The concussion debate has, to this point, centered mostly on the question of responsibility. At one end of the spectrum is a paternalist group of lawyers and pundits who believe the NCAA and NFL have “exploited” players by tricking them into risking their long-term health. Paternalists like the University of Minnesota’s Nicole LaVoi view concussions as a social problem to be addressed through collective action:

What does it mean as a society that we are willing to allow individuals to risk their health and well-being in order to be entertained? What does it mean that professional leagues exploit the bodies of athletes for profit without concern to protection in the long haul?

On the other hand there’s The Daily Beast’s Megan McArdle, who had this response to a lawsuit filed by the family of the late Junior Seau, alleging concussions suffered playing football ultimately led to his suicide:

Junior Seau can’t possibly have been unaware that football caused head injuries. Nor even that multiple concussions are probably bad for you. Note how many people are still playing, even though we now know this all too well.

Even President Barack Obama has weighed in, taking a more nuanced view:

I tend to be more worried about college players than NFL players in the sense that the NFL players have a union, they’re grown men, they can make some of these decisions on their own, and most of them are well-compensated for the violence they do to their bodies. You read some of these stories about college players who undergo some of these same problems with concussions and so forth and then have nothing to fall back on. That’s something that I’d like to see the NCAA think about.

Obama still endorses the paternalist idea that college players are exploited due to their lack of compensation (relative to the NFL) and the absence of a union. The latter is curious given that the NFL Players Association has been just as lethargic as the league in responding to concussion and safety concerns. For example, at his pre-Super Bowl press conference last week, NFLPA executive director DeMaurice Smith complained the NFL’s 2011 referee lockout was “one of the most deliberate disregards of player safety that I think has occurred in the National Football League since our inception.” Yet the union took no action, such as threatening a walkout, that might have prompted the NFL to resolve the lockout any quicker. Smith simply complained after-the-fact.

Smith also said he wants to negotiate amendments to the NFL collective bargaining agreement to provide for a “chief safety officer” and other bureaucratic protections. So why weren’t these items dealt with during the CBA negotiations that occurred just one year ago? Keep in mind, Smith agreed to an unprecedented ten-year CBA with no opt-out provision for the players.

The point here is not that Smith is bad at his job. The point is that unions are a poor mechanism to promote player safety, especially when dealing with a large group of players with different preferences on the subject. Unions ignore individual preference in favor of collective action—the type demanded by paternalists—and end up becoming subservient to the larger bureaucracy of the employer, in this case the NFL. Similarly, the class action litigation now promoted as a remedy for decades of NFL “exploitation” will, if successful, not result in a safer game so much as a more bureaucratic one, as lawyers will assume greater regulatory authority within the sport. Such litigation is also structured to maximize the benefit to the class counsel—the functional equivalent of union bosses—while depriving individual players of any meaningful say in the process.

This is a warning for those who would promote unionization or litigation as a step towards enhancing the safety of college football. Collective action is not the answer going forward. But nor is it sufficient, as Megan McArdle and others suggest, to simply declare “players are fully informed” and leave it at that. This ignores a common defect in the structures of both the professional and college games that inhibit players from truly taking responsibility for their safety—the restriction on labor movement.

College football players are significantly freer than their professional counterparts in that they can choose which university to attend, while NFL players are assigned through a common draft. But college players may not earn any income related to their skill outside of their scholarship and any other NCAA-approved benefit. Nor may college player engage the services of an agent to assist them at any point during their collegiate eligibility. This restriction in particular demonstrates bad faith on the part of the NCAA. If two people negotiate a business deal and one says to the other, “My lawyer will send you a draft of the contract, which you must then sign without ever consulting a lawyer yourself for the duration of the agreement,” the second person would almost certainly smell a rat.

As other commentators have noted, the Olympics have transitioned to a model where athletes are not compensated as employees by the games themselves but enjoy no restrictions on hiring agents or earning outside income. Such a model could easily be adopted by the NCAA. The association continues to hide behind the mantra of “amateurism,” which has become a broad claim of patent rights over anything having to do with the commercialization of football players not yet eligible to play in the NFL.

Eliminating restrictions on agents and outside income would enable players to do two things. First, it would allow them to retain experienced advocates to help address potential safety abuses by coaching staffs and athletic departments. Second, by maximizing outside income during their college careers—when many are at the peak of their marketability—players would be less dependent on making it into the NFL to secure their long-term financial interests.

The NCAA has to decide if safety is more important than “amateurism.”

College is only one side of the coin, however. If the NFL is serious about player safety, it must also eliminate its restrictions on labor movement, starting with the draft. Assigning player “rights” to a single club deprives the player of the ability to negotiate the terms of his potential employment—including safety concerns—with all interested teams. Safety is no different than compensation or any other working condition. We’ve already seen that collective bargaining has produced a system of weak protections for labor (not to mention several thousand concussion-related lawsuits). Individual bargaining, which is the market norm absent government policies that promote unions and collective action, is the best way to empower players to take responsibility for their own long-term health interests.

In the end, it’s about ranking preferences. The NCAA has to decide if safety is more important than “amateurism.” The NFL has to decide if safety is more important than the “competitive balance” supposedly maintained by the draft. And individual players must be left to decide—without the paternalist hand of collective action—whether the potential damage to their health is more or less important than playing football.