Decades of debate over sports-related brain injuries has centered on concussions, but new research linking less severe head impacts to neurological diseases promises to reorient that discussion—and league liability when an injured athlete sues, lawyers tell Bloomberg Law.
Researchers led by Boston University’s CTE Center announced Jan. 18 that repetitive hits to the head, not concussions, are the barometer for later-life degenerative brain disorders, including chronic traumatic encephalopathy, or CTE.
The report will likely shift public attention away from concussions as the primary brain injury risk for millions of U.S. athletes, and spread across the spectrum of sports-related brain injury litigation, the lawyers said.
The findings, if replicated in future studies, will “loom large” in litigation pending against the NFL, NHL, and NCAA because they “will reconceive what we mean by injury and accordingly, duty, in the sports context,” said Betsy Grey, a professor at Arizona State University’s School of Law in Tempe, Ariz., who writes extensively on neuroscience and the law.
For plaintiffs’ lawyer Brad Sohn, public perceptions of the dangers of sports-related head injuries are only now catching up with arguments plaintiffs’ lawyers have been making in U.S. courts.
“This study confirms things we’ve known for the past five years—the only thing that correlates to CTE is repetitive head trauma,” said Sohn, who represents plaintiffs in litigation against Riddell Inc. over the claimed protective qualities of its football helmets.
The study published in the journal Brain and co-authored by Ann McKee, director of BU’s CTE Center, compared the brains of four teenage athletes who suffered head injuries shortly before they died against a control group of four teens who hadn’t suffered recent brain trauma before dying.
A second branch of research examined the brains of laboratory mice subjected to mild repetitive head impacts and “blasts” typically associated with CTE.
The degenerative brain disease, which can be diagnosed only after death, manifests itself as an accumulation of tau, a protein, in the brain.
“The same brain pathology that we observed in teenagers after head injury was also present in head-injured mice,” study co-author Lee Goldstein said in a statement issued with the report.
Ramon R. Diaz-Arrastia, director of the Traumatic Brain Injury Clinical Research Center at the University of Pennsylvania School of Medicine in Philadelphia, who wasn’t involved in the study, said the findings are “entirely consistent with the emerging view that there are subclinical brain injuries from repetitive head impacts.”
Brain injuries aren’t caused only by severe, but imprecisely defined, impacts and “the term concussion, as far as I’m concerned, should be withdrawn from the lexicon,” he said.
Increased attention to head hits, as opposed to concussions, may work to broaden the duty of care schools and leagues owe to athletes, the lawyers said.
“If subconcussive injuries are the true problem, then we will also need to rethink what we mean by ‘harm,’ which may include claims for latent injuries, the fear of developing CTE, and medical monitoring,” Grey said.
It may also increase scrutiny of sports less strongly associated with head trauma.
“It’s not just the full-contact sports,” said lawyer Daniel Goldberg, a professor at the University of Colorado’s School of Medicine in Denver who writes extensively on public health policy and chronic illnesses.
“This is one of the reasons that aerial play is being removed in soccer,” he said, referring to bans on heading the ball in youth leagues.
But Diaz-Arrastia cautioned that the issue isn’t isolated head impacts that occur in everyone’s life.
“We’re talking about high-energy impacts that are repetitive but don’t necessarily cause concussions,” he said. “The key is the repetition, the gross number of those impacts.”
The BU study may also “force us to rethink legislation on restricting kids from playing tackle football, like we do with other dangerous activities like driving and drinking,” Grey said.
That concept has gained traction in Illinois, where a lawmaker recently proposed a ban on tackle football for children under 12.
Leagues are also looking for ways to minimize brain injuries in youth athletes that may debilitate them later in life.
The NFL, bearing the brunt of criticism over the implementation of its concussion protocol, recently announced a new safety-oriented model for USA Football, its nationwide youth feeder program.
The player development model establishes a “game pathway” from flag football and a new “rookie tackle” before the full-on tackle version of the sport.
But the findings also fuel questions about whether American football—with its nearly perpetual player collisions—can ever be made safe, especially when relatively mild repetitive head impacts are a primary concern.
If rules of play, coaching standards, and equipment changes can’t sufficiently address safety concerns in football without reducing the frequency of hits, questions of players’ assumption of potentially fatal risks follow—a particularly difficult calculus in youth sports, Grey said.
Answers to these and other liability questions may soon arise in litigation against the NCAA and college football conferences—also parts of the NFL’s potential player pool—in class action lawsuits brought by former players who allege cognitive impairments.
Consolidated litigation pending against the NHL since 2014 raises similar questions.
That league maintains that the causal link between concussions and CTE hasn’t been scientifically established, and it resists comparisons of the head traumas that occur in football, to which a large portion of scientific research has been devoted.
The NHL relies on a 2016 consensus statement by the International Conference on Concussions in Sport that a “cause-and-effect relationship has not yet been demonstrated” between CTE and sports-related concussions or exposure to contact sports.
Whether the league will reconsider its position in light of the new findings remains to be seen, but the issue will likely arise March 13, when the U.S. District Court for the District of Minnesota will consider whether to certify a class action to resolve retired players’ claims.
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