Massachusetts Football/Sports Concussion Injuries: Who’s Liable?

I’m going to weigh in here on the subject of sports and the subject of sports-related brain injuries, specifically chronic traumatic encephalopathy (CTE.)   CTE is caused by repeated and violent blows/impacts to the head, such as occur in boxing, football, rugby and hockey, and has become much more understood in recent years. A variety of psychological, neurological and behavioral symptoms result, which I’ll discuss at more length, below.

I think it important that this subject be addressed legally, especially in light of the $20 million lawsuit that the family of former New England Patriots football player Aaron Hernandez has filed against the New England Patriots and the NFL. Hernandez’ family is basing their claim on the fact that an autopsy of Hernandez’ brain showed that he suffered from CTE   Hernandez, as we all know, killed himself in prison after being convicted of the murder of another former NFL player, Odin Lloyd, in June of 2013.

I am not one of the attorneys involved in this or related lawsuits connected with Aaron Hernandez, and thus I am not privy to the medical and forensic issues present.  Therefore, I cannot comment on the strength or viability of this lawsuit, which both the NFL and the New England Patriots Football Club have vowed to “defend vigorously.”  Perhaps Hernandez was murderous and suicidal because he suffered these documented brain injuries.  Or perhaps he was just an evil, sick man.  I do not know, and won’t offer a professional opinion as to either.

Notwithstanding, I am a Massachusetts high school & college sports injury attorney, and I can assure readers that several psychiatric and neurological disorders have been documented as being connected to people (usually men) whose brains upon autopsy demonstrated that they suffered from CTE.  In fact, late in 2014, Boston University Medical School announced that autopsies on the brains of 79 former NFL players showed that 76 of the 79 had proven brain damage associated with CTE. So far, more than 100 former NFL players have been similarly diagnosed, following autopsies, as having suffered from CTE.  And the problem begins much younger:  High school athletes suffer thousands of these injuries each year. Approximately 47 percent of these injuries stem from football, with hockey and soccer following close behind.

Playing in these types of sports, over time, can cause serious brain injuries, with symptoms including depression, personality changes, homicidal behavior, suicidal ideation, and similar behavioral disorders.   Should that really come as a surprise to anyone?  Think about it:  By the time a person reaches the age where he (or she) could play professional football, or hockey, or rugby, they have been exposed to these injuries for several years –  most likely beginning in high school, and then likely college-level play.  That’s at least 10 years, if pop-warner and grammar school play is counted in. Years and years of a young person’s head being smashed around like a wrecking ball:  Struck violently at every angle by players running and pouncing at high speeds.  And no, – don’t be fooled by the idea that a helmet can “protect” a player in these types of heavy, violent contact sports:  The very best they can do is lessen direct lacerations to the scalp, and prevent the skull  from being clearly (openly) fractured. They do not and cannot prevent concussions.  And it is the repeated exposure to the brain being physically traumatized inside the skull, which produces injuries like CTE.

The Sports & Fitness Industry Association, a trade association that tracks data on sports participation, claims that 5.5 million kids from age 6 and older played in tackle football in 2016.  More so, that number appears to apply only to football, not other sports that are known to place players at rick of CTE and other brain injuries, such as hockey and rugby.

Should these kids be playing in these sports at all?  Given the documented medical risk, is the risk really worth it?

Not according to Dr. Bennet Omalu, the physician who is credited with discovering CTE.  His answer is unequivocally, “No.”   In fact, Dr. Omalu recently equated young kids playing football to child abuse, saying, “It is the definition of child abuse. If you play football, and if your child plays football, there is a 100 percent risk exposure.”

USA Football, the national association for amateur football sports in America, told HuffPost recently that it backs research to promote player safety, and incorporates “programs supported by leading medical organizations and recognized for advancing player safety and coaching education,” according to a statement.  Uh-huh.  In 2015, the association published revised football tackle guidelines, including “clear definitions of contact and time limits on full player-to-player contact.”   Maybe it’s me, but that’s like a swimming organization claiming that swimmers don’t need to worry about getting wet to participate in the sport.

So, who – legally – should be liable for these horrible injuries?  That can be a tough question, since diagnosis doesn’t often occur until years of exposure to these recurrent injuries.

However, hundreds of millions of dollars have been paid out in class actions related to these cases, mostly against the NFL.  A considerable number of lawsuits are still pending against the NCAA, alleging that schools and sports conferences knew for years about these sports concussion injury risks, but kept silent to keep the money flowing.  As a Boston brain injury lawyer, I equate this silence to the Catholic church’s silence about clergy sex abuse:  See no evil; hear no evil; speak no evil.  I believe that when CTE injuries can be directly correlated to a person’s participation in these violent contact sports, then grammar schools, high schools, and colleges and universities should be held liable for CTE injuries.

Legally, despite the fact that  players are typically required to sign releases of liability for injuries, such  “waivers of liability” won’t allow a defendant school, conference or coach to escape liability for such injuries when something called “wanton or willful misconduct” can be demonstrated.

Is Your Grammar or High School Age Child at Risk for a Sports-Related Concussion?

Signs and symptoms of a concussion may include:

  • Headache or a sensation of “pressure” inside the head
  • Confusion
  • Amnesia which may be connected to the injury
  • Dizziness
  • Tinnitus, or ringing in the ears
  • Nausea or vomiting
  • Slurred speech
  • A delay in response to otherwise simple questions

If your son or daughter displays any of these symptoms, have them medically evaluated immediately.  Do not accept any diagnosis that says “It’s just a concussion” – that’s what was said for years of sports players who ended up suffering serious brain injuries.  Do not allow your son or daughter to play again, if this happens more than once.

If your child, or another member of your family, or you yourself have already incurred a sports-related injury, it may have been caused by negligence on the part of the school, or the sports conference, or even the coaching staff.   Feel free to contact our office for a consultation with an experienced Massachusetts brain accident lawyer.  Be careful which law firm you choose:  These types of cases are very unique, and require specialized legal and medical expertise.