Mild Traumatic Brain Injury, the National Football League, and the Manufacture of Doubt: An Ethical, Legal, and Historical Analysis

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Acknowledgments

*Dr. Goldberg is a Professor in the Department of Bioethics and Interdisciplinary Studies at Eastern Carolina University. He can be reached via email at [email protected]. The author would like to acknowledge the comments and suggestions of the audience at the October 2012 Faculty Research Seminar in The Brody School of Medicine at East Carolina University, the assistance and encouragement of Ross D. Silverman, and the guidance and insight of Kenneth A. DeVille.

Notes

Clifford Geertz, Deep Play: Notes on the Balinese Cockfight, in The Interpretation of Cultures 412, 449 (1973).

Alfred, Lord Tennyson, Charge of the Light Brigade 1 (1964).

Brief for Plaintiffs, In re: National Football League Players’ Concussion Injury Litigation, No. 2:12-md-02323-AB MDL No. 2323 (E.D. Pa. June 7, 2012), available at http://nflconcussionlitigation.com/wp-content/uploads/2012/01/download-102.pdf. For a helpful collection of materials related to the litigation as well as some commentary, see http://www.NFLconcussionlitigation.com (last visited Jan. 24, 2013).

Plaintiffs’ Brief, supra note 3, at 65.

Id. Because most of the legal theories of recovery against Riddell rest on strict products liability, they are therefore distinct from the relief sought from the NFL, the latter of which rests largely on negligence. Moreover, while team physicians and/or related health care providers that act contrary to the standard of care can and have been sued for negligence, their individual conduct is in some crucial sense distinct from the institutional behavior of the NFL. Such distinctions cannot be pressed too far; organizational ethics begins with the well-documented notion that institutional cultures typically have a dramatic effect on the behavior of participants. The relationships between individual providers, their employers (the team), and the NFL are core to my point insofar as there is reason to believe such relationships are highly important determinants of the care that is provided in any individual case. Regardless, this article addresses only the claims pursued against the NFL. For analysis of the legal issues surrounding negligence suits against team physicians, see, e.g., Matthew J. Mitten, Team Physicians as Co-Employees: A Prescription That Deprives Professional Athletes of an Adequate Remedy for Sports Medicine Malpractice, 50 St. Louis U.L.J. 211 (2005–2006); Justin P. Caladrone, Professional Team Doctors: Money, Prestige, and Ethical Dilemmas, 9 Sports Law. J. 131 (2002).

Plaintiffs’ Brief, supra note 3, at 13-47.

As historians Gerald Markowitz and David Rosner aver, class actions brought against industrial defendants are capable of producing a treasure trove of sources for the attentive historian: “Lawyers have an incredible tool for historical research available to them: the power to ask private industries for a wide variety of materials from company files and the right to depose individuals whom they expect to have information relevant to their case.” Gerald Markowitz & David Rosner, Deceit and Denial: The Deadly Politics of Industrial Pollution xiv (2002).

See generally Amy Gutmann & Dennis Thompson, Why Deliberative Democracy (2004); Amy Gutmann & Dennis Thompson, Just Deliberation About Health Care, in Ethical Dimensions of Health Policy 77 (Marion Danis et al., eds., 2002).

As discussed below, such information can facilitate both retrospective and prospective accountability. See Kenneth A. DeVille, The Role of Litigation in Human Research Accountability, 9 Accountability in Res. 17 (2002).

The literature on this is of course immense, but good starting points include Anne-Emmanuelle Birn, Making It Politic(al): Closing the Gap in a Generation: Health Equity Through Action on the Social Determinants of Health, 4 Soc. Med. 166 (2009); World Health Org.'s Comm’n Soc. Determinants Health, Closing the Gap in a Generation (2008), http://www.who.int/social_determinants/thecommission/finalreport/en/index.html. For fundamental cause theory, see generally Jo C. Phelan et al., Social Conditions as Fundamental Causes of Health Inequalities: Theory, Evidence, and Policy Implications, 51(Supp.) J. Health Soc. Behav. S28 (2010); V.W. Chang & D.S. Lauderdale, Fundamental Cause Theory, Technological Innovation, and Health Disparities: The Case of Cholesterol in the Era of Statins, 50 J. Health Soc. Behav. 245 (2009); Bruce G. Link & Jo C. Phelan, Social Conditions as Fundamental Causes of Disease, 35(Extra) J. Health Soc. Behav. 80 (1995).

