by Jared Yaggie, Associate Member, University of Cincinnati Law Review Vol. 91
Anyone who watched the September 30, 2022 Thursday Night Football game between the Cincinnati Bengals and Miami Dolphins witnessed the frightening scene of Dolphins’ quarterback, Tua Tagovailoa, lying unconscious at center field after being taken down by the Bengals defensive tackle Josh Tupou.1What We Know About the Injury to Dolphins QB Tua Tagovailoa, and What’s Next, ESPN (Sept. 30, 2022), https://www.espn.com/nfl/story/_/id/34697326/the-details-dolphins-tua-tagovailoa-injury-next. Only four days earlier, Buffalo Bills linebacker, Matt Milano, similarly brought Tagovailoa down forcing his head to bounce off the ground.2Id. Trying to shake off the hit, Tagovailoa stood up and immediately stumbled off the field, having to be assisted by his teammates.3Id.
The stumbling that Tagovailoa exhibited after hitting the ground triggered the NFL Head, Neck and Spine Committee’s Concussion Diagnosis and Management Protocol (the “Protocol”), which classified Tagovailoa’s behavior after the hit as gross motor instability.4NFL Head, Neck and Spine Committee’s Concussion Diagnosis and Management Protocol, NFL (amended as of Oct. 8, 2022), https://static.www.nfl.com/image/upload/v1665264248/league/moexjmdzy2kvjtqsdpbx.pdf. According to the Protocol, gross motor instability warranted removal from the field into the locker room for further evaluation.5Id. The Protocol stated that, “If the team physician, in consultation with the sideline [unaffiliated neurotrauma consultant], determines the instability to be neurologically caused, the player is designated a ‘No-Go’ and may not return to play.”6Id. However, the locker room evaluations concluded that Tagovailoa’s stumbling was the result of a back and ankle injury from the hit by Milano—not a neurological cause.7Id. Tagovailoa was permitted to re-enter the game and continue playing.8Id. The medical conclusions and decisions that allowed Tagovailoa to play in the Thursday night game against the Bengals just four days later could not have been more wrong. The Dolphins’ coaches, medical staff, and the unaffiliated neurotrauma consultant clearly made mistakes and there was some degree of malpractice.
Therefore, this article attempts to determine liability for those careless actions by the Dolphins’ coaches, medical staff, and the unaffiliated neurotrauma consultant that not only allowed Tagovailoa to re-enter the Sunday game after showing signs of a concussion but let him play four days later only to suffer more significant injuries. Section II of this article establishes the elements of a negligence claim in Florida and is followed by an application of those rules to this situation in Section III. Section IV then concludes the article by answering the question of who is liable for these circumstances.
Any legal action between Tagovailoa and the Dolphins or doctors would likely be filed in Florida using Florida state law, so this section establishes the rules for a Florida negligence claim.9Factors leading to Florida law applying to this case are that the game against the Bills occurred in Florida, the Dolphins are a Florida organization with their principle place of business in Florida, Coach McDaniel lives and works in Florida, and the UNC lives and works in Florida. As in most states, Florida recognizes negligence as the failure to use reasonable care, which is care that a reasonably careful person would use under like circumstances.10Fla. Standard Jury Instructions (Civil) § 401.4. However, that standard alone does not constitute a sufficient negligence claim; there are four elements that a claimant must prove to have a valid cause of action for negligence.1138 Fla. Juris. 2d Negligence § 15 (2022). First, the claimant must show that the defendant owed them a duty or obligation that required the defendant to meet a certain standard of conduct and care.12Id. The claimant must next establish that the defendant breached that duty of care.13Id. The third element requires a reasonably close causal connection between the conduct of defendant and the resulting injury to the claimant.14Id. Lastly, there must exist actual harm to the claimant.15Id.
