By Jon Heshka, Associate Dean of Law at Thompson Rivers University (British Columbia, Canada)
It was only a matter of time when before the Canadian Football League (CFL) would be named in a concussion class action lawsuit. On the heels of the first CFL concussion lawsuit filed last year in The Supreme Court of British Columbia, a class action suit being filed last year against the National Hockey League over Canada’s national winter sport and no doubt emboldened by the $1 billion NFL settlement, two former players have filed a claim against the CFL for $200 million.
On May 29, 2015, Korey Banks and Eric Allen filed a statement of claim on behalf of all retired CFL football players since 1952 with the Ontario Superior Court. Banks is a former Mississippi State standout and played in the CFL from 2004 to 2014 winning the league championship Grey Cup twice and was named CFL All-Star four times. Allen was a star running back at Michigan State and played for the Toronto Argonauts from 1972 to 1975. The lawsuit names Mark Cohon, the commissioner of the Canadian Football League, the CFL, all nine teams in the CFL, an internationally renowned doctor who specializes in sports concussions, and a medical centre which employs the doctor. The claim states that the defendants caused or contributed Banks and Allen to suffer brain injuries due to multiple sub-concessive and concussive blows and that the brain injuries have and will continue to cause suffering. At its essence, the lawsuit alleges negligence and negligent misrepresentation. Tearing a page from the NFL class action lawsuit, Banks and Allen claim that the CFL profits from the glorification of the brutality and ferocity of the game and has taken insufficient steps to make football safer.
Banks and Allen claim that the CFL denied a scientifically proven link between repetitive traumatic head impacts and later in life cognitive brain injury including CTE, that the CFL misled, downplayed, and obfuscated the true and serious risks of these hits, that the CFL failed to warn him of the long term medical risks associated with repetitive head impacts and that they relied upon these statements in playing professional football.
They similarly allege that Dr. Charles Tator, whom the CFL partnered with as part of its Canadian Sports Concussion Project at the Krembil Neuroscience Centre, is negligent for an article entitled, Absence of chronic traumatic encephalopathy in retired football players with multiple concussions and neurological symptomatology published in Frontier in Human Neuroscience. Banks and Allen claim that the findings in the article were false or misleading and that CFL players relied upon these misrepresentations.
Citing the Journal of the American Medical Association (JAMA), the New England Journal of Medicine Banks, Neurology and The Lancet, the suit makes a number of claims including that medical studies have collectively established that “football players should cease to play football after receiving their third concussion,” in effect a “three strikes and you’re out” approach to multiple concussion management. Banks and Allen claim that the CFL is negligent for failing to impose rules to protect them from brain injuries and for not promulgating such a “three strikes and you’re out” rule. They also claim that Dr. Tator is negligent for failing to acknowledge such a rule and for not warning about the risks of multiple sub-concussive and concussive blows to the head. No specific sources are cited to support these claims.
It is interesting though that a 2007 New England Journal of Medicine article simply entitled Concussion stated that, “There are scant data to guide decisions about the timing of a return to sports after concussion.” The same article cited a 2003 JAMA article which said that, “Given our finding of a 3-fold greater risk of future concussions following 3 concussions vs no concussions, athletes with a high cumulative history should be more informed about the increased risk of repeat concussions when continuing to play contact sports such as football.” Further, A Report of the Guideline Development Subcommittee of the American Academy of Neurology entitled Summary of evidence-based guideline update: Evaluation and management of concussion in sports published in Neurology in 2013 states that Licenced Health Care Providers might (emphasis mine) refer professional athletes with a history of multiple concussions and subjective persistent neurobehavioral impairments for neurologic and neuropsychological assessment.” At first blush anyway, there appears to be no authority behind the claim of a “three strikes and you’re out” approach to multiple concussion management on the gridiron.
The lawsuit claims that, “Since at least 2007, Commissioner Cohon knew of the long term harmful effects of multiple sub-concussions and concussions on the plaintiffs’ and other class members’ brains [and that in] spite of that knowledge, Commissioner Cohon actively concealed and/or systematically failed to disseminate those facts to the plaintiffs and the other class members.”
