New Study Likely to Prove Key Development in Concussion Lawsuits
By Sara M. Lewis on February 17, 2013
On January 22, 2013, the American Journal of Geriatric Psychiatry published the harrowing findings of a UCLA study on brain damage in living NFL football players, specifically chronic traumatic encephalopathy (“CTE”).[1] Funded by groups researching the impact of concussions including the Brain Injury Research Institute, the study marks a significant breakthrough in brain injury research of athletes in high-contract sports.[2] Living players now have the opportunity to see and understand the actual damage to their brains, whereas in the past such effects could only be seen after death.[3] While many may view the ability to recognize CTE in living players as the “Holy Grail,” the opportunity for players to definitively show the physical damage to their brains as a result of their participation in the NFL will strengthen their legal argument in cases, such as the suit brought by 4,000 former and current NFL football players currently before the Eastern District of Pennsylvania.[4] This new ability to demonstrate the presence of CTE in a medical exam with visualization of the damage developed by this study could provide the necessary proof that each player has, in fact, suffered damages.
The Study
Prior to the UCLA study, research had suggested “professional athletes in contact sports who [were] exposed to repetitive mild traumatic brain injuries” were at risk of developing degenerative conditions such as CTE.[5] CTE, caused by a buildup of tau protein, has been cited as causing “memory loss, confusion, progressive dementia, depression, suicidal behavior, personality changes, abnormal gait and tremors.”[6] The mere presence of tau in the brain suggests the existence of CTE, and so the UCLA study used positron emission tomography (“PET”) and the chemical marker FDDNP to scan the brains of former NFL football players Fred McNeil (59-year-old former linebacker) and Wayne Clark (64-year-old former quarterback), as well as three others (a 73-year-old guard, a 50-year old defensive lineman, and a 45-year-old center).[7] The study focused on these players because they had each sustained at least one concussion during their careers as professional football players.[8]
The brain-imaging tool PET, formerly used for studying Alzheimer’s disease, in conjunction with FDDNP injections allowed the UCLA scientists to pinpoint exactly where the tau protein had accumulated in the players’ brains.[9] They then compared the PET brain scans of the players to scans of healthy men of comparable age, education, body mass index, and family history of dementia.[10] In comparison to the healthy men, the football players had higher concentrations of tau deposits in the regions of their brains that control learning, memory, behavior, emotions, as well as other mental and physical functions.[11] These findings were consistent with tau deposit patterns previously observed during autopsies in which CTE was found.[12] The researchers also conducted clinical assessments of the studied NFL players to test cognitive ability as well as for the existence of depression.[13] Results showed the players had greater symptoms of depression in addition to greater cognitive loss than healthy men.[14] As such, the study has been hailed for its breakthrough findings of CTE in living players, the implications of which will likely be monumental.
For players, this study means the possibility of early detection and prevention of severe “trauma-related neurodegeneration” that could lead to methods of intervention in order to delay or halt the onset or progression of related symptoms.[15] For instance, active players whose brains show early signs of CTE could make more informed decisions about the right time to retire, thereby preventing further injury and the development of the condition.[16] Although there is still more research to be conducted on the subject, such as what kinds of hits cause buildups of the tau protein, the study is still hailed as a tremendous breakthrough by leading experts in the field.[17]
The Legal Implications of the Study
The study also has legal implications for current and former players who have, or may in the future, file lawsuits against the NFL. The current lawsuit filed against the NFL alleges negligence and fraud on behalf of the NFL in not disclosing the true dangers of full-contact professional football.[18] Although the NFL has filed a motion to remove the case from the court system for several reasons, if the case progresses then the players filing suit will have to prove that the NFL’s tortious behavior caused their brain injuries in order to show damages.[19]
Judge Brody of the Eastern District of Pennsylvania recently scheduled oral arguments on the NFL’s request to dismiss the class action lawsuit by thousands of former NFL players.[20] Regardless of whether the NFL is successful in moving this litigation to arbitration under their collective bargaining agreement defense, the suing players must demonstrate that not only did the NFL fail to disclose information related to the concussions, but that they were in fact injured as a result of head trauma.[21] The fact that living players now have a concrete way to visually demonstrate their injuries may evidence the greater legal effect of the UCLA study.[22]
Conclusion
This issue continues to gain national attention, as highlighted by recent events that have attracted substantial media coverage.[23] For instance, the recent decision by the family of prominent former player, Junior Seau, to file a wrongful death lawsuit against the NFL shows the greater scope and magnitude of the issue.[24] Not only have former players afflicted with CTE experienced depression and dementia, but also some, such as Seau, have even resorted to suicide as a result of their diminished neurological capabilities.[25] In addition, President Obama publicly stated he would have to question whether he would let his hypothetical son play football, given the nature of the game.[26]
The UCLA study and its significant revelations demonstrate the detrimental impact of high-contact sports on the long-term safety and health of professional athletes. As sporting events, such as the Super Bowl, continue to rein in billions of dollars for entertainment filled with violent collisions and devastating injuries, the mental health and safety of professional athletes must not be ignored in favor of exorbitant financial gains.[27] As a society invested in both professional sports and medical and scientific research, the long-term effects of major concussions on professional athletes demands discussion by those willing to enter into the debate over the value of “monster hits” for entertainment.[28]
[1] See generally Gary W. Small, et al., PET Scanning of Brain Tau in Retired National Football League Players: Preliminary Findings, 21:2 Am. J. Geriatr. Psychiatry 138 (Feb. 2013). See alsoMike Florio, New Imaging Technique Spots Evidence of Potential Brain Damage in Living Football Players, NBC Sports (Jan. 22, 2013, 2:12 PM),http://profootballtalk.nbcsports.com/2013/01/22/new-imaging-technique-spots-evidence-of-potential-brain-damage-in-living-football-players/.
