Notes on the Concussion Crisis: Worker's Compensation and Dementia

A familiar battleground for a struggle involving more than just football.

2011 was a calender year for many things, but one of the more interesting yet unfortunate stories of the year involved the big business of college sports and the scandals that permeated the public discourse.

While the Penn State scandal dominated the airwaves, there was no shortage of cases illuminating a corrupt system with a fundamental problem in ignoring its labor force.

Cars, and prostitutes from irresponsible boosters are "chump change" compared to the billion in receipts the Southeastern Conference took in last year, or the $900+ million the Big Ten acquired from television contracts, merchandise, ticket sales, and so forth all while the college athlete got nothing in disclosed income.

Bouncing off of Branch's article, and the topic of big business corruption in college sports, Joe Nocero from The New York Times went a step further. Yes, let's pay these athletes. How? Why not lifetime health insurance, for one?

College football players are not immune to concussions, and in fact, might be the most vulnerable. With a growing body of evidence indicating the degree to which younger people are at risk for long term damage after a concussion (especially in high school where the brain has not yet fully matured), it's perhaps even scarier to see, as was the case with Owen Thomas (just 21) that nor are they immune to the progressive brain disease known as CTE.

The NFL recently dealt with several high profile concussion lawsuits, in part because the NFL has its own sordid history. Dr. Elliot J. Pellman was the league appointed official, trained in the scientific method, but ignorant of the virtue inherent to it, who acted as the mouthpiece for the NFL's former stance on concussions: 'they're not good for you, but don't worry, long term effects are not an ingredient of any given concussion'.

Which is, of course, patently false. But the NCAA too, has been the target of concussion lawsuits.

If the league has avoided liability, it's been due to the language applied to college athletes. Mining further from Taylor Branch's article in The Atlantic, he goes on to cite least in college:

Using the "student-athlete" defense, colleges have compiled a string of victories in liability cases. On the afternoon of October 26, 1974, the Texas Christian University Horned Frogs were playing the Alabama Crimson Tide in Birmingham, Alabama. Kent Waldrep, a TCU running back, carried the ball on a "Red Right 28" sweep toward the Crimson Tide’s sideline, where he was met by a swarm of tacklers. When Waldrep regained consciousness, Bear Bryant, the storied Crimson Tide coach, was standing over his hospital bed. "It was like talking to God, if you’re a young football player," Waldrep recalled.

Waldrep was paralyzed: he had lost all movement and feeling below his neck. After nine months of paying his medical bills, Texas Christian refused to pay any more, so the Waldrep family coped for years on dwindling charity.

The language of 'athlete', 'injury', and what it means for worker's compensation is an issue I'll return to concerning the NFL. For now, you might want to know how Waldrep's story ends:

Through the 1990s, from his wheelchair, Waldrep pressed a lawsuit for workers’ compensation. (He also, through heroic rehabilitation efforts, recovered feeling in his arms, and eventually learned to drive a specially rigged van. "I can brush my teeth," he told me last year, "but I still need help to bathe and dress.") His attorneys haggled with TCU and the state worker-compensation fund over what constituted employment. Clearly, TCU had provided football players with equipment for the job, as a typical employer would—but did the university pay wages, withhold income taxes on his financial aid, or control work conditions and performance? The appeals court finally rejected Waldrep’s claim in June of 2000, ruling that he was not an employee because he had not paid taxes on financial aid that he could have kept even if he quit football. (Waldrep told me school officials "said they recruited me as a student, not an athlete," which he says was absurd.)

What kind of case does an athlete have to receive worker's compensation for concussion-induced dementia? Michelle L. Modery at the Temple Law Review makes a compelling case in the affirmative.

There are a number of obstacles to making one. First, a number of states don't legally define professional athletes as employees. In Massachusetts, Wyoming, and Florida, professional athletes are excluded from coverage: a decision upheld on the basis of pay (they eat and live well), and an assumption of risk. However, as Michelle notes, these decisions require further scrutiny.

For one, according to the Bureau of Labor Statistics, the average yearly wage for the professional athlete is $79,460. While certainly higher than the average citizen, it is not an extraordinary gap. A case against worker's compensation for athletes crumbles further when you consider that non-athletes with high salaries are not discriminated against. Moreover, the average NFL career lasts between two to four years.

