Football and Head Injuries: Legal Analysis of the NFL Concussion Protocol (Part I):

0:00:08 - Shane Smith
I'm Shane Smith here with Mind Matters: Navigating Head Injuries and Concussions. I'm here with Thomas, one of the attorneys here at Shane Smith Law in the concussion and brain injury group. Thomas, today we're going to be talking about the NFL concussion protocol and basically the return to participation protocol. Right? What you have to do, so you can get back on the field, back to playing.

0:00:27 - Thomas Ozbolt
Yeah, as you know, it's the best time of year for the football fans out there. It's the NFL playoffs. We're into the final rounds, and any NFL fan by now is acquainted with the phrase the concussion protocol. Right, what is that? Yeah, few people really know what it means. They just hear, you know, Tony Romo would go "Oh, concussion protocol jail," but that's what we're here to talk about today. The concussion protocol, the NFL has a specific protocol that they run through, and that's a set of procedures and guidelines that are used to assess and manage concussions that are suffered by NFL players during the games. Designed, and of course, above all things to ensure player safety.

0:01:07 - Shane Smith
All right. So what happens when they suspect a concussion, or a player has a concussion?

0:01:13 - Thomas Ozbolt
Yeah, there are two things that can trigger a player being pulled off the field, and you might notice these. You might notice at least one of them. First, player has an impact to the head, and they exhibit or report symptoms or signs that are suggestive of a concussion or a stinger. That's the first thing that can happen. So you have impact to the head, symptoms exhibited or reported, concussion or stinger. Or, you have these independent certified athletic trainer, booth athletic trainer, team physician, NFL official, coach, teammate, or the unaffiliated neurotrauma consultant notices something from whatever part of the field they're on. So you have a booth person, you have a coach, you have a player, a teammate. They notice these and they initiate the protocol.

0:01:59 - Shane Smith
So even a teammate can do it.

0:02:01 - Thomas Ozbolt Right, yeah, it can be triggered by, you know, say, you know, I guess, we're past the time, Dak Prescott. But, you know, let's say Patrick Mahomes takes a shot, and he gets up and he starts talking like it's 2020, Travis Kelce can say, "Hey, you got to get Pat off the field. There's something wrong here."

0:02:18 - Shane Smith And I know, like I watch a lot of USC and those fighters a lot of times, you know they want to keep fighting. They don't want to be pulled out of the ring, for instance. My guess is NFL players are exactly the same way.

0:02:29 - Thomas Ozbolt
Exactly the same. You saw it a couple of years ago. I think it was 2021. You know, Mahomes took a shot, got knocked unconscious when he was getting drugged down by a Cleveland Browns player. He didn't want to leave the field but they wouldn't let him back on. He was immediately removed from the game and that was it for that game for him. And luckily won.

0:02:49 - Shane Smith
Now once they're removed, what does that remove phrase mean? Are they off the field in the locker room, to the hospital? What's that mean?

0:03:33 - Shane Smith
ALl right. And what are the Maddox Questions and what's the sideline survey? What is that? Yeah it's a quick- so they know these questions in advance. Can I prepare for them?

0:03:42 - Thomas Ozbolt
Oh, you could, but you would have to be in the moment to really be able to answer. The way that they're designed, they're kind of cheat proof. So sideline survey is quick. It's crucial, though. And when we talk about Maddox Questions, those are designed to evaluate the player's orientation and their memory. So, for example, they might be asked what stadium are you in? Alright. Or they might say what's the score, or who are you playing, to check their cognitive function.

0:04:09 - Shane Smith
So those are the Maddox Questions. So those are just normal questions every player is going to know the answer to, as long as they're in the right frame of mind.

0:04:18 - Thomas Ozbolt
Exactly. If everything is going the right way with cognition, they're going to know the answer to that question. They're not going to say they're playing the Braves or something.

0:04:28 - Shane Smith
Well, I know, like, I've seen it in UFC, where they talked about one guy who was, you know, he'd already had a concussion, he'd been knocked out, and they're asking him a question. He goes, "I can't talk to you, I got to get ready for a fight." And they're like, no, fight's over. These are kind of the responses they get on those Maddox Questions, I guess.

0:05:14 - Shane Smith Because those would be the biggest issues, right, "I can't remember where I'm at or who I'm playing or what the score is." I mean, I imagine every NFL player knows the score constantly.

0:05:25 - Thomas Ozbolt Constantly.

0:05:26 - Shane Smith
Yeah, so they don't know any of that. That's a huge sign and it's easy and quick, easy diagnosis for them, I guess.

