Henry Goldschmidt, an associate at Morgan Sports Law, examines the growing concerns around concussion – and brain injuries generally – in sport. He also looks at the ramifications of recently published medical studies, which suggest that brain injuries may not be confined to traditional “collision” sports.
Off-field issues continue to dominate sports headlines; from allegations of doping, match-fixing and governance failures, to issues concerning eligibility, such as nationality and hyperandrogenism. These are all issues which tend to elicit strong sentiments and split opinion – whether it’s conversations in the pub or lawyers fighting it out before the Court of Arbitration for Sport.
There is yet another issue which should be taken no less seriously, but which has gone largely unnoticed outside of the United States until recently; the long-term effects of concussions and, more generally, brain injuries in sport. It is now being taken more seriously, thanks in no small measure to publicity generated in the United States by litigation involving the National Football League (the “NFL”) and former players. The fact that the issue is generating more debate is an important beginning, although that debate will make sports administrators around the world shuffle uncomfortably in their seats as the safety records of their sports and the adequacy of their rules, regulations and protocols fall under the microscope.
The hope is that the increasing scrutiny will compel sports to strive towards greater accountability and a better understanding of the long-term effects of impacts to the brain, so that they may better protect the physical and mental wellbeing of sportsmen/women. However, if recent research is anything to go by, sports have a mountain to climb to bring protective measures up to speed with today’s science.
The term “concussion” is often used in the media as an umbrella term for all types of brain injuries in sport. In fact, a concussion is just one type of traumatic brain injury (“TBI”) that can be suffered in sport and which may be capable of causing long-lasting effects. Recent research suggests that repeated sub-concussive impacts – such as heading a football – could also lead to neurological impairments. It is, therefore, important to ensure that sports do not overlook the possible effects of seemingly benign, sub-concussive head traumas and that the focus on TBIs extends beyond concussions alone.
That all said, what is a concussion? The term “concussion” was once upon a time trivialised as just a bang on the head, often seen as something of a rite of passage for athletes of a certain stereotype. It was seen as nothing more than a temporary issue shaken off with little concern for long-term consequences.
In medical terms, a concussion is “a complex pathophysiological process affecting the brain, induced by traumatic biomechanical forces, secondary to direct or indirect forces to the head.” Put simply, a concussion is a type of brain injury. The word comes from the Latin concutere, meaning “to shake violently”. Concussions occur when the force of an impact shakes the brain inside the skull, causing a release of chemicals and electrical discharge across the cortex. If the force is great enough, it can cause biomechanical damage that has the potential to affect the anatomy and function of brain cells. One of the major challenges, however, is the ability to detect that damage in the first instance, or susceptibility to it. Concussion is known as the “invisible injury”, for good reason – no brain scans or blood tests can currently confirm its presence, so diagnosis is based on subjective criteria.
Chronic Traumatic Encephalopathy (“CTE”) – a neurodegenerative brain disease whose symptoms are thought to include aggression, anxiety, erratic behaviour, balance problems, memory loss, social instability, depression, suicidal ideation and dementia – is quickly becoming sport’s bogeyman. Not because it is a new condition, but because it is only now that sports, the media and the medical world are paying attention to it.
CTE is believed to be caused by the build-up of so-called tau proteins (which can disable neuro-pathways) and is typically found in people who have suffered repeated blows to the head. Although public awareness of CTE has improved following the NFL litigation and the work of Dr Bennet Omalu, the medical world has known about CTE since the 1920s, when it was known as “punch drunk syndrome” or “dementia pugilistica” and was believed to be confined to boxers.
It is now generally accepted that there is a relationship between exposure to repeated TBIs and CTE; however, the precise pathophysiologic and molecular mechanisms that lead from TBIs to the development of CTE remain unknown. In fact, much remains unknown about the condition – for instance:
There is, as yet, no treatment for CTE. As things stand, the only and safest known way to prevent CTE is to avoid exposure to the risk of TBIs. The good news, however, is that CTE has become the subject of an increasing number of studies over the past decade, which also means that sports and the medical world are developing a progressively better understanding of the condition.
