Id.

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2018] POPULAR CULTURE AND THE NFL 123

or we will die as individuals. That’s football, guys. That’s all

it is. Now . . . what are you gonna do?

564

In addition to brilliant cinematography, the film was prescient in a number

of ways. Long before the release of League of Denial

565

or Concussion,

566

Any

Given Sunday exposed the risks of the game.

In a poignant scene, the aging, injured first string quarterback for the Miami

Sharks, Cap Rooney (Dennis Quaid), expresses his fears to Coach Tony

D’Amato that he is afraid to come back in and play after his most recent injury

that required a microdiscectomy.

Ext. VERANDA of Cap’s house - TWILIGHT

D’AMATO:

I seen you in practice, Cap. You’re ready now. What is it?

Cap doesn’t respond or look at him. He sits on a swing.

Tony is stunned as the realization hits him.

D’AMATO:

Cap, you don’t want to go in? What is it?

ROONEY:

Tony, its not that, it’s that . . . . You don’t know how

much I wanted to come back , Tony. You have no idea.

This is all I have in my life. Everything. It’s not fun

anymore. I’m not what I was. Tony, the first time I got

hit in the pros I thought my heart was going to stop.

You’re never the same after that. After all the hits and

concussions, I have these blank spots in my memory. I

haven’t been able to straighten my good leg for years,

even on a good day I shake . . . Sometimes I can’t even

hold a spoon right. And I’m on pain killers all the time

‘cause of my elbow and my ribs and my neck and my

torn thigh and now my ruptured disc. But even now,

with all that, I’d go back in a second . . . if I could only

be what I was.

567

A final scene demonstrates that players are simply soldiers who can be

sacrificed for the good of the team and discarded when they are no longer useful.

564

. Any Given Sunday (1999) Movie Script, SPRINGFIELD! SPRINGFIELD!, https://www.springfield-

springfield.co.uk/movie_script.php?movie=any-given-sunday (last visited Dec. 13, 2018).

565

. FAINARU-WADA & FAINARU, supra note 106.

566

. CONCUSSION, supra note 264.

567

. ANY GIVEN SUNDAY, supra note 562.

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124 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

The final scene occurs between the team’s owner, Christina Pagniacci (Cameron

Diaz), and the team’s doctor, Dr. Harvey Mandrake (James Woods).

[discussing whether one of the players, Shark, should start in the play-off

game]

PAGNIACCI:

What about Shark?

MANDRAKE:

He’s woozy still. He’s got bad migraines, postconcussive

syndrome.

PAGNIACCI:

Can you clear him?

MANDRAKE (almost laughs):

. . . you mean which shell is the real peanut under?

(hesitates) Three concussions the last five months? There’s no

way to predict what another head-hit would do, Christina . . .

PAGNIACCI:

How come Dallas had their quarterback practically in a coma

last month just before he played one of the greatest games of

his life . . . ?

MANDRAKE (backtracking):

. . . . Well no question he wants his tackle and sack bonus bad.

Theoretically, his brain’s at increased risk, but it’s theoretical,

and I can pump him full of cortisone to catch the swelling and

let him finish out the season . . . without a malpractice suit of

course . . . (off her look) I’m joking. I don’t really think

anything’s gonna happen . . . but I’m not a complete prick, you

know, Christina, I do have some kind of conscience.

(If she thinks so, Christina stays cool-eyed about it.)

PAGNIACCI:

I’m not looking to screw him, Harvey. But I gotta have him in

the playoffs -- and he wants to play for chrissake, so everyone

comes out . . . .

MANDRAKE:

. . . long term? . . . What are you thinking?

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2018] POPULAR CULTURE AND THE NFL 125

PAGNIACCI (a beat, eye to eye):

I’m thinking we’ll probably cut him in the off-season. the

word’s already out there, everyone’s seen him take the hits. No

one’s gonna take him at his price . . . . I think he’ll be happy

just to have his old job back at 30 percent of what he makes.

That’s if we want him back.