0:05:34 - Thomas Ozbolt
Yeah, it helps them move on to the next part of that, which would be, you know, it's an indicator this could be a concussion that we're talking about here. So that takes you on to the next step here.

0:05:43 - Shane Smith All right, and what is the next step?

0:05:46 - Thomas Ozbolt
Next step is the neurological exam. This is something a little bit more detailed.

0:05:48 - Shane Smith
Is this the sideline survey? Is that what it is?

0:05:51 - Thomas Ozbolt
Still part of the sideline survey All right.

0:05:53 - Shane Smith
So the whole thing, the whole umbrella is the sideline survey. Yeah. Everything in that blue tent is sideline survey. Yeah. And inside of it, Maddox Questions first. Second question is neurological.

0:06:04 - Thomas Ozbolt
Neurological exam. That's when they're looking at things like balance, coordination, reflexes, maybe, you know, the light in front of their eyes, checking the nystagmus, you know, standing on one foot. They're checking for signs of concussion, like headaches, dizziness, confusion. And again, that all takes place inside the blue tent. So blue tent: "Hey, where are you? What's the score? Who are we playing? And then, all right, let's- did that go well? Let's move on to the next step and see how you're doing neurologically.

0:06:29 - Shane Smith
All right, now is the neurological, is it mostly physical, like the field sobriety tests, if somebody gets pulled over on the side, is it like stand on one leg and walk, you know, walk in a straight line? Or what kind of tests go into that? Or is it the flashlight kind of deal?

0:06:46 - Thomas Ozbolt
Yeah, I think, I think it's- I don't know that there's a specific checklist that they'll go through. A lot of this is guided by the team physician and they do have some latitude in this process. And as we'll see later, they ultimately get to make some of the decisions in conjunction with, you know, the independent neurological or the unaffiliated neurological consultant. But the neurological exam we're talking about is crucial because it helps identify subtle symptoms, and doing this in a thorough way might identify some issues that might not be immediately apparent. Because of course you wouldn't know anything about balance if you're just asking a few questions. It's like, let's get you up on your feet, let's see how you're doing. You know, let's close one eye. There's a variety of different things that they could do.

0:07:28 - Shane Smith
Okay, I guess how crucial is the exam to the whole process?

0:07:32 - Thomas Ozbolt
It is vital to the player getting back on the field or moving on to the next step of this.

0:07:38 - Shane Smith
Because if they couldn't do the neurological here they'd probably have to pull them and send them all to the hospital, I guess a physician or the ER to do it. But they're able to do it here with all the concussion protocols and all the doctors and everything there.

0:07:49 - Thomas Ozbolt
Yeah, if they pass, you know, if they nailed the Maddox Questions, if they get through the neurological exam without any signs or symptoms, they may return to play. But if any element of those surveys, if they're positive or they're inconclusive, they're taken back to the locker room and back there you've got a more detailed examination that goes on.

0:08:09 - Shane Smith
So it's no longer sideline survey, now it's, "You're failing, get to the locker room."

0:08:13 - Thomas Ozbolt Yeah, bad sign if you're a fan of that team. You're like, "Oh no, he's going to the locker room. They might not be coming back at this point."

0:08:19 - Shane Smith
So what happens in the locker room? Well, one. How long does the sideline survey normally take?

0:08:24 - Thomas Ozbolt
I don't know if there's exact number that you can put on it. A lot of times, you see, with concussions when someone goes in there, it happens pretty quick. You know it's, these things show up pretty fast. When you're dealing with a knee injury or, you know, an ankle, that might be a little bit longer. But these, you know, you usually see it pretty quick. You hear the announcers talk about it pretty fast. "Oh yeah, he's got a concussion, Jim."

0:08:44 - Shane Smith
So they know the answer pretty fast?

0:08:52 - Shane Smith
And if they're going to be back out to the field, they're out there pretty quick.

0:08:59 - Thomas Ozbolt
Exactly, yeah. It's got beefed up. You know there were some controversial player returns over the last couple of years that led to a lot of scrutiny being placed on the process. So they've beefed this up more over the years and made revisions and added in requirements, the unaffiliated neurological consultants. But yeah, the next part of the process is then getting back into the locker room. I think that's one of the things that was added in.

0:09:23 - Shane Smith
And what happens back in the locker room?

0:09:25 - Thomas Ozbolt
Yeah, the medical team performs a complete what's called an NFL SCAT, and SCAT stands for Sports Concussion Assessment Tool. And then they do a thorough neurological exam, and if there's any abnormal signs in this instance, they are not allowed to return to play.

0:09:40 - Shane Smith
So what are the chances of my player going back into the locker room and getting to come back out and finish that game?

