Malcolm Gladwell: Why College Football Should Be Outlawed

Submitted by Edward Khil on April 30th, 2012 at 8:23 PM

Slate interviews the best-selling author about head injuries, player exploitation and the subversion of the academic mission.

Colleges are going to get sued, and they will have to decide whether they can afford their legal exposure. That said, the issue ought to be how big-time college sports subverts the academic mission of university education.

http://www.slate.com/articles/sports/intelligence_squared/2012/04/the_next_slate_intelligence_squared_debate_is_may_8_why_malcolm_gladwell_thinks_we_should_ban_college_football_.html

Comments

Geary_maize

April 30th, 2012 at 8:38 PM ^

He does have a point. " It's not the one big hit. It is the cumulative effect of thousands of little hits [that affect the brain]"

It's probably a forgone conclusion that football players have a good chance to damage their brains. Shoulders problems? OK. Knee issues? That sucks. But brains? Hate to say it but yeah its disturbing. Very disturbing.

 

Needs

April 30th, 2012 at 10:39 PM ^

How so? Because it wouldn't only be the colleges that were to blame? But earlier levels of competition?

This isn't asked snarkily, I'd actually like to know how liability works in a case like this (and what legal analogies exist at all for this type of situation).

Clarence Beeks

April 30th, 2012 at 11:29 PM ^

I would think there would be a considerable problem establishing proximate cause, similar to the difficulty in establishing proximate cause in environmental cases.  Basically, they would have a difficult time establishing that particular incidents caused the eventual damage.  Partly because the damage takes considerable time to manifest (in most cases), partly because of the number of potential football related exposures, and partyly because there are many non-football related issues that could have caused that damage.

Clarence Beeks

May 1st, 2012 at 1:32 PM ^

I disagree and would argue that res ipsa loquitur doesn't apply.  Maybe you can explain why you think it does, because I don't see it at all?  (No snark intended, I'm really just not seeing the angle you're getting at with res ipsa, as duty and breach seem to be two of the easier elements to establish, in my opinion).  Almost no one (perhaps absolutely no one) who plays college football never played football before college, which means that they almost certainly would have been exposed to the possibility of the same injuries that cause the damage ultimate complained of, and it would be impossible to determine whether the damage was caused prior to the potential college exposures or as the result of the potential college exposures.  The fact that it can be so difficult to pin point a precise instance when the damage occurred is precisely the problem.  Plus, there are many other factors that could cause the damages complained of, which make it exceedingly difficult to establish causation.  It's the same reason why negligence is almost never the basis of successful suits for injuries sustained as the result of environmental contamination (the damage is far removed in time, requires cumulative occurrences to manifest, and multiple known and unknown sources can contribute to the same injury).  The fact that the athletes who later manifest these injuries played football before, and in many cases, after college, will present a substantial hurdle, especially when the damages complained of can be caused by many other factors, unless they are able to point to a precise instance (but even that could be problematic, however, since the same impact and immediate injury does not necessarily cause the same long term injury).   I do admit, however, that I should have been more general in my prior post and have said that the issue is with causation, not just proximate causation, because there are issues that arise with both proximate cause and cause-in-fact.  I also do not agree with you that "consent' is an issue in these cases.  Instead, the issue is assumption of risk.  Unless by "consent' you actually meant assumption of risk.  Either way, negligence would have to be established before you'd even get to assumption of risk.

bjk

May 1st, 2012 at 6:05 PM ^

has largely banned lead-based paints and use of asbestos in building insulation, which you mentioned indirectly (or did you -- "environmental contamination") as being analogous cases of long-term continous exposure. So one way or another, these sources of long-term risk were banned; is it your argument that CFB will not end up the same way, or just that civil action for liability will not be the medium for banishment? If the former, do you think it will eventually happen?

Clarence Beeks

May 1st, 2012 at 6:40 PM ^

I wasn't specifically talking about asbestos, as that's actually one of the issues where they have been able to gain some traction with civil litigation, but you are correct that both of those have been banned.  The key, though, is that it took legislative action for that to occur.  The type of environmental contamination that I had in mind was soil/groundwater contamination and trying to advance tort-based claims for physical injury.  I'm certainly not saying that tort remedies don't ever work with those situations, because they do, but it requires a unique pattern of facts.  In very general terms, the problem with those suits comes down to being able to pinpoint the exposure and then being able to prove that the exposure caused the damage, which is easier with some exposures than others.  For example, it works better with something like asbestos that can cause a very particular type of cancer that isn't caused by anything else, as opposed to something like TCE or MTBE (just as examples) which can definitely cause damage with enough exposure, but not necessarily damage that is indistinguishable from many other things that people are exposed to all the time, or that can occurr naturally.  That's the problem I see with claiming that there is some type of "liability" issue with these injuries: there are just too many other things that can cause these injuries and it's hard to pinpoint specific occurrences because the damages typically manifest themselves much later on.  I hope that makes sense because, like I said, very general terms.  As to your last question, which I think is a very good one, I would think it would ultimately have to come down to some sort of legislative action (which I don't think would happen) for that to occur because I just don't think the tort remedies will ever draw that line because of the problems with establishing the necessary elements that I, and others, have mentioned previously.

