Youth Sports & Public Health: Framing Risks of Mild Traumatic Brain Injury in American Football and Ice Hockey

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Consistent with prior usage, we specifically use the term “mild traumatic brain injury” in lieu of the term “concussion” for two reasons. First, our usage is consistent with the preferred terminology in concussion science. Second, our usage signifies that the injury under analysis is in fact a form of traumatic brain injury, and it should be treated with the appropriate gravity. For many decades, concussions were regarded as relatively minor injuries, and we specifically use the term “mTBI” as a rhetorical break with that tradition. Goldberg D. S. , “Mild Traumatic Brain Injury, The National Football League, and the Manufacture of Doubt: An Ethical, Legal, and Social Analysis,” Journal of Legal Medicine 34, no. 2 (2013): 157–191.

Many of the same institutional structures, and sometimes even the same people, are involved in framing the risks in both sports. For instance, Elliot Pellman, chair of the NFL's mTBI committee from 1994 to 2007, also served as a top medical advisor to the National Hockey League (“N.H.L.”). Fainaru-Wada M. Wainaru S. , League of Denial: The N.F.L., Concussions, and the Battle for Truth (New York: Random House, 2013).

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See also Harvey H. H. , “Reducing Traumatic Brain Injuries in Youth Sports: Youth Sports Traumatic Brain Injury State Laws, January 2009-December 2012, American Journal of Public Health 103, no. 7 (2013): 1249–1254.

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See Daneshvar , supra note 5;.

Goldberg , supra note 2. In addition, the possible benefit of such RTP guidelines may well turn on the validity and reliability of the assessments utilized, about which significant questions remain.

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see also Schankman , supra note 28.

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There are reasons to believe otherwise, given the significant trend towards underreporting of mTBI at all levels of American football play, as well as the extensive conflicts of interest that affect NFL athletic trainers and physicians. Regarding the underreporting problem, one recent study suggested that as much as 40–50% of football-related mTBI at the high school level may go unreported. Register-Mihalik J. K. , “Knowledge, Attitude, and Concussion-reporting Behaviors among High School Athletes: A Preliminary Study,” Journal of Athletic Training 48, no. 5 (2013): 645–653. How the NFL fares in comparison is unknown. Similar concerns of underreporting have been observed as to ice hockey in Canada. Echlin P. S. , “A Prospective Study of Physician-Observed Concussion during a Varsity University Ice Hockey Season: Incidence and Neuropsychological Changes,” Neurosurgical Focus 33, no. 6 (2012): E2: 1–11.

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The absence of evidence on the link between rule changes and reduced risk of mTBI does not advance the institutional actors' preferred risk frame, either, given application of the precautionary principle. Munthe C. , The Price of Precaution and the Ethics of Risk (New York: Springer, 2012). Indeed, the principle would suggest that the very absence of evidence regarding increased safety, combined with the available evidence linking football to mTBI and the added vulnerability of developing brains strongly militates in favor of significant restrictions on child and youth participation in football.

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“USA Football: Heads Up,” available at <http://usafootball.com/headsup>(last visited July 14, 2014). USA Football states on its website that it was endowed by the NFL and the NFLPA in 2002, and that it “is the official youth football development partner of the N.F.L., its 32 teams and the N.F.L. Players Association.” Accordingly, the similarity in the risk frame adopted by the NFL and USA Football is hardly coincidence.

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There is overwhelming evidence that substantiates this claim. An excellent starting point is the Final Report of the World Health Organization's Commission on Social Determinants of Health entitled Closing the Gap in a Generation: Health Equity through the Social Determinants of Health (2009), available at <http://www.who.int/social_determinants/thecommission/finalreport/en/index.html>(last visited July 14, 2014).

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Bauer R. M. , “Assessment Devices: Joint Position Paper of the American Academy of Clinical Neuropsychology and the National Academy of Neuropsychology,” Archives of Clinical Neuropsychology 27, no. 3 (2012): 362–373, at 369. However, several other studies indicate that “sandbagging” on such testing is easily detected and hence success is unlikely. Schatz P. Glatts C. , “‘Sandbagging’ Baseline Test Performance on Im PACT, Without Detection, Is More Difficult Than It Appears,” Archives of Clinical Neuropsychology 28, no. 3 (2013): 236–244;.

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PGA, Inc. v. Martin, 532 U.S. 661 (J. Scalia, dissenting). Wittgenstein launches his Philosophical Investigations by engaging similar questions, supporting the notion that at least some games are deep play.

NFL player Ryan Clark professed that he was “disgusted” with one proposed set of changes, observing that if the NFL followed through, “they might as well put flags on” (i.e., play flag football, a form of play in which tackling of any kind is prohibited). Smith M. D. , “Steelers' Ryan Clark: “‘I'm So Disgusted with the NFL Right Now,”’ available at <http://profootballtalk.nbcsports.com/2013/08/28/steelers-ryan-clark-im-so-disgusted-with-the-nfl-right-now/>(last visited July 14, 2014). Similarly, in 2012 current NFL player Troy Polamalu voiced concern over the extent to which rule changes altered the “essence of the sport…In Polamalu's view, there's a point at which rules designed to make the game safer in reality just make the game softer.” Smith M. D. , “Polamalu Says Players Should Have a Vote in Rule Changes,” available at <http://profootballtalk.nbcsports.com/2013/03/29/polamalu-says-players-should-have-a-vote-in-rule-changes/>(last visited July 14, 2014).

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