CONCUSSION LITIGATION AND ATHELTE SAFETY REGULATIONS: A COMPREHENSIVE LEGAL ANALYSIS

Introduction

The issue of concussions and traumatic brain injuries (TBIs) in professional sports has emerged as a pressing legal and public health concern in recent years. As the medical community's understanding of the severe and potentially long-lasting consequences of these injuries has grown, so too has the scrutiny and legal action aimed at holding sports organizations accountable and implementing stronger safeguards for athlete safety.

High-profile cases, such as the multibillion-dollar settlement between the National Football League (NFL) and thousands of former players who suffered concussions, have brought widespread attention to the issue. The NFL case highlighted the long-standing failure of the league to adequately warn players about the risks of concussions and the potential for chronic traumatic encephalopathy (CTE), a degenerative brain disease linked to repeated head trauma.

Beyond the NFL, concussion litigation has extended to various other professional sports leagues, including the National Hockey League (NHL), Major League Soccer (MLS), and the National Collegiate Athletic Association (NCAA). These lawsuits have alleged negligence, fraud, and failure to implement appropriate concussion management protocols, leading to settlements and policy changes aimed at prioritizing player safety.

In response to the mounting legal pressure and public awareness, professional sports leagues and governing bodies have implemented new concussion protocols, return-to-play guidelines, and rule changes designed to reduce the risk of head injuries. These measures include improved sideline concussion assessments, mandatory time off for players diagnosed with concussions, and stricter penalties for illegal hits to the head.

Furthermore, state and federal lawmakers have taken action to address the issue of concussions in sports, particularly at the youth and amateur levels. Numerous states have enacted laws commonly referred to as "concussion safety laws," which mandate specific protocols for identifying and managing concussions, as well as educational initiatives for coaches, parents, and athletes.

At the federal level, efforts have been made to introduce comprehensive legislation aimed at establishing nationwide standards for concussion management and research funding. While these efforts have yet to result in significant federal legislation, they reflect the growing recognition of the need for a coordinated and proactive approach to addressing the issue of concussions and TBIs in sports.

As the legal landscape continues to evolve, the impact of concussion litigation and athlete safety regulations will likely shape the future of professional sports, influencing everything from on-field rules and medical protocols to the long-term financial and reputational consequences for sports organizations.

Concussion Litigation: A Wave of Lawsuits Challenging Athlete Safety Standards

The past decade has witnessed a proliferation of concussion-related lawsuits filed by former professional athletes against their respective sports leagues and governing bodies. These lawsuits have alleged negligence, failure to warn, and concealment of the risks associated with repeated head trauma, seeking compensation for medical expenses, lost wages, and long-term care.

NFL Concussion Litigation: A Landmark Case

One of the most significant cases in this area is the NFL Concussion Litigation, a multidistrict litigation consolidated in 2012.[1] In this case, thousands of former NFL players alleged that the league deliberately concealed the risks of concussions and failed to implement adequate safety protocols.[2] The settlement, approved in 2015, established an uncapped compensation fund for retired players diagnosed with certain neurological conditions, as well as funding for medical research and education.[3]

NHL and FIFA Concussion Lawsuits

Similar lawsuits have been filed against other professional sports leagues, including the NHL and FIFA. In the NHL Concussion Litigation, former players accused the league of promoting violence and failing to adequately address the risks of head injuries.[4] The case alleged that the NHL failed to warn players of the long-term consequences of concussions and implement appropriate return-to-play protocols.[5]

In the world of soccer, former players have taken legal action against FIFA, the sport's governing body.[6] The FIFA Concussion Litigation alleged that FIFA failed to implement adequate concussion protocols and neglected to inform players of the risks associated with head injuries.[7]

NCAA Concussion Litigation

In the NCAA Concussion Litigation, student-athletes alleged that the organization failed to implement proper concussion management protocols and provide adequate medical monitoring.[8] The case highlighted the unique challenges faced by student-athletes, who may have been pressured to continue playing despite suffering head injuries.[9]

Concussion Cases in Cricket

In the world of cricket, the issue of concussions and head injuries has also gained prominence in recent years, leading to legal action against governing bodies and teams. Former Australian cricketer Ryan Pehrson initiated legal proceedings against Cricket Australia, alleging that the organization failed to properly manage his concussion sustained during a domestic match.[10] The case shed light on the potential long-term effects of concussions in cricket and the need for improved safety protocols.

Another notable case involved former West Indies cricketer Marlon Samuels, who sued his former domestic team for failing to adequately protect him after he sustained a concussion during a match.[11] Samuels alleged that the club's negligence led to long-term cognitive and physical impairments.