Belisarius

April 30th, 2012 at 11:30 PM ^

The fact that these hits happen before and after college, the fact that these hits could be occuring without college if there was some other route to the NFL (because, really, if colleges stopped playing football, would that really mean football would go away?) and the assumption of risk- whether the players live in denial or not, it is understood that this damage is happening, so they should resonably understand it as well, and assume the risk by continuing to play. No one is making them play. No one is fooling them into thinking this is entirely safe. For all these reasons, one would assume colleges have no liability here, assuming they took reasonable care in dealing with their student athletes.

There's a lot more that could be said on the subject, but hey.

Mr Miggle

May 1st, 2012 at 10:05 AM ^

but there are a few points that would make me worry about potential liability in CFB. I hope our legal experts can chime in and show me where I'm off base.

Assumption of risk seems like a very tricky defense to rely on. First, head injuries are nothing like knee or shoulder injuries, where the risks are obvious and well known to both parties. The effects of cumulative blows to the head are not so well understood. Recent medical research has increased our understanding of the dangers of concussions and sub-concussive injuries. While we can expect the schools to keep up with that research and to do what they reasonably can to minimize the risk to players, we cannot reasonably expect the same of the players. It seems to me that the schools have the responsibility to keep the players well informed of the risks they are assuming. Risks that may well change during the course of their careers.

College football is in a unique position, quite unlike high schools and the NFL. Looking at UM, we sell recruits on our academics as well as on our football program. We know most of them will not have careers in professional football, but they can earn a prestigious degree and set themselves up for success after football. We're selling that future to high school students with the understanding that many, if not most, of them would not be accepted for admission otherwise. That's not much like the relationship between a ski resort and their customers with regard to assuming risk.

While ex-players with neurological problems may not now be able to prove when their injuries were sustained, medical advances may make that possible in the future.

 

white_pony_rocks

April 30th, 2012 at 11:29 PM ^

this is a michigan college football blog, what did he expect with the stance he seemed to be taking?

edit: also, since you can't seem to take a little wit, this is a university of michigan blog, you should know how to spell university or else you shouldnt be on here

jackfl33

May 1st, 2012 at 12:48 AM ^

It's not the wit that bothers me, it's the idea that you were belittling the guy for actually having concern for the student athletes. As new science emerges and NO Saints scandals leak out, football has to take a hard look at the facts. Hope there weren't any typos in that one.

yzerman19

May 1st, 2012 at 9:30 AM ^

it's an interview not a position paper with a thesis statement, but i think his true thesis is at the end where he says they should at least be paid.  i think he is acknowledging that you can't stop people from tree skiing or playing tackle football, but if you are going to make money off them doing it they should be informed and compensated.

BlueDragon

April 30th, 2012 at 8:53 PM ^

will keep football around in some shape or form as long as we have mass media and a public willing to consume. Paying college players will be on the table to counteract the lawsuits if and when they come, assuming safety technology does not solve the head injury problem.

BiSB

April 30th, 2012 at 8:55 PM ^

He may be a best-selling author, but he is definitely not a lawyer.  His take of the theoretical legal liability facing colleges is completely overblown.

Section 1

April 30th, 2012 at 9:27 PM ^

He seems to think lawsuit = large collection.  Anybody got any ideas on what the theory of liability might be, for athletes who would sue their NFL franchises or their college athltetic departments?  Anybody know enough to, like, put the theory into plain English?

I've read the Complaint in the Vernon Maxwell, et al, lawsuit in California Superior Court.  There are nine main counts including Negligence, Fraud, Strict Liability and Failure to Warn.  Basically it is alleged that the NFL has known since the 1920's that football caused permanent brain injuries.  The Complaint is filled with those kinds of allegations.  The entire lawsuit seems to rest on a claim that whatever happens to the players, the NFL is responsible.  If that is the case, there are lot of guys who should be suing for messed up knees, shoulders and backs too.  But there's this thing, ya know?  It is called assumption of risk, including the risk that you can get hurt playing football.  If the NFL and the team owners have been "negligent," I'd like to know how.  What specific danger do we know about, that is known only to the owners but not to the players?