“[American] Football is not a contact sport, it’s a collision sport – dancing is a contact sport.” (Vince Lombardi, 1913-1970, former American football player, coach and executive in the NFL)
When it comes to CTE and concussions, there is little doubt that American football is the sport that has attracted the most publicity, thanks largely to the NFL litigation and the 2015 Hollywood film “Concussion”, based on Dr Bennett Omalu’s work on CTE. Whilst the film certainly increased public recognition of the dangers of concussions, lawsuits against the NFL were actually first filed back in 2009. Those claims were advanced on the basis that the NFL (i) had deliberately concealed facts about the risks of concussions and long-term brain damage; and (ii) should have done more to protect players’ wellbeing.
Lawsuits from more than 4,500 former NFL players were consolidated and an initial deal was reached with the NFL in August 2013. The settlement terms only became final and effective on 7 January 2017 – under which the NFL will pay out an estimated US$ 1 billion to fund medical examinations, concussion-related compensation, medical research for retired NFL players and their families, and legal costs. The settlement pot is intended to provide for more than 20,000 NFL retirees over the next 65 years – however, despite the cash injection, the NFL did not admit any fault under the terms of the settlement.
It was only in March 2016 that, for the first time, the NFL first publicly acknowledged a connection between American football and CTE. By then, over 100 ex-NFL players had been posthumously diagnosed with CTE.
As recently as 25 July 2017, a report was published in the Journal of the American Medical Association, following the examination of 202 deceased American Football players (the “July 2017 Study”). It revealed alarming statistics; not least that “CTE was neuropathologically diagnosed in 177 players across all levels of play (87%), including 110 of 111 former National Football League players (99%).”
Dr Ann McKee, who led the study, cautioned that there was “a tremendous section bias” – noting that many families donated brains for research specifically because the former players showed symptoms of CTE. Nevertheless, the figures are deeply troubling – something that David Walsh (Chief Sports Writer for The Sunday Times) put into context:
“In the period covering the death of the 111 tested players, around 1,300 others passed away. If all of the other 1,200 brains had been examined and shown to be free of CTE, which is a ludicrous supposition, it would mean 9% of the overall total had CTE, a percentage way above the civilian average.” Rugby is sleepwalking into concussion crisis”, David Walsh, Sunday Times (30 July 2017)
Four years on from the initial NFL settlement, the National Hockey League (“NHL”) is currently facing a similar lawsuit – brought by former players who claim that the NHL did not do enough to protect them from the dangers of head trauma. The players describe a league that was happy to market violence and that knew that fighting, big hits and physical play were a major selling point of its product, all the while downplaying or ignoring the damage suffered by the players involved. The case began with 10 players filing a law suit in November 2013 but has grown into a class action and is expected to go to trial this year.
Unsurprisingly, the NHL’s position is that nobody understood the effect of concussions in the 1970s/80s/90s, and that the players were therefore afforded reasonable care given the state of knowledge at the time. In its view, the players were aware that ice hockey was a dangerous sport that could do damage both short and long term, and those players accepted the risks (and rewards) by suiting up. In one court filing, the NHL asserts that it was players’ responsibility to “put two and two together”.
At a very high level, there appear to be similarities between the NFL and NHL class actions. Indeed, the former class action is being used as a model for the latter, and Dr Omalu has even lent his support to NHL players. However, despite the similarities, the NHL has (i) not yet acknowledged a link between concussion and CTE, and (ii) declined to follow the NFL’s lead by funding research into the issue.
The NHL does not go as far as to deny a connection – rather, NHL Commissioner Gary Bettman maintains that the link “remains unknown”. Mr Bettman criticised the media for fearmongering and defended the NHL’s “more measured approach” to, as yet, unsettled science. The NHL’s stance has drawn considerable criticisms, with The New York Times drawing analogies between the actions of the NHL – in its attempts to discredit the science – and the response of tobacco companies to research, which strongly suggested a link between smoking and lung cancer in the 1950s.