A. The Negligence Standard
The first element of negligence, duty, is viewed as a “minimal threshold legal requirement for opening the courthouse doors.”16McCain v. Florida Power Corporation, 593 So. 2d 500, 503 (Fla. 1992). In Florida and many other states, a legal duty exists where a defendant’s conduct creates a foreseeable zone of risk.17Id. at 502-03. In sports, it is generally understood that there are inherent risks, which can protect a coach or team from liability in certain situations.18Timothy Davis, Tort Liability of Coaches for Injuries to Professional Athletes: Overcoming Policy and Doctrinal Barriers, 76 UMKC L. Rev. 571, 580 (2008). Such inherent risks are injuries resulting from typical conduct of the sport or coaching decisions that involve technical instruction or play calling.19Id. For those inherent risks, the assumption of risk doctrine precludes recognition of a duty of care.20Id. at 582. Howbeit, coaches, players and others involved have a duty prevent increasing the risks over and above those inherent to the sport.21Id. at 583. As for doctors and medical practitioners, Florida law holds those professionals to a level of care, skill, and treatment which is recognized as appropriate and acceptable by a reasonably prudent similar health care provider.22FLA. STAT. ANN. § 766.102 (West 2013). Moreover, Article 39 of the NFL Collective Bargaining Agreement (“CBA”) provides that a “Club medical personnel’s primary duty in providing player medical care shall be not to the Club but instead to the player-patient.”23NFL Collective Bargaining Agreement, Article 39 (Aug. 4, 2011). This implicates that the NFL CBA imposes a special duty of care upon the UNC in regard to its prioritization between a team and player.
Regarding the second element of negligence, Florida courts have determined that a breach of the duty of care occurs not by the mere happening of an accident or action.24Miller v. Aldrich, 685 So. 2d 988 (Fla. Dist. Ct. App. 5th Dist. 1997). A defendant breaches its duty when its actions fall below that of a reasonable person by failing to meet the standard of care owed to a claimant.25Walter T. Champlon, Jr., Fundamentals of Sports Law § 1:4. For medical negligence, that is summarized as a medical provider failing to properly use medical judgment.26Cousins v. Duprey, 325 So. 3d 61 (Fla. Dist. Ct. App. 4th Dist. 2021).
Once a duty of care has been established and shown to have been breached, there is an allegation of negligence, which necessitates the third element. That allegation must be the legal cause in fact of the claimant’s harm.27Schuette v. State, 822 So. 2d 1275, 1281 (Fla. 2002). In Florida, negligence is the legal cause in fact of a claimant’s injury if but for the negligence, the injury would not have occurred, and such injury is produced by a natural and continuous sequence of events.28Id. Furthermore, a negligence allegation must be the proximate cause of the claimant’s injury.29Eversley v. State, 748 So. 2d 963, 966-67 (Fla. 1999). The Supreme Court of Florida has explained proximate cause as the claimant proving that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result.30Friedrich v. Fetterman and Associates, P.A., 137 So. 3d 362, 365 (Fla. 2013).
For there to be a valid claim of negligence, the fourth element requires the claimant to show that they suffered some harm, injury, or loss.31Fla. Standard Jury Instructions (Civil) § 401.4. Florida courts may award a claimant damages for loss of earning capacity.32Truelove v. Blount, 954 So. 2d 1284 (Fla. Dist. Ct. App. 2d Dist. 2007). This award seeks to compensate a claimant for the loss of capacity to earn future income rather than awarding actual loss of future earnings.33Id. Florida courts have established that to receive this award, claimants must “demonstrate not only reasonable certainty of injury, but must present evidence which will allow a jury to reasonably calculate lost earning capacity.”34Id. Put more clearly, a claimant must experience an injury and provide some basis that assists a jury to calculate how that injury led to lost earning capacity. Further, Florida is a state that recognizes a pure form of comparative negligence, which means that liability is determined by the percentage of fault.35Hoffman v. Jones, 280 So. 2d 431, 438 (Fla. 1973). If a claimant is found to have contributed to its own injury by 25 percent, then the claimant can only recover 75 percent of the total allotted damages.
