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Concussion: A Word Not Easily Defined and Why that Spells Trouble for Football

2012 October 19
by Paul Anderson

By: Stuart Dean

Concussion is a word increasingly used on and off the football field in discussions of current and former players and recent and old plays.  It would seem everyone knows what this word means, but its meaning is far from clear and that is potentially a very serious problem for everyone involved in football.  In fact, what concussion means could fundamentally change how football and other sports are practiced and played.

I want to begin with what should be most obvious.  If you see a player get knocked out you do not need a medical degree to come to the conclusion that he has suffered a concussion.  But getting knocked out is not the only sign of a concussion.  Not every concussion is a knock out.

How can that be?  Take a look at the word itself: concussion, as is the case with many medical terms, comes to us from Latin, where it referred to any number of types of ‘shaking’.  Analogous to how ‘shake’ is used in English, it could be used figuratively to describe an extortion attempt as a ‘shake down.’  There is no magic, though, in using Latin derived terminology: it does not automatically make your meaning any more precise or scientific than it might otherwise be.  Simply put, a concussion is the brain getting shaken up.  Indeed, one type of concussion is regularly diagnosed by its relationship to shaking: “shaken baby syndrome” is associated with concussions in infants.

If you think modern medicine can be much more precise than describing a concussion as a type of shaking of the brain that causes injury you are in for a big surprise.  There is no one definition of what constitutes a concussion.  To be sure, on one end of the spectrum of symptoms that everyone agrees constitutes a concussion is loss of consciousness.  But exactly what is on the other end of the spectrum, that is, at what point a shaken brain begins to be an injured brain is not at all clear.

That is why anyone involved in sports needs to be concerned with this issue.  It does no good to come up with yet another term, as some doctors have done, and speak about a ‘sports concussion.’  Your brain does not act any differently when it is shaken on a football field or in a car accident.  Any sort of shaking of the brain has the potential to cause injury.

Therefore it is vital to consider the key variables.  Age is one.  As noted above, infants constitute a special case because, for example, the neck muscles take time to develop in order to keep the head from moving violently when the body is shaken.  But for children generally, because the brain is still developing, a concussion can be far more traumatic than it might otherwise be in an adult.  Another variable is the number of concussions.  All the evidence points to concussions having a cumulative effect.  Indeed, it is widely recognized that suffering a concussion increases your vulnerability to suffering another.  The amount of time between one concussion and another does not appear to be a significant factor.  Quite unlike the conditioning of muscles, sinews and bones, there is no such thing as conditioning the brain to being shaken.  Every concussion is a bad concussion.  Perhaps most important of all the variables is precisely what is most variable of all: what constitutes a concussion is inherently subjective.  When it comes to concussions no two individuals are alike.  What might appear to be the same shake, the same ‘hit’ for one person might have an entirely different effect on another person.  Current imaging techniques or blood tests are generally not useful for diagnosis of any but the most traumatic of brain injuries.  Doctors rely to a great extent on what patients tell them.

The implications of all this for sports generally but football in particular are enormous and yet continue to be largely unacknowledged.  Far from practice making perfect, when it comes to football the more you practice the more likely it is you are going to suffer a concussion.  Given the age and cumulative damage variables discussed above, this should be especially troubling for those who promote football among adolescents and preadolescents.  As it relates to the NFL this means that a longer season is inherently a more dangerous season.  A longer football career is a riskier career.

From a legal perspective the age, cumulative effect and subjectivity variables make brain injury from football induced concussions fraught with liabilities that are inherently difficult to predict, manage or quantify.  How can anyone ever be certain when brain injury in a given player actually begins?  How can concussions be prevented in a sport where success is very much defined by the hit or the tackle?  How can a dollar figure be put on dementia when its very diagnosis depends so much upon the perception of the person experiencing it?

For now, the NFL seems to be trying to manage the unmanageable.  It is attempting to fence off the issue by contending that current plaintiffs in brain injury litigation against the NFL should be bound by one or more collective bargaining agreements.  Teams are expected to handle concussions with special procedures as they occur.  It seems dubious at best as to whether the implications of concussions can be contractually limited or managed on a case by case basis.  Is it not possible, indeed likely, that practically every play of every game results in one or more players suffering a concussion of some sort?  Furthermore, surely some of the brain injuries suffered by the current plaintiffs began to occur long before their tenure with an NFL team.  There does not seem to be any way the NFL can differentiate such injuries from those incurred or exacerbated by NFL play.  But given not only how the NFL, but those with an economic interest in the NFL–such as broadcasters and their respective sponsors–promote, glamorize and indeed glorify football at all levels of play it is hardly obvious how it is possible to fence off one set of brain injured plaintiffs from another or one set of potential defendants from another.  Why should the NFL be immunized from liability for all those who play football merely with the hope of playing at the NFL level when such a hope is deliberately fostered by the NFL?  And is it only the NFL that should be liable?  What about all the schools and colleges that promote football?  What about broadcasters and their sponsors?

Those are troubling questions.  They need to be answered.  And they will be answered in one way or another, in one court or another.

Stuart Dean is currently an independent consultant and writer in New York City who, among other things, also teaches yoga.  He received his JD from Cornell and previously worked at a major law firm for 7 years and a major investment bank for 6 years. 

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