When Fun Turns Fatal: The Long-term Effects of Professional Sports and the Legal Fallout

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Sports are beloved by players and fans alike. The magic in the uncertainty of sports reveals itself through the crack of a bat, the swish of a net or the whistle of a perfect spiral floating through the air. But inherent in the magic is a darker uncertainty, historically looming in the background, but that has recently pushed its way to the front-page news: the long-term effects on the players. Fans idolize players who seem invincible, but the reality is that participation in sports entails a limitless risk of injury and trauma to the body. The multimillion-dollar paychecks and fan adulation do not always seem like a fair trade-off for players who ultimately experience “when the risks become reality.” Of the multitude of risks, the long-term effects of sports on the brain have recently dominated both the courthouse and the court of public opinion. This area is particularly ripe for litigation, as many of the consequences do not manifest until several years after a player has retired.

As a tragic example, in February 2015, former professional hockey player Steve Montador was found dead in his home at the age of 35. Montador had been suffering from depression, fatigue and memory loss prior to his passing, but medical professionals were unable to identify the source of his symptoms. Frustrated by his lack of answers and wanting to help others in his position, Montador had agreed to permit his brain to be studied in an autopsy following his death. In May 2015, the results of his autopsy were announced, confirming that Montador suffered from chronic traumatic encephalopathy (CTE), “a progressive neurodegeneration clinically associated with memory disturbances, behavioral and personality change, Parkinsonism, and speech and gait abnormalities. Pathologically, CTE is characterized by cerebral and medial temporal lobe atrophy, ventriculomegaly, enlarged cavum septum pellucidum, and extensive tau-immunoreactive pathology throughout the neocortex, medial temporal lobe, diencephalon, brainstem, and spinal cord.”

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Montador’s story followed the shocking death of Derek Boogaard in 2011, when the 28-year-old was found dead in his home as the result of an overdose of prescription painkillers he was taking while recovering from a concussion. An autopsy similarly revealed that Boogaard suffered from CTE. The estates of Boogaard and Montador have each sued the National Hockey League (NHL), which is also currently defending a class action brought by former players seeking to hold it accountable for the “pathological and debilitating effects of brain injuries caused by concussive and sub-concussive impacts sustained … during their professional careers.” The NHL’s suit is in the early stages but it comes on the heels of two well-publicized settlements which could serve to facilitate a settlement for former NHL players and their families.

At the collegiate level, the National College Athletic Association (NCAA) settled a class-action lawsuit for $70 million in early 2014, the proceeds of which are to be used to diagnose head injuries incurred by current and former college athletes while participating in football, hockey, soccer and other collegiate contact sports.

On the professional stage, the National Football League (NFL) settled a historic class action on April 22, 2015. In contrast to the NCAA settlement, which only funded diagnosis efforts, the NFL agreed to pay $5 million per retired player for certain medical conditions associated with repeated head trauma. More than 5,000 former NFL players have brought more than 300 lawsuits, alleging that the NFL “failed to take reasonable actions to protect players from the chronic risks created by concussive and sub-concussive head injuries and fraudulently concealed those risks from players.” The plaintiffs asserted that the NFL had a “duty to provide players with rules and information that protect [players] as much as possible from short-term and long-term health risks” because the NFL “held itself out as the guardian and authority on the issue of player safety,” but it failed to “properly investigate, warn of, and revise league rules to minimize the risk of concussive and sub-concussive hits in NFL football games.” Because the parties entered into a settlement agreement, the NFL did not admit to any wrongdoing, nor were the plaintiffs’ claims decided on their merits in order to provide meaningful legal precedent in this regard. However, it has not prevented further suits from being filed on similar grounds, many of which are likely to be similarly settled without a final determination of the appropriate legal standard.

As additional cases continue to be filed and similar stories become front-page news, the correlation between professional sports and long-term brain injuries becomes increasingly apparent; however, correlation is not causation. The majority of the above-described lawsuits allege at least one count of negligence against the applicable defendant organizations. Generally, in order to succeed on a negligence cause of action, the plaintiff must show that

  • the defendant owed the plaintiff a duty of care;
  • the defendant breached that duty of care;
  • the defendant’s breach caused the plaintiff’s injuries (or damages); and
  • the plaintiff, in fact, suffered an injury (or damages).

 

Consequently, failure to establish causation from a medical perspective may be a barrier to establishing the legal responsibility of professional sports organizations as well. However, legal responsibility is often overshadowed by an apparent ethical responsibility in the court of public opinion.

On one hand, despite settling its case, the NFL has undertaken several initiatives to increase the safety of players at all levels of play. Its Return-To-Play initiative has served as a model for state legislation to protect children from head-related injuries in sports. Similarly, for its players, the NFL continues to adopt new “player safety rules” each year.

By contrast, the NHL has been criticized for its failure to ban hand-to-hand combat in the sport. Instead, in the days following the announcement of Montador’s autopsy results, NHL Commissioner Gary Bettman denied that medical evidence has established that hockey causes CTE, stating that “[f]rom a medical science standpoint, there is no evidence yet that one necessarily leads to the other. I know there are a lot of theories, but if you ask people who study it, they tell you there is no statistical correlation that can definitively make that conclusion.” However, clinical evidence does support that CTE “is the result of repeated sublethal brain trauma that often occurs well before the development of clinical manifestations.” Whether playing hockey would equate to “repeated sublethal brain trauma” remains to be litigated.

While a direct correlation to hockey may not be firmly established, researchers have been cognizant of the relationship between sports and brain-related injuries. Dating back to the 1920s, researchers established a link between repeated head trauma and boxing. The long-term neurological and neuropathological sequelae associated with repetitive brain injury are well established for boxing, but over the past 10 years, high-profile tragedies, such as the stories of Montador and Boogaard, have brought the issue to the forefront for other sports.

As Commissioner Bettman waits for medical certainties to obviate the NHL’s responsibilities to its players, the NHL continues to seek to have the cases against it dismissed in court; however, its efforts in this regard have been unsuccessful to date. Its motion to dismiss multidistrict litigation in the U.S. District Court in Minnesota was denied on March 25, 2015.

Given the myriad of ongoing class actions and the uncertainty of legal precedent in these particular types of cases, players, whether professional or amateur, and their families seeking to understand their legal options should consult with an attorney familiar with the applicable state and federal law.

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