The question this article seeks to answer is who, if anyone, is liable for Tua Tagovailoa’s head injuries. The short answer is no one, at least currently, because Tagovailoa has not suffered any injury. Despite Tagovailoa clearly being physically injured, he has not yet suffered a legal injury that would give him cause to file a lawsuit. The question of liability will likely have to wait until either Tagovailoa’s injuries affect his ability to play or his role as a starting quarterback is diminished to back-up due to teams’ reluctance to invest in an injury prone quarterback. If that day comes, then Tagovailoa would be able to make a negligence claim. Hopefully that day never happens for Tagovailoa’s sake, but if it does, the following analysis discusses such a claim.
To prevail on a negligence claim, Tagovailoa will have to show that the Dolphins’ head coach, Mike McDaniel, or the unaffiliated neurological consultant (“UNC”) failed to act as a reasonably prudent person would in a similar situation, and those actions were the cause in fact and proximate cause of Tua’s injury—that injury being lost earning capacity.
A. Coach Mike McDaniel’s Liability
It is likely a court will find that McDaniel did not have a duty to protect Tagovailoa from his first concussion, as that was an inherent risk to playing football. However, coaches have a duty to not increase risk above those inherent to the sport, so McDaniel had a duty of care to Tagovailoa to draw the line of when to not let his quarterback re-enter the game against the Bills. McDaniel’s decision to allow Tagovailoa to return to Bills game and then play against the Bengals four days later will likely be seen as increasing the risks inherent to football by exposing an already battered athlete to the unforgiving wrath of an NFL defense.
McDaniel claimed he listened to his staff and the UNC and further claimed he followed the NFL Concussion Protocol. Ultimately, McDaniel believed the conclusion of the locker room medical examination that Tua merely suffered from a non-neurological injury that affected his back and ankle despite the footage proving Tagovailoa hit his head on the ground.36Ryan Morik, Dolphins’ Mike McDaniel Defends Handling of Tua Tagovailoa Injuries: ‘Not Gonna Fudge that Whole Situation’, FOX SPORTS (Sept. 30, 2022), https://www.foxnews.com/sports/dolphins-mike-mcdaniel-defends-handling-tua-tagovailoa-injuries-not-gonna-fudge-whole-situation. The NFL and NFLPA launched a joint investigation into the Dolphins’ adherence to the Concussion Protocol which concluded on October 8, 2022.37NFL-NFLPA Joint Statement on Investigation into Handling of Dolphins QB Tua Tagovailoa’s Concussion Protocol, NFL (Oct. 8, 2022), https://www.nfl.com/news/nfl-nflpa-joint-statement-on-investigation-into-handling-of-dolphins-qb-tua-tago. The results found that the team medical staff and UNC adequately followed the Protocol steps, so a breach of duty cannot be found simply because the Protocol was breached.38Id. Therefore, a breach of duty may be found if McDaniel ignored information about Tagovailoa’s safety, or if McDaniel should have, as a reasonable NFL coach would, used the information from the locker room examination and what he witnessed as a basis for prohibiting Tagovailoa from returning to the Bills game. An argument can be made that coaches must use their own discretion to prevent an athlete from playing in situations that seem unsafe. Thus, despite the conclusion of the locker room exam, McDaniel saw Tua hit his head and stumble afterwards, so that should have been sufficient to keep Tagovailoa sidelined for the remainder of that game.
The investigation led to the Concussion Protocol being amended as the NFL and NFLPA agreed that the outcome of the case was not what the Protocol was intended for.39Id. This means that a court may struggle to find that McDaniel’s lack of reasonable discretion increased any risk for Tagovailoa beyond those risks inherent in football because McDaniel was reasonably relying on the Protocol that was not found faulty until after the injury. The case for finding liability could also argue that a decision to prevent Tagovailoa from re-entering the Bills game would have likely forced Tua into the Protocol’s recovery phases, which would have barred him from starting against the Bengals four days later. In such an event, Tagovailoa’s injury during the Bengals game would not have occurred but for McDaniel’s negligence because Tagovailoa would never have been in the game.40NFL, supra note 4. Moreover, that information would also support a finding that McDaniel’s decision was a substantial factor in bringing about Tagovailoa’s injury because McDaniel created a force, namely a risk for Tagovailoa above the inherent risks of the game, that caused Tagovailoa’s injury.
