Summary By:  Joseph C. Monahan

Sports head injuries have received increasing attention in recent years, and several AIRROC education sessions have focused on insurance claims relating to such injuries over that same period.  At the October Commutations and Networking Forum, Robin Dusek of Freeborn & Peters LLP and Ian Plumley of Clyde & Co. LLP provided an update. 

Ms. Dusek explained that chronic traumatic encephalopathy (“CTE”) has been found only in military veterans, seizure victims, domestic violence victims, and athletes who have experienced repetitive brain trauma.  Currently, it can only be diagnosed post-mortem, but there are testing methods in development that would allow for diagnosis through a brain scan or blood tests.  If these prove successful, one might expect that more cases will be diagnosed than at present.  To date, CTE has been found in athletes that have participated in football, rugby, baseball, soccer, wrestling, ice hockey, and rodeo.  Of the 92 NFL veterans who have submitted their brains for testing after death, 88 have tested positive for CTE. 

Ms. Dusek reported that in the class action filed by former players against the National Football League, the district court approved the settlement, but that class members have appealed to the Third Circuit, with one of the major issues being the diagnosis cut-off date to use for inclusion in the class.  Even if the settlement is ultimately upheld by the Third Circuit, however, helmet manufacturer Riddell did not settle the claims against it, and 225 individuals also opted out of the class and are free to pursue litigation on their own.  The NCAA is also subject to a putative class action brought by all former athletes, not just those at risk of CTE.  No decision on class certification has yet been made.  In addition, there is ongoing litigation filed by hockey players and professional wrestlers.  Ms. Dusek noted that school districts, coaches, trainers and equipment manufacturers are all potential targets for litigation. 

Mr. Plumley spoke specifically about the development of the issue in the United Kingdom, with a particular focus on rugby and soccer.  He explained that while protocols have been put in place for how teams must respond to a head injury, they are not uniformly followed.  To illustrate, he cited a Welsh player in 2015’s Rugby World Cup who was knocked unconscious twice in the same game, but was allowed to continue to play.  The issue has been gaining an increasing amount of attention in the UK, however, particularly with respect to youth and adolescents.  Mr. Plumley noted that during the span from the 2012/2013 rugby season to the 2013/2014 rugby season, a 41% increase of head injuries among 14 to 18 year old players was reported.  The British Parliament is considering becoming involved in the issue in order to regulate how the sport leagues must handle concussions among its players. 

While litigation is certainly a risk and is likely forthcoming in the UK, no cases have been filed to date.  Mr. Plumley suggested that the delay in litigation might be explained not only because the connection between head injuries and CTE is just now being better understood, but also because some sports in the UK have only recently been professionalized.  Rugby, for instance, has only been played professionally for approximately 20 years.