By: Samantha Bowie

Before the Week Four matchup between the National Football League’s (NFL) Miami Dolphins and Cincinnati Bengals even began, people were questioning the decision to start Dolphins quarterback Tua Tagovailoa.[1]  Not for the usual reasons of inadequate on field play, but because the previous week, Tagovailoa was on the receiving end of a hit penalized as roughing the passer.[2]  When Tagovailoa stood up after the hit, he was visibly shaken, collapsing again a few seconds later and requiring a teammate’s help getting off the field.[3]  Almost everyone watching at home thought Tagovailoa sustained a concussion, and the team originally labeled him with a head injury.[4] But the team later claimed he suffered a back injury, cleared all medical evaluations at halftime, and he returned to the game.[5]

Four days later, Tagovailoa started against the Buffalo Bills and was sacked five minutes before halftime.[6]  As his head hit the ground, his hands grew rigid in front of his face in the classic “fencing response” shown after a severe concussion.[7]  He was carted off the field and did not return to the game.[8] 

He missed the next week in concussion protocol, and while he could have returned the following week, the Dolphins elected to give him more time to recover.[9]  Tagovailoa made his return against the Pittsburgh Steelers in Week 7 on Sunday Night Football.[10]

The NFL and NFL Players’ Association (NFLPA) developed the Game Day Concussion Diagnosis and Management Protocol in 2011 and updated it in 2018.[11]  During halftime of the Bills game, Tagovailoa was evaluated for a concussion, per protocol triggered by Tagovailoa’s exhibited “gross motor instability.”[12]  This decision is made concurrently with the team’s physician and an unaffiliated neurotrauma consultant present at every game.[13]  Either could have prevented Tagovailoa from returning to the game.[14]  Tagovailoa was rechecked for a concussion everyday between the two games before starting against the Bengals.[15]

Following the Bills game, the NFLPA requested a joint investigation with the NFL into whether the Dolphins followed the concussion protocol.[16]  Because the Dolphis played just four days after the first incident, the investigation was not complete before Tagovailoa retook the field.[17]  While the NFL has stated that the preliminary report indicates that protocols were followed, the NFLPA has indicated they will pursue other legal options, most likely to end in arbitration, pursuant to the CBA.[18]  The full investigatory report will likely take two weeks.[19]

The NFLPA exercised its right to unilaterally fire the unaffiliated neurotrauma consultant after he made “several mistakes” in his evaluation.[20]  Additionally, the NFLPA and NFL immediately suggested an update to the concussion protocol.[21]  The NFL agreed to add that a player exhibiting “ataxia,” or abnormal balance, would be banned from returning to the game, even if they passed other concussion tests.[22]  Coincidentally, the first player to not return because of this update was the Dolphins’ backup quarterback Teddy Bridgewater.[23]

While the NFL and NFLPA seem to be working together for now, the full investigatory report may create a different story.  The NFL has made significant strides in concussion prevention since the discovery of chronic traumatic encephalopathy (CTE) and its relationship to the repetitive hits sustained playing football; however, it continues to pay a billion-dollar settlement to former players from concussion-related lawsuits.[24]  The NFLPA has made clear it will continue to push for updated protocols along with possible legal action on behalf of Tagovailoa with the hope two back-to-back hits like this no longer occur.[25]

[1] Phil Helsel, Even Before He was Carried Off the Field, Some Asked Whether Dolphins QB Tagovailoa Should’ve Been Playing So Soon After Prior Hit, NBC News (Sept. 29, 2022, 10:13 PM), https://www.nbcnews.com/news/sports/miami-qb-tagovailoa-stretchered-field-sack-vs-bengals-rcna50124.

[2] Ben Morse, NFL Faces Intense Scrutiny Over Concussion Protocols, CNN https://www.cnn.com/2022/10/03/sport/nfl-concussion-scrutiny-tua-tagovailoa-spt-intl/index.html (last updated Oct. 3, 2022, 9:20 PM).

[3] Tyler Sullivan, NFL-NFLPA Conclude Concussion Protocol was Followed with Tua Tagovailoa; Add Modification to ‘No-go’ Symptoms, CBS Sports (Oct. 8, 2022, 5:22 PM), https://www.cbssports.com/nfl/news/nfl-nflpa-conclude-concussion-protocol-was-followed-with-tua-tagovailoa-add-modification-to-no-go-symptoms/.

[4] What We Know About the Injury to Dolphins QB Tua Tagovailoa, and What’s Next, ESPN, https://www.espn.com/nfl/story/_/id/34697326/the-details-dolphins-tua-tagovailoa-injury-next (last visited Oct. 13, 2022) [hereinafter What We Know].

[5] What We Know, supra, note 4.

[6] Id.

[7] Id.

[8] Sullivan, supra note 3.

[9] Safid Deen, Tua Tagovailoa’s Return Sets Big Stage for Dolphins, NFL and New Concussion Rules, USA Today (Oct. 21, 2022), https://www.msn.com/en-us/sports/nfl/tua-tagovailoas-return-sets-big-stage-for-dolphins-nfl-and-new-concussion-rules-opinion/ar-AA13eWo9.

[10] Id.

[11] Concussion Protocol & Return-to-Participation Protocol: Overview, NFL, https://www.nfl.com/playerhealthandsafety/health-and-wellness/player-care/concussion-protocol-return-to-participation-protocol (last visited Oct. 13, 2022) [hereinafter NFL Protocol].

[12] Id.; What We Know, supra note 4.

[13] NFLPA Terminates Unaffiliated Neurotrauma Consultant Involved in Tua Tagovailoa’s Concussion Evaluation During Week 3 Game vs. Bills, NFL (Oct. 1, 2022, 03:40 PM), https://www.nfl.com/news/nflpa-terminates-unaffiliated-neurotrauma-consultant-involved-in-tua-tagovailoa-.

[14] Id.

[15] What We Know, supra note 4.

[16] Id.

[17] Jordan Dajani, Tua Tagovailoa Injury: NFLPA Executive Director Says It Plans to ‘Pursue Every Legal Option’, CBS Sports (Sept. 30, 2022, 2:40 PM), https://www.cbssports.com/nfl/news/tua-tagovailoa-injury-nflpa-executive-director-says-it-plans-to-pursue-every-legal-option/.

[18] What We Know, supra note 4.

[19] Id.

[20] Marcel Louis-Jacques, Unaffiliated Neurotrauma Consultant Who Evaluated Tua Tagovailoa Fired, Sources Say; Investigation Ongoing, ESPN (Oct. 1, 2022), https://www.espn.com/nfl/story/_/id/34702740/unaffiliated-neurotrauma-consultant-evaluated-miami-dolphins-qb-tua-tagovailoa-fired-several-mistakes-source-says.

[21] Sullivan, supra note 3.

[22] Louisa Thomas, Tua Tagovailoa’s Injury Wasn’t Just a Failure of Protocol, New Yorker (Oct. 12, 2022), https://www.newyorker.com/sports/sporting-scene/tua-tagovailoas-injury-wasnt-just-a-failure-of-protocol.

[23] Id.

[24] Id.

[25] Mike Florio, NFLPA: No “Meaningful Application” of Concussion Protocol to Tua Tagovailoa, NBC Sports (Oct. 9, 2022), https://www.msn.com/en-us/sports/nfl/nflpa-no-e2-80-9cmeaningful-application-e2-80-9d-of-concussion-protocol-to-tua-tagovailoa/ar-AA12La9T; What We Know, supra note 4.