568

III. CONCLUSION: FOURTH AND GOAL

Clearly, popular culture has played a significant role in educating and

instilling certain perspectives in football’s fan base. From broadcaster input

during live games, which often highlights and glorifies the brutality of the game,

to films which portray the drama and heroism of the players, especially the

beloved underdog, to television series and Fantasy Football leagues which

objectify players and turn them into commodities to be bought sold, traded, or

even discarded, popular culture has created a climate where fans are essentially

de-sensitized to the inherently violent nature of the game. Arguably, most fans

today would agree with the view expressed by the co-author of League of

Denial, Steve Fainaru, in a 2013 interview:

I’ll be perfectly honest: I don’t want the game to change. I like

the sport, in all its brutality. That’s just the way it is. But at the

same time, I can hold two thoughts in my mind. I love football,

but I recognize now -- as a journalist and as a fan -- that these

are real problems, that many of the people who built the league

have suffered grotesque and horrible deaths, or have gone

through terrible diseases along with those who love them, and

that the sport is behind some of these things. The sport has to

face that. We all have to face it. To ignore it would be wrong.

But part of facing it is to acknowledge that it’s real, and for

people to know that it’s real, and for the scientists to be able to

do what they do. And then people can make their own

decisions about whether they want to play or not.

569

However, it is no longer 2013, when facts about the NFL Concussion Crises

first entered mainstream popular culture. Today, in light of (1) the new medical

evidence of the danger of sub-concussive hits, in addition to (2) the prevalence

of CTE being diagnosed in professional football players, and (3) the risk posed

568

. Id.

569

. Roth, supra note 297.

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126 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

by repeated concussions to both college

570

and junior athletes,

571

there can be

no denying that the game of football is a brutal collision sport that takes a heavy

toll not only on the body, but the minds of players as well. Unfortunately, if the

bottom line for the League remains profit, it is highly unlikely that the NFL will

“pursue an ethical solution to the human costs” of the game due to the costs it

would have to incur to make truly meaningful changes.

572

Instead, it will be up

to each player to decide whether their love of the game is worth the risk of

playing and up to each fan to decide whether to continue watching without the

implementation of new safety rules and procedure. At least such decisions are

now informed.

Certainly, NFL players have always accepted a certain level risk when they

signed on to play the game. But the full extent of that risk couldn’t really be

fully grasped until the discoveries of Dr. Bennet Omalu were finally allowed to

surface. However, it is questionable whether a young player dreaming of

playing in the NFL or one on the cusp of starting a new and exciting career will

be able to cancel out the lessons of Knute Rockne, and The Replacements with

the hard facts of Concussion.

573

There is also a concern that due to the risks of

concussions and sub-concussive hits, football will ultimately become a

“ghettoized spot, not a Mainstream American sport.”

574

Such ghettoization will

occur as more affluent “suburban white kids or their parents . . . opt out” of

playing the game due to the risks posed by head injuries. Only those from lower

income families will find the risks of playing acceptable.

575

Sean Pamphilon,

the creator of the 2013 documentary United States of Football,

576

explained that

“in places where football isn’t the only thing to do, those fans are going to opt

out first . . . . Certain colleges are going to follow and there will be a steady

570

. Evan Grossman, The NCAA’s Concussion Problem: Former Players Say League Hid Dangers of

Playing Football, N. Y. DAILY NEWS, Mar. 25, 2018, http://www.nydailynews.com/sports/college/ncaa-play-

ers-league-hid-dangers-playing-football-article-1.3894488.

571

. Michael A. Galgano et al., Chronic Traumatic Encephalopathy: The Impact on Athletes, 8 CUREUS

1, 1 (Mar. 2016) (“A study of high school athletes found that all sports carried the risk for concussions with

boys’ football being the highest at 63% of the total . . . .”).

572

. Roth, supra note 297.

573

. See, e.g., Jeff Eisenberg, College Players Undeterred by Grim CTE Study: ‘You Have to Accept the

Good and Bad’, YAHOO! SPORTS (July 26, 2017), https://sports.yahoo.com/college-players-undeterred-grim-

cte-study-accept-good-bad-013310982.html.

574

. Dennis Dodd, Author Malcolm Gladwell Says Football Will Become ‘Ghettoized’, CBS SPORTS

(Aug. 29, 2013), https://www.cbssports.com/college-football/news/author-malcolm-gladwell-says-football-

will-become-ghettoized/.

575

. Id.

576

. UNITED STATES OF FOOTBALL (Gaia Indie Films 2013) (This film is written and directed by

journalist Sean Pamphilon and follows Pamphilon’s two-year journey as he travels the United States

examining the risks of brain injury from youth leagues to the NFL).

