September 20, 2020

Volume X, Number 264

September 18, 2020

Subscribe to Latest Legal News and Analysis

The Freedom to Swim

In an August 2017 article, “0.44% of NFL Brains” we addressed The New York Times coverage of Dr. Ann Mckee’s report “Clinicopathological Evaluation of Chronic Traumatic Encephalopathy in Players of American Football” (JAMA. 2017; 318(4):360-370), pointing out the study’s limitations.

Another study from Boston University about repetitive contact is getting similar attention. “Concussion, Microvascular Injury, and Early Tauopathy in Young Athletes after Impact Head Injury and an Impact Concussion Mouse Model” (Brain 2017; doi:10.1093/brain/awx350) has been viewed as establishing a link between “sub-concussive hits” (any contact that doesn’t produce a frank concussion) and chronic traumatic encephalopathy (CTE). As with Dr. McKee’s JAMA report, this piece is getting full-on media exposure. It’s also the centerpiece for legislative calls to ban organized youth tackle football in New York and Illinois.

The Illinois proposal states a broad “finding” that the “best available evidence” says CTE is caused by years of repetitive hits to the head and cites sub-concussive impacts as an important factor. Both proposals would prohibit organized youth tackle football; Illinois up to age 12 and New York up to age 13. Illinois specifically says all other organized youth sport activities are acceptable. Presumably that would allow youth boxing, where the objective is to “knock out” or deliver a concussion to the opponent. New York includes a definition of tackle football, as if it were needed.

A Closer Look

A group of 25 independent doctors have signed a letter, agreeing that limiting head impacts among youth is smart, overstating scientific consensus is not. Citing the Boston University study’s ascertainment bias and its conflict with other studies, the group points out that scientific evidence linking sports to brain injury, brain injury to CTE and CTE to dementia is not strong, and that further work is needed before policy makers engage in risk-benefit analysis.

CTE pathology in the brain has been shown to be present in 12% of normal healthy people who died at an average age of 81 years. The presence of CTE pathology in the brain on autopsy has not been shown to correlate with neurologic symptoms prior to death. To be clear, CTE pathology could be present in a normal person. Ling, et al., Acta Neuropathologica.

They also point out that before enacting broad sweeping legislation based on fear of CTE, we need to assess risk-benefit in light of broader public health concerns, citing the rising sedentary trend among our youth, pointing out the generally acknowledged proof that an active lifestyle mitigates the risk of obesity, high blood pressure, diabetes, depression, cardiovascular disease, drug use and dementia. The group also points out the uncomfortable truth: that tackle football is the number one participation sport in high school and that it is accessible to children with diverse physiology in ways that other sports are not.

A 2015 British Journal of Sports Medicine study of youth sports showed that concussion rates are 18 times higher than average for rugby, five times greater for hockey and roughly double for American football, as compared to other activities. Why target football?

Looking Ahead

Neither of the proposed acts described above is likely to pass. The New York proposal lacks a sponsor in the state senate. Illinois and Chicago in particular have well-established and cherished youth football programs, in addition to boxing. Even if passed, nothing will prevent kids from playing unorganized games. Without supervision. Without coaches. Without a concussion protocol. Legislative restrictions based on overstated “scientific consensus” are likely to have unintended consequences, hurting rather than helping the population. Studies show that early sports participationleads kids to succeed and make good choices.

As science learns more about concussion, sport administrators are better equipped to make remove-from-play decisions and doctors are better equipped to support the concussed athlete’s recovery and return to activity and address those whose recovery may be compromised. In 2009, the state of Washington passed the Lystedt Act. Since then, every state has adopted a similar law, and every responsible youth sports organization has adopted the corresponding rules. Lystedt acts are smart regulation – they recognize the historical under-appreciation of concussive injury, require that coaches and parents be educated in the risk of concussion, and establish concussion protocols for youth sports: removal from play when concussion is suspected and return to play after medical clearance. And they don’t interfere with our freedom to swim, run, ski, box or play football.

© 2020 Wilson ElserNational Law Review, Volume VIII, Number 45


About this Author

Anthony Corleto, Wilson Elser Law Firm, Stamford, White Plains, Commercial Litigation and Sports Law Attorney

Tony Corleto focuses on commercial litigation, transactions and sports risk matters. His experience covers intellectual property, corporate, construction, insurance coverage and bad faith, environmental, and employment practice liability issues. He regularly tries cases and argues appeals in the state and federal courts of Connecticut and New York, including complex matters involving banking and lease finance, software disputes, development rights and brain injuries.

Before his legal career, Tony worked as a commercial casualty underwriter and...