The NFL and NFLPA brought an end to their investigation into whether Tua Tagovailoa had only one, as opposed to two, concussions over the five days spanning Sunday of Week 3 against the Bills to Thursday of Week 4 against the Bengals. To this writer, it raises more questions than answers.
In sum, the NFL stated that concussion protocol with Tua was handled perfectly; no issues with the team doctor, the unaffiliated doctor, the follow-up care, etc. In other words, no problem! Well, yes, problem.
The NFLPA exercised its right to fire the unaffiliated doctor who allowed Tua to return to play against the Bills. As to why, the NFL responds by saying “Ask the union!” even as this investigation was—theoretically—a partnership. Further, return-to-play policies have been changed to remove players showing signs of ataxia—wobbling or instability—after a blow to the head, regardless of a concussion diagnosis. In other words, no longer will players be allowed to return as Tagovailoa did against the Dolphins. We have already seen this new policy in practice, with Tagovailoa’s replacement, Teddy Bridgewater, on Sunday.
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The NFL basically said that despite the optics, Tagovailoa was provided the utmost care. Really? Even if we accept the league’s conclusions, how was it NFL policy, in 2022, to allow a player who was wobbly and unstable after hitting his head on the turf to return to play? When I told people about the change in policy this week, the universal answer was: “You mean that wasn’t there before?”
I have also yet to see an explanation from the NFL or the NFLPA on this question: How does a player who is the focus of an inquiry about whether he had a concussion allowed to play (and suffer a concussion) while the inquiry proceeds?
The Tagovailoa incident brought us back to a past era in the NFL when players “played through” concussions (an era that led to a $1 billion settlement in the concussion lawsuit involving retired players). We know players’ default setting is to want to play. But it is up to the medical professionals to protect players from themselves.
Beyond the resolution of the matter for now, there is a significant business-of-football issue regarding Tua that could be worth tens of millions of dollars, perhaps more than $100 million. Let’s examine.
Future earnings
Regular readers know my old saying and yes, there is a chance that—sometime down the road—there will be lawyers.
The financial implications for Tagovailoa are certainly not short-term. He will receive full pay for the 2022 season and very likely his scheduled pay for ’23 and perhaps ’24 if his contract is not renegotiated and extended.
The issue is that his treatment/diagnosis, or lack thereof, will potentially impact his future career earnings as an NFL quarterback, one of the highest earning positions in all of sports.
Tagovailoa is now in his third year and is eligible for an extension on his rookie contract come February. Prior to the fateful Bills game, he was playing very well in new coach Mike McDaniel’s system, leading his team to three early-season victories, including one in which he threw six touchdown passes in a scintillating comeback victory against the Ravens. His trajectory was heading toward being “the guy” in Miami for the foreseeable future, as long as his play continued to ascend. As for now, who knows?
What if, when Tua does return this season, his performance takes a downturn? What if the Dolphins either continue on his current contract, deciding against a market extension, or move on to another starting quarterback? And more generally, what will his future earnings over his football career look like?
In the event he does not receive a market extension in 2023 or even ’24, one may also wonder whether Tagovailoa’s future earnings were affected by an imprimatur of being “concussion-prone” or, at the very least, if the fear of how much damage another concussion could do would deem him not worth the risk. Of course, no team—whether the Dolphins or any other—would say that publicly, but it may well come up in private meetings. This certainly comes up in draft-room discussions, as teams flag players who have had multiple concussions and the implicit risk associated with drafting them.
Precedents
I have been an expert witness in several future-earnings cases regarding NFL players—having worked for both the player side and the management side—and I can see this as a potential case down the road. Tagovailoa and his attorneys would have to prove that returning to play against the Bills and being allowed to play against the Bengals early in the 2022 season affected his future earnings as an NFL quarterback, perhaps greatly.
Tyrod Taylor, a quarterback with a significantly smaller earnings arc, is now suing the Chargers’ doctor regarding an injection that punctured his lung three years ago. His earnings at the time were not the issue, as he was paid for the year and is still playing today for the Giants. His lawyers are not arguing that the procedure ended his career; they are arguing for past and future earnings that Taylor would have made (and could still make in the future) but for the faulty injection.
And who would be the defendants in such a future earnings case? Well, you name them: the Dolphins, the coach, the general manager, the team doctor, the unaffiliated doctor, the trainer, the NFL, etc.
I am not suggesting this will definitely happen in five, 10 or 15 years. But it certainly could, in a lawsuit that may be filed many years from now, even after Tagovailoa has finished his playing career.
The future earnings of an ascending young quarterback in the NFL are massive, perhaps $100 million or more, and Tagovailoa was starting to look like he was on track for an augmented second contract before the back injury—as he and the Dolphins claimed at the time—and subsequent concussion.
Tagovailoa will certainly be compliant with the Dolphins and may not even regret wanting to return to play in the Bills game or the Bengals game four days later. But his tune, and the need for lawyers, may well change years down the road.
Tagovailoa is now sitting out (finally), but his situation will linger over the NFL for a while.
