Academic journal article The Journal of Law in Society

The Connection between Concussions and Chronic Traumatic Encephalopathy (CTE) in Professional Athletics: A Necessary Change in the "Sports Culture" in Light of Legal Barriers

Academic journal article The Journal of Law in Society

The Connection between Concussions and Chronic Traumatic Encephalopathy (CTE) in Professional Athletics: A Necessary Change in the "Sports Culture" in Light of Legal Barriers

Article excerpt

Table of Contents  I. INTRODUCTION II. BACKGROUND       A. NFL Lawsuits       B. Recent deaths of NHL players       C. Link of Concussions and Chronic Traumatic             Encephalopathy (CTE) III. ANALYSIS       A. Workers' Compensation             1. Professional Athletes Covered?                 i. Was the injury an "accident?"                 ii. Is the workers' compensation remedy exclusive?             2. Application to CTE scenarios             3. Labor Law and Collective Bargaining Agreements                 i. Labor exemption to Antitrust law (Mackey Test)                 ii. Federal Preemption & Mandatory Arbitration                 iv. Application to NFL & NHL contexts             4. Tort Law--Theories of Liability for Sports Injuries                 i. Primary Implied Assumption of Risk                 ii. Secondary Assumption of Risk                 iii. Negligence                 iv. Express Assumption of Risk IV. CONCLUSION 

I. INTRODUCTION

It is widely accepted that injuries are commonplace in contact sports such as football and ice hockey. "Body contacts, bruises, and clashes are inherent in the game. There is no other way to play it. No prospective player need be told that a participant may sustain injury. That fact is self evident. It draws to the game the manly; they accept its risks, blows, clashes, and injuries without whimper." (1) The current "sports culture" leads the public to both expect and promote what can be characterized as rough play in contact sports such as football and hockey, and even players alike expect such play from themselves and their teammates. (2)

Logically following such a universal characterization of contact sports, liability for injuries incurred is most often limited, especially in the context of professional athletics. (3) However, the increasing prevalence of professional athletes suffering from serious head injuries and even death warrants a closer analysis and possible modification of such a standard. Generally, this Note will examine the standard of liability for injuries incurred in professional athletics. It will specifically analyze the liability in the context of the recent National Football League (NFL) lawsuits, as well as recent National Hockey League (NHL) players' deaths. This Note will also analyze the significant legal boundaries that future plaintiffs may face due to the non-statutory labor law exemption and the leagues' collective bargaining agreements.

Current research has drawn connections between concussions suffered in professional games and the debilitating disease of Chronic Traumatic Encephalopathy (CTE). In light of such research, this Note will argue that although remedies under state tort law may not be ultimately successful, an overall change in the culture of sports is necessary to ensure that professional sports teams provide proper supervision and medical monitoring, both to their retired players and, most importantly, their current players.

II. BACKGROUND

A. NFL Lawsuits

In July 2011, 75 retired NFL players sued both the NFL and helmet-maker Riddell, the NFL's official helmet supplier, in Los Angeles, alleging the concealment of the harmful effects of concussions. (4) Further, on August 17, 2011, seven former players sued the NFL for "training players to hit with their heads, failing to properly treat them for concussions and trying to conceal for decades any links between football and brain injuries." (5) The plaintiffs asserted that the NFL showed both negligence and intentional misconduct in their response to the reports from players with concussion-like symptoms, and sought medical supervision and financial assistance for injured players. (6) One of the players named in the most recent lawsuit, former NFL quarterback Jim McMahon, suffers from severe memory loss at only 51-years-old, which he believes is due to injuries suffered during his football career, including playing through five concussions. …

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