It must be reiterated that the injury to Tagovailoa is not the actual concussion he suffered but his loss of earning capacity. Such a loss will be evidenced by an action like Tua being demoted to a back-up quarterback role resulting in Tua making a lower salary. For a court to find damages for loss of earning capacity, the above event or one similar would have to actually occur, and Tua’s attorneys would need to present the court with evidence that McDaniel’s decision to allow Tua to re-enter the Bills game and then start against the Bengals led to the dollar amount of damages requested.
B. The UNC’s Liability
The other likely defendant in a potential future negligence claim by Tagovailoa would be the UNC. As a medical professional in the State of Florida, the UNC would be held to a standard of care, skill, and treatment similar to that of another reasonable UNC. To succeed at proving a breach of this duty, Tagovailoa would need to show that that UNC did not act as another UNC would reasonably have acted in the same situation by failing to use proper medical judgment. Further, if it is found that the UNC acted in the best interest of the Dolphins rather than Tagovailoa, then the UNC would have breached his duty as provided in Article 39 of the NFL Collective Bargaining Agreement.41NFL Collective Bargaining Agreement, supra note 23. Assuming that the breach of duty is proven, the UNC’s medical treatment may be found to be the cause in fact of Tagovailoa’s lost earning capacity, since but for the UNC failing to act in a reasonable manner and acting in the interests of the team and not player, Tagovailoa would not have lost his capacity to earn a specific salary.
Additionally, the UNC’s actions may be found to be the proximate cause if they were substantial factors in bringing about Tagovailoa’s loss of earning capacity. The same analysis will apply here as for Coach McDaniel: the UNC’s misdiagnoses created a force—specifically the examination results that Coach McDaniel used to allow Tua to return to the Bills game—that continued on, causing Tua to lose his capacity to earn a certain salary in the NFL. The test for damages is the same here as for Coach McDaniel too; Tagovailoa would need to show that the injury of lost earning capacity truly exists and that the UNC’s inaccurate locker room examination brought about those damages.
C. Comparative Liability
It is important to mention comparative liability because NFL athletes are known to lie about their injury status so they can continue to play.42Associated Press, Playing Hurt, Often Willingly, is Common for NFL Players, FOX NEWS (Jan. 6, 2022), https://www.foxnews.com/sports/playing-hurt-often-willingly-common-for-nfl-players. Most will lie to a coach or medical staff about how they actually feel so they can get back to competition faster. It is hard to blame athletes for doing this because they have spent most of their lives working towards the goal of playing their sport professionally, and they do not want to be sidelined. Because of this attitude, there is a strong possibility that a court may find that Tagovailoa contributed to his loss in earning capacity. Evidence that Tagovailoa played down his preseason concussion screening to allow more room for error in the event of an actual injury, or a discovery that the quarterback convinced medical staff that his injury was caused by a blow to his back and ankle rather than head would impact his claim for negligence greatly. A lawsuit may never happen down the road if Tagovailoa knows he contributed to being sent back out to the Bills game and being cleared for the game against the Bengals.
As the situation currently stands with the information available, neither Coach McDaniel nor the UNC would be found liable for Tua Tagovailoa’s concussion. A negligence claim seeking damages for Tagovailoa’s loss of earning capacity will not happen until Tagovailoa actually loses his earning capacity. In addition, any future lawsuit will probably only target the UNC because the Dolphins and Coach McDaniel are likely protected by the findings of the joint NFL-NFLPA investigation into the use of the NFL Concussion Protocol. This article has also greatly speculated the type of information that would result in a court finding a valid cause of action for negligence, so without that information or information of the like, a lawsuit will not occur. The bright side is that sports fans do not need to wait for the law to point fingers and produce change: the NFLPA has also already fired the UNC that treated Tagovailoa and has begun to change their concussion protocols.43Madison Williams, NFLPA Fires Unaffiliated Neurotrauma Consultant Amid Tagovailoa Situation, Per Report, SPORTS ILLUSTRATED (Oct. 1, 2022), https://www.si.com/nfl/2022/10/01/nflpa-fires-unaffiliated-neurotrauma-consultant-amid-tua-tagovailoa-situation-per-report.