0:09:45 - Thomas Ozbolt
Yeah, it depends on if they can get through the NFL SCAT standardized tool. They can get through that and they can show that they've been evaluated for symptoms and there's, you know, clear on symptoms. If they've had a cognitive assessment done and everything seems to be working well with their thinking. If there's the neurological screening and balance testing that are done, then that can say, hey, you might be able to get back on the field. This is evaluation of the symptoms here for the SCAT test that involves checking for concussion related symptoms that are reported by the athlete. Cognitive assessment, that's going to test memory, concentration, and orientation, so maybe a more detailed Maddox Questions. The neurological screening that's checking for signs like headache, dizziness, confusion. And then balance testing, obviously testing the athlete's ability to maintain balance, that can be affected by concussion. And then from there they're making a determination about readiness to return to play.

0:10:44 - Shane Smith
And the people saying thumbs up and thumbs down. Are they tied to any one team or are they to the league overall?

0:10:50 - Thomas Ozbolt
I think the ultimate decision is made by the team physician, but there is some interplay with the unaffiliated neurological consultant as well as anybody who's in the booth, and what we've seen in recent years is them erring on the side of caution, because, you know, couple years ago, Tua Tagovailoa took a really bad hit, that head bounced off the turf, and didn't get taken out of the game. And then the following week it happened again, and there were really concerns about what, if he was going to be able to continue his career or it's gonna be too (inaudible).

0:11:40 - Thomas Ozbolt
Yeah. And, and you could see that in this past, you know, in the past wild card round of the playoffs. The Rams were playing the Lions, Matthew Stafford took a hit midsection, falling down, got hit on the head by an oncoming player. And you saw his eyes just roll in the back of his head staring straight up at the ceiling. Obviously didn't know where he was, but he was out there the next play, maybe a play or two later. It's like, well, yeah, it's a playoff, maybe that gets relaxed a little bit and to some extent you got to trust the player to just, you know, make a decision.

0:12:13 - Shane Smith
To be like, "Whoa, yeah, I don't feel good, guys." Yeah, all right. So, from a legal standpoint, how important are these exams?

0:12:21 - Thomas Ozbolt
Yeah, the thoroughness, they're extremely, extremely important. First, because the thoroughness of these exams can impact the accuracy and diagnosis and consequently, the player's health and safety, for the accuracy of the diagnosis and consequently the player's health and safety. From a legal perspective, that affects, it shows the diligence and the standard of care that's been provided by the team's medical staff.

0:12:44 - Shane Smith
I was going to say, my guess is, and you know there were all the concussion lawsuits awhile back, where NFL players are like, "Yeah, gosh, y'all didn't treat us right." My guess is, all of this is going to make it difficult to sue the NFL for future players because they're like, look, we're doing all the things we can do. We've got this sideline survey, we've got the locker room SCAT test. You know, we've got all these things to make sure you don't have a concussion. Now they all depend on you. So if you lied to us, we're not going to know. I mean, but it seems like it makes it tough to sue the NFL about this stuff now, because as far as I know they're pretty cutting edge with all this stuff.

0:13:25 - Thomas Ozbolt
It's definitely been affected and taken into consideration, international standards and guidelines on these. And you also have the input of the NFL Players Association and the collective bargaining agreement, where it's hey, it's not just NFL teams are going to do whatever they want. This is a process that has been agreed to by the players.

0:13:43 - Shane Smith
By the players league too right?

0:13:45 - Thomas Ozbolt
Yeah. So it's, it definitely insulates them from some of the liability. At least you have to think.

0:13:52 - Shane Smith
At least it seemed, as far as we know it looks like it would I guess. Right. When can a player who's removed from the game for a suspected concussion get back?

0:13:59 - Thomas Ozbolt
Yeah, the players can only return to play in a future game after they've been cleared by the team's medical staff and an independent neurological consultant. So I think I may have said before, it's a large degree of discretion in the team's medical staff and they make the ultimate decision. But this does take into consideration an independent neurological consult. So it's not just the player, the player's team that has a financial interest in the outcome and might, you know, be willing to fudge this. You have an independent neurological consultant who has to kind of sign off on it.

0:14:40 - Shane Smith
And I think that's a critical part of the whole process is the independent part, because I know players want to play, coaches want good players to play, and obviously nobody wants somebody to get hurt, but still pretty tough if they're your star player and they want to play, to say no.

0:14:43 - Thomas Ozbolt
Yeah. And you know, they know their body better than anyone and know well, you gotta at least think they know what they're capable of and know the risks. So, yeah, it would be hard to keep them off the field if they were itching, itching to get back out there.