If I never hear another writer from the New York Times or the New Yorker scold the world on how college football players must be paid to play, it will be too soon.  Joe Nocera is bad enough.  Malcolm Gladwell is insufferable.

Did anyone get past this line without laughing out loud?

I heard on ESPN Michael Wilbon—who is one of the most influential sports journalists in the country—say that he will not let his kids play pro football ...

There's the name "Michael Wilbon" that gets me going all on its own.  Then, there is the "most influential sports journalists in the country" part.  Yucks.  And then the best: Wilbon won't "let his kids play pro football..."  Huh?  If his kids play college football and are drafted into the NFL as 21 or 22 year olds, will Michael Wilbon them put his foot down and say, "No!"?

Section 1

May 1st, 2012 at 10:18 AM ^

The questions become, "What risks were known to the NFL but concealed from players?"  And, "What risks were disregarded by the NFL?  Did the NFL share the known risks with the players?"

Why is payment required between the League/teams/institutions and the players?  As we all know from basic tort law, a duty can exist in the absence of any contractual agreement; I don't deny that.  There could be some duties owed by franchises/teams to individual players.  But since when has anybody shown that there were risks that were concealed?

Now there might well have been some "unknown" risks.  But are people liable for failing to prevent harm from unknown risks?

Oh, and Wilbon:  Rest assured, any time his name comes up, there's a good chance that it will garner an ad hominem attack from me.  Wilbon is a putz.

 

yzerman19

May 1st, 2012 at 10:40 AM ^

I am more responding to the issue in the context of college players not NFL players who sign professional deals to make a living and with contractual provisions spelling out risk factors like an S-1 filing.  Colleges have long term statistics built up over a hundred years of knowledge of the risks of subconcussive hits over time; 17 year old Cass Tech kids do not.  If the university is going make millions off 17 year old kids, make full disclosures and compensate them for the risk they are taking.  I am merely suggesting that a year to year schollie is not just compensation regardless of the disclosure.

And having a personal opinion about Michael based on his public persona is like taking a dog shitting on your carpet personally.  I am surprised you feel that way and thought you reserved your true animus for more deserving targets like Rosenburg and the Freep.

chitownblue2

May 1st, 2012 at 2:12 PM ^

I've just realized something, Section 1.

You're either:

a) woefully unintelligent, masked by an admirable vocabulary

b) a raging hypocrite

I say this because you have essentially just laid out the precise argument that RJ Reynolds and their ilk did when (failing) to defend themselves against a massive class-action lawsuit.

Assumption of risk ASSUMES that the risks have been disclosed. There are ancient head-trauma studies that pre-date the current concern about the injury.

So, you either don't understand this, or you DO, and you're willing to overlook it because you LIKE football - at least more than you do cigarettes.

The simple fact is that closed-head injury is endemic to football the way cancer is to abestos installers and black lung is to coal-miners. When those working conditions were discovered, action was taken - nobody hand-waived it aside with bullshit Libertarian "ASSUMPTION OF RISK" posturing.

Section 1

May 1st, 2012 at 2:47 PM ^

There are plenty of cigarette smoking lawsuits that I think were complete bullshit.  The vast majority of them were and are bullshit, since there have been warning labels on them since the 1960's.

As for asbestos, that's a specific carcinogen, for which specific information really did exist at an early time, and it causes a disease (mesothelioma) that virtually no other substance causes.  (I am generalizing a bit here.)  So there is a clear breach of duty to warn, clear proximate cause, and in some cases there was already worker compensation to provide some coverage to victims.  Nothing else is like an asbestos mesothelioma case.  Of course there are plenty of bullshit asbestos cases too, where workers are blaming their non-mesothelioma lung disease or their general heart disease on asbestos when in fact they were smoking 2 packs of cigarettes a day for 40 years and breathing all sorts of non-asbestos dust and other particulate matter.

And of course, the national racket in phony diagnoses in asbestos and silicosis cases was rather nicely exposed in Texas, through the remarkable work of U.S. District Judge Janis Jack:

http://www.freerepublic.com/focus/f-news/1461932/posts

 So yeah,

Now, back to football helmets:

 

Section 1

May 1st, 2012 at 3:00 PM ^

... which aren't known to the public.  And which should have been disclosed to players.  What warning, do you suppose, should have been given to any player in 1965?  1975?  1985?  1995?

I know; the multi-plaintiff Los Angeles case (which I suspect may never be certified as a class action) alleges all sorts of stuff going back to the 1920's.  Loads and loads of boxing studies.  Other lliterature.  From the 20's, 30's, 40's, 50's, etc.  That's what makes for great lawsuit-reading.  The ability of lawyers to put crap like that into a legal pleading to be filed with the court.