Impact and Regulatory Response

These high-profile cases across various sports have not only resulted in significant financial settlements but have also brought heightened public awareness to the issue of concussions, prompting changes in safety regulations and protocols across leagues and governing bodies.[12][13] 

Furthermore, state and federal lawmakers have taken action to address the issue of concussions in sports, particularly at the youth and amateur levels.[14] At the federal level, efforts have been made to introduce comprehensive legislation aimed at establishing nationwide standards for concussion management and research funding, though significant federal legislation has yet to be enacted.[15]

As the legal landscape surrounding concussions continues to evolve, the impact of concussion litigation and athlete safety regulations will likely shape the future of professional sports, influencing everything from on-field rules and medical protocols to the long-term financial and reputational consequences for sports organizations.

Evolving Athlete Safety Regulations: Prioritizing Concussion Prevention and Management

In response to the legal challenges and growing public concerns surrounding concussions and traumatic brain injuries, professional sports leagues and governing bodies have implemented various regulations and protocols aimed at improving athlete safety and reducing the risk of these potentially devastating injuries.

NFL's Concussion Protocol and Rule Changes

The National Football League (NFL) has been at the forefront of these efforts, introducing numerous rule changes and policies to enhance player safety. The league has implemented a comprehensive "Concussion Protocol" to ensure proper evaluation and treatment of potential concussions during games.[16] This protocol involves a standardized sideline evaluation by medical personnel, including an unaffiliated neurotrauma consultant, to determine if a player should be removed from play due to a suspected concussion.[17]

Additionally, the NFL has increased penalties for illegal hits to the head, such as targeting and helmet-to-helmet contact, in an effort to discourage dangerous play and reduce the incidence of concussions.[18] The league has also implemented rule changes, including the elimination of certain high-risk techniques and the prohibition of using the helmet as a weapon.[19]

NHL's Concussion Management Efforts

Similarly, the National Hockey League (NHL) has introduced new rules and protocols to address the issue of concussions. The league has established a "Concussion Protocol" that outlines procedures for identifying, evaluating, and managing potential concussions during games and practices.[20] This protocol includes mandatory baseline testing for players, as well as the use of "Spotters" – trained personnel tasked with identifying potential concussions during gameplay.[21]

The NHL has also implemented stricter penalties for hits to the head and has made efforts to eliminate fighting from the game, recognizing the potential for concussions and brain injuries resulting from such violent collisions.[22]

NCAA Concussion Guidelines

In the realm of collegiate sports, the National Collegiate Athletic Association (NCAA) has taken steps to address concussion management and athlete safety. The organization has established guidelines for concussion diagnosis, management, and return-to-play protocols, which member institutions are required to follow.[23] These guidelines outline the proper procedures for evaluating and treating student-athletes who have suffered a suspected concussion, as well as the criteria that must be met before they can safely return to play.

Additionally, the NCAA mandates annual concussion education for coaches, athletes, and medical personnel, to ensure a heightened awareness and understanding of the risks associated with concussions and the importance of proper management.[24]

Concussion Protocols in Cricket

In cricket, the International Cricket Council (ICC) introduced a dedicated "Concussion Substitute" rule in 2019, allowing teams to replace a player who has sustained a concussion during a match.[25] This rule aims to protect the health and safety of players by ensuring that they do not continue playing after sustaining a concussion, which could increase the risk of further injury.

Governing bodies like the England and Wales Cricket Board (ECB) have also implemented comprehensive "Head Injury & Concussion Management" policies, outlining protocols for assessment, management, and return-to-play procedures for concussed players across all levels of cricket.[26] These policies aim to standardize the approach to concussion management and ensure that players receive appropriate medical care and follow proper recovery protocols before returning to play.

State Concussion Safety Laws

Beyond specific league regulations, various states have enacted laws aimed at protecting youth athletes from concussions and traumatic brain injuries. These laws typically require the implementation of concussion education programs for coaches, athletes, and parents, as well as mandating the removal of athletes from play after a suspected concussion and clearance from a licensed healthcare professional before returning to play.[27]

The enactment of these state laws reflects a broader societal recognition of the importance of concussion prevention and management, particularly at the youth and amateur levels, where developing brains may be more susceptible to the long-term effects of head injuries.

With legal landscape surrounding concussions continuing to evolve and public awareness of the risks associated with these injuries grows, it is likely that sports organizations and governing bodies will continue to refine and strengthen their concussion protocols and athlete safety regulations. The implementation of these measures represents a crucial step towards protecting the health and well-being of athletes at all levels, while also mitigating the legal and financial risks faced by sports organizations.

