On Concussion Risks and Effects in Football, and on Considering Those Risks and Effects With the Benefit of 20/20 Hindsight: A Former BYU Player Sues the University Over Concussion Related Symptoms
By Ken K. Gourdin
Former Brigham Young University linebacker Lloyd Carr has sued the University over concussions and their aftermath. See Salt Lake Tribune coverage here, last accessed December 21, 2016: http://www.sltrib.com/home/4718340-155/byu-football-hall-of-fame-cougar. My commentary here comes with the usual caveat: I am not a lawyer, and my commentary herein should not be taken as legal advice, nor should it be applied to any set of real-world facts, no matter how accurate my commentary may seem and no matter how applicable it may seem to any set of real-world facts. Now, with that out of the way, one poster said, “I found Jesus, and the first thing I told Him is, ‘You’ve been served.’” I responded:
Reminds me of one of my favorite jokes. An engineer dies and goes to the pearly gates. St. Peter checks his list, certain that the engineer is on it and that, thus, he will qualify for admittance into heaven. Alas, no engineer. St. Peter double- and triple-checks the list, but still can’t find the engineer’s name on it. St. Peter is very apologetic, saying that he can’t think of a good reason why the engineer shouldn’t be allowed into heaven, but, rules are rules, and unless he’s on the list, St. Peter can’t let him in. So, the engineer goes to hell. The engineer looks around and, as good engineers are wont to do, quickly sets about employing his ingenuity in an effort to improve hell’s substandard conditions. Before you know it, hell has flush toilets, escalators, and even air conditioning.
Ever so often, God likes to call Satan, if for no other reason than simply to gloat. So, God calls Satan. “So, Satan,” God sneers. “How are things in hell these days?” “Actually, they’re pretty good,” Satan answers. God is surprised. “Oh?” he asks. “Yeah,” Satan answers. “They’ve been getting better and better all the time since the engineer got here. Why, we’ve got flush toilets, escalators, and even air conditioning.” Even more surprised, God asks, “Oh, you have an engineer there, do you? Satan, I’m afraid that has to be a mistake. You’re simply going to have to send him back to us.” Satan is incredulous. “Nope. Sorry, God. No can do. Besides, are you crazy? Why, things have gotten so much better since he got here that I’d have a real mutiny on my hands if I sent him back. I’m afraid I can’t do that.” As unlikely as it seems, God is reduced to begging. “C’mon, Satan. I mean it. No fooling around. Send him back to us right now.” “Oh, yeah?” Satan asks. “What’re ya gonna do to me if I don’t?” God says, “I’m afraid I’m just gonna have to sue you.” Satan smiles and laughs derisively, knowing he’s got God right where he wants him now. “Sue me?” Satan snorts. “Yeah, right! Where ya gonna find a good lawyer?” ;-D 😀
Everyone knows that all good lawyers go to hell after they die. Engineers, on the other hand?
Another poster opined that BYU would be wise to settle. A federal prosecutor in the case of Adophus Nickleberry, charged with drug and weapon crimes, cited non-controlling authority and failed to disclose controlling authority to a federal judge in his briefing on the case. That, if it needs to be said, is quite a large “No-No.” Both this poster and I responded to reporting on the case in Salt Lake City’s alternative newspaper, City Weekly. Several other posters upvoted his comment. Regarding this poster’s suggestion that BYU settle, I responded:
Why [should BYU settle]? (I suspect the upvotes you’ve received stem, not from the firm grasp of the law possessed by those who gave them to you, but, rather, from the antipathy toward BYU and/or toward the Church of Jesus Christ of Latter-day Saints possessed by those who gave them to you.) I admit, perhaps you’ve forgotten more about class action litigation or complex medical litigation than I’ll ever know, but how was BYU’s response to the problem unique (or at least unusual) among schools with Division I football programs? Was it uniquely or unusually negligent? Uniquely or unusually calloused? Otherwise beyond the pale? Again, while I’m more than willing to defer to your superior knowledge and experience if you happen to have experience with class action or complex medical litigation, I don’t see how Bro. Carr could prevail without providing enough evidence to answer at least one of the foregoing questions (or perhaps others I haven’t mentioned), “Yes.” That’s a very, very tough row to hoe. However, perhaps you can educate me; I welcome your response.
