Contributed by Darena Muça
This past January, the McGill Research Group on Health and Law hosted its annual lecture, “Brain Injuries in Sports: from Awareness to Action,” delivered by Ken Dryden. Dryden was a goal tender for the Montreal Canadiens hockey team during the 1970s. In 1973, he graduated from the McGill Faculty of Law; however, he never practised law. Besides being a renowned hockey star, appearing in the Hockey Hall of Fame and winning 6 Stanley Cups, he is an educator, politician and philanthropist dedicated to educating youths about the importance of higher education and raising awareness about sport-related brain injuries. In his presentation, Dryden shared his perspective that more steps ought to be taken to prevent brain injuries in the sport. In consideration of Dryden’s lecture, this article sheds light on the difficulties of holding sports organizations liable for brain injuries in sports.
Looking into brain injuries
Contact sports can have dramatic impacts on the structure and function of the brain due to repeated body contact. Nathan Churchill, a post-doctoral fellow in the neuroscience research program at St. Michael’s Hospital in Toronto, emphasizes that “there is growing concern about the risk of collisions in sports.” He notes that the effects of contact sports are not only seen in retired professional athletes, but also in young, healthy athletes in amateur and professional sports. Athletes with a repetitive history of blows to the head can suffer from traumatic brain injury (TBI) and chronic traumatic encephalopathy (CTE), a progressive neurodegenerative disease, which is also found in the brains of people who suffer from Alzheimer’s disease. CTE causes several cognitive, mood and behavioural symptoms, such as memory loss, confusion, depression and dementia. The term TBI was first introduced analyzing professional and amateur boxing, while CTE encompasses the “potential long-term neurological consequence of repetitive TBI” which can occur in numerous contact sports, such as football, wrestling, rugby, hockey and basketball.
In 2017, the Journal of the American Medical Association published a study which found that 177 out of 202 brains autopsied from deceased football players were diagnosed with CTE. Out of the 177 players, 111 were former National Football League (NFL) players. 110 of them showed signs of CTE. Moreover, 8 out of 202 players’ brains examined played with the Canadian Football League (CFL), where 7 also revealed signs of CTE. The study was conducted by Dr. Ann McKee, who is the chief of neuropathology at the VA Boston Healthcare System and director of the CTE Center at Boston University.
In one study, 177 out of 202 brains autopsied from deceased football players were diagnosed with CTE. || (Source: Behance // Nick Fedirko)
Understanding the long-term effects and consequences of repeated blows to the head from collision and contact sports can help us better understand the brain. However, if a player suffers repeated concussions should they continue to play? In professional sports, medical and legal implications complicate this decision, raising the question of whether sports entities can be held liable, under negligence, for brain injuries athletes incur by playing professional sports.
Canadian negligence law
Negligence law in Canada was founded on the principles that those who are harmed as a direct result of another’s act(s) or failure to act must be compensated. To prove negligence, a plaintiff has the burden to prove that they were owed a duty of care, there was a breach of that duty, and the damage(s) they suffered were caused by that breach of duty.
The first element of negligence the plaintiff must establish is that they were owed a duty of care. The Supreme Court of British Columbia confirmed in Forestieri v. Urban Recreation Ltd. that athletes can be owed a duty of care since “the law recognizes that an athlete consents only to what is reasonable conduct from his or her opponent.” Indeed, the allocation of risk and responsibility differ according to circumstances, and to the extent that athletes voluntarily participate in potentially dangerous contact sports. Although athletes accept the inherent risks of playing contact sports such as football or hockey, they are owed a duty of care from other athletes, athletic trainers, coaches, referees, medical officials and regulatory bodies.
Questions of liability stem from the obligations that sports organisations owe to their athletes and are determined by the scope of their responsibilities over sports conduct, training, concussion protocols and baseline testing.
