By Jon Heshka, Associate Dean of Law at Thompson Rivers University (British Columbia, Canada)
Canadian football has finally seen its first concussion lawsuit. Filed in the Supreme Court of British Columbia in July 2014, former professional football player Arland Bruce has sued the commissioner of the Canadian Football League (CFL), all nine teams in the CFL, an internationally renowned doctor who specializes in sports concussions, a medical centre which employs the doctor, and the president of the players association.
Bruce claims he was knocked unconscious during a game on September 29, 2012 and was permitted to return to play on November 18, 2012 despite not being 100% recovered and still suffering from the effects of a concussion. He alleges that he sustained multiple sub-concussive and concussive hits in that same game. Bruce further claims that he was permitted to return to play in 2013 for the Montreal Alouettes even though he was still displaying the ongoing effects from the concussions sustained the year before.
At its essence, the lawsuit alleges negligence and negligent misrepresentation. Tearing a page from the NFL class action lawsuit, Bruce claims that, “Part of the CFL’s marketing strategy is to promote and glorify the brutality and ferocity of CFL football, in part, by lauding the most brutal plays and ferocious players and collisions; yet the CFL is claiming to take on a leadership role in the promotion of concussion awareness, prevention, research and treatment.” The claim also dramatically includes the lyrics from a promotional song of the league which includes the lines, “This is a league of fast and crush where there is no safety in a sideline … This is a league of black and blue” which purports to show the extent to which violence is promoted.
The lawsuit devotes seven pages to “The History of Concussion and CTE” citing studies dating back to 1928 to the present.
Bruce claims 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 he relied upon these statements in playing professional football.
Bruce similarly alleges that Dr. Charles Tator, whom the CFL partnered with as part of its Canadian Sports Concussion Project at the Krembil Neuroscience Centre, is negligent and 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. Bruce claims that the findings in the article were against the weight of the medical evidence, that there was no provable connection between concussion and sub-concussive injuries and CTE in CFL players, and that the research overlooked the work of prominent concussion experts, Dr. Omalu and Dr. McKee.
By wanting to hold the author of an academic article published in a peer-reviewed medical journal, Bruce appears not to understand either the nature of research in general or the scientific method specifically. The article does not make the sweeping statements suggested by Bruce and did not overlook the work of Omalu and McKee but instead offers a more nuanced view:
“[O]ur findings advocate caution in the clinical diagnosis of CTE in patients with histories of contact sports and neurocognitive decline, as other diagnoses of neurodegenerative diseases are also possible [emphasis added]. Our findings are consistent with a literature review by Nowak et al. (2009), in which dementia in retired boxers could be explained by pathologies aside from dementia pugilistica (Nowak et al., 2009—see also McKee et al., 2013). In contrast, other previous studies either focused on describing CTE in professional athletes (Omalu et al., 2005, 2006, 2010b,c; McKee et al., 2009, 2010) or found that a majority of professional athletes had CTE (Omalu et al., 2011). These findings raise questions regarding the relationship between multiple concussions in professional football alumni and CTE, the prevalence of CTE in this population and the risk factors. Previous post-mortem research with larger samples of professional athletes with multiple concussions has suggested a very high incidence rate; however, such studies have been limited by biased samples restricted to clinically symptomatic cases and a lack of medical post-mortem controls …”
At the CFL Players Association AGM in 2011, players learned, 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-Alzheimers) 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 [emphasis added].”
The figures cited were from studies published in 2005 and 2006. While it is disconcerting that it took the CFL more than five years to tell its players about these known dangers in March or April 2011, it is noteworthy that Bruce was injured in September 2012, a full year-and-a-half later after these statistics were revealed.
Though not mentioned in the claim, Bruce began playing in the CFL in 2001 and played a total of 12 seasons in the league before retiring. Given his 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, Bruce has a hard row to hoe in proving the CFL and Dr. Tator were negligent and that he was unaware of the risks of brain injuries in professional football.
