In the aftermath of Tua Tagovailoa’s concussion and questionable medical treatment, the NFL and NFLPA revised their concussion protocol, a move that could have legal ramifications should the Miami Dolphins’ quarterback contemplate a lawsuit.
Last Saturday, the league and union issued a joint statement saying that while team medical staff and unaffiliated medical professionals “followed the steps of the [concussion] protocol as written,” the “outcome in this case is not what was intended.” The statement explains that, going forward, the word “ataxia,” which refers to loss of full control of bodily movements, will be added to a list of mandatory “no-go” symptoms.
Tagovailoa was shoved backward and hit his helmet against the turf against the Buffalo on Sept. 25. A Dolphins physician, who had consulted with an unaffiliated neurotrauma consultant (UNC), determined that Tagovailoa met the necessary conditions to return to the game. Four days later, in a game against the Cincinnati Bengals, Tagovailoa was sacked and suffered a concussion. He hasn’t played since. The NFLPA exercised its collectively bargained right to fire the UNC, despite the NFLPA/NFL joint statement indicating the UNC followed their concussion protocol.
At this point, there is no indication that Tagovailoa intends to sue anyone. But if he has suffered a lasting neurological injury that will damage his NFL career and deprive him of potential earnings, he might consider legal options. The Dolphins, the doctors who treated him, the NFL and even the NFLPA are all potential defendants.
A lawsuit would face hurdles, including that the CBA attempts to preempt potential personal injury and malpractice litigation. Many claims are required to first go through arbitration, meaning a judge would be inclined to dismiss a Tagovailoa lawsuit on grounds he must first exhaust his potential remedies under the CBA.
Also, players contractually agree to not sue for brain or head injuries suffered during employment. Those barriers to litigation are not insurmountable—New York Giants QB Tyrod Taylor, for example, is currently suing the Los Angeles Chargers team doctor over treatment—but they make litigation more difficult.
Tagovailoa might have a stronger case if he challenged both the NFLPA and NFL. He might claim labor and management negotiated a substandard concussion policy that endangered his health, and he could add that the NFLPA and NFL swiftly changing the policy in the aftermath of his injury shows the policy was deficient. The NFLPA and NFL would challenge these arguments and highlight that evidence of subsequent remedial measures is usually inadmissible in lawsuits when intended to prove negligence and other claims.
Tagovailoa wouldn’t be the first NFL player to take on his own union and the league. In 2016, Philadelphia Eagles offensive tackle Lane Johnson filed an unfair labor practice charge with the National Labor Relations Board against the NFLPA and NFL. He also sued them in federal court, arguing they unlawfully conspired and breached a contract and duty of fair representation. Johnson argued the NFL and NFLPA designed a performance-enhancing substances policy that deprived players of essential protections, but he came up short. In 2020, the U.S. Court of Appeals for the Second Circuit found he was given a fair chance in arbitration. Still, his case lasted several years and raised important questions about how well the league and union look out for players.
For now, Tagovailoa seems focused on returning to the field. Whether his health cooperates remains to be seen, and would bear on whether the former Alabama star considers using the courts.