The second element of negligence that the plaintiff must successfully prove is that a governing body, or any other entity, committed a fault by breaching the duty of care. The key question regarding liability of sports organizations is whether they acted unreasonably to matters they knew, or should have known, at the time a player suffered injuries. When ordinary people are involved, what is reasonable depends on what a reasonable person under the same circumstances would have done. This is called the reasonable person standard. However, this standard changes when professionals are involved. What is reasonable depends on the general knowledge of medical and sports practices at the time of the injury, as well as the specific knowledge of the sports organization itself regarding these practices and the player’s injuries. Questions of liability stem from the obligations that sports organisations owe to their athletes and are determined by the scope of their responsibilities over sports conduct, training, concussion protocols and baseline testing. Thus, the standard of reasonableness is higher for sports organizations considering they employ trainers, medical officials, referees and other professionals, who must exercise more diligence than ordinary people.
The last element of negligence the plaintiff must prove is that the failure to meet the standard of care caused their injuries. Plaintiffs must overcome the hurdle of proving factual and legal causation. Factual causation is established when the plaintiff proves, on a balance of probabilities, that but-for the defendant’s breach of duty, they would not have suffered the injuries they did. Legal causation, on the other hand, refers to the proximate foreseeability of the injury incurred. Proving causation can be quite complicated in the context of brain injuries, considering the complex medical and factual elements that might vary from case to case, as well as the late effects of repetitive head trauma.
Once all three elements of negligence are fulfilled, the plaintiff can be awarded damages, in the form of past, present or future compensation for physical or psychological injuries, pain and suffering, medical expenses, diminution of earning capacity or loss of earning (such as wages and sponsorships).
NHL Players Concussion Injury Litigation
The Re: National Hockey League Players’ Concussion Injury Litigation case illustrates the complexities of class actions against sports organizations, as well as the difficulties in proving neurological effects caused by high collision sports. According to the plaintiffs, repeated mild traumatic brain injury (MTBI) can trigger several neurological responses, such as CTE. Moreover, they claim that the NHL had knowledge, or should have had knowledge of the “negative repercussions of [violent head] impacts on its players.” In the lawsuit, the Plaintiffs allege that
the NHL owed its players a duty of reasonable care to manage player safety and to act in the best interests of its players’ health and safety—including to keep players informed of the neurological risks associated with head injuries suffered while playing hockey in the NHL—and that the NHL breached that duty by, for example, promoting a culture of violence and failing to inform or warn players of the potential negative effects of such head injuries.
The District Court of Minnesota ruled that it was “not possible on the present record to determine which jurisdictions’ laws apply to the plaintiffs medical monitoring claim.” The medical monitoring laws in Canadian provinces and American states from which the players are from are too different to allow the players to form a common class of plaintiffs.
In Re: National Hockey League Players’ Concussion Injury Litigation the plaintiffs alleged that the NHL breached its duty of care towards the players by promoting a culture of violence. || (Source: Flickr // Clyde)
In response to Judge Susan Nelson’s ruling, the NHL offered a $18.9 million settlement to more than 300 former players who alleged that the NHL failed to protect them from or warn them of brain injuries. Players who accept the settlement will receive $22,000, neurological testing and assessment paid for by the NHL, and could be eligible for up to $75,000 in medical treatment.
Courts are increasingly dealing with the pressing issue that is concussion litigation. The NHL settlement is but one example of how injured players try to use the court system to provide compensation for retired or injured athletes. The American Re: National Football League Players’ Concussion Injury Litigation case provides a significant settlement agreement between the NFL and its former players for brain injuries. Moreover, in Australia, the New South Wales Supreme court also tackles the questions of sports organizations liability for brain injuries in McManus v Knights Rugby League Pty Ltd.
With the advancement of medical knowledge and the growing awareness of the long-term consequences of head injuries, athletes as well as sports organizations must be cognizant of the medical and legal repercussions of improper treatment or allowing players to return to training too soon after suffering a concussion. There is a growing possibility of litigating brain injuries on the basis of negligence, thus demonstrating that sports entities are not entirely relieved from their responsibilities and obligations. To ensure that sports organizations are correctly satisfying the standard of care, they should seek legal and medical advice to be up to date with current practices and knowledge.
Darena Muça is a junior online editor for the Mcgill Journal of Law and Health and a first-year B.C.L./ J.D. student at McGill University’s Faculty of Law. Darena holds a B.A. with distinction in Political Science, with a minor in Human Rights, and a Co-op degree. She has a keen interest in mental health and the intersection of health and the law.