By George Grattan
David Missirian, assistant professor of law, taxation and financial planning at Bentley University, sees a growing legal and financial risk to colleges, universities, and high schools connected to student athlete concussions. He published on this topic most recently with the Berkeley Journal of Entertainment and Sports Law, and thinks now is a critical time for schools to get well positioned on what he calls “an overlooked legal and ethical minefield.”
In the Courts
The risk to schools, Missirian explains, stems from a restatement of tort law in recent years that increases their obligation to provide a “reasonable duty of care” as “landowners” to those they invite or authorize to use their facilities—like student- athletes.
In some ways, Missirian argues, these revisions in tort law have swung a pendulum back to the 19th century, a period when colleges and universities were considered to be in loco parentis (in place of or acting as parent) for their young adult students. Primarily concerned with schools’ rights to exercise discipline on students, the doctrine of in loco parentis is based on English common law and was affirmed by United States courts as early as 1837.
Though a 1941 case did hold a university liable for injuries sustained by students when a chemistry professor improperly left an experiment unsupervised, the emphasis was on what schools had the right to do to students, not what it had the obligation to protect them from.
This state of affairs lasted until the post-World War Two boom in enrollment. GIs returning from combat weren’t thrilled about college and university administrations treating them as children, and norms around schools’ rights to discipline students began to change. By the 1960s and the dawn of the campus protest movement, Missirian says, “the dissatisfaction with in loco parentis reached a high point.” By 1967, courts were ruling that schools could no longer rely on the doctrine to justify punishing students who participated in protests.
According to Missirian, the 1970s and 1980s saw continued erosion of in loco parentis and increasing respect for students’ civil rights. At the same time, while occasional cases asserted that schools had responsibilities to protect students from foreseeable harm, no clear tort law standard on this issue emerged. The notion of “adult students” held the day: students were expected to be responsible for their well being, even while on campus or on school-sponsored events.
By the late 1990s a shift began to occur back toward a standard that looks like in loco parentis at least regarding schools’ responsibility to care for their students’ well being. Cases involving students harmed by sexual assaults and hazing incidents have reasserted schools’ obligations to take reasonable steps to prevent harm or loss. As Missirian puts it, the new era focuses on the idea of schools as “landowners” responsible for what occurs on their property.
By 2009, Missirian’s history shows, the Restatement of Torts Third (a collection of treatises, rulings, and commentary designed to inform judges and lawyers on common law) published by the American Law Institute “modified the obligations of landowners to make universities potentially more culpable for student injury.” Under Missirian’s interpretation, colleges and universities have a “reasonable duty of care” to users of their land with regard to conduct by the landowner that creates risk, artificial conditions that create risk, and natural conditions which create risk.
Thus, Missirian contends, student-athletes don’t need to demonstrate a “special relationship” to their colleges or universities to assert their right to be reasonably protected from “foreseeable and likely” harm.
In the Lab
But do concussions, sub-concussive impacts and related illnesses constitute “foreseeable and likely” harms to student athletes?
Missirian cites a National Collegiate Athletic Association (NCAA)-commissioned study from 2016 that reported 3,753 average annual concussions among all athletes in its 15 NCAA sports, with college football players suffering 1,876 reported concussions.
The emphasis, Missirian and other researchers point out, is on “reported,” and they suspect the actual number may be higher. Anonymous surveys of college and high school athletes themselves, including one conducted in 2014 by researchers at Harvard and Boston Universities, suggest the number of average annual concussions suffered by an average NCAA football player alone is closer to 16, significantly more than the NCAA’s study posits.
And, Missirian and others point out, these studies don’t typically count sub-concussive impacts that can add up over an athlete’s lifetime of playing to damage the brain. Sub-concussive impacts can occur when an athlete is struck by another at high speed, which causes a sudden change in direction to the brain and literally shakes it in the skull. “You don’t need to have direct contact with your head to suffer a dangerous impact,” says Missirian.
When the brain suffers a concussive or a sub-concussive impact, effects can be wide-ranging. Athletes can suffer headaches, nausea, vomiting, vertigo, severe depression and suicidality, irritability, insomnia or prolonged sleeping, difficulty concentrating, and memory problems, among other presentations.
Over the long-term, repeated impacts can lead to diseases like Chronic Traumatic Encephalopathy (CTE), a progressive and debilitating condition of brain swelling that has been linked post mortem to professional athletes such as NFL players and professional boxers who’ve exhibited advanced dementia, Parkinson’s Disease, depression, suicide, and even homicidal behavior.
