By Kaspar Kielland, Esq.
Former USA Bobsled and Skeleton Federation (“USABS”) members received a recent win in the “sled head / CTE / failure to warn” lawsuit against the USABS. The Los Angeles Superior Court denied USABS’s motion to dismiss a former member of the US Bobsled Olympic Team’s proposed class action against the association.
The proposed class action was commenced in September 2021 by William Person, who was a member of the US Olympic team between 1999 and 2007. Person’s action against the USABS was prompted by his noticing that many former bobsledding athletes are dealing with the consequences of what is suspected to be chronic traumatic encephalopathy (“CTE”) allegedly caused by participating in the sport. Such consequences, according to Person’s allegations, include depression, dementia and sometimes suicide. Person claims that as early as 1983, the USABS knew that head impacts and sub-concussive blows are inherently associated with bobsledding, and therefore had the potential of causing serious long-term brain damage to the athletes. However, the USABS failed to advise the athletes about those risks. Person further alleges that while participating in the sport, he was suffering symptoms of “sled head,” a condition that causes the athletes to experience headaches, fogginess, and disequilibrium as a result of multiple bumpy and fast track runs. The former Olympian claims that the USABS did not medically evaluate whether or not he was still fit to practice the sport, notwithstanding having been made aware of those symptoms.
In their attempt to dismiss Person’s action, the USABS argued that bobsledding, like other extreme sports, is inherently dangerous and therefore, there is “no duty to advise of the integral risks” in such sports. The USBAS argued that contrary to Person’s allegation that the USABS “controls” the sport, there was no special relationship between the athletes and the association that would trigger a duty of care. “Contrary to Plaintiff’s contention that the USABS is the gatekeeper of the sport of bobsledding, the public can access parks and facilities across the United States and Canada” to experience the sport. Furthermore, the USABS argued that there are no accepted medical and scientific evidence linking bobsledding with “sled head” symptoms and CTE, and that “sled head” is nothing but a fictional term “invented by the New York Times.”
But, at least at this stage, the Superior Court has disagreed with the USABS and allowed the proposed class-action lawsuit to move forward. Person seeks compensation for the potential class of athletes in the form of implementing preventative measures through the creation of a fund that will pay for the monitoring of the condition and symptoms of former bobsledders. And also, remedial measures through the establishment of a court supervised compensation program for those athletes that have already been diagnosed with both neurodegenerative and behavioral brain injuries. This relief is similar to the relief sought by the class of former NFL players In re: National Football League Players Concussion Injury Litigation and the settlement fund, established in April 2016, and In re NCAA Student-Athlete Concussion Litigation, established in November 2019.
The outcome of Person’s claim will be an issue for litigation, but the filing of his proposed class action lawsuit is already having a rippling effect. In January 2022, the estate of Pavle Jovanovic, another former US Olympic team bobsledder–who tragically committed suicide in 2020–filed a lawsuit against the United States Olympic and Paralympic Committee with very similar allegations to the one brought by Person in the California action. Jovanovic’s estate argues in its complaint that the Olympic Committee’s failure to warn him about “sled head,” (i.e., the effects of repetitive concussive and sub-concussive impacts on the brain from countless track runs), led to Jovanovic’s cognitive decline and ultimate suicide. The lawsuit is pending before the District Court of New Jersey, and on June 15, 2022, a summons had been issued to the International Bobsleigh and Skeleton Federation, the International Olympic Committee, and the USABS. In January 2022, the New York Times published an article covering the stories of Joe Sisson and Travis Bell, two former competitive bobsledding athletes from Wyoming who, like Person and Jovanovic also allegedly suffered from the symptoms and consequences potentially connected to CTE and sled head..
As these cases continue to be filed, either by individual plaintiffs or by a class of plaintiffs, it is important to monitor how the courts rule or juries decide on the crucial questions of duty and breach: (1) Does this sport organization or association owe a duty of care to the athletes that participate under its umbrella? And (2) Was that duty breached by (for example) failing to warn the athletes of the risks of participation?
Recently, a Pennsylvania jury answered one of those questions in the favor of the NCAA. In the Onyshko v. NCAA, No. C-63-CV-201403620 (Wash. Cty. Ct. Comm. Pleas, PA) , the jury decided that the NCAA did not breach a duty of care to the plaintiff, a former NCAA football athlete. That is merely one data point, however, and as more of these cases are decided by courts and juries, all sport federations, organizations, and associations will have to consider how those decisions impact their duty of care to the class of athletes in their respective sports. Many federations consider themselves to be only ambassadors of the sports they promote. The issue that is now developing is whether their role as promoters of the sport carries with it a duty to oversee the health concerns that might arise out of each sporting event, in large part because they are deemed or believed to have the knowledge necessary to ensure the safety and health of their members.
