By: Kathryn Downing
[1]In 2024, there were 44 reported concussions in the NFL pre-season alone.[2] The NFL prided themselves in this statistic, exclaiming it was the “fewest number of concussions [in the preseason] since tracking began in 2015.”[3] But the reality is, in only three weeks, 44 serious onsite employee injuries occurred under an employer’s watch.
Employers owe a duty of care to their employees.[4] “This duty may require employers to take reasonable steps to prevent harm, provide proper training, and address any known risks in the workplace.”[5]
NFL players receive a salary, have access to health benefits, and are eligible for workers’ compensation.[6] Although players are not generally thought of as NFL “employees,” they are.[7] Therefore, the NFL owes players the same duty of care all employers owe their employees. As such, the NFL must take reasonable steps to prevent harm and address known workplace risks, such as concussions.
The NFL has taken steps in the right direction. This includes implementing strict concussion protocol,[8] requiring non-NFL affiliated doctors at every game, conducting concussion-related research, and trying to change game rules to minimize concussions.[9] For example, in September 2024 it altered kick-off rules to “reduce both the space and speed between” players colliding.[10] But, it has not been enough. In 2024, the NFL had “182 total concussions combined in the preseason and regular season (games and practices).”[11]
To help, the NFL could implement stricter helmet regulations. Currently, the NFL requires Guardian Caps, a soft-shell helmet cover proven to minimize concussions, for most players during training camp, every preseason practice,and all other practices that involve contact.[12] There are also six helmets “that provide as much – if not more – protection than a different helmet model paired with a Guardian Cap.”[13] As such, players who must wear a Guardian Cap can substitute the cap for one of those six helmets.[14] However, in regular-season games, players do not have to wear a Guardian Cap or one of the six safer helmets. Only a handful of players have chosen to wear Guardian Caps due to “comfort” and “aesthetics.”[15] To minimize harm, the NFL should extend the mandate into regular-season games.
Furthermore, the NFL can impose stricter sanctions for conduct that tends to result in concussions, like helmet-to-helmet hits.[16] The current sanction for a helmet-to-helmet hit is a loss of 15 yards, an automatic first-down for a defensive foul, and the offending player may be disqualified.[17] However, the rule is not consistently enforced.[18] In fact, it is rare that the rule is enforced during games.[19] Usually, the rule is enforced by post-game fines or warnings.[20] To deter this conduct further and minimize the risk of concussions, the NFL could impose a stricter sanction during games, like an automatic ejection of the player who committed the foul.
Above are only a couple of suggestions; there are many avenues the NFL can take to fulfill their duty of preventing concussions. With more research and the development of technology, the profession of football has a chance to be safer, but only with the NFL’s help can it be done.
[1] Jack Dempsey, Photograph of football player hurt on ground with coach player and ref looking over him in Vinson Cunningham, A Haunting Video of Every Concussion Reported During the Current N.F.L. Season, New Yorker (Feb. 2, 2018), https://newyorker.com/ [https://perma.cc/JSD3-TCDN].
[2] Innovations In Player Safety Help Drive NFL Preseason Concussions to Record Low, NFL Football Operations (Oct. 4, 2024), https://operations.nfl.com/ [https://perma.cc/V93L-RYEH].
[3] Id.
[4] What Is Duty Of Care And What Does It Mean For My Company?, Global Guardian: Global Digest(Feb. 14, 2024), https://globalguardian.com/ [https://perma.cc/5R2U-FBNM].
[5] Id.
[6] John Larrimer, Do NFL Players Get Workers’ Comp. Benefits? | Ohio Law, Larrimer & Larrimer (Dec. 1, 2024), https://larrimer.com/ [https://perma.cc/8ENP-HQPM]; Michael O’Nair, The Employee Perks Of NFL Players Compared To Non-Playing Employees, (Dec. 20, 2024), https://russellstreetreport.com/ [https://perma.cc/6KST-ANHC].
[7] Larrimer, supra note 6.
[8] Concussion Protocol & Return-to-Participation Protocol: Overview, NFL (Jun. 22, 2018), https://nfl.com/ [https://perma.cc/GL6Q-5R4Z].
[9] AT SPOTTERS, NFL Football Operations, https://operations.nfl.com/ [https://perma.cc/NYK5-GYRF] (last visited Feb. 2, 2025).; Innovations In Player Safety Help Drive NFL Preseason Concussions to Record Low, supra note 3.
[10] Anthony Holzman-Escareno, 2024 NFL Season: Explaining rules for new dynamic kickoff, NFL: News (Sep. 5th, 2024), nfl.com [https://perma.cc/MT4E-3XM2].
[11] RJ Kraft, NFL data shows significant decrease in concussions in ’24, The Athletic (Jan. 30, 2025), https://nytimes.com/ [https://perma.cc/C6JX-FFF7].
[12] Keith Jenkins, What are Guardian Caps? How are they used in the NFL?, ESPN (Sep. 17, 2024), https://espn.com/ [https://perma.cc/T3AK-3ML5]; Eric Mullin, Multiple NFL players plan to wear Guardian Cap during games this season, NBC Sports Philadelphia (Sep. 6, 2024), https://nbcsportsphiladelphia.com/ [https://perma.cc/Y2TJ-RFMV].
[13] Sarah Effress, Who wears a guardian cap in NFL? Players who have worn new, protective helmet in 2024 so far, The Sporting News (Oct. 27, 2024), https://sportingnews.com/ [https://perma.cc/9GTW-B9VX]
[14] Keith Jenkins, What are Guardian Caps? How are they used in the NFL?, ESPN (Sept. 17, 2024), https://www.espn.com/nfl/story/_/id/40909583/what-guardian-caps-how-used-nfl.
[15] Effress, supra note 13; The Associated Press, What are the soft-shell helmet Guardian Caps that Tua Tagovailoa says he won’t wear?, The Seattle Times (Oct. 22, 2024), https://seattletimes.com/ [https://perma.cc/NBH6-SEJR].
[16] See Brian Resnick, What a lifetime of playing football can do to the human brain, WashU McKelvey Sch. of Eng’g (Feb. 4, 2020), https://engineering.washu.edu/ [https://perma.cc/6XBY-JB59]; Idea generated by AI chatbot ChatGPT.
[17] Use of the Helmet Rule 12 Section 2 Article 10, NFL Football Operations: NFL video Rulebook, https://operations.nfl.com/ [https://perma.cc/4D6U-B4SZ] (last visited Jan. 10, 2025).
[18] Mike Florio, NFL rolls out more revisions to the lowering the helmet rule, Pro Football Talk(Aug. 14, 2023), https://nbcsports.com/ [https://perma.cc/2AHB-3N7H].
[19] Id.
[20] Id.; Ian Casselbery, NFL fines Commanders LB Frankie Luvu $16,883 for helmet-to-helmet hit on Lions’ Jared Goff, Yahoo Sports (Jan. 25, 2025), https://sports.yahoo.com/ [https://perma.cc/6RYM-2BTR] (explaining how a missed penalty on Washington Commanders LB Frankie Luvu resulted in a post-game fine for an illegal “blow to the head/neck” hit).