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2018] POPULAR CULTURE AND THE NFL 127

decline in the participation of the game.”

577

Consequently, “the future of

football is going to become very much in line with the military. We’re going to

have to own the fact that we’re putting people in certain situations and it’s going

to be less glorified, there’s less of that glamorous veneer.”

578

Concussions also continue to occur despite significant advancements in

helmet design, which is geared to increase brain safety. From the exterior, the

helmet, known as the VICIS Zero 1, appears “almost identical to the standard

football helmet.”

579

The difference is that the new design “has a soft shell that

crumples on contact—similar to an automobile bumper—reducing impact

against the brain.”

580

It is true that this new helmet is “the most substantial

innovation in the construction of helmets in decades.”

581

In fact, “it may be the

most significant breakthrough in brain safety for a sport that over the last ten

years has been all but definitively proven to pose significant long term

neurological risks.”

582

This new technology is even more a godsend for players

“at the youth and high school levels, where concern over neurological health is

greatest.”

583

The VICIS Zero1 is arguably the “safest football helmet” ever

produced and “has the potential to save lives.”

584

The on-going problem is that

it still can’t prevent concussions. Even “[t]he scientists, neurosurgeons and

engineers who designed the helmet make clear that it won’t prevent

concussions. No helmet will.”

585

For example, even though he was wearing the

VICIS Zero1, linebacker Brian Cushing was one of the five concussed Houston

Texans in the 2017 season opener.

586

This doesn’t mean that the helmet is not

a great advancement in safety. However, the concussion suffered by Cushing

does “underscore the reality that no helmet can ever fully prevent concussions

. . . .”

587

577

. Dodd, supra note 574.

578

. Id.

579

. Alexander Aciman, The NFL’s New Helmet is Supposed to Make Players Safer from Brain Injuries.

It’ll Almost Certainly Do the Opposite, QUARTZ (Sept. 22, 2017), https://qz.com/1084348/the-nfls-new-hel-

met-is-supposed-to-make-players-safer-from-brain-injuries-itll-almost-certainly-do-the-opposite/.

580

. Id.

581

. Id.

582

. Id.

583

. Id.

584

. Id.

585

. Ahiza Garcia, Vicis Zero1 NFL Helmet Aims to Reduce Head Injuries, CNNMONEY SPORT (Sept.

18), http://money.cnn.com/2017/09/16/news/companies/vicis-nfl-helmet-concussions-safety/index.html.

586

. ProFootballDoc, New Helmet Technology Did Not Prevent Cushing Concussion, SAN DIEGO

UNION-TRIB., Sept. 14, 2017, http://www.sandiegouniontribune.com/sports/profootballdoc/sd-sp-pfd-vicis-

helmet-concussions-nfl-0914-story.html.

587

. Id.

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128 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

Perhaps the answer is to have no helmets at all. While this suggestion may

seem sacrilegious to die-hard fans, even co-chair of the 49ers and chairman of

the NFL’s health and safety advisory committee, Dr. John York, can envision a

helmetless future for the football.

588

“Can I see a time without helmets? Yes,”

York told the BBC. “It’s not around the corner, but I can see it.”

589

While

certainly a drastic move, such a decision would reduce the number of

concussions that result from players using their helmets as weapons. Originally,

there were no helmets.

590

They entered the game as a piece of the safety

equipment to prevent injuries, not to deliver concussions.

591

The reasoning

underlying a return to a helmetless game is that although helmets clearly provide

protection for a player’s head and neck, they also encourage players to use their

heads to make hits on opponents.

592

Obviously, “[a] player without a plastic

shell surrounding his skull, meanwhile, would be far less inclined to launch

himself headfirst into an opponent.”

593

There are a number of problems with such a solution. If players were not

wearing helmets, they would be more susceptible to skull fractures as a result

of inadvertent collisions at high speeds. And skull fractures are far more likely

to cause death than concussions. And more deaths result from fractures than

concussions.

594

It might also be quite a challenge for current players. One

obstacle to implementing a “helmetless” game is that it would require the NFL

to completely revamp a number of rules, including eliminating “the three-point

stance” and linemen would be required to be “upright at the snap.”

595

Perhaps

the wiser course of action would be to keep helmets to provide protection from

“the inevitable elbows and knees and feet that routinely strike heads currently

protected from being split open,” while reducing “opportunities for head

involvement” in the game.