Legal Issues Relating to Football Head Injuries (Part I & II): Hearing Before the Committee on the Judiciary House of Representatives, 111th Cong. 138 (2009), available at http://www.gpo.gov/fdsys/pkg/CHRG-111hhrg53092/pdf/CHRG-111hhrg53092. Section III, below, considers Goodell's testimony in detail.

David Michaels, Doubt Is Their Product: How Industry's Assault on Science Threatens Your Health x (2008). Michaels obviously does not pretense to neutrality; the historical record generally supports the substance if not the tone of his perspectives.

Id.

See Markowitz & Rosner, supra note 7; see also David Rosner & Gerald Markowitz, The Politics of Lead Toxicology and the Devastating Consequences for Children, 50 Am. J. Indus. Med. 740 (2007); David Rosner & Gerald Markowitz, Deadly Dust: Silicosis and the Ongoing Struggle to Protect Workers’ Health (2006); Gerald Markowitz & David Rosner, “Cater to the Children”: The Role of the Lead Industry in a Public Health Tragedy, 90 Am. J. Pub. Health 36 (2000).

Michaels, supra note 12, at xi.

Current NFL player Scott Fujita suggested as much when he observed in October 2012 that Goodell's “positions on player health and safety since a 2009 congressional hearing on concussions have been inconsistent at best. He failed to acknowledge a link between concussions and post-career brain disease, pushed for an 18-game regular season, committed to a full season of Thursday night games, has continually challenged players’ rights to file worker's compensation claims for on-the-job injuries, and he employed incompetent replacement officials for the start of the 2012 season. His actions or lack thereof, are by the league's own definition, ‘conduct detrimental.’ ” ESPN.com, Scott Fujita Criticizes Roger Goodell (Oct. 10, 2012), http://espn.go.com/nfl/story/_/id/8486424/cleveland-browns-scott-fujita-says-goodell-abusing-power.

Unfortunately, there is no census of the football-playing population in the U.S. that includes youth, high school, collegiate, semi-professional, and professional players. Nevertheless, compilation of various sources suggests population parameters well into the millions. See Daniel J. Podberesky et al., Imaging of Football Injuries in Children, 39 Pediatric Radiology 1264 (2009) (estimating that 3.2 million children aged 6–14 played American football in 2007); see also Participation Statistics in Football, http://www.nfhs.org/participation/sportsearch.aspx (select Sport: “Football” and search) (calculating that nearly 1.1 million high school students played American football in 2011–2012); NCAA, Student-Athlete Participation 138 (2011), available at http://www.ncaapublications.com/productdownloads/PR2011.pdf (estimating that 66,313 students played intercollegiate football).

See Ctrs. for Disease Control & Prevention, Concussion ABCs: Learn How to Respond (Aug. 20, 2012), http://www.cdc.gov/Features/ConcussionABCs/; Michael W. Kirkwood et al., Pediatric Sport-Related Concussion: A Review of the Clinical Management of an Oft-Neglected Population, 117 Pediatrics 1359, 1361 (2006).

See, e.g., A Life Course Approach to Chronic Disease Epidemiology (Diana Kuh & Yoav Ben Shlomo, eds. 2004); Diana Kuh et al., Life Course Epidemiology, 57 J. Epidemiology & Comm. Health 778 (2003).

See Bitte Modin & Johan Fritzell, The Long Arm of the Family: Are Parental and Grandparental Earnings Related to Young Men's Body Mass Index and Cognitive Ability?, 38 Int’l J. Epidemiology 733 (2009); M.D. Hayward & B.K. Gorman, The Long Arm of Childhood: The Influence of Early-life Social Conditions on Men's Mortality, 41 Demography 87 (2004). J.M. Najman et al., The Generational Transmission of Socioeconomic Inequalities in Child Cognitive Development and Emotional Health, 58 Soc. Sci. & Med. 1147 (2004).

See Letter from Mark Murphy & Jerry Richardson to Retired NFL Players, Apr. 4, 2011, available at http://bit.ly/TXxhGm (last accessed Sept. 5, 2012).

