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Failure to use HIT system exposes league to future concussion liability


As the NFL deals with well over 2,000 former players who are suing for concussions, the league understandably hopes to slam the door on future lawsuits from current players.

In one specific regard, the league is failing.

An Outsides the Lines report from Bob Holtzman of ESPN creates the perception of a dog chasing its tail regarding the question of whether the NFL is properly embracing technological advances that will help spot whether players should exit a game due to head trauma.

After explaining the work of North Carolina professor Kevin Guskiewicz to use helmet sensors to record in real time the force of each and every blow to the head during practice or a game, Holtzman explained that the NFL isn’t ready to say when or if the Helmet Impact Telemetry (HIT) system will be used. The league then referred Holtzman to its expert on these matters.

And their expert is -- you guessed it -- Kevin Guskiewicz.

“I’ve been comfortable with the questions that we’ve asked and the validation studies that have been done to this point, and I feel as though we probably could have had this system in place a year or so ago,” Guskiewicz said.

“It absolutely can work in the NFL,” he added regarding the system that North Carolina now uses as a recruiting tool. “I’ve been doing it for eight years, so I know it can be done.”

Guskiewicz explained that eight NFL teams planned to use the HIT system in 2010, and that the plug was pulled at the “eleventh hour.” Citing an unnamed source, Holtzman reports that the NFL Players Association blocked the use of the HIT system. Holtzman added that the NFLPA did not respond to repeated requests for an interview.

NBC analyst Hines Ward, who spent 14 years with the Steelers, believes players will be reluctant about using the HIT system. “You’re gonna open up a while Pandora’s Box with it,” Ward told Holtzman. “For a doctor to read a computer and tell me how hard I’ve been hit and to pull me out of a game, that won’t sit well with a lot of players.”

Ward also worries that the data will be used by owners to justify paying players less money.

Regardless, the NFL’s expert is getting impatient. “If we’re sitting here in a year from now and we’re not any closer to have on-field, real-time biomechanics being measured, I’ll be real frustrated, and perhaps ready to throw the towel in,” Guskiewicz said.

Lawyers interested in representing current players in future concussion lawsuit are likely feeling anything but frustrated. With the NFL’s expert believing that the technology could have been and should have been used in 2010 -- and upset by the fact that it’s still not currently in use -- any player who suffered concussions even after the NFL had a Congress-induced epiphany in October 2009 will be able to argue that, if the NFL merely had followed the advice of its expert and used the HIT system, the player would have been pulled from a game before real damage had been done.

The report that the NFLPA stopped the implementation of the technology in 2010 complicates matters for future plaintiffs. But that one fact could mean that future concussion lawsuits will be filed not only against the NFL, but also against the union. (To date, concussion suits have been filed only against the league.)

Regardless, any actual or perceived failure by the stewards of the game to do everything reasonably possible to reduce head injuries or avoid them altogether will provide fodder for an ongoing stream of litigation from the men who currently play the game. And the league’s failure to follow the advice of Kevin Guskiewicz creates a far more tangible, clear, and defined risk of liability than the Saints bounty program ever could.