By Meg Lane*
Sony Pictures Entertainment’s upcoming film, Concussion, is a much-anticipated drama starring Will Smith that takes a look at the contentious issue of concussions in the realm of professional football. The movie is based on the true story of Dr. Bennet Omalu, a forensic pathologist who discovered chronic traumatic encephalopathy (CTE) upon conducting the autopsy of Pittsburgh Steelers center Mike Webster and who subsequently fought against the NFL’s concerted efforts to suppress and discredit his research. CTE is a progressive degenerative disease found in people with a history of repetitive brain trauma, diagnosable only at autopsy, with which over 50 former NFL players – often after tragic stories of years of mental health struggles leading to suicide – have been diagnosed. The film, which will be released in December, has already made headlines because Sony reportedly made editorial changes at the request (and perhaps threat) of the NFL.
The New York Times reported that Sony spoke with a consultant to the NFL and subsequently deleted or changed several “unflattering moments for the N.F.L.,” taking “most of the bite” out of the film based on legal recommendations by one of its top attorneys, for fear of suit by NFL administration. This news came as a surprise to some, as Sony is one of a few Hollywood movie giants that does not have significant contractual ties to the league. The movie’s makers insist that they did not compromise the story in making changes to protect themselves from the NFL, but after reading internal emails about the script exposed by the recent Sony hack, critics claim that the arc of the film has shifted. Rather than facing the NFL head-on, Sony opted to make a controversial film while avoiding stepping on its toes, as one email by Sony’s president of marketing regarding the movie’s agenda shows.
“We’ll develop messaging with the help of NFL consultant to ensure that we are telling a dramatic story and not kicking the hornet’s nest. We will always be careful of how we represent that NFL itself in key art and images (we need to comply with fair use) and we’ll walk a fine line as it relates to the ‘David and Goliath’ nature of this story. We expect a healthy amount of NFL in our media flight and we’ll seek to have sportscasters equipped to talk about this movie as an important development in the history of the game without casting blame or judgment.”
Clearly, Sony is bending – if not breaking – in fear of the all-powerful NFL. If even pop culture cannot stand to address the raw truth of the dire consequences of playing professional football, how long must we wait to see meaningful change from the league itself?
The NFL declined to comment on the issue of the film’s editorial process save for some boilerplate language regarding its commitment to its players: “We are encouraged by the ongoing focus on the critical issue of player health and safety. We have no higher priority. … As we continue to learn more, we apply those learnings to make our game and players safer.”
Obviously, Sony has viable legal concerns regarding defamation. Concussion writer/director Peter Landesman insists that “when you are telling a true story about something this controversial, it’s incumbent on us, it’s our responsibility to be as fair and accurate as possible. We don’t want to defame anybody, we don’t want to injure anybody. We just want to tell the truth, and that’s all we’ve done.” While a prudent review of a movie script for false portrayals or unfair characterizations is not unwise, the direct impact made by the NFL on Sony’s editorial process is concerning from a broader standpoint. What’s more worrisome is the fact that this is not the first instance of the NFL pushing to suppress media coverage of CTE – several years ago, it pressured ESPN to abandon its involvement with Frontline’s notorious League of Denial documentary. Free speech is a tenet of American governance. Allowing a corporation to bully filmmakers into altering an important message in this case could further the NFL’s power to perpetuate a serious problem that is not being adequately addressed.
The legal ramifications of head trauma in the NFL – after many former players were diagnosed with CTE after their deaths – have already become clear through class-action negligence litigation and widespread public scrutiny over a lack of responsibility shown by the league in both preventative and reactionary measures regarding concussions in the past. The highly publicized class-action concussion lawsuit filed by more than 5,000 former NFL players and their relatives against the NFL reached a one billion dollar settlement this past spring, providing up to five million dollars per retired player for “serious medical conditions associated with repeated head trauma.” The severity of the condition and a player’s age are factors in the payouts, as a former player diagnosed with Alzheimer’s or Parkinson’s disease could receive up to $3.5 million, but could get less once age is factored in. An added, non-monetary element of the settlement is the provision of baseline neurological exams for all eligible retired NFL players.
This settlement, which the plaintiffs are appealing for its arguably insufficient result, was a major development in holding the NFL accountable for the tragic concussion epidemic saga. Congress first challenged Roger Goodell and the NFL’s concussion policies in 2009, which resulted in the adoption of a stricter return-to-play policy, but the tragedies have not stopped. The media has featured horrific stories like that of Junior Seau’s suicide, Jovan Belcher’s murder/suicide of his girlfriend and himself, and Dave Duerson’s suicide (a key part of the film) that involved a note requesting that his brain be studied for trauma symptoms – all former NFL players who were posthumously diagnosed with CTE. Current players are taking note, as 24-year old 49ers linebacker Chris Borland recently retired after one season in the NFL, citing the priority of avoidance of developing long-term brain damage over that of becoming a wealthy, high-profile superstar. Borland’s decision to hang up his cleats at the very dawn of his professional football career is telling.