Geertz, supra note 1. Though not addressed in detail here, Geertz's concept of “deep play” taken from the essay quoted in the epigraph is an important framework for thinking about the roles of sport and game in society. One of Geertz's points in the essay is precisely that understanding the complex rules and rituals involved in the Balinese cockfight reveals to an astonishing extent how the game's participants constructed social and cultural meaning. By understanding the Balinese cockfight, Geertz suggests, it is possible to learn a great deal about some of the deepest and most intricate aspects of Balinese society and culture. There is every reason to think, as I initially suggested in 2008, that American football is deep play. Daniel S. Goldberg, Concussions, Professional Sports, and Conflicts of Interest: Why the National Football League's Current Policies Are Bad for Its (Players’) Health, 20 HEC FORUM 337, 351 (2008).

See Goldberg, Concussions, Professional Sports, supra note 22; see also William J. Winslade, Confronting Traumatic Brain Injury: Devastation, Hope, and Healing (1998); Daniel S. Goldberg, Justice, Population Health, and Deep-Brain Stimulation: The Interplay of Inequities and Novel Technologies, Am. J. Bioethics: Neuroscience, Jan. 2012, at 16, 18.

This article does not discuss in any detail the legal defense of assumption of the risk that will almost certainly serve as a significant affirmative defense in any negligence suit against the NFL. However, it should be noted that black-letter common law typically vitiates this defense to the extent that the defendant actively conceals knowledge that would be material to the plaintiff's participation in the risky activity. This follows from the proposition that actors are liable for increasing inherent risks of an activity even where they owe no duty to protect participants from the risks themselves. See Keya Denner, Taking One for the Team: The Role of Assumption of the Risk in Sports Torts Cases, 14 Seton Hall J. Sports & Ent. L. 209, 217 (2004). There are allegations that NFL teams did in fact conceal such information in the past. See Jennifer Lynn Woodlief, The Trouble with Charlie—Fraudulent Concealment of Medical Information in Professional Football, 9 Ent. & Sports L. 3 (1991–1992).

Persons living with mental illness are overwhelmingly more likely to be victims of violence than to commit it. See Karen Hughes et al., Prevalence and Risk of Violence Against Adults with Disabilities: A Systematic Review and Meta-Analysis of Observational Studies, 379 Lancet 1621 (2012); Linda A. Teplin et al., Crime Victimization in Adults with Severe Mental Illness, 62 Arch. Gen. Psychiatry 911 (2005).

See infra Section IV.B; see also Goldberg, Justice, Population Health, supra note 23, at 18–19.

See infra Section IV.B.

Alison Bashford & Carolyn Strange, Thinking Historically about Public Health, 33 Med. Human. 87, 87 (2007). There is of course no reason whatsoever to think that the utility of an historical framework regarding public health practice and policy is limited to infectious disease paradigms. The latter is simply the subject of Bashford and Strange's essay.

Simon Szreter, Health and Wealth: Studies in History and Policy 3 (2004).

See Amy L. Fairchild et al., The EXODUS of Public Health: What History Can Tell Us About the Future, 100 Am. J. Pub. Health 54 (2010).

For an introduction to such, see Alan Derickson, Black Lung: Anatomy of a Public Health Disaster (1998) and Herbert K. Abrams, A Short History of Occupational Health, 22 J. Pub. Health Pol’y 34 (2001). The classic historiographic text, of course, and one of the most important books in the history of public health written during the 20th century, is George Rosen, A History of Public Health (2d ed. 1993).

Paul Starr, The Social Transformation of American Medicine 200–04 (1982). For additional discussion of these points in context of the NFL, see Goldberg, Concussions, Professional Sports, supra note 22, at 340–42.

See generally Starr, supra note 32; see also Medical Malpractice in Nineteenth-Century America: Origins and Legacy (Kenneth A. DeVille ed., 1992).

Goldberg, Concussions, Professional Sports, supra note 22, at 342–44.

See Szreter, supra note 29; Christopher Hamlin, Public Health and Social Justice in the Age of Chadwick: Britain, 1800–1854 (1998); Rex Taylor & Annelie Rieger, Medicine as Social Science: Rudolf Virchow on the Typhus Epidemic in Upper Silesia, 15 Int’l J. Health Servs. 547 (1985).

