Cambridge, Mass.—As medical researchers learn more each year about the devastating long-term effects of sports-related brain injuries, thorny questions have emerged about who could be held liable for the damage in years to come.
So far, it’s a debate that has played out in the professional-sports arena, mainly in the NFL. But those same questions could eventually dog the NCAA and collegiate athletic programs, legal experts said Friday during a symposium on sports law at Harvard Law School.
Athletes who compete for NCAA programs do so in a gray area, legally speaking, said Chris Nowinski, president of the Sports Legacy Institute. Mr. Nowinski is also co-director of the Center for the Study of Traumatic Encephalopathy at Boston University School of Medicine, where researchers have been studying the brains of deceased professional and college athletes for signs of the degenerative brain disease, chronic traumatic encephalopathy, or CTE, that is caused by repetitive hits to the head.
The crux for college athletes, he said, is whether they’re being told upfront about the long-term risks associated with competing in football, basketball, soccer, ice hockey, or any other sport in which concussions are common. With new medical-research findings every year about the diagnosis and treatment of concussions, let alone their lasting effects, it’s hard to gauge how much information is being passed along to college players about the lifelong consequences of head injuries before they suit up, he said.
This question of “informed consent” lies at the heart of the legal debate over who should (or could) take the blame for the long-term fallout of repetitive hits to the head, Mr. Nowinski and others said. And it’s a particularly tricky one for colleges.
Professional athletes, of course, are adults. High-school and youth athletes, on the other end, are minors and under the care of a parent or guardian. But when it comes to college athletes, the distinction isn’t so clear-cut: Most are over 18, but they are also under the care and oversight of the college athletic programs for which they compete.
Dave Bergeron, a former linebacker at Stanford who played in the NFL for the Philadelphia Eagles and the Carolina Panthers, said he had no illusions about what he was getting into when he began playing for the Cardinal.
“You know, going into any sort of college athletic program, that there’s inherent risk physically. I knew I could blow out my knee any day. I knew I could break my arm, or break a rib. I knew I could be paralyzed,” he said during the panel discussion. “Everyone’s upfront and clear about that.”
The NCAA, for its part, has strengthened its policies on concussion in recent years. As I reported last fall, the association now advises colleges not to let athletes with the head injury return to play until cleared by a physician, and requires every athletics department to have a written protocol for handling concussions. The association has also instructed athletics departments to distribute educational materials to athletes and coaches on the dangers of concussions. And it requires programs to have athletes sign statements accepting responsibility for reporting symptoms of the injury to medical staff members at their institutions.
But Mr. Nowinski said Friday that he was “extremely disappointed” in the NCAA’s response to the concussion issue. “They’ve been completely absent from this conversation,” he said.
Still, the liability question looms—for the lawyers, anyway. Boston University researchers have found CTE in the brain of a college football player who died last year. So how will the NCAA and college athletic programs fare in coming years if medical research reveals that former college athletes, not just the pros, are also suffering from the degenerative brain disease linked to their college playing days? What would the legal claims be, and how would judges and juries respond?
Matt Henshon, a Boston lawyer and a former Princeton basketball player, predicted major legal challenges for the NFL—and for NCAA programs. “How many former NFL players have problems?” he said. “Multiply it by the [number of] people who play at lower levels, and it’s going to be a much bigger problem than the NFL can pay for or, frankly, the NCAA can pay for.”