To wit — though not contained in the statement of claim — at the CFL Players Association AGM in 2011, players learned — for the first time — according to Winnipeg Blue Bombers defensive tackle Doug Brown who was present and wrote about it in the Winnipeg Free Press the following:
“According to information from a UNC study we were shown, “Repeatedly concussed NFL players had five times the rate of mild cognitive impairment (pre-Alzheimer’s) than the average population.” The same study also showed that, “…retired NFL football players suffer from Alzheimer’s disease at a 37 per cent higher rate than average.” Going into this conference we were all somewhat familiar with the long term consequences of playing football, but not to the depth that was introduced at our meetings. Next we were shown that Time Magazine had produced a story about football called The Most Dangerous Game, and the author, Sean Gregory, concluded that, “Men between the ages of 30 and 49 have a one in a thousand chance of being diagnosed with dementia, Alzheimers, or another memory related disease. An NFL retiree has a one in fifty-three chance of receiving the same diagnosis.” This was around the moment in Las Vegas where a collective ‘thunk’ was heard as all of our jaws hit the floor. These are not CFL statistics, but you would have to be pretty naive to think that these facts do not apply to our game as well.”
The figures cited were from studies published in 2005 and 2006. It is on this basis, I suspect, that Banks and Allen allege that the league concealed and/or systematically failed to disseminate these facts to players.
While the CFL and Dr. Tator have yet to respond to the Banks and Allen lawsuit, their defenses will no doubt be similar to those of the Bruce CFL concussion case. Just as with the NFL’s initial stance, the CFL has filed a Weber motion with the Supreme Court of British Columbia to the effect that this matter should be subject to the grievance and arbitration procedure of the Collective Agreement. In Weber v. Ontario Hydro, the Supreme Court of Canada held that an exclusive jurisdiction model to labour disputes should be adopted and that, “Under this approach, if the difference between the parties arises from the collective agreement, the claimant must proceed by arbitration and the courts have no power to entertain an action in respect of that dispute. The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.”
The Supreme Court of Canada subsequently clarified the principle of arbitral jurisdiction in Morin v. Quebec (Attorney General) holding that: “Weber does not stand for the proposition that labour arbitrators always have exclusive jurisdiction in employer-union disputes. Depending on the legislation and the nature of the dispute, other tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction.” The Supreme Court of British Columbia in the CFL concussion case of Bruce has yet to decide if it should fall within the ambit of the Collective Agreement or not. Its decision will no doubt affect how the Banks and Allen lawsuit plays out.
Dr. Tator’s defence in Bruce deserves some exploration in that it is unique that a leading neurologist be named in a concussion lawsuit. Dr. Tator’s position is three-pronged: 1) that the claims are subject to the grievance and arbitration procedures of the collective agreement, 2) if they are not subject to grievance and arbitration then Dr. Tator denies that a duty of care was owed or if a duty was owed that it was not breached and that he was in no way negligent and, 3) that Bruce was contributorily negligent for failing to take all reasonable steps to minimize or avoid injury. The creation of a duty of care from a physician to a professional football player through research findings published in a medical journal would, at the very least, be novel should it pass the Anns test (from Anns v. Merton London Borough Council) which considers whether there are any residual policy considerations that could negate the creation of such a new duty or limit its scope.
Another question will be to what extent head shots are risks that are inherent to professional football and whether or not players consent to, or voluntarily assume the risks associated with such contact. Indeed, the lawsuit is critical of the CFL’s failure to implement policies and protocols or to make the necessary changes to its existing rules to protect players from concussions and other head injuries. The leading Canadian authority on the extent to which violent contact can be consented to and considered part of the game is the hockey case of Agar v. Canning where the court said: “Since it is common knowledge that such injuries are not infrequent, this supports the conclusion that in the past those engaged in this sport have accepted the risk of injury as a condition of participating.” Should the case survive the Weber motion and it go to court, the plaintiffs will have to show that such knowledge was not common and prove that the CFL actively concealed it from its players.
In the end, given their choice of profession, its occupational hazards and inherent risks, and the recent history of concussion litigation with the NFL which began with the first lawsuit in April 2011, Banks and Allen have a steep hill to climb and a hard row to hoe in having the claim go to court, get the class action certified, proving the CFL and Dr. Tator were negligent, and that they were unaware of the risks of brain injuries in professional football.