The problem is clear, but the solution looms as a question mark at all levels of the game. Reactionary payouts to ex-players who are suffering from degenerative brain diseases are not solving the problem. The NFL has, to its credit, funded research into CTE and brain trauma and altered certain rules, such as moving up kickoffs in order to de-emphasize kick returns, to decrease collisions. It has also expanded the list of concussive symptoms that prevent players from being allowed to return to the field right away. Programs and organizations like “Heads Up,” an arm of USA Football that aims to increase player safety by providing coaching certifications, concussion recognition and response protocols, and lesson plans for proper blocking and tackling techniques, are a necessity. Perhaps this film is the next step in effecting policy changes in all levels of football, from youth leagues to high school, college, and the NFL.
Beyond the scope of policy, though, this film could serve as the wakeup call that American football so desperately needs. The issues have been uncovered and recognized, but have they been adequately addressed? If the NFL continues to show a lack of accountability to its players, how will the administrations of the sport’s amateur levels evolve in terms of player safety? As football fans, the potential changes to the game that could (and should) result from the recent developments in research and ongoing proof of the gravity of repeated head trauma by football players are difficult to swallow. But beyond the bright lights of Sunday Night Football, the fun of Fantasy Football leagues, and the altogether addicting nature of one of America’s favorite entertainment products, we must recognize that more than our weekend pastimes is at stake. The risk of letting the NFL proceed as it has in the past is too great, and player health is an issue that does not deserve a back seat in the discussion.
A concussion is a serious brain injury – and we seem all too often to forget that simple, yet impactful, truth. Repeated head trauma on the gridiron has long been a part of the game at all levels, and its public recognition of late has not been well received by the powers that be. As said in the movie regarding CTE: “You turned on the lights and gave [the NFL’s] biggest boogie man a name . . . you’re going to war with a corporation that owns a day of the week.” The slow reactionary response to the problem through post-concussion litigation, mixed with an increase in preventative measures echoing through the ranks – take college football’s adoption of targeting penalties and higher equipment standards – has put a temporary bandage on the problem. By illustrating the big, bad NFL’s transgressions, perhaps Concussion will further awaken the American public to a problem that is even bigger than Football Sundays. It sounds radical, but something has got to give. The legal implications, public image concerns, and costs of frequent post-concussion lawsuits brought by player’s families, plus the unquestionable foreseeability of future CTE diagnoses at this point, raises serious doubts about the sustainability of the NFL in the long term. Doesn’t the NFL as an organization have a duty to its employees to make the workplace as safe as possible? How much longer can the NFL survive if its own players are consistently suffering – to the point of death – simply by virtue of going to work every day?
*Staff Writer, Villanova University Sports and Entertainment Law Society Blog; J.D. Candidate, May 2018, Villanova University School of Law.
 See The Frontline Interviews: Dr. Bennet Omalu, PBS Frontline (Mar. 25, 2013), http://www.pbs.org/wgbh/pages/frontline/sports/league-of-denial/the-frontline-interview-dr-bennet-omalu/.
 See Ken Belson, Sony Altered ‘Concussion’ Film to Prevent N.F.L. Protests, Emails Show, N.Y. Times (Sept. 1, 2015), http://www.nytimes.com/2015/09/02/sports/football/makers-of-sonys-concussion-film-tried-to-avoid-angering-nfl-emails-show.html.
 See id.
 See id.
 See Kyle Wagner, The NFL Didn’t Have to Screw Will Smith’s Concussion Movie, Hollywood Already Had, Deadspin (Sept. 2, 2015), http://deadspin.com/the-nfl-didnt-have-to-screw-will-smiths-concussion-move-1728253804.
 Belson, supra note 3.
 Mike Florio, Concussion director fires back at New York Times, NBC Sports Pro Football Talk (Sept. 2, 2015), http://profootballtalk.nbcsports.com/2015/09/02/concussion-director-fires-back-at-new-york-times/.
 See Amar Toor, Sony changed Concussion to avoid legal problems with the NFL, The Verge (Sept. 2, 2015), http://www.theverge.com/2015/9/2/9243879/sony-concussion-movie-nfl-will-smith-email.
 Steve Almasy & Jill Martin, Judge Approves NFL concussion lawsuit settlement, CNN.com (Apr. 22, 2015), http://www.cnn.com/2015/04/22/us/nfl-concussion-lawsuit-settlement/.
 See id.
 See id.
 See Kristopher Tapley, New NFL Report Keeps Spotlight on ‘Concussion,’ Variety (Sept. 18, 2015), http://variety.com/2015/film/in-contention/new-nfl-report-keeps-spotlight-on-concussion-1201597084/.
 See id.
 See John Keilman, Bears, NFL brace for ‘Concussion’ movie’s release, highlight safety changes, The Chicago Tribune (Oct. 28, 2015), http://www.chicagotribune.com/news/ct-nfl-concussion-pushback-met-20151028-story.html.
 Concussion Movie Trailer, supra note 1.