Although early American public health tracked European efforts in most respects, comparable U.S. sources appeared later in the 19th century, such as Jakob Riis, How the Other Half Lives: Studies Among the Tenements of New York (1890); Stephen W. Smith, The City that Was (1911). Smith founded the American Public Health Association in 1872 and subsequently served as Commissioner of the New York City Metropolitan Health Board. For more on Riis, Smith, and the history of public health in New York City, see Hives of Sickness: Public Health and Epidemics in New York City (David Rosner ed. 1995).

See generally Daniel S. Goldberg, Against the Very Idea of “Politicization” in Public Health Policy, 102 Am. J. Pub. Health 44 (2012) (discussing the boundary problem).

See Rosner & Markowitz, supra note 14.

See Michaels, supra note 12.

See id. at 60–78.

See Rosner & Markowitz, supra note 14.

See Michaels, supra note 12, at 4.

Id. at 11.

See, e.g., Sylvia Noble Tesh, Uncertain Hazards: Environmental Activists and Scientific Proof (2000); Nancy Cartwright, The Dappled World: A Study of the Boundaries of Science (1999); Edward J. Imwinkelreid, Evidence Law Visits Jurassic Park: The Far-Reaching Implication of the Daubert Court's Recognition of the Uncertainty of the Scientific Enterprise, 81 Iowa L. Rev. 55 (1995); Carl F. Cranor, Regulating Toxic Substances: A Philosophy of Science and the Law (1993); Paul Feyerabend, Farewell to Reason (1987).

See generally Tom L. Beauchamp & Alexander Rosenberg, Hume and the Problem of Causation (1981); Samir Okasha, What Did Hume Really Show About Induction?, 51 Phil. Q. 307 (2001).

See supra note 45.

See, e.g., Tesh, supra note 44; accord Tom L. Beauchamp & Thomas A. Mappes, Is Hume Really a Sceptic About Induction?, 12 Am. Phil. Q. 119 (1975).

See Michaels, supra note 12, at 60.

Cf. M. Parascandola & D.L. Weed, Causation in Epidemiology, 55 J. Epi. & Comm. Health 905 (2001). The authors discuss the role of causation in epidemiology and the lack of a single, clearly articulated definition of causation for the discipline. The strengths and weaknesses of various approaches to defining causation are explored and the authors argue for a probabilistic definition.

Michaels, supra note 12, at 60.

See Sandro Galea et al., Causal Thinking and Complex System Approaches in Epidemiology, 39 Int’l J. Epi. 97, 98 (2010). The authors employ an analysis of the causes of obesity as a useful tool to illustrate how a multifactorial approach is used in epidemiology.

See Kenneth R. Feinberg, Toxic Tort Litigation Crisis: Conceptual Problems and Proposed Solutions, 24 Hous. L. Rev. 155, 160–61 (1987). The authors discuss the difficulty in applying epidemiological causation concepts in toxic tort cases due to multiple and intervening possible causes.

Markowitz & Rosner, supra note 7, at 3.

New York Times reporter Alan Schwarz has been at the forefront of mass media coverage on mTBI in the NFL for the last decade. See, e.g., Alan Schwarz, Concussion Panel Has Shakeup as Data Is Questioned, N.Y. Times, Mar. 1, 2007. A Lexis-Nexis search for “Schwarz” and “concussions” produces 152 hits beginning in 2007.

Greg Miller, A Late Hit for Football Players, 325 Science 670, 670–72 (2009).

A large portion of my original work in the history of medicine emphasizes the social and intellectual power of somaticism, or the ability to correlate clinical illness complaints with discrete, material pathologies found inside the body. It is undisputed that such ideas fundamentally transformed Western medicine during the 19th century, and I argue in a number of works that the effects of such ideas remain powerful in the U.S. to the present. See, e.g., Daniel S. Goldberg, Suffering and Death Among Early American Roentgenologists: The Power of Remotely Anatomizing the Living Body in Fin-de-Siècle America, 85 Bull. Hist. Med. 1 (2011).

Legal Issues Report, supra note 11, at 30.

Legal Issues Report, supra note 11, at 44.

Goldberg, Concussions, Professional Sports, supra note 22.