In response, he wrote in part, “As for ‘educating you,’ I don’t think you need any help from me – you seem to have done quite well on your own. We may disagree on the merits of the case, but I respect your opinion.” I responded:
You seem to think that my invitation for you to educate me somehow was meant to patronize you: it was not. (Our responses to City Weekly’s coverage of the Adolphus Nickleberry case actually appeared in the same issue of that publication, and I was impressed with the depth at which you considered the issues involved there.) Honestly, I assumed your suggestion that BYU settle might stem from your superior grasp of the issues here. I don’t necessarily think that BYU offering to settle is a bad idea: it might show some good faith on BYU’s part; the problem is, doing so might open the floodgates; how many former Cougars are out there with ongoing concussion-related symptoms? Unless BYU’s response to the problem was somehow unique in its negligence, in its callousness, or otherwise was beyond the pale, why not simply join the class action concussion litigation already pending?
He did not respond, but upvoted my comment to him. Another poster implied that, since God gives us free will, Bro. Carr knew the risks and chose to play anyway, and now is trying to make BYU responsible for that decision. I responded:
This is why, for the most part, God reserves judgment unto himself, only committing it into human hands in limited circumstances. Yes, in order to prevail, Bro. Carr likely will have to present evidence of his ignorance of the risks involved, on the one hand, and BYU’s conscious disregard for those risks, on the other hand. True, both teams and athletes are a lot more savvy about those risks now than they were then. But I don’t necessarily think that there was conscious, knowing disregard of the risks by either party in this case.
In 2016, it’s much easier to argue that a party either (1) knew the risks and accepted them; or (2) knew the risks and consciously disregarded them. Now, teams are much more aware, conscientious, and proactive about evaluating those risks. But the relevant question is, what did BYU and its officials know (or what should they have known) in the early- to mid-1970s when Bro. Carr played, on the one hand, versus what Bro. Carr knew or should have known, on the other hand. Because we’re talking about something that occurred in the early-to-mid-1970s rather than in 2016, it’s not as cut-and-dried as saying, “Players knew and accepted the risks, end of story,” or “Coaches/teams knew and disregarded the risks, end of story.”
Now, having said that, in my mind, in order to prevail, Bro. Carr is going to have to present some unusually strong evidence, such as that he told a BYU coach or trainer, “I can’t/shouldn’t play today,” while his interlocutor said something such as, “You’ll play, or we’ll cut you, yank your scholarship, etc.” Meanwhile, BYU’s lawyers will be looking into Bro. Carr’s history with a fine-tooth comb: What happened to him in high school? What happened to him when (I believe) he played briefly in the CFL [Canadian Football League? Did anything happen to him off the field that could be a contributing factor to his symptoms and to his difficulties?
My interlocutor responded, “[I] read your entire post. [In my opinion, it’s nothing but] legal jargon, just like the lawyers in the Book of Mormon”—as though the issues involved, and their resolution, are transparent. I responded, “Suit yourself.” (I’m glad he isn’t either party’s lawyer.)
I wrote, “As much as I sympathize with Bro. Carr’s plight, I wonder why BYU (alone among schools with Division I football programs, apparently) deserves being singled out.” Another poster responded, “Not sure what you mean by that, but BYU is not the only University being sued by a former player.” I replied, “Exactly my point. There is class-action litigation pending over the issue. Unless BYU somehow was uniquely negligent, uniquely calloused, or otherwise acted (or failed to act) beyond the pale, why not simply join the class-action litigation?”
Another poster ridiculed my addressing Carr, a fellow member of the Church of Jesus Christ of Latter-day Saints, as “Brother,” (abbreviated “Bro.”), a common practice in the Church since, because we believe we are all children of God, that makes us brothers and sisters. He wrote, “Bro.? What’s that mean? Maybe you people should [excommunicate] him for speaking out.” I replied, “’You people’? What’s that mean? I don’t have any ecclesiastical jurisdiction over Bro. Carr, and even if I did, ‘speaking out’ on subjects such as this is not an excommunicable offense.”
Another poster ridiculed the “doctor knows best” mentality with respect to the response to concussions, and said that a doctor cleared him as okay to play when the doctor knew otherwise. I responded:
How do we know what doctors knew and didn’t know in the early- to mid-1970s when Bro. Carr played? (And do you have any evidence that a doctor retained by BYU cleared Carr to play? Do you know if he has such evidence?) It’s true that teams, coaches, trainers, doctors, and other personnel are much more proactive about screening for concussion-related symptoms and ensuring fitness before clearing players to play now than they were then. But that’s exactly why 2016 standards shouldn’t be used to evaluate cases that occurred in the early- to mid-1970s.
Another poster said he regretted giving up football until the concussion risk and attendant results began coming to light a few years ago. I responded:
Right. [What is known n]ow, versus what was known (or what should have been known) in the early-to-mid-1970s. Bro. Carr will have to prove that he was ignorant of the risks, which will be easy to do. But he’ll also have to prove that BYU knew or should have known those risks, but consciously disregarded them; not so easy to do.