[2] See Michael Patrick Leahy, UCLA Study Finds Brain Damage in Five Living Retired NFL Players, Breitbart (23 Jan 2013), http://www.breitbart.com/Breitbart-Sports/2013/01/23/UCLA-Study-Finds-Brain-Damage-in-5-Living-Retired-NFL-Players.
[3] See John Katzowitz, Researchers Find CTE in Living Former NFL Players, CBS Sports (Jan. 22, 2013, 3:33 PM), http://www.cbssports.com/nfl/blog/eye-on-football/21599368/researchers-find-cte-in-living-former-nfl-players; Rachel Champeau, UCLA Study First to Image Concussion-Related Abnormal Brain Proteins in Retired NFL Players, UCLA Newsroom (Jan. 22, 2013),http://newsroom.ucla.edu/portal/ucla/ucla-researchers-first-to-image-242445.aspx.
[4] Andrew Bucholtz, UCLA Study May Have Found the “Holy Grail” of Concussion Research: CTE in Living Brains, Yahoo! Sports (Jan. 22, 2013, 3:47 PM), http://ca.sports.yahoo.com/blogs/cfl-55-yard-line/ucla-study-may-found-holy-grail-concussion-research-204732208.html. See alsoJonathan M. Ciriello, Concussed: The NFL’s New Approach to Concussions – a Long Over-Due Improvement, The Jeffrey S. Moorad Center for the Study of Sports Law Blog (Dec. 16, 2012),http://lawweb2009.law.villanova.edu/sportslaw/?p=1321.
[5] Champeau, supra note 3. See also Michael O’Keeffe, Two Days After Jovan Belcher Murder-Suicide, Published Study Links Routine Hits to Brain Disease, Daily News (last updated Dec. 4, 2012, 1:44 AM), http://www.nydailynews.com/sports/football/suit-ex-nfl-players-added-credibility-study-links-hits-brain-disease-article-1.1212817.
[6] See id.
[7] See Leahy, supra note 2. See also Champeau, supra note 3; Katzowitz, supra note 3.
[8] See Bucholtz, supra note 4.
[9] See Champeau, supra note 3.
[10] See id.
[11] See id.
[12] See id.
[13] See id.
[14] See id.
[15] Florio, supra note 1. See Leahy, supra note 2.
[16] See Katzowitz, supra note 3.
[17] See Bucholtz, supra note 4.
[18] See Ex-players Accuse NFL of Fraud Over Concussion Policies, Associated Press (Jan. 20, 2012, 1:32 AM), available at http://www.nfl.com/news/story/09000d5d82627595/article/explayers-accuse-nfl-of-fraud-over-concussion-policies.
[19]See Ciriello, supra note 4.
[20] See Judge Sets NFL Concussion Suit Arguments for April, Associated Press (Jan. 30, 2013, 5:59 AM), available at http://www.nfl.com/news/story/0ap1000000132682/article/judge-sets-nfl-concussion-suit-arguments-for-april.
[21] See Ciriello, supra note 4.
[22] See id.
[23] See Paul D. Anderson, Seau’s Family Sues the NFL, NFL Concussion Litig. (Jan. 24, 2013), http://nflconcussionlitigation.com/?p=1351.
[24] See Marc Sessler, Junior Seau’s Family Sues NFL, Claims Wrongful Death, NFL: Around the League, http://www.nfl.com/news/story/0ap1000000129982/article/junior-seaus-family-sues-nfl-for-wrongful-death (last updated Jan. 23, 2013, 3:55 PM).
[25] See NFL Great Junior Seau Had Brain Disease CTE When He Committed Suicide, Fox News (Jan. 10, 2013), http://www.foxnews.com/sports/2013/01/10/ap-newsbreak-junior-seau-had-brain-disease-cte-when-committed-suicide/.
[26] See Dan Loumena, President Obama Sounds Off on Football Violence, Safety, L.A. Times (Jan. 27, 2013, 2:20 PM), http://www.latimes.com/sports/sportsnow/la-sp-sn-president-obama-football-safety-20130127,0,989787.story.
[27] See What Comes Now for NFL After Tumultuous Season?, Associated Press (Feb. 3, 2013, 1:13 PM), available at http://www.npr.org/templates/story/story.php?storyId=170995684.
[28] See Sessler, supra note 24; Loumena, supra note 26; see also Morgan Campbell, NFL Concussion Lawsuits: Will Looming Settlements Dismantle the League’s Lucrative Business Model?, The Star (Toronto) (Feb. 3, 2013, 5:03 PM), http://www.thestar.com/business/2013/01/31/nfl_concussion_lawsuits_will_looming_settlements_dismantle_the_leagues_lucrative_business_model.html.