See id. Recent evidence has also documented that motivated bias plays a role in policy-making bodies’ evaluation of the problems and severity of specific conflicts of interest. Sharek, Schoen, and Loewenstein's recent elegant study demonstrated that both physicians and financial analysts viewed identical conflicts of interest as more problematic and requiring more aggressive remediation when those conflicts were framed in scenarios of the other profession (medical vs. financial). Zahariah Sherek et al., Bias in the Evaluation of Conflict of Interest Policies, 40 J.L. Med. & Ethics 368, 376–77 (2012).

As I pointed out in 2008, “a more obvious conflict of interest” than Maroon's intellectual property interest in the test combined with his role as team physician “would be difficult to find.” Goldberg, Concussions, Professional Sports, supra note 22, at 348.

Legal Issues Report, supra note 11, at 335.

Again, the literature on this subject is immense. See, e.g., Howard Brody, Hooked (2007); Sheldon Krimsky, Science in the Private Interest (2004); Andrew Stark, Conflict of Interest in American Public Life (2003).

Browns Say Colt McCoy Seemed OK (Dec. 10, 2011), http://espn.go.com/nfl/story/_/id/7336211/colt-mccoy-cleveland-browns-diagnosed-concussion.

Chris Mortensen, Source: “System Failure” by Browns (Dec. 11, 2011), http://espn.go.com/nfl/story/_/id/7341272/source-colt-mccoy-case-cleveland-browns-system-failure.

Id.

Id.

Judy Battista & Richard Sandomir, League to Add Independent Trainer at Each Game to Check for Concussions, N.Y. Times, Dec. 20, 2011.

Id.

Goldberg, Concussions, Professional Sports, supra note 22, at 343-44. Goodell's response to the repeated questions on this point borders on the preposterous. He asserts that team physicians “work for other institutions, highly respected, well-known medical institutions.” This is a total non-sequitur, for there is absolutely nothing in the social scientific literature on motivated bias suggesting that the presence of multiple interests and affiliations vitiates the “behavior of partiality” that is more likely to occur given a financial stake. See generally Stark, supra note 62.

See Plaintiffs’ Brief, supra note 3.

Legal Issues Report, supra note 11, at 348. This testimony demonstrates the total inadequacy of the stated reason for Colt McCoy's return-to-play, viz. that he seemed okay. The nature of mTBI is such that players may well seem okay who subsequently show that they, in point of fact, were not remotely “okay.”

E.g., Kevin M. Guskiewicz et al., Cumulative Effects Associated with Recurrent Concussion in Collegiate Football Players: The NCAA Concussion Study, 29 JAMA 2549 (2003) (finding increased risk of incidence and prolonged recovery time among players with three or more concussions).

B.E. Gavett et al., Chronic Traumatic Encephalopathy: A Potential Late Effect of Sport-related Concussive and Subconcussive Head Trauma, 30 Clinics Sports Med. 179 (2011).

Legal Issues Report, supra note 11, at 85.

Id.

The fact that internal NFL information remains private and opaque to public scrutiny facilitates the appearance of reasonability. This is also programmatically consistent with the manufacture of doubt, as Markowitz and Rosner point out. In a “standing-room only” hearing held at the Occupational Health & Safety Agency in February 1974, vinyl industry representatives and scientists testified as to their beliefs and contentions regarding the health impact of their industry: “Given that industry documents remained secret, there was no way to understand that the industry had acted to hide from the government information about vinyl as a carcinogen. As a result, the companies could still pass themselves off as working openly and cooperatively with the government.” Markowitz & Rosner, supra note 39, at 198. The connection between the opacity of internal industry information and the legitimacy of public reason on the question of the harm posed by the industry's commercial products is an important topic for this article, and is addressed in more detail below. See infra Section IV.A.

Legal Issues Report, supra note 11, at 86.

Id.

Id.

Id. at 88.

See generally Christopher Nowinski, Head Games (2006).

Legal Issues Report, supra note 11, at 110.

Id.

Goldberg, Against the Very Idea, supra note 37, at 48.

Kerianne Quanstrum & Rodney A. Heyward, Lessons from the Mammography Wars, 363 New Eng. J. Med. 1076, 1077 (2010).