- 1What We Know About the Injury to Dolphins QB Tua Tagovailoa, and What’s Next, ESPN (Sept. 30, 2022), https://www.espn.com/nfl/story/_/id/34697326/the-details-dolphins-tua-tagovailoa-injury-next.
- 4NFL Head, Neck and Spine Committee’s Concussion Diagnosis and Management Protocol, NFL (amended as of Oct. 8, 2022), https://static.www.nfl.com/image/upload/v1665264248/league/moexjmdzy2kvjtqsdpbx.pdf.
- 9Factors leading to Florida law applying to this case are that the game against the Bills occurred in Florida, the Dolphins are a Florida organization with their principle place of business in Florida, Coach McDaniel lives and works in Florida, and the UNC lives and works in Florida.
- 10Fla. Standard Jury Instructions (Civil) § 401.4.
- 1138 Fla. Juris. 2d Negligence § 15 (2022).
- 16McCain v. Florida Power Corporation, 593 So. 2d 500, 503 (Fla. 1992).
- 17Id. at 502-03.
- 18Timothy Davis, Tort Liability of Coaches for Injuries to Professional Athletes: Overcoming Policy and Doctrinal Barriers, 76 UMKC L. Rev. 571, 580 (2008).
- 20Id. at 582.
- 21Id. at 583.
- 22FLA. STAT. ANN. § 766.102 (West 2013).
- 23NFL Collective Bargaining Agreement, Article 39 (Aug. 4, 2011).
- 24Miller v. Aldrich, 685 So. 2d 988 (Fla. Dist. Ct. App. 5th Dist. 1997).
- 25Walter T. Champlon, Jr., Fundamentals of Sports Law § 1:4.
- 26Cousins v. Duprey, 325 So. 3d 61 (Fla. Dist. Ct. App. 4th Dist. 2021).
- 27Schuette v. State, 822 So. 2d 1275, 1281 (Fla. 2002).
- 29Eversley v. State, 748 So. 2d 963, 966-67 (Fla. 1999).
- 30Friedrich v. Fetterman and Associates, P.A., 137 So. 3d 362, 365 (Fla. 2013).
- 31Fla. Standard Jury Instructions (Civil) § 401.4.
- 32Truelove v. Blount, 954 So. 2d 1284 (Fla. Dist. Ct. App. 2d Dist. 2007).
- 35Hoffman v. Jones, 280 So. 2d 431, 438 (Fla. 1973).
- 36Ryan Morik, Dolphins’ Mike McDaniel Defends Handling of Tua Tagovailoa Injuries: ‘Not Gonna Fudge that Whole Situation’, FOX SPORTS (Sept. 30, 2022), https://www.foxnews.com/sports/dolphins-mike-mcdaniel-defends-handling-tua-tagovailoa-injuries-not-gonna-fudge-whole-situation.
- 37NFL-NFLPA Joint Statement on Investigation into Handling of Dolphins QB Tua Tagovailoa’s Concussion Protocol, NFL (Oct. 8, 2022), https://www.nfl.com/news/nfl-nflpa-joint-statement-on-investigation-into-handling-of-dolphins-qb-tua-tago.
- 40NFL, supra note 4.
- 41NFL Collective Bargaining Agreement, supra note 23.
- 42Associated Press, Playing Hurt, Often Willingly, is Common for NFL Players, FOX NEWS (Jan. 6, 2022), https://www.foxnews.com/sports/playing-hurt-often-willingly-common-for-nfl-players.
- 43Madison Williams, NFLPA Fires Unaffiliated Neurotrauma Consultant Amid Tagovailoa Situation, Per Report, SPORTS ILLUSTRATED (Oct. 1, 2022), https://www.si.com/nfl/2022/10/01/nflpa-fires-unaffiliated-neurotrauma-consultant-amid-tua-tagovailoa-situation-per-report.