596

This could be achieved by changing to “the

588

. Mike Florio, NFL Healthy and Safety Chair Sees a Future Without Helmets, NBC SPORTS (June 18,

2015), http://profootballtalk.nbcsports.com/2015/06/18/nfl-health-and-safety-chair-sees-a-future-without-

helmets/.

589

. Id.

590

. Amy Daughters, The Evolution of Football Equipment, BLEACHER REPORT (May 16, 2013),

http://bleacherreport.com/articles/1642538-the-evolution-of-football-equipment#slide0.

591

. Id.

592

. Nesn-staff, NFL Safety Chairman: ‘I Can See’ League Doing Away with Helmets in Future, NESN

(June 19, 2015), https://nesn.com/2015/06/nfl-safety-chairman-i-can-see-league-doing-away-with-helmets-

in-future/.

593

. Id.

594

. Florio, supra note 588.

595

. Id.

596

. Id.

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2018] POPULAR CULTURE AND THE NFL 129

two-point stance,” prohibiting “all helmet-to-helmet hits,” and banning “players

from launching in all situations.”

597

In addition to prohibiting head targeting, an efficacious place for the NFL

to start in terms of continuing efforts to prevent brain injury in players, the

league should eliminate kickoff returns.

598

Due to the “high-speed collisions”

during a kick-off, statistics have shown “that kick-offs were five times more

likely than other plays to produce concussions.”

599

According to both Giants

co-owner, John Mara,

600

and Green Bay Packers President and a member of the

Competition Committee, Mark Murphy, the kickoff return remains the “most

dangerous play” in the game.

601

Removing the kickoff return from the play

book would also be an intelligent move on the part of the leagues from both a

moral and public relations perception.

At the time of this writing, in an effort to keep the kickoff, in particularly

the on-side kick, in the game, the NFL is currently considering a proposal to

change that rule so that “bans players on the kicking team from getting a running

start on their way downfield.”

602

In addition, the proposal “eliminates all forms

of ‘wedge’ blocking” which occurs when “multiple blockers” on the receiving

team “link together.”

603

The proposal also “requires eight out of the 11 members

of the receiving team to line up within 15 yards of the spot of the kickoff and

bars hitting within those 15 yards.”

604

The goal is to prevent “players on the

kicking team from going in motion pre-kick.”

605

597

. Id.

598

. Dr. David Geier, Geir Column: NFL Should Eliminate Kickoffs to Protect Players, POST & COURIER,

Oct. 19, 2017, https://www.postandcourier.com/sports/geier-column-nfl-should-eliminate-kickoffs-to-

protect-players/article_07f9d404-b4d8-11e7-a02b-13ab31e23418.html.

599

. Des Bieler, Could the NFL Ban Kickoffs? Concussion Concerns Have Idea Moving Closer to

Reality, WASH. POST, Mar. 28, 2018, https://www.washingtonpost.com/news/early-

lead/wp/2018/03/28/could-the-nfl-ban-kickoffs-concussion-concerns-have-idea-moving-closer-to-real-

ity/?utm_term=.1cbd72c48ee2.

600

. Mike Florio, NFL Should Just Get Rid of the “Most Dangerous Play”, NBC SPORTS (Apr. 20, 2016),

http://profootballtalk.nbcsports.com/2016/04/20/nfl-should-just-get-rid-of-the-most-dangerous-play/.

601

. Bieler, supra note 599.

602

. Mark Maske, The NFL Is Going to Change its Kickoff Rules to Try to Keep the Play in the Game,

WASH. POST, May 2, 2018, https://www.washingtonpost.com/news/sports/wp/2018/05/02/the-nfl-is-going-

to-change-its-kickoff-rules-to-try-to-keep-the-play-in-the-game/?utm_term=.2b349c845db2. Currently,

“members of the kicking team can get a five-yard running start, and blockers can line up far enough away to

turn and retreat before moving forward into their blocks.” Id. The goal of the proposal “is to eliminate the

violent collisions that take place with would-be-tacklers getting a running start before crashing into blockers

far downfield.” Id.

603

. Id.

604

. Id.

605

. Id.

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130 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

While a step in the right direction, arguably, this proposal which simply

modifies and does not eliminate kick-off returns is still playing Russian Roulette

with player health.