On this side of the Atlantic, rugby union has arguably fallen under the most public scrutiny in respect of its handling of TBIs. According to its governing body, World Rugby, a key intervention strategy in TBI management has been the introduction of the Head Injury Assessment (“HIA”) process for the elite game. The HIA has been through three evolutionary phases since being introduced in 2012 – however, it has been these very protocols that have (and continue to) come under attack. Notwithstanding difficulties in enforcement, there has been stinging criticism – particularly from within the medical profession – that the underlying HIA is simply not fit for purpose.
Accordingly, there is debate as to whether the 10-minute HIA during matches should be scrapped completely, and players showing any possible signs of concussion should simply be removed from the field. At present, only players who are suspected of concussion (i.e. showing clear/immediate symptoms) are immediately removed from the game without undergoing an HIA. Players showing a possibility of concussion undergo a mid-game cognitive test (HIA 1), with further tests carried out three hours after the final whistle (HIA 2) and 48 hours thereafter (HIA 3).
Dr Barry O’Driscoll, formerly chief medical advisor to World Rugby for 15 years, has been one of the most vehement critics of the HIA – resigning his position in protest of its implementation. In 2015, in an open letter to World Rugby, he castigated the governing body for “manipulating words in desperation… [as] by definition, if [the club doctor] does the [HIA] assessment, [the club doctor] is suspicious of concussion or of a potential concussion.” Professor Jean-Francois Chermann, a neurologist and sports concussion specialist, has also slammed the current protocols, stating in March 2016 that “the concussion protocol as it is today has no scientific validity, it is even dangerous... at least 20% of concussions are diagnosed the next day or two."
In January 2017, in an effort to tackle the spate of concussions in rugby, World Rugby introduced new tackle laws with heavier sanctions. Further to the new tackling rules, referees were mandated to mete out more penalties, yellow cards and red cards (for the worst offences), in the event of a hit on either the head/neck area. However, the HIA was left untouched, and the reproach has not relented. Dr Willie Stewart, of World Rugby’s Independent Concussion Advisory Group, warned in April 2017 that World Rugby had not learned any lessons. He believes that the volume of players suffering concussion at the top level is “unacceptably high” and that the volume of injuries is making rugby “virtually unplayable”.
Even Dr Omalu has waded into the rugby debate and, in June 2017, called for a global ban on contact sports for those under the age of 18, arguing that “you can never take away the head from rugby or boxing or American football” and warning that “the brain has no capacity to regenerate itself”. As for the HIA, Dr Omalu has said that “to subject a player to a neuropsychiatric test and tell him [he/she has] not suffered brain damage is malpractice.”
Interestingly, alongside the existing HIA, a new test is being trialled in the top two professional divisions of English rugby union – the Aviva Premiership and the Greene King IPA Championship – for the 2017/18 season. Players suspected of head injury will provide two millilitres of saliva (by spitting into a handheld device), which will then be screened for a type of biomarker called microRNAs. The neurosurgeon leading the study, Prof. Tony Belli, has reportedly found that the response to brain injury from saliva glands “is almost immediate”. The hope is that the “saliva test” – if successful – could potentially remove the subjective nature of concussion diagnosis. Of course, if the trial proves successful, the test should be equally applicable to other sports.
Exposure to TBIs – however minor – is part and parcel of traditional “collision” sports such as American Football, ice hockey, rugby, boxing, mixed martial arts, etc. Given the apparent relationship between TBIs and CTE, the risk of the latter in those sports appears, in principle, to be reasonably obvious. However, there are increasing concerns that the risk of CTE may extend to less overtly aggressive sports, such as football.
Even back in 2002, an inquest into the death of former England striker Jeff Astle – who died at the age of 59 after the onset of early dementia – concluded that repeatedly heading heavy leather footballs had contributed to his death. The coroner went as far as describing his illness as an “industrial disease”.
