By Jon Heshka
Brian Burke, Harvard-trained lawyer and General Manager of the Toronto Maple Leafs of the National Hockey League, referred to concussions as the “topic du jour” earlier this year. While Burke may be guilty of not being politically correct in his characterization of brain injuries sustained in the course of playing a game, his colorful comments may properly place the issue into perspective.
The NHL was the first league to do baseline testing with respect to concussions, and have protocols for its diagnosis and return-to-play. By comparison, the National Football League is Johnny-come-lately in its approach to brain injuries.
Prior to this year, concussions in professional hockey and football barely registered as a blip on the radar screen of the public’s consciousness. To wit, in testimony before the U.S. Congress in 2009, NFL Commissioner Roger Goodell didn’t acknowledge a connection between head injuries on the football field and later brain diseases even though there was compelling evidence to the contrary. Some senators screamed but few people outside Congress cared.
Football is violent and barbaric. This is part of its appeal and marketability. Some argue that injuries, including concussions, incurred by well-paid football players in the course of play are considered inherent to the sport.
Recall that in a case involving one player striking another on-the-field but away from the play, the trial court in Hackbart v. Cincinnati Bengals, Inc. 435 F.Supp. 352 (D. Colo. 1977) held that the NFL ‘has substituted the morality of the battlefield for that of the playing field, and the ‘restraints of civilization’ have been left on the sidelines.’
This is not a game for sissies.
The facts, however, about brain injuries have begun to slowly leak out.
A study published in the American Journal of Sports Medicine last year found that there are an estimated 136 thousand sports-related concussions among high school athletes annually and that football players account for 57 percent of the total figure with boys’ soccer, girls’ soccer, volleyball, boys’ basketball, girls’ basketball, wrestling, baseball and softball accounting for the remaining 43 percent.
A University of North Carolina at Chapel Hill study in 2005 showed that retired NFL football players suffer from Alzheimer’s disease at a 37 percent higher rate than average and retired players with three or more concussions had a five-fold greater chance of having a mild cognitive impairment (pre-Alzheimers). Scientific studies examining the guidelines for return-to-play concussion protocol date back to at least 1986.
The NFL’s approach to concussions reached the tipping point last year after six players sustained head injuries after violent hits in games played on Oct. 17, 2010. The league properly fired a shot across the bow in response with substantively increased fines and threats of suspensions. The NFL’s executive vice-president of football operations Ray Anderson then called out for a higher standard of accountability to address “egregious” contact and “devastating hits and head shots.”
It was to be a brave new world.
Did the threat work? It’s hard to say since no player was subsequently suspended for illegal hits for the remainder of the season.
But suspensions are unquestionably more sensible and effective as a deterrent than issuing fines which range from the measly ($5 thousand) to the meager ($75 thousand) for illegal hits to athletes who earn millions a year.
Meanwhile, in the other North American professional sports league which covets violence but – unlike its gridiron brethren, celebrates fights – there has been signs of progress.
In response to concussions sustained by Florida Panther David Booth and Boston Bruins’ Marc Savard arising from blindside hits last year, the National Hockey League passed Rule 48 that prohibits “lateral or blindside hits to an opponent where the head is targeted and/or the principle point of contact.”
The NHL almost got it right. The flaw in Rule 48 is that the head must be targeted. In other words, the contact must be intentional.
That the infraction must be intentional has led to the almost absurd situation of NHL vice-president and discipline czar Colin Campbell playing psychoanalyst and jurist in attempting to get into the minds of the offending players and determining whether the head shot was done on purpose or not (news flash – of course it was, the assailant just didn’t mean to hurt the victim that bad).
It is noteworthy that existing rules about high-sticking (Rule 60) or delay of game when a player shoots the puck over the boards while in their own end (Rule 63) don’t concern themselves with whether or not the player deliberately meant to high-stick or delay the game.
Rule 48 is a step in the right direction. That the league has to play mind reader in administering justice is not. Not to mention that the $2,500 maximum fine for an illegal hit to the head is a mere pittance to a professional hockey player.
Then the premiere player and leading goal scorer in the league, Sidney Crosby, was initially concussed by a hit at the Winter Classic game on Jan. 1, 2011, which somehow went un-penalized when he was away from the puck and looking in the other direction from his assailant. We are left with no other explanation than the hit was unintentional and a part of the game. Crosby is still out of the lineup.
The National Football League doesn’t care about intent. It only cares about the harm suffered. If the head shot is deemed dangerous, the offending player is penalized. It doesn’t matter that he didn’t mean to do it.
Even the International Ice Hockey Federation and the NCAA prohibit any hit to the head regardless of whether it was intentional or unintentional.
The International Olympic Committee and World Anti-Doping Agency have the same strict liability approach to doping. WADA holds an athlete strictly liable for substances found in his or her bodily specimen, and that an anti-doping violation occurs whenever a prohibited substance (or its metabolites or markers) is found in a sample, whether or not the athlete intentionally or unintentionally used a prohibited substance.
If the National Hockey League is serious about hits to the head and brain injuries, they should tear a page from the playbooks of the NCAA, the IOC, and WADA and adopt a strict liability approach to hits to the head.
Jon Heshka is an associate professor specializing in sports and adventure law at Thompson Rivers University in Kamloops, BC Canada. He can be contacted at jheshka@tru.ca
