By Kaspar Kielland, of Montgomery McCracken
(The following appeared in Sports Medicine and the Law, a publication jointly published by Hackney Publications and Montgomery McCracken.)
When discussing concussion and chronic traumatic encephalopathy (“CTE”) related sports injuries and their potential lingering effects, the average person (depending on their country of origin) usually thinks of a popular contact sport like football, hockey, rugby, boxing, or soccer. But these “higher risk” sports are not the only sports where players sustain head injuries. Cheerleading, gymnastics, motor sport racing, equestrian actives, and any other sport where players collide or that pose a potential for head injuries can be dangerous, and lawsuits involving injuries sustained outside of the contact sport world are on the rise.
Recent cases against the USA Bobsled and Skeleton Federation and the USA Taekwondo Inc., the two national governing bodies for the respective U.S. Olympic Committees, highlight how concussion and CTE cases can reach well beyond the headlines of mainstream contact sports. Despite the exceptional commitment of the practicing athletes driven by the dream of representing their country at the Olympics, it is unfortunate how many Olympic disciplines receive attention from the general public only during the actual Olympic games. But the risks of brain-related injuries in many of those sports are as serious as those occurring in the big leagues’ arenas, and unlike the Olympic games themselves, the risk is ever present, and not just every four years. And the liabilities for the regulating sports associations who might fail – or failed – to take proper actions to prevent and mitigate those risks can potentially be substantial.
‘Sled Head’ – The Bobsled Class Action
William Person, a member of the US Olympic team between 1999 and 2007, filed a proposed class action against the USA Bobsled and Skeleton Federation (“USABS”) in the Los Angeles Superior Court at the end of last September. Person decided to take action against the USABS after noticing that many former bob sledding athletes are dealing with the consequences of brain injuries allegedly caused by practicing the sport, including living with “depression, dementia and sometimes taking their own lives.”
Person claims that as early as 1983 the USABS knew that head impacts and sub-concussive blows inherently associated with bob sledding had the potential of causing serious brain damage to the athletes. However, the USABS did not advise them about those risks. Person further alleges that while practicing the sport, he was suffering symptoms of “sled head.” To this day, little research has been conducted on “sled head,” which is 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, notwithstanding having been made aware of those symptoms. The lawsuit seeks compensation for the potential class of athletes in both 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, as well as 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.
‘No-Head-Contact Drill’ – The Taekwondo Suit
From the steep and fast runs of sledding to the flats of a martial art mat, the Northern District of Ohio recently denied the motion by the USA Taekwondo Inc. (“USAT”) seeking the dismissal of a complaint brought by former taekwondo Olympic prospect, Philip Vincent Ripepi. In 2018, Ripepi was selected by two USAT coaches to participate in a training camp organized by the USAT in England. Ripepi alleges that the aim of the camp was to acclimatize the participants to taekwondo at an Olympic level. During the second day of camp, Ripepi was allegedly coupled with an athlete outside of his weight class to perform what is known as a “no-head-contact drill.” Notwithstanding the nature of the drill, Ripepi was almost immediately hit by a kick to the back of his head by his sparring partner. The blow knocked him to the ground for several minutes and he started to feel dizzy. The athlete claims that neither the coaches nor the athletes who were present provided him with assistance. He was pressured to continue his training – which he did – for the reminder of the day.
In the evening, his concussive symptoms, including nausea and vomiting, worsened. Ripepi spent the night in excruciating pain without being able to sleep. The following morning, the athlete informed the USAT of his deteriorating symptoms, but despite allegedly acknowledging the concussive nature of Ripepi’s symptoms, the USAT decided to ignore them. The USAT allegedly not only failed to provide him with medical assistance but also discouraged him to go to the hospital. Ripepi decided to sit on the sidelines for the day but his symptoms, which included headaches, ringing in his ears, sensitivity to lights and sounds and double vision, kept getting worse. At that point, he was told he would be evaluated by the mother of another camp participant who was a surgeon. But according to Ripepi, the training day went by without him receiving any medical attention.
The following day, after another sleepless night, the USAT asked Ripepi to assist with “computer activities” while waiting to be evaluated by the doctor, to which Ripepi agreed. Once again, the doctor did not arrive during the training session. Ripepi was then again allegedly promised that he would have been evaluated in the evening in his hotel room, but he opted instead to return to the United States.
Ripepi’s suit alleges that the USAT’s failure to properly respond to his head injury was a breach of the USAT’s duty of care towards the athlete and that such negligent behavior “destroyed his career and lifelong ambition of participating in the Olympics.” The USAT moved to dismiss Ripepi’s complaint on a primary assumption- of- risk defense theory claiming that, by agreeing to participate in the camp, Ripepi knew of the risks involved, and therefore he was not owed “any duty whatsoever.”
In denying the USAT’s motion to dismiss, the court acknowledged how the USAT’s defense of primary assumption of risk will “stand in the spotlight through the course of the litigation” but at this stage of the proceeding, Ripepi’s allegations that the USAT breached its duty of care toward the athlete, “in a situation where harm is probable, and subsequently deliberately failed to provide him with medical care while appreciating the injury,” are sufficient for the matter to go forward. Whether the USAT can successfully show that Ripepi assumed the “ordinary risk of the activities,” that the assumption of risk defense is sufficient to overcome Ripepi’s negligence claims, and whether Ripepi’s accusations are true, “remains to be seen.”
Takeaway
The bottom line is that concussion litigation and CTE failure-to-warn cases are no longer solely reserved for, or a hallmark of, the more popular contact sports. The athletic world is beginning to realize the potential serious, if not deadly, injuries that can result from the routine head and body contact that is associated as being part of a sport. This includes not only the one-off concussive impacts but also the repetitive sub-concussive impacts (such as the constant jostling of the head inside a bobsled). These sub-concussive blows are what makes it harder for a governing sport association to argue that the athlete was warned and made aware of, appreciated, and assumed the risk. Yes, a bobsledder may have assumed the risk of the sport, which includes high-force crashes and possible concussion, but was the bobsledder made aware of the long-term risks associated with the accumulation of repetitive sub-concussive blows?
Sports associations must do more than wave a flag and stand on the side, especially now that it is clear these associations are aware of the long-term effects of the sub-concussive blows. They must act proactively through guidelines, training and services aimed not only at ensuring the athletes’ health and safety but also at avoiding the risks and negative attention drawn by litigation.
