Last year, former New England Patriots tight end Aaron Hernandez took his own life after killing his friend over a perceived slight. This followed his acquittal from murdering two strangers five years earlier. Autopsy research definitively demonstrates that Hernandez’s brain suffered extreme damage due to Chronic Traumatic Encephalopathy (CTE). This affliction can lead to severe issues with rage and volatility as well as inhibited impulse control.
Hernandez is just one of a growing number of former National Football League (NFL) players whose CTE has led to devastating outcomes. In recent years, the NFL has publicly acknowledged the connection between football and CTE. The question many people are now wondering is whether the NFL can be held liable for the brain damage its players suffer.
The NFL is currently facing several pending lawsuits. For the plaintiffs in these cases, the legal grounds for litigation are complicated. A lawsuit claiming that the NFL was responsible for the players suffering concussions would hold little water. Head-bashing activities are a foundational element of football. A court would almost certainly view the risk of concussion as something players fully understood by voluntarily participating in the sport.
The plaintiffs in these cases, however, are claiming that the NFL showed negligence in a different way: it failed to properly warn about the harmful, long-term consequences of concussions. The angle of this lawsuit brings into question the NFL’s—or any employer’s—duty to warn. While there is no requisite duty to warn about obvious, immediate side effects of risky behavior, is there an obligation to warn about less obvious consequences of such behavior that manifest later in life? The results of these lawsuits will be telling.