Could NFL, other contact-sport leagues face legal issues with new CTE study?

The Athletic

July 27, 2022

A new scientific study declares a solid link between repeated blows to the head and the degenerative brain disease chronic traumatic encephalopathy (CTE), concluding athletes in contact sports like the NFL are 68 times more likely to develop the malady than those who did not play such games.

The findings could challenge regulators, sports organizations and leagues to more strictly limit head impacts in contact sports. While the NFL has reduced padded practices and made rules changes to minimize hits to the head, the league still has seen recently deceased players getting diagnosed with CTE such as Demaryius Thomas and Vincent Jackson. The study’s authors take particular aim at youth football, comparing research that defends letting children play contact sports to those that disputed a link between smoking and lung cancer.

“A determination of causation between RHI (repetitive head impacts) and CTE has significant medico-legal consequences for professional and amateur sports, both in terms of liability and long-term viability,” the study published in the Frontiers in Neurology journal concluded. “If CTE is environmentally caused, then settings with exposure to RHI, which could include participation in some sports, may become regulated by governmental organizations that oversee workplace and public safety, and individuals and organizations could become financially liable for the care of those who develop CTE.”

The study was written by nine global universities and the Concussion Legacy Foundation, which is affiliated with Boston University’s brain bank, which has examined 269 brains of contact sports athletes.

CTE can only be diagnosed postmortem, and the journal study said its conclusion relied on almost 1,000 brains globally of deceased contact sports athletes, including those from football, soccer, ice hockey, rugby and Australian rules football.

CTE, which was first diagnosed in boxers in the 1920s, has long been associated with hits to the head. It was only when it was found in NFL player Mike Webster that the disease emerged front and center. But only the NFL among U.S. sports leagues has acknowledged a link, and that came after the NFL settled a class action lawsuit with retired players for over $1 billion. That settlement allowed payments for CTE only to the estates of players who filed before the deal closed in 2014.

The families of former players like Thomas, who died of cardiac arrest last year and was later was found to have CTE, are not eligible under the settlement.

And the NFL is part of the Concussion in Sports Group (CISG), a global consortium of sports organizations ranging from FIFA to the IOC that establishes concussion protocols and has denied an established, or in scientific parlance a “causal” link, between repeated head hits and CTE.

“(A) cause-and-effect relationship has not yet been demonstrated between chronic traumatic encephalopathy and sport-related concussion and exposure to contact sports,” the CISG’s most recent statement from 2017 on the subject reads.

The Frontiers in Neurology paper attacks the CISG for using what is described as faulty methodology and being funded by the very organizations that it is supposed to police.

Chris Nowinski, co-founder and CEO of the Concussion Legacy Foundation, tied CISG’s positions, which dictate how long after a concussion an NFL player can return to play, to their funding.

“Why are sports leagues denying causation?” Nowinski asked, referring to a link between head injuries and CTE. “Is it simply about preventing damages in ongoing lawsuits from former players? If that is the case, and if that’s what you will conclude after reading the study, then we have to stop taking our direction on CTE causation from sports leagues, just like the world stopped taking their science from the smoking industry when they say that smoking doesn’t cause lung cancer.”

Richard Boardman, who represents rugby players suffering from ailments like dementia in a class action lawsuit planned to be filed in the United Kingdom, called CTE the biggest issue facing sports.

“You can talk about sportswashing, trans women, doping but the issue of (traumatic brain injuries) is the biggest issue in sports,” he said. “Nothing remotely compares.”

Youth football leagues have been sued, large unsuccessfully, for later-in-life brain maladies suffered by former players. A federal court in 2019 tossed a lawsuit against Pop Warner brought by two mothers whose sons died roughly a decade after playing youth football.

Similar suits citing the dangers of head trauma have been filed against the NFL, the NCAA, the NHL and World Wrestling Entertainment. Those lawsuits have either been dismissed or, in the case of the NHL, settled for minimal sums. More cases continue to be filed.

Could the more definitive study out this week cause more legal exposure? The new study raises that question.

“Legally, millions of children are exposed to RHI through sports participation; this demographic is too young to legally consent to any potential long-term risks associated with this exposure,” the study concluded.

Boardman said his team discussed the study, but it would not be central to the rugby litigation.

Jon Butler, CEO of Pop Warner Little Scholars, did not reply for comment.

Nowinski said the study’s findings should be a wake-up call to all youth sports about taking head contact out of the game, whether heading in youth soccer or tackling in youth football (the Concussion Legacy Foundation advocates for not tackling in youth football until age 14).

“We have to accept that we are putting children at risk of developing a lifelong degenerative brain disease, by how we’re playing the sports and how we are accepting repetitive head impacts for children,” he said.

The study was prepared by researchers from Harvard University, Boston University, University of Sydney (Australia), University of Auckland (New Zealand), University of Michigan, University of California-San Francisco, University of São Paulo (Brazil), University of Melbourne (Australia), Oxford Brookes University (UK) in addition to the Concussion Legacy Foundation.

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