Warning: Many of the links below contain videos featuring major head trauma and violence.
There has been a dramatic rise in harmful contact sports content in recent years. Contact sports generally tend to have major effects on players’ bodies and longevity, but the current trend puts more traumatic brain injury on our screens.
Sports investors are cashing in on head trauma. Aside from the NFL, there are three football leagues making their returns to prime time: the United States Football League (USFL), XFL, and Arena Football League (AFL). Dana White has had a successful few years with the rise in viewership for the UFC and the related The Ultimate Fighter (TUF). He used this success to garner support for Power Slap, possibly influenced by the viral success of Vasilii “Dumpling” Kamotskii. Celebrity boxing has made a comeback, spearheaded by the Paul brothers and viewers’ willingness to watch people get knocked out. Recently deceased Aaron Carter, in part famous for beating Shaquille O’Neal in an imaginary basketball game, had revenge exacted against him when he boxed another former Los Angeles Lakers big man, Lamar Odom, who had a significant height and weight advantage.
Studies show the impact of repeated brain injury can lead to severe consequences for athletes, but who bears responsibility – the league, coaches, referees, etc.? Historically, the answer has been disappointing.
Typically, cases in sports law have been preempted under §301 of the Labor Management Relations Act (LMRA), which removes actions from court to arbitration that are covered under a league’s collective bargaining agreement (CBA). In particular, CBAs between the league and the players union tend to preempt the issue of injuries and provide means of grievance through arbitration.
Some cases regarding concussions have been sufficient to avoid the LMRA preemption standard. In re National Hockey League Players’ Concussion Injury Litigation and In re NFL Player’s Concussion Injury Litigation are rare departures from the typical LMRA preemption. Both ended in settlement almost immediately. NFL players in the class action were given the right to opt out of the settlement, and many of those cases are ongoing (See In re NFL Player’s Concussion Injury Litigation, Alain Kashama).
Other negligence cases from players have held in favor of leagues based on assumption of risk. In Feld v. Borkowoski, the court ruled that the risk of particular injuries in sports are known by the participants beforehand and subject the league to a less stringent standard of care. Knight v. Jewett elaborates on the standard, claiming that a major aspect of contact sports is the conduct that would typically be deemed dangerous. McCullough v. World Wrestling Entertainment, inc. extends some of the logic from these cases to contact entertainment. Finally, Pfister v. Shusta went so far as to set Illinois apart by creating a direct contact sports exception to negligent conduct sanctioned by a sport’s rules.
Given the litigation history of sports leagues and entertainment, the opportunities for players to sue leagues are bleak. Future CBAs may seek to cover concussion-related injuries more expansively. Settlements in both the NFL and NHL likely raise the assumption of risk standard for future players in those leagues and sports. Cases that do reach above the assumption of risk standard will likely be removed to Illinois state courts to create an even higher barrier to the players. Players might have to look for other means of relief.
Coaches and their coaching staff have a duty to instruct athletes on how to compete safely and to exercise reasonable care in protecting athletes. In Woodson v. Board of Education, a coach was found liable for not adequately teaching a player proper tackling form, the most dangerous aspect of football that must be taught properly to avoid injury, when the wide receiver became quadriplegic after tackling a player who intercepted the ball. Negligence for exercising reasonable care is both a standard of omission and commission of an act. In Stahr v. Lincoln Sudbury Regional High School District, the court reiterated that the conditions under which a player was injured must have been a but-for cause of the alleged neglectful act, finding for the coach when a player was struck unconscious by the backswing of her hockey teammate’s practice swing.
Referees have the duty to supervise a match and enforce the contest’s rules. In Pape v. State, a referee was cleared of liability for an injury during a contest because it could not be determined that the referee’s actions were a proximate cause of injury in a contact sport with multiple participants. The referee was not expected to guarantee the safety of every participant in each possible instance of risk. The court in Carabba v. Anacortes School District ruled that a referee has an obligation to enforce the rules of the contest, but is not subject to liability insofar as an injury occurred on the first uncalled infraction of the contest. Instead, referees are expected to prevent the behavior from repeating and further endangering the athlete.
In sum, athletes who feel their coach or referee did not meet the standard of care may be able to seek restitution, but the standard is relatively high. Coaches must bear the burden of teaching players proper safety mechanics in the most dangerous aspects of the game, and referees must prevent repeated fouls. For sports like football and fighting, which have banned methods of contact like hits to the back of the head, athletes may be able to seek restitution. However, in a sport where they generally assume a risk of brain injury, the player would also need to prove that the illegal contact was the proximate cause of the injury.
Athletes may have limited windows for suits for traumatic brain injury, but players and fans alike should remain vigilant. Players are taking on significant risks to provide entertainment for the public. With opportunities galore for players to be injured, a coach, league, or referee may be the proximate cause of the injury and provide a means for a player to make suit and begin a process of recovery. In the meantime, maybe look at some highlight photos from this year’s Puppy Bowl instead.