606

In the future, there will be more bullets in the gun as every

season, the professional players “tend to be taller, heavier and faster than those

who played before them.”

607

2013 NFL data found a weight “range from 193

pounds for cornerbacks to 315 for offensive guards” and average heights

“ranged from 5 foot 11 inches for running backs and cornerbacks to 6 foot 5

inches for offensive tackles.”

608

Researchers have found that “the average

professional football player is between one-quarter and three-quarters pounds

heavier each year.”

609

For example, consider Joe Jacoby, a 6 foot 7 inch,

305-pound member of the Washington Redskins “Hogs” players, which made

up one of “the most the famous and dominant offensive lines in NFL history.”

610

However, “in terms of size, the “Hogs” wouldn’t look that imposing today.”

611

As of 2013, “the median weight for NFL guards and tackles had reached 310

pounds,” which means over half of these players outweigh Jacoby.

612

Russ

Grimm, a member of the NFL Hall of Fame, was one of the smallest Hogs,

standing at 6 feet 3 inches, with a weight of 273-pounds.

613

Compared to

today’s players, he would be one of the smallest guards in the league.

614

While

quarterbacks may not be taller, their body mass has increased over the years,

with an average weight increase to around 224 pounds, which is more than “20

pounds above the playing weights of [Sammy] Baugh, [Bart] Starr [or] [Joe]

Montana.”

615

It does not take a physicist to figure out the consequences of this increase

in player weight and body mass—each year the risk of brain injury and/or

damages to other parts of the body from collisions is increasing.

616

Clearly,

changes to the way the game is played must be made if fans truly wish to keep

the players safe from brain injuries.

617

The current NFL Concussion Protocol

606

. Florio, supra note 600.

607

. McCann, supra note 45.

608

. Evolution of the NFL Player, NFL FOOTBALL OPERATIONS, https://operations.nfl.com/the-play-

ers/evolution-of-the-nfl-player/ (last visited Dec. 13, 2018).

609

. McCann, supra note 45.

610

. Evolution of the NFL Player, supra note 608.

611

. Id.

612

. Id.

613

. Id.

614

. Id.

615

. Id.

616

. McCann, supra note 45.

617

. Daniel Rapaport, CTE: New Study Links Subconcussive Head Hits to Brain Disease, SPORTS

ILLUSTRATED, Jan. 18, 2018, https://www.si.com/nfl/2018/01/18/study-repeated-head-hits-concussions-cte.

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2018] POPULAR CULTURE AND THE NFL 131

simply deals with symptoms after the hit, it “does not address the root of the

problem, the hits themselves.”

618

According to Ann McKee, one of the foremost

experts in the area of CTE, “[t]here must be a reduction in the number of head

impacts” and simply continuing to focus “on concussion and symptomatic

recovery does not address the fundamental dangers these activities pose to

human health.”

619

Eliminating the kickoff would address McKee’s concerns by

reducing the number of sub-concussive hits players experience. There would

no longer be any reasons for teams to practice the play, thereby “ending all the

collisions from blocking and tackling” in order to master the play.

620

For those of us who are die-hard fans, which includes both authors of this

Article, the key question is how much risk is too much risk. Even if the risk of

CTE is slight, the dilemma is whether football fans should continue to rally

around a sport where substantial damage could be happening to the brains of

not only professional players, but to high school and college students. As Dr.

Omalu has noted, fans must get over their “intoxication with football” that has

resulted in some type of “delusional denial” of the risks actually posed by

playing the game.

621

This issue is one that must be addressed by each and every

fan. An excellent place to start in answering this conundrum is to simply to

watch Josh Begley’s five-and-a-half-minute short “Concussion Protocol” in

which every concussion in the NFL during this past season’s regular games is

documented. This is a “stunning, dizzying, devastating” film.

622

It is also important to remember that changes to the game affect not only

the NFL, but also those younger players who look to the NFL players as role

models. The Director of Officiating for the NFL, Mike Pereira, has recognized

that:

It’s incumbent on the NFL and everybody else (at the pro level)

to assume responsibility, to work on our games, to work on

those individuals who are creating those highlight clips on

ESPN, and try to discourage [aggression and violence] . . . so

618

. Id.

619

. Id.

620

. Geier, supra note 598.