Goldberg, Against the Very Idea, supra note 37, at 47.

Chris Nowinski is without question one of the single figures most responsible for pushing the NFL to change its behavior with regards to issues of mTBI among its players past and present. A former collegiate football player and professional wrestler, Nowinski was forced to retire due to the experiences of multiple concussions. Appalled by the NFL's denials and obfuscations, Nowinski wrote a book castigating its conduct entitled Head Games, and co-founded two organizations dedicated to advocacy and research on the subject (the Sports Legacy Institute and the aforementioned Center for the Study of Traumatic Encephalopathy). See generally Nowinski, supra note 82; see also Legal Issues Report, supra note 11, at 127, 139.

Legal Issues Report, supra note 11, at 116.

Id.

Id.

Id. at 118.

Douglas L. Weed, Precaution, Prevention, and Public Health Ethics, 29 J. Med. & Phil. 313, 316 (2004); see also Christian Munthe, The Price of Precaution and the Ethics of Risk (2011).

See supra text accompanying notes 42–51.

Weed, supra note 93, at 317.

Id. at 320–24.

Id. at 317.

Legal Issues Report, supra note 11, at 138.

Id.

Id. at 363.

Legal Issues Report, supra note 11, at 2. As perhaps best documented in Chris Nowinski's book, the NFL Mild Traumatic Brain Injury Committee (NFL MTBIC) has been haunted by accusations of pervasive bias since its creation in 1993. Nowinski, supra note 81, at 79–96; see also Schwarz, supra note 55. Shortly after the 2009–2010 Congressional hearings, the NFL disbanded the Committee. Mark Fainaru-Wada & Steve Fainaru, NFL Reports Remain Inconsistent (Dec. 13, 2012), http://espn.go.com/espn/otl/story/_/id/8706409/nfl-concussion-program-marked-inconsistencies-making-difficult-assess-whether-league-making-progress-issue.

Legal Issues Report, supra note 11, at 334. Members of the Committee repeatedly asked whether Dr. Casson would deliver testimony in the October 28, 2009 hearing. In an apparent attempt to show good faith, the NFL made part of the congressional record an internal NFL memorandum explaining to Goodell why Dr. Casson had not been made available for the hearing. Id. at 491.

Id. at 334.

There are those who would insist this is a wise course of action, particularly libertarian-minded public health scholars such as Richard A. Epstein. See, e.g., Richard A. Epstein, In Defense of the Old Public Health, 69 Brook. L. Rev. 1421 (2004); Richard A. Epstein, Let the Shoemaker Stick to His Last: A Defense of the “Old” Public Health, 46 Persp. Biol. & Med. S138 (2003). This article assumes, without argument, the contrary position.

Legal Issues Report, supra note 11, at 370.

Id.

Id. at 476.

Id.

Id. (emphasis added)

Frédéric Gilbert & L. Syd M. Johnson, The Impact of American Tackle Football-Related Concussion in Youth Athletes, Am. J. Bioethics: Neuroscience, Oct. 2011, at 48, 54.

See Guskiewicz et al., supra note 73; see also Gilbert & Johnson, supra note 110 (discussing evidence); Douglas E. Abrams, Confronting the Youth Sports Concussion Crisis: A Central Role for Responsible Local Enforcement of Playing Rules, 2 Miss. Sports L. Rev. 1, 25–26, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2133615 (last accessed Sept. 6, 2012). Abrams cites the numerous concussion laws enacted in the past five years as grounds for optimism regarding the safety of youth sports. Although such laws are welcome, of course—who would oppose them?—I am far more sanguine about their conceivable effect size. I leave the reasons for such skepticism for future work.

See Christine M. Baugh et al., Chronic Traumatic Encephalopathy: Neurodegeneration Following Repetitive Concussive and Subconcussive Brain Trauma, Boston U. Center for the Study of Traumatic Encephalopathy 9 (2012), available at http://www.bu.edu/cste/files/2012/08/Baugh_Chronic-Traumatic-Encephalopathy_2012.pdf.

See Family Med. Assocs., New Concussion Guidelines for Children and Teens, http://www.familymedicineassociates.com/new-concussion-guidelines-for-children-and-teens (2012).

See Gilbert & Johnson, supra note 110, at 54.