More recently, a study by the Queen Square Brain Bank for Neurological Studies at University College London (“UCL”), tentatively suggested that years of heading balls and colliding with other players could be damaging footballers’ brains:
The UCL study, published in February 2017, concludes that “Association football is the most popular sport in the world and the potential link between repetitive head impacts from playing football and CTE as indicated from our findings is of considerable public health interest”.
Less than a week after the UCL study was published, UEFA commissioned its own research project into the possible link between playing football and dementia. According to UEFA, the project "aims to help establish the risk posed to young players during matches and training sessions". It is not clear how long the study will take or when it will be completed.
Critics have warned of the limitations of UCL’s “tentative” study, pointing to the lack of clear evidence showing a nexus (between football and developing dementia) and to the fact that neither the genetic or wider aspects of the players’ lifestyles were taken into account – both being factors which are believed to influence the risk of developing dementia. The authors of the study have also acknowledged its limitations, admitting that it is unclear whether the players would have gone on to develop dementia if they had not spent time on the pitch.
The increasing body of evidence suggesting a link between TBIs and CTE makes grim reading for current and former sportspeople – professional and amateur, young and old. So where does all this leave us?
For a start, sports can no longer turn a blind eye to the potential medium and long-term effects of TBIs. As recently as 24 August 2017, a study (using advanced neuroimaging) was published that reported that university athletes who had suffered recent concussions – across seven contact and non-contact sports – exhibited changes in brain structure and function within the first week following the concussion. Alarmingly, follow-up MRI scans revealed that the alterations in brain structure and function were still present even when athletes received medical clearance to return to sport.
The genie is out of the bottle and sports are now on notice – particularly sports in which repeated TBIs, however minor, are a risk. Whilst there have been some innovative responses to the issue of TBIs, much more is needed and it is needed fast. Good starting positions might include the following measures:
There are no doubt plenty of other measures that medical professionals might suggest. Sports would do well to seek out those suggestions. If the welfare of athletes alone is not sufficient incentive for action, sports governing bodies ought to consider that it may only be a matter of time before significant concussion litigation extends beyond North America.
 See: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4238241/; http://www.ebiomedicine.com/article/S2352-3964%2816%2930490-X/pdf
 See: http://www.webmd.com/brain/tc/traumatic-brain-injury-concussion-overview; https://cobbersonthebrain.areavoices.com/2016/02/01/concussion-alters-the-chemical-balance-in-the-brain/ and Shaw, N.A ‘Neurophysiology of Concussion: Theoretical Perspectives’: Foundations of Sport-Related Brain Injuries: Boston (MA); Springer (US); 2006, pp 19-43. See: https://link.springer.com/chapter/10.1007%2F0-387-32565-4_2
 See: https://www.ncbi.nlm.nih.gov/books/NBK185340/: Committee on Sports-Related Concussions in Youth; Board on Children, Youth, and Families; Institute of Medicine; National Research Council; Graham R, Rivara FP, Ford MA, et al., editors. ‘3. Concussion Recognition, Diagnosis, and Acute Management’: Sports-Related Concussions in Youth: Improving the Science, Changing the Culture. Washington (DC): National Academies Press (US); 2014 Feb 4., http://www.independent.co.uk/sport/rugby/rugby-union/concussion-does-rugby-union-need-to-learn-from-the-nfl-a6804191.html, https://www.thetimes.co.uk/article/a3c9c626-8ce9-11e7-a5d5-0066a735a5c3: Note, however, that a new saliva test is being trialled in elite English rugby union in the 2017/18 season with a view to removing the subjective nature of concussion diagnosis.
 CTE is currently only detectable in the deceased (i.e. following a post-mortem). However, in January 2016, it was reported that “Dr [Willie] Stewart [a Scottish neuropathologist most associated with studies of rugby concussion] is part of a team who believe they may have found an objective test. Their study has identified a protein, SNTF, that is produced when there is damage in the fine nerve-cell projections called axons that carry messages around the brain.”.