621

. ESPN.com News Services, Dr. Bennet Omalu ‘Would Bet My Medical License’ That O.J. Simpson

Has CTE, ESPN (Jan. 30, 2016), http://www.espn.com/nfl/story/_/id/14677428/dr-bennet-omalu-bet-my-

medical-license-oj-simpson-cte.

622

. Daniel Engber, Concussion Protocol Will Change the Way You Watch Football Forever, SLATE

(Feb. 4, 2018), https://slate.com/culture/2018/02/concussion-protocol-will-change-the-way-you-watch-foot-

ball-forever.html;“Every Concussion in the NFL This Year” Documented in a Chilling Five Minute Video,

OPEN CULTURE (Feb. 2, 2018), http://www.openculture.com/2018/02/every-concussion-in-the-nfl-this-year-

documented-in-a-chilling-five-minute-video.html (full video).

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132 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

that they emulate a positive role model for young people

involved in the game.

623

In addition, a “[r]eduction of aggression on the field can lead to a reduction

off the field.”

624

So, “[p]roviding young athletes with non-aggressive but

assertive role models, rewarding restraint[,] patience[,] and promoting athletic

events as family affairs can also reduce the negative psychological effect of

sport violence.”

625

As Dr. Bennett Omalu has queried in an interview with Time Magazine:

Our children are the most vulnerable in our society. You

wouldn’t hire children to become fighters. You wouldn’t let

children jump from a plane to skydive. You wouldn’t let

children smoke. You wouldn’t let children drink alcohol. You

wouldn’t even let children have sex. Why would we then put a

helmet on a child, and tell the child to slam his head against

another child’s head?

626

Fans whom take the position that changes to the game to make it safer have

resulted in “disappointingly watered-down product,”

627

need to rethink their

stance. Arguably changes to the game—in order to make it safer—will never

result in football becoming flagball. By its very nature, football is a violent

game. “No other sport requires a player be wrestled to the ground on every unit

of play, and certainly no sport comes remotely close to the level of physical

contact and aggression in football.”

628

Plus, while change may be disconcerting

for some fans, it is important to recall that the game of football has undergone

many changes in its history.

At the end of the day, the only way the league and the teams will have an

incentive to significantly change the way the game is played is if the fans and

the media, which influences the fans, takes a stand demanding that the current

football culture of violence needs to change. For this transformation to occur,

the impetus must come from those who watch and support. It cannot be left up

to those who control the league, and who will simply slowly continue

implementing piecemeal solutions, because it is caught between a rock and a

623

. Sacks et al., supra note 397.

624

. Anthony Portolese, Psychological Impact of Violence in Sports, HOW TO ADULT (Sept. 11, 2017),

https://www.livestrong.com/article/543363-psychological-impact-of-violence-in-sports/.

625

. Id.

626

. Sean Gregory, Concussion Doctor: Over 90% of NFL Players Have CTE, TIME, Dec. 22, 2015,

http://time.com/4158140/concussion-film-bennet-omalu-cte-nfl/.

627

. Bieler, supra note 599.

628

. CJ Stephens, Does Football Fuel a Culture of Violence? (And Do We Care?), RELEVANT, Sept. 23,

2013, https://relevantmagazine.com/culture/does-football-fuel-culture-violence-and-do-we-care.

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2018] POPULAR CULTURE AND THE NFL 133

hard place—how to change the game to make it safer while basically trying to

keep it the same. It is key to remember that fans “are the life blood of

professional sports and the only reason why anybody in the industry receives a

paycheck.”

629

It is only the fans who have the power to evoke the radical

changes that need to be implemented so that the great game of football can

continue.

IV. AFTERWARD

While rife with dark humor, the following piece of popular culture

embodies the truth that the authors of this Article believe fans must confront.

Autopsy Shows that Deceased Fox NFL Robot Had Concussion Disease:

R.I.P. Cleatus, another fallen soldier in the NFL’s mental health war

630

Cleatus, the recently deceased robot mascot for

Fox NFL Sunday, was suffering from the concussion-related,

degenerative brain disease chronic traumatic encephalopathy

when he took his own life late last year. Dr. Wilson Anderson,

who performed the autopsy that confirmed the CTE diagnosis,

said, “I honestly didn’t even know what to expect. I wasn’t

sure if Cleatus, being a robot, would even have a brain. But

sure enough, he did and it showed the same signs of CTE

consistent with other former football players.”

