It's Not As Simple As Playing Professional Football Equals Impairment

Professional athletes take a risk every time they step on the playing field or court. Injuries are common. Head injuries in particular account for some of the liability that sports organizations and leagues may face. While concussions are common, chronic traumatic encephalopathy (CTE) is caused by repetitive trauma to the brain and affects cognition, mood, personality and behavior, and movement. Thousands of retired NFL players or their relative have been pursuing lawsuits against the NFL, seeking compensation for the lasting head trauma they suffered during their careers. Athletes looking to recover monetary damages from severe brain injury face a large obstacle in litigation brought against those sports organizations, leagues, and equipment manufacturers: Proximate cause.

Tort operates under the legal fiction that money damages can compensate for a victim’s injury. Personal injury negligence actions are the most common type of actions for significant concussion injuries or CTE. In order to prove negligence, the plaintiff must satisfy the prima facie elements of duty, breach of duty, injury resulting from the breach, and damages that are proximately caused by the breach.

Proving that the defendant’s negligence was a proximate cause of the plaintiff’s head injury is a challenge in professional football players’ lawsuits against the NFL. In general, the plaintiff must prove that the injury would not have occurred “but for” the negligence. Am. Jur. 2d, Negligence §§409 to 424. This high standard is even more difficult because of administrative feasibility, which is defined as the accessibility of the proof that would support consideration of evidence we cannot see. Physical injury, such as a broken limb, is more obvious than emotional injury, such as CTE. Although emotional harm may have a physical correlation, it is not nearly as obvious to the naked eye. For example, CTE has later been identified in former collegiate and professional athletes who have committed suicide. However, it is not determined whether a direct causal link exists between CTE and suicide. Similarly, clinically defined concussions are not the only cause of CTE. The accumulation of many sub-concussive hits is really the instrumental factor in driving long-term damage in football players' brains.

The brain is less developed during the earlier stages of participation, which may lead to the most significant long-term consequences. Athletes who begin playing contact sports, such as football, at a young age are at greater risk of CTE. Thus, the brain injury was likely compounded over years or even decades—caused by repetitive sub-concussive hits or smaller blows to the head. Because of the length of time and unclear origin, the road to recovery for the plaintiff is not easy.

The law remains skeptical of emotional injury because it is too easy to claim and too difficult to disprove. Questions of substantiality and the mere existence of such emotional injury are due to problems of proof. Recognizing and understanding mental or emotional injuries in tort law may become easier as neuroscience advances and reliable indicators of emotional harm are discovered. Until the underlying scientific theory is more clear, proving the causal connection between the alleged wrongful conduct and resulting damages will continue to be a substantial obstacle for plaintiffs.

Am. Jur. 2d, Negligence §§409 to 424.

Korngold, Caleb, et al. “The National Football League and Chronic Traumatic Encephalopathy: Legal Implications.” Journal of the American Academy of Psychiatry and the Law, Journal of the American Academy of Psychiatry and the Law Online, 1 Sept. 2013.

“The Moral Conflict of Law and Neuroscience.” Google Books, Google.

Pachman, Steven, and Adria Lamba. “Legal Aspects of Concussion: The Ever-Evolving Standard of Care.” Journal of Athletic Training, National Athletic Trainers Association, Mar. 2017.

Howard v. Lecher, 42 N.Y.2d 109, 111

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