 See: http://www.alz.org/dementia/chronic-traumatic-encephalopathy-cte-symptoms.asp, http://www.protectthebrain.org/Brain-Injury-Research/What-is-CTE-.aspx, https://concussionfoundation.org/CTE-resources/what-is-CTE, http://bjsm.bmj.com/content/48/2/84.
 See: http://www.protectthebrain.org/Our-Team.aspx: Dr Bennet Omalu, M.D., is a Forensic Neuropathologist who first discovered physical evidence of concussions and CTE in activities other than boxing., and http://www.ucdmc.ucdavis.edu/pathology/our_team/faculty/OmaluB.html: Dr Omalu “is currently the Chief Medical Examiner of San Joaquin County, California, and is the President and Medical Director of Bennet Omalu Pathology. He also serves as a Clinical Professor and Associate Physician Diplomate at the UC, Davis Medical Center, Department of Medical Pathology and Laboratory Medicine.”
 See: Martland HS. Punch drunk. JAMA. 1928;91:1103–7., Millspaugh JA. Dementia Pugilistica. US Naval Medicine Bulletin. 1937; 35:297–303.
 Albeit, at that stage (i.e. in 2013), the settlement terms needed to be approved by the judge assigned to the case.
 See: http://www.espn.co.uk/american-fb/story/_/id/15229132/appeals-court-upholds-1-billion-nfl-concussion-settlement; In April 2016, a federal appeals court upheld the estimated US$ 1 billion settlement. The NFL estimates that 6,000 former players, or nearly three in 10, could develop Alzheimer's disease or moderate dementia., https://www.nytimes.com/2016/12/12/sports/football/nfl-concussion-settlement-payments-supreme-court.html?_r=0: In December 2016, the US Supreme Court “denied a request to review the NFL’s settlement with retired players who had accused the league of hiding the dangers of head trauma, paving the way for some players with brain ailments to begin receiving payments of as much as $5 million.”, http://edition.cnn.com/2013/08/30/us/nfl-concussions-fast-facts/
 http://edition.cnn.com/2013/08/30/us/nfl-concussions-fast-facts/: At a round-table discussion with the US House Committee on Energy and Commerce, when asked if "there is a link between football and degenerative brain disorders like CTE," Jeff Miller (the NFL's senior vice president of health and safety policy) said "the answer to that question is certainly, yes."
 Director of Boston University's CTE Centre.
 See: www.tsn.ca/boston-university-refuses-nhl-request-for-cte-research-records-1.654444: In January 2017, the NHL filed court documents requesting that the Boston University CTE Centre – which has examined the brains of hundreds of deceased athletes – handover research material, unpublished data and information on the people whose brains were donated. and https://www.nytimes.com/2017/02/08/sports/hockey/nhl-chronic-traumatic-encephalopathy-cte-juliet-macur.html: The NHL said it wished to “probe the scientific basis for published conclusions” and “confirm the accuracy of published findings.”
 Initially called the Pitch-Side Concussion Assessment (PSCA) when it was introduced in 2012, the name changed to the Head Injury Assessment (HIA) in 2014.
 See: http://www.bbc.co.uk/sport/rugby-union/39630540: According to World Rugby, “Prior to the HIA's implementation in 2012, 56% of players assessed and cleared to play on were later determined to have sustained a concussion. With its combination of symptom recognition, video review and off-field screening, the HIA process has driven a significant improvement in the identification and removal of players with possible and confirmed concussions.” and https://www.irishtimes.com/sport/rugby/conference-on-concussion-fails-to-give-hia-its-imprimatur-1.2948219: On 9 January 2017, World Rugby stated that the “HIA is recognised as field-leading by the  Berlin concussion consensus group and as a tool to test for suspected concussion.”