Legal Considerations and Challenges in Concussion Litigation

While the implementation of athlete safety regulations and protocols is a positive step toward addressing the issue of concussions and traumatic brain injuries in sports, several legal challenges and considerations remain:

1. Duty of Care and Negligence Claims

Sports organizations and governing bodies may face ongoing legal challenges related to their duty of care and potential negligence in failing to adequately protect athletes from concussions and long-term brain injuries. Plaintiffs in concussion litigation may argue that these organizations breached their duty of care by failing to implement appropriate safety protocols, provide adequate medical monitoring, or warn athletes about the risks associated with head injuries.[28]

2. Assumption of Risk

Defendants in concussion litigation may argue that athletes assumed the inherent risks associated with their sport, including the risk of head injuries. However, plaintiffs may counter that the risks were concealed or downplayed by the organizations, preventing athletes from making fully informed decisions about participating in the sport.[29]

3. Causation and Burden of Proof

Establishing a clear causal link between an athlete's neurological condition and their participation in a particular sport can be challenging, particularly in cases involving long-term or latent injuries like chronic traumatic encephalopathy (CTE).[30] Plaintiffs may face significant evidentiary burdens in proving that their injuries were directly caused by their athletic activities and the alleged negligence of the sports organization.

4. Workers' Compensation Claims

In addition to personal injury lawsuits, professional athletes may pursue workers' compensation claims for concussion-related injuries, raising questions about the applicability of state workers' compensation laws to professional athletes.[31] These claims may involve complex issues related to the classification of athletes as employees, the scope of compensable injuries, and the potential preemption of personal injury claims by workers' compensation statutes.

5. Enforcement and Compliance

Ensuring consistent enforcement and compliance with concussion protocols and safety regulations across various levels of play and different jurisdictions remains a significant challenge. Sports organizations may face scrutiny over their implementation and oversight of these protocols, particularly at lower levels of competition or in youth sports programs.[32]

6. Insurance Coverage and Indemnification

Concussion litigation and the associated costs of defending against these claims have raised concerns about the availability and adequacy of insurance coverage for sports organizations and governing bodies.[33] Organizations may also grapple with issues related to indemnification provisions in contracts and the potential for third-party liability.

7. Punitive Damages and Reputational Harm

In cases where sports organizations are found to have acted with gross negligence or intentional misconduct, plaintiffs may seek punitive damages in addition to compensatory damages.[34] These high-profile cases also carry the risk of significant reputational harm for the organizations involved, potentially affecting sponsorships, viewership, and public perception.

As the legal landscape surrounding concussions and athlete safety continues to evolve, sports organizations and governing bodies must navigate these complex challenges while prioritizing the health and well-being of athletes. Ongoing collaboration between legal experts, medical professionals, and stakeholders in the sports industry will be crucial in addressing these issues and fostering a safe and responsible environment for athletic competition.

Conclusion

The issue of concussions and traumatic brain injuries in professional sports has sparked a transformative legal and regulatory revolution, with far-reaching implications for athlete safety and the long-term viability of these sports. The wave of concussion litigation, spearheaded by landmark cases against major sports leagues such as the NFL, NHL, and FIFA, has not only resulted in significant financial settlements but has also catalyzed a fundamental shift in the way these organizations approach and prioritize player well-being.

While the implementation of comprehensive concussion protocols, return-to-play guidelines, and rule changes aimed at reducing head injuries represents significant progress, ongoing legal challenges and the evolving scientific understanding of brain injuries will continue to shape this dynamic area of sports law. Sports organizations and governing bodies must navigate a complex legal landscape, grappling with issues such as duty of care, assumption of risk, causation burdens, and the potential for punitive damages and reputational harm.

Moreover, the legal implications of concussions and traumatic brain injuries extend beyond the professional ranks, with states enacting concussion safety laws and regulations aimed at protecting youth and amateur athletes. This reflects a broader societal recognition of the importance of concussion prevention and management, particularly in developing athletes whose brains may be more susceptible to the long-term consequences of head injuries.

In the world of cricket, high-profile cases like those involving Ryan Pehrson and Marlon Samuels have shed light on the potential long-term effects of concussions in the sport and the need for improved safety protocols. The introduction of the "Concussion Substitute" rule by the International Cricket Council (ICC) and the implementation of comprehensive "Head Injury & Concussion Management" guidelines by governing bodies like the England and Wales Cricket Board (ECB) demonstrate a commitment to prioritizing player safety.

As scientific research continues to unravel the complexities of brain injuries and their long-term consequences, the legal landscape surrounding concussions in sports will undoubtedly evolve further. Sports organizations will face increasing pressure to adapt and strengthen their safety protocols, while also bracing for potential liability and legal challenges.

Ultimately, balancing the inherent risks of professional sports with the need to protect athlete health and well-being will remain a central focus for sports organizations, governing bodies, and the legal system alike. Ongoing collaboration between legal experts, medical professionals, and stakeholders in the sports industry will be crucial in fostering a safe and responsible environment for athletic competition.

The concussion litigation wave has not only brought about significant legal and financial consequences but has also catalyzed a cultural shift within the sports industry, emphasizing transparency, accountability, and a proactive approach to addressing head injuries. As this evolution continues, the impact on the future of professional sports, from on-field rules and medical protocols to the long-term financial and reputational consequences for organizations, will be profound and far-reaching.