A few years ago Pablo S. Torre ran ran an extensive story for Sports Illustrated on how athletes go broke. Within five years of retirement, somewhere close to 60% of all former NBA players go broke. 78% of all former NFL players go bankrupt within two years of retirement, and a large majority end up working in the blue collar sector of employment.

The importance of worker's compensation is that it covers occupational diseases as well. So the question then becomes, should dementia fall into this category given what we know of concussions in general, and CTE specifically?

Last year, a case went to a California court over this very issue on behalf of Eleanor Perfetto, representing her husband and former NFL lineman Ralph Wenzel (currently suffering from dementia). However, a causal link needs to be made between concussions and dementia, and that's where things get tricky.

We know a lot more now than we did several years ago. In addition to the aforementioned stats (like that the rate of dementia in professional athletes is five times the national average), there are a growing number of links between traumatic brain injury and other diseases. Ann McKee's work has revealed that 3 out of the 12 deceased athletes she looked at (who had CTE) also showed signs of a motor neuron disease similar to Lou Gehrigs. A correlation between TBI and Parkinson's also made headlines recently off of UCLA research, highlighting the relationship between dopamine and brain injury*. And one of the pioneers of concussion research, Dr. Robert Cantu, has been vocal in underscoring the link between brain trauma and addiction. His suspicions were raised with the death of Derek Boogaard as he was the third NHL player within four months of each other to die under suspicious circumstances.

However, again cribbing from Michelle Modary's argument, there is precedent when it comes to showing causal links in a very broad light. In the relationship between concussions, and dementia, is it necessary to show strict causation? Not according to Modery.

Enter Fiore v. Consolidated Freightway. The case involved an employee's heart problems, and the conflict centered around whether or not the employee's heart problems were due to the toxic substances exposed to at work on one hand, and on the other, whether or not the employee's heart problems were due to their family history, cigarette habits, and so forth. The New Jersey Supreme Court found a resolution by establishing "dual causation", meaning it wasn't necessary to establish the exposure to toxic substances at work as the sole cause. Only that the work environment contributed in some way.

Another case, Ford v. Industrial Commission of Arizona, illuminated a similar relationship:

"After examing prior law and policy behind the workers' compensation system, the court held that an employee need not establish that a risk inherent in his employment is the sole cause of the injury or disease. Employees are therefore eligible to assert a claim for an occupational disease if they can prove that the employment hazard was a contributing risk that materially affected the severity or onset of the disease."

To avoid triggering the statute of limitations, dementia would need to be defined as a disease rather an injury, and this classification already exists. In Brunell v. Wildwood Crest Police Department, it was established that depending on the circumstances:

Post Traumatic Stress Disorder may qualify as either an accidental injury or an occupational disease. When the facts of the case fit both categories, a worker is entitled to file both claims. Moreover, in the narrow class of accident cases that result in latent or insidiously progressive injury, the accident statute of limitations does not begin to run until a worker knows or should know that he or she has sustained a compensable injury.

The application of dementia as a result of concussions, then, would make for a smooth transition. The evidence is on the side of the athletes.

Zuffa has not had to deal with these issues, but you can bet it's 'in the cards', so to speak. Thankfully, Dana White is fairly honest when he says that he "doesn't want to make one dollar of that kind of money" when responding to people that asked him about what'll happen if someone like Wanderlei Silva gets knocked out again.

Cynics might find this questionable given how "oh so greedy" Dana is, but I find that to be misguided. It would have been very easy to have Chuck Liddell have a few more send-off fights with someone like Tito Ortiz, or Forrest Griffin for example. But he didn't.

However, that's not to say his work is somehow finished. In a way, it's only just begun.

*Something that I found interesting that Jonah Lehrer communicated to me, which concerned dopamine itself and why this neurotransmitter might be senstive to any type of brain injury on its own:

The reason dopamine neurons are so vulnerable to any sort of brain injury in dopaminergic areas (such as the basal ganglia) is that dopamine neurons are actually pretty rare. It's hard to get a precise estimate, but they seem to only account for between 1-3 percent of all cortical neurons. Nevertheless, they play an outsized role (as demonstrated in Parkinson's) in the assessment of alternatives and the generation of emotion. So even a little damage to particular dopamine-rich areas can have pretty severe consequences...

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