Dr. Anderson conjectured that Cleatus’s CTE likely resulted

from the countless blows to the head that he suffered in the

course of his performances on Fox NFL Sunday, which often

involved him playing football against other animated robots

and fighting CGI characters in promotional animations.

Anderson estimated that Cleatus may have suffered from

dozens of undiagnosed concussions during his decade on Fox.

Network assistants consistently failed to report the occasions

on which extended bodily stress sent sparks flying from his

cranium, instead welding those wounds so to cover things up.

Cleatus’s wife, Jeanne, was dismayed to learn that his death

may have come as the direct result of the job that, until

629

. Schaik, supra note 425. For example, declining attendance by fans, “who were frustrated with the

aggression, violence, and foulplay,” i.e., play not sanctioned by the rules and unjustified, changed the culture

of Rugby Union in Australia. Sacks et al., supra note 397.

630

. Chris Alarie, Autopsy Shows That Deceased Fox NFL Robot Had Concussion Disease, MEDIUM (Jan. 8,

2017), https://medium.com/the-shocker/autopsy-shows-that-deceased-fox-nfl-robot-had-concussion-disease-

696f42532918.

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134 MARQUETTE SPORTS LAW REVIEW [Vol. 29:1

recently, he performed with devotion and aplomb. She

recounted, “He loved that job. He loved entertaining. He loved

the violence. [sobbing] He loved interacting with the brands.”

But the CTE diagnosis explains the behavioral changes she

and her 16-year-old son, Alfie, had noticed in Cleatus in the

months leading up to his death.

According to his wife, Cleatus had always been a fairly happy

robot until he began complaining of frequent headaches last

year. Shortly thereafter, Cleatus experienced tremors, mood

swings, and episodes of confusion and paranoia. His entire

character changed, as he began abusing prescription drugs,

alcohol, and malware. According to Alfie, he was like a

completely different robot: “He wasn’t my dad any more. Not

the dad I’d always known, at least. He’d drink and take pills,

and put mysterious drives into his USB ports, and just scare

the hell out of us. Back in April, he disappeared for two weeks

and came back with a broken nose and a bunch of guns. I didn’t

know what to do whenever he’d go after my mom.”

The police were called to their home several times to respond

to domestic violence complaints. Cleatus was fired by Fox

during the preseason after an incident on set where, drunk and

disoriented, he attacked a production assistant. Fearing for the

safety of her son and herself, Jeanne kicked Cleatus out of the

house. He moved in with his friend Digger, an animated

gopher that Fox occasionally used on their NASCAR telecasts.

It was Digger who found Cleatus’ body on the day after

Thanksgiving. Although there was no suicide note, a long,

rambling, distraught voicemail that he left his son on the

holiday made his intentions clear. Alfie regrets not answering

the call or calling his father back before he ended his life: “I

thought he was just doing more of the same stuff he’d been

doing for months: making threats, trying to manipulate us, you

know.”

Police determined that Cleatus died of a self-inflicted gunshot

wound to the chest, similar to former NFL players and CTE

sufferers Dave Duerson and Junior Seau. In fact, it was this

method of suicide that first tipped off Jeanne to the possibility

of a CTE diagnosis: “I’d seen that Will Smith movie

[Concussion, released in 2015]. Once they told me that was

how he did it, I just knew it. I told them to do an autopsy.”

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2018] POPULAR CULTURE AND THE NFL 135

Jeanne said that the CTE diagnosis has actually given her some

comfort: “At first I thought it was my fault. I thought I must

have been doing something wrong to make him act that way.

That I’d maybe forgotten to defrag him correctly. It was so

hard to see him like that and to force him to leave. But now I

know it was the concussions, that it was football, that it was

Fox and the NFL. They did this to him. They did this to my

husband, to my son’s father. And they knew they were doing

it.”

Alfie shares neither his mother’s anger at the network and NFL

nor her perverse sense of closure due to the diagnosis. Instead,

he blames himself: “I should have answered his call [on

Thanksgiving]. I think about that every day. I wish I had seen

that it was a cry for help. I wish I hadn’t just let my father

die.”

631

Representatives from Fox and the NFL did not respond to our

request for comment.

632

631

. Id.

632

. Id.