Written by

Akshay Singh Rawat

LinkedIn 

Citation

[1] In re Nat'l Football League Players' Concussion Injury Litig., 307 F.R.D. 351 (E.D. Pa. 2015).

[2] Belson, N.F.L. Case Follows Well-Worn Path of Litigation Over Concussions, N.Y. TIMES (Apr. 22, 2015).

[3] Brodsky, The NFL Concussion Litigation: A Class Confounded, 16 DEPAUL J. SPORTS L. & CONTEMP. PROBS. 1 (2020).

[4] Leeman v. Nat'l Hockey League, No. 13-cv-01856 (D. Minn. filed July 7, 2013). 

[5] Bain, Concussion Lawsuit Against NHL Cleared To Go Ahead, CBC NEWS (July 17, 2019).

[6] Mehr v. Fédération Internationale de Football Ass'n, No. 14-cv-03879 (N.D. Cal. filed Aug. 27, 2014).

[7] Longman & Belson, Soccer and Head Injuries: Case Against FIFA Gears Up, N.Y. TIMES (Sept. 2, 2014).

[8] Arrington v. Nat'l Collegiate Athletic Ass'n, No. 11-cv-06356 (N.D. Ill. filed Sept. 12, 2011).

[9] Edelman, The NCAA Concussion Litigation: A Status Update, FORBES (Sept. 28, 2015).

[10] Pandaram, Head injury case a wake-up call for Cricket Australia, THE AUSTRALIAN (Dec. 28, 2017).

[11] Cricbuzz, Marlon Samuels Sues Worcestershire County Cricket Club for Failing to Adequately Protect Him After Concussion (Apr. 26, 2019).

[12] NFL Head, Neck and Spine Committee's Concussion Diagnosis and Management Protocol, https://www.nfl.com/playerhealthandsafety/resources/headneckandspine 

[13] NHL Concussion Protocol, https://media.nhl.com/site/asset/public/ext/2022-23/1920000381/2022-23ConcussionprotocolEN.pdf

[14] Concussion Laws by State, https://www.concussion.com/laws/

[15] Protecting Student Athletes from Concussions Act, H.R. 7418, 117th Cong. (2022).

[16] NFL Head, Neck and Spine Committee's Concussion Diagnosis and Management Protocol, https://www.nfl.com/playerhealthandsafety/resources/headneckandspine

[17] NFL Concussion Rules Enforcement, https://operations.nfl.com/the-rules/rules-changes/2018-rules-changes/

[18] Ibid.

[19] Ibid.

[20] NHL Concussion Protocol, https://media.nhl.com/site/asset/public/ext/2022-23/1920000381/2022-23ConcussionprotocolEN.pdf

[21] Ibid.

[22] Bain, Concussion Lawsuit Against NHL Cleared To Go Ahead, CBC NEWS (July 17, 2019).

[23] NCAA Concussion Safety Protocol Management, http://www.ncaa.org/sport-science-institute/concussion-safety-protocol-management

[24] Ibid.

[25] ICC introduces concussion substitutes in international cricket, https://www.icc-cricket.com/media-releases/1324718

[26] ECB Head Injury & Concussion Management Guidelines, https://resources.ecb.co.uk/ecb/document/2021/02/09/8e2f7dc5-bae8-4c6c-95c2-cba92d5c0b2a/ECB-Head-Injury-and-Concussion-Guidelines-2021.pdf

[27] Concussion Laws by State, https://www.concussion.com/laws/

[28] Edelman, Liability Regimes for Concussions in Professional Sports, FORBES (Oct. 14, 2015), https://www.forbes.com/sites/marcedelman/2015/10/14/liability-regimes-for-concussions-in-professional-sports/

[29] Ibid.

[30] Goldberg, Concussions and Player Safety: The NFL's Biggest Threat, HARV. J. SPORTS & ENT. L. (Spring 2019), https://harvardjsel.com/2019/04/concussions-and-player-safety-the-nfls-biggest-threat/

[31] Holbrook, A Swing and A Miss: Professional Athletes' Ability to Obtain Workers' Compensation Benefits for Concussion-Related Injuries, 28 MARQ. SPORTS L. REV. 415 (2018).

[32] Youth Sports Safety: Concussion Policies and Protocols, SAFE KIDS WORLDWIDE (Oct. 2020), https://www.safekids.org/research-report/youth-sports-safety-concussion-policies-and-protocols-october-2020

[33] Dolinger, The Insurance Battlefield: Courtroom Wars Over Coverage for Concussion Litigation, 13 DEPAUL J. SPORTS L. & CONTEMP. PROBS. 1 (2017).

[34] Mitten & Zohn, Emerging Issues in Sports Injury Litigation, 36 MARQ. SPORTS L. REV. 369 (2016).