At present, the only definitive diagnosis for CTE comes through autopsy, and there’s no accepted predictive standard for how many concussions and/or sub-concussive impacts—and over what time period—would lead to the disease. Missirian notes that recently published research out of Boston University seems to indicate that sub-concussive impacts are even more directly related to Chronic Traumatic Encephalopathy than concussions themselves. Additionally, researchers at Boston University and UCLA are working on predictive models for CTE.
“We know concussions and sub-concussive impacts are happening in large numbers,” says Missirian. “What we don’t know is exactly what that means for the long-term health of these students. But the science is getting closer.”
Missirian has worked with Dr. Robert Cantu, chief of neurology at Emerson Hospital in Concord, Mass., to understand the current science on concussions. Dr. Cantu is also a consultant to Bentley University’s varsity athletics programs and to its Center for Health and Wellness, and has helped establish the school’s protocols for handling concussions and sub-concussive impacts among both varsity and intramural and club sport athletes.
“Given the risks,” says Missirian, “and the legal and ethical obligations, schools need to set the threshold very low for what constitutes an impact and very high for what allows a student to return to the classroom and, especially, return to the playing field.” Rest, notes Missirian, is the gold standard of care for these injuries, and that can include full cognitive rest as well as refraining from play until cleared by medical professionals, restrictions which can be a hard sell to the average young adult student-athlete.
On the Field
“These students want to play. They’ve been trained and encouraged to play, including to play through pain and discomfort, for years, sometimes going back to elementary school,” Missirian points out. “It’s very difficult to get them to report a concussion, much less a ‘ding,’ and much less to sit out a game or more.”
Missirian contends that in addition to underreporting their experience with concussions and sub-concussive impacts, some student-athletes may also be attempting to game the systems designed to protect them by intentionally scoring lower on pre-season cognitive exams they’re given. These student athletes establish artificially lower cognitive baselines for themselves, allowing them to return to play more quickly in the event of a reported concussion and undergoing a screening protocol. For students at or being recruited by schools with athletic scholarships, the disincentives to report and adequately recover from concussions and sub-concussive impacts can be even higher, Missirian notes.
Science’s inability to predict the precise outcomes for these students, along with their own potential failures to protect themselves, add up to an inherently risky environment for them.
As Missirian writes: “The net result of this behavior…is that the student-athlete may be incurring life-altering injuries during their participation in collegiate sports which do not fully manifest themselves for many years…” Though proving causality is still difficult, Missirian feels science and the law are converging on this issue, and that schools must take adequate steps to protect themselves and their students, if they haven’t done so already.
Prevention and Protection
Missirian acknowledges that critics of his argument about colleges’ and universities’ risk factors would refute it by claiming that collegiate student athletes are usually over age 18, and thus legal adults, responsible for themselves.
The 2009 Restatement of Torts Third argues against this all-or-nothing approach, Missirian feels, and establishes an argument for a duty of care on the part of college and university “landowners” inviting “entrants” (student athletes) onto their properties and to participate in their sponsored activities.
There’s also a widely recognized concept of the “young adult,” Missirian argues. “We don’t pretend that 18-year-old high school students in May magically and completely mature into full adults by the time they arrive on campus in September,” he observes, “and we assume all sorts of duties regarding their care, education, and overall well being.” Laws on the purchase and use of alcohol and, in some states, marijuana, also recognize a kind of “provisional adulthood” at 18, entitled to some rights, but also entitled to some protections from harm.
Accordingly, Missirian recommends that schools adopt the following protections and measures for themselves and their athletes:
Sufficient numbers of “non-invested” medical trainers and other trained staff observing all practices and games in which concussions and sub-concussive impacts are likely to occur
Low standards for what constitutes a concussion or other impact and high standards regulating when athletes are released back into normal classroom and sports routines
Records of concussions and sub-concussive impacts should be simultaneously kept and stored by athletics and/or medical officers and elsewhere by disinterested third parties
Schools should avail themselves of the latest sensor technologies in uniforms that can register not only concussive impacts to the head but also the rotational sub-concussive impacts to the body
Schools should equip and require all student-athletes to use the latest in protective technology such as helmets and other padding
Collegiate squads should be comprised of many more students to allow for easier substitutions when students are required to sit out
Many practices should change from being full contact to non-contact
There are significant upfront costs to some of these changes, and Missirian also acknowledges that several of them would take cultural changes in the expectations we have around collegiate sports. “There’s no telling whether schools will get ahead of this legal risk in time,” Missirian says, “or whether enough of us will agree that they should or have a responsibility to.”
What is clear, Missirian argues, is that the law, medicine, and athletics are headed on a collision course for each other, with colleges, universities, and high schools at the center of the impact.