 See: http://en.espn.co.uk/scrum/rugby/story/190715.html, https://www.rte.ie/sport/rugby/2017/0116/845219-beirne-hia/, http://www.bbc.co.uk/sport/rugby-union/39630540
 From 3 January 2017, two new categories of dangerous tackle, within Rule 10 of World Rugby’s Laws 2017, carried penalty offences:
Reckless tackle: A player is deemed to have made reckless contact during a tackle or attempted tackle or during other phases of the game if, in making contact, the player knew or should have known that there was a risk of making contact with the head of an opponent, but did so anyway. This sanction applies even if the tackle starts below the line of the shoulders. This type of contact also applies to grabbing and rolling or twisting around the head/neck area even if the contact starts below the line of the shoulders. Minimum sanction: Yellow card. Maximum sanction: Red card.
Accidental tackle: When making contact with another player during a tackle or attempted tackle or during other phases of the game, if a player makes accidental contact with an opponent’s head, either directly or where the contact starts below the line of the shoulders, the player may still be sanctioned. This includes situations where the ball-carrier slips into the tackle. Minimum sanction: Penalty.
 See: http://www.bbc.co.uk/sport/rugby-union/39630540, and https://twitter.com/BBCSportScot/status/855411076841828352
 http://www.skysports.com/rugby-union/news/12321/11012264/rfu-to-trial-pioneering-saliva-test-which-could-determine-concussion: According to the RFU’s Chief Medical Officer, Dr Simon Kemp, the study “will look at the ability for saliva to be a better objective test, or not, of the way that we currently identify concussion and it will tell us the timescale for recovery.”
 https://cllrandrewjames.wordpress.com/2016/06/02/football-association-to-lead-study-into-brain-disease-in-footballers/: Jeff Astle had initially been diagnosed with early onset Alzheimer’s, but a doctor who examined his preserved brain in 2014 said he had CTE.
 http://www.insideworldfootball.com/2017/02/17/head-start-uefa-study-links-football-dementia/: European football’s governing body says the project “aims to help establish the risk posed to young players during matches and training sessions”. The new UEFA investigation will count the number of times children head the ball in real-life scenarios. More than 1,000 children will be filmed across two age ranges, eight-12 and 14-16. The UEFA project is being led by Germany’s Professor Tim Meyer, a member of UEFA’s medical committee.
 https://www.nature.com/articles/s41598-017-07742-3: Researchers from St Michael’s Hospital in Toronto, in collaboration with the David L. MacIntosh Sport Medicine Clinic at the University of Toronto, conducted a concussion study on 54 male and female athletes. The athletes were from intervarsity teams in seven different contact and non-contact sports (volleyball, ice hockey, soccer, American football, rugby union, basketball and lacrosse) at a single institution. Advanced magnetic resonance imaging (MRI) was used to measure brain structure and function in 27 athletes within the first week after a concussion and, again, after they were medically cleared to return to play. Those findings were compared to a group of 27 uninjured athletes. The study, published on 24 August 2017, found that brain alterations seen in the first MRI scan were still present when athletes were cleared to return to play. This included persistent differences in: (i) the structure of the brain’s white matter (the fibre tracts that allow different parts of the brain to communicate with each other); and (ii) brain activity, particularly in areas associated with vision and planning.
 http://www.bbc.co.uk/news/health-39950814: For instance, in an effort to reduce concussion rates, the University of Bath has developed a 20-minute exercise programme for young rugby players to improve their neck muscle strength, balance and movement. In a study of 14- to 18-year-olds in 40 schools, those schools at which students completed the exercises three times a week saw 59% fewer concussions than other schools. The Rugby Football Union is set to roll this out in schools across England at the start of the 2017 season.
 For instance, in the US, the Concussion Legacy Foundation (CLF) has advised that the introduction of contact should be delayed for as long as possible in a collision sport such as America football. The CLF also recommended the elimination of contact where it is not necessary (e.g. most training drills should be non-contact and, where contact is necessary, there should be as little repetition as possible): https://www.thetimes.co.uk/edition/sport/rugby-is-sleepwalking-into-concussion-crisis-pxfgbdt97