C.T.E., Professional Athletes, & The Military

Professional sports leagues and clubs, and the branches of the military need to test for chronic traumatic encephalopathy, or C.T.E., prior to and during the service of a player or service member. C.T.E.-the “punch drunk syndrome”[1]-is a degenerative brain disease caused by the release of a protein called Tau.[2] Recent research and evidence strongly suggests that Tau proteins form in the brains of individuals who suffer repetitive hits to the head over a period of years.[3] It is an increasingly serious issue in sports right now as concerns for player safety become more pressing.

C.T.E. develops as Tau proteins form clumps in the brain.[4] These proteins slowly spread, killing brain cells and causing atrophy in the brain.[5] Athletes as young as seventeen years old have been diagnosed, though most who suffer from the disease do not exhibit any signs or symptoms of the disease until their late twenties or early thirties.[6] The most common symptoms being impulse control issues, aggression, depression, paranoia, memory loss, confusion, erratic behaviors, focus issues and disorganized thoughts, as well as difficulties with balance and motor skills.[7] The list of athletes diagnosed with C.T.E. is alarming, and not until recently[8] could C.T.E. be diagnosed while someone was alive.[9] For athletes, military service members, contact sports leagues, particularly the National Football League, C.T.E. is life or death. Some questions in tort and contract arise in relation to these individuals and entities. Does assumption of the risk/contributory negligence apply as a defense?  How does C.T.E. affect an athlete’s or a service member’s mental capacity to sign and be bound by contract to play or serve in the military? How is the duty to mitigate damages affected?

Applicability of Assumption of Risk, Contributory Negligence, or Comparative Fault Defenses

A tort claim for negligence requires there be a duty, a breach of that duty, and the breach of the duty was the proximate cause of some harm that resulted in damages. Generally, there is an express assumption of risk when a player or military service member “expressly states a desire to assume a risk or has signed a waiver or release which contains language of assumption of risk,” and is typically indicated by a written document that applies “only between the participant and the organizer, operator, or promoter and not between the participants themselves.”[10] Assumption of risk is incorporated into contributory negligence and comparative fault statutes amongst the states as affirmative defenses to liability under negligence theories. Generally, contributory negligence bars any recovery for a plaintiff that also acted negligently, and comparative fault is a percentage-fault question that limits a plaintiff’s recovery by the plaintiff’s percentage of fault.

Professional athletes and military service members could be said to have assumed the risks associated with C.T.E. by express agreement and waiver, and thus subject to contributory negligence and comparative fault defenses. The negligence in question, however, does not go to assuming the risks of playing or serving in the military, but to a duty of reasonable care regarding the information available to both parties at the time of executing the respective contracts.[11] The actors, the professional sports leagues, teams, or clubs and the branches of the military, create a risk of physical harm on the part of the athletes and service members by not subjecting them to C.T.E. testing during medical evaluations. It is similar to an informed consent[12] action but with additional contractual implications.

The Contractual Implications: Informed Assent?

True consent to what happens to one’s self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each.[13]

If an athlete or service member is unaware of a potential C.T.E. diagnosis prior to entering into an agreement to play or serve, they may lack the legal capacity necessary for mutual assent because of the deteriorating effects of C.T.E. This is especially true when one party knows or reasonable should know the risks associated and do not disclose as much to the other party.[14]

Professional sports leagues and the individual clubs, as well as, the military employ doctors who perform physical examinations of every individual prior to and after entering into the league, team, or military service. Nearly every physical attribute of the athlete or service member is known. Except C.T.E. diagnosis. If the new testing procedures prove effective in the diagnosis of C.T.E. then the leagues, teams, and military will have access to evaluate the mental health of all they employ. It will also assist the athlete or service member in making an informed decision to enter into a contract and assume the risks associated (repetitive head trauma) with professional sports and military service. As an area where torts and contracts are intertwined-”contorts”-requiring the C.T.E. testing developed by Boston University ensures informed mutual assent. Informed mutual assent precludes an athlete or service member to claims of negligence or medical malpractice by organization doctors which would thereby extend to the organization through the doctrine of respondeat superior.

[1] C.T.E. Resources, Concussion Legacy Foundation (last visited Nov. 19, 2017), https://concussionfoundation.org/CTE-resources/what-is-CTE.

[2] Id.; What is C.T.E.?, Brain Injury Research Institute (last visited Nov. 19, 2017), http://www.protectthebrain.org/Brain-Injury-Research/What-is-CTE-.aspx.

[3] Concussion Legacy Foundation, supra note 1.

[4] Id.

[5] Id.

[6] Id.

[7] Id.; Chronic Traumatic Encephaly, Alzheimer’s Association (last visited Nov. 19, 2017) http://www.alz.org/dementia/chronic-traumatic-encephalopathy-cte-symptoms.asp.

[8] Jonathan D. Cherry et al., CCL11 is increased in the chronic traumatic encephaly but not in Alzheimer’s disease, PLOS One, Sep. 26, 2017, available at http://journals.plos.org/plosone/article/file?id=10.1371/journal.pone.0185541&type=printable.

[9] Concussion Legacy Foundation, supra note 1.

[10] 30 Am. Jur. Proof of Facts 3d 161 (Originally published in 1995).

[11] See Restatement (Third) of Torts: Phys. & Emot. Harm § 7 (2010)(“(a) An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.”). See also Restatement (Third) of Torts: Phys. & Emot. Harm §§ 18 (2010) and 40 (2012) for the tort of negligent failure to warn (§ 18) and the liability in special relationships, principally employer-employee relationships § 40.

[12] See generally 79 A.L.R.2d 1028, § 2 (Originally published in 1961) Informed consent is within the scope of medical malpractice, but in informed consent the doctor does not relay to the patient sufficient information to a medical procedure and thus any consent given not sufficiently informed. HOwever, in some cases the doctor is permitted to withhold information if its disclosure would be harmful to the patient. Id.

[13] Canterbury v. Spence, 464 F.2d 772, 780 (D.C. Cir. 1972).

[14] See Restatement (Third) of Torts: Phys. & Emot. Harm §§ 18 (2010).

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