See Gutman & Thompson, Why Deliberative Democracy, supra note 8, at 7; Gutman & Thompson, Just Deliberation, supra note 8, at 77.

W.E. Parmet & R.A. Daynard, The New Public Health Litigation, 21 Ann. Rev. Pub. Health 437, 445 (2000).

Gutmann & Thompson, Just Deliberation, supra note 8, at 78. Gutmann and Thompson apply their model to issues of health care policy and allocation rather than public health policy, which can converge but can also be quite different. Acknowledging such differences, however, provides no substantive reason for believing that the model and the method the authors prescribe would be applicable for the one kind of health policy but not the other.

Id. at 81.

There are obviously important questions of social goods, benefits, and costs involved in considering the exchange of intellectual property that has significant public health implications. See, e.g., Wendy E. Wagner, Commons Ignorance: The Failure of Environmental Law to Provide the Information Needed to Protect Public Health and the Environment, 53 Duke L.J. 1619 (2004); Ross MacKenzie et al., “If We Can Just ‘Stall’ New Unfriendly Legislations, the Scoreboard Is Already in Our Favor”: Transnational Tobacco Companies and Ingredients Disclosure in Thailand, 13 Tobacco Control ii79 (2004). For the time being, I leave aside questions regarding the NFL's potential intellectual property interest in any proprietary information it may possess.

In its response to the complaint in the class action suit, the NFL's primary defense to the class action is preemption. Brief for Defendant at 15–30, Easterling v. National Football League, Inc., 2012 WL 1386982 (E.D. Pa. 2011) (No. 11-CV-05209-AB). It argues that because the claims raised fall under the collective bargaining agreement, they are subject to the dispute resolution provisions of that agreement, and can therefore not be brought as tort claims in federal court. This is a legal issue that my public policy analysis does not address. If the NFL is correct—and I offer no opinion on the merits of the claim here—that does not undermine my point regarding the moral significance of the NFL's internal information being publicly available. If the legal issue became a close call and public policy considerations became relevant, the considerations offered here would be material to such inquiry.

See Goldberg, Justice, Population Health, supra note 23, at 18–19.

Id. at 18.

Id.

See Valery L. Feigin et al., Epidemiology of Ischaemic Stroke and Traumatic Brain Injury, 24 Best Prac. & Res. Clinical Anaesthesiology 485 (2010); Peter Noone, Social Determinants of Health, 59 Occupational Med. 209 (2009); Walter Mauritz et al., Epidemiology, Treatment and Outcome of Patients after Severe Traumatic Brain Injury in European Regions with Different Economic Status, 18 Eur. J. Pub. Health 575 (2008).

Feigin et al., supra note 124, at 490.

See NCAA, 2009–2010 Student Athlete Ethnicity Report 8–9, available at http://www.ncaapublications.com/productdownloads/SAEREP11.pdf. Other demographic groups in the census include 2.9% Other, 2.4% Hispanic, 1.9% Asian/Pacific Islander, and 1.3% Two or more Races. Id. at 56.

Id. at 9.

See Goldberg, Concussions, Professional Sports, supra note 22, at 346; P. McCrory et al., Consensus Statement on Concussion in Sport: The 3rd International Conference on Concussion in Sport Held in Zurich, November 2008, 43 Brit. J. Sports Med. 76, 80 (“There is no good clinical evidence that currently available protective equipment will prevent concussion although mouthguards have a definite role in preventing dental and oro-facial injury”). This is an important point because it highlights the irreducibly social and political nature of the public health problem at issue here. Determining the acceptable levels of risk for which group at which level of play is not a problem that can be remedied by the application of technology. The broader point, of course, is the peculiarly American belief that resolving important population health problems is a task best suited for magic-bullet, high-technology solutions, which is frequently mistaken on its own terms, and also reflects the hold of the technological imperative in American society. Although this problem has been discussed most in context of global health, insofar as public and population health problems within as well as between nations are fundamentally shaped by macrosocial conditions and political economies, the evidence suggests that interventions targeted at these structural factors rather than narrow technocratic approaches are likely to be most effective in improving overall health and compressing health inequities. For discussion of these issues and relevant sources, see Goldberg, Justice, Population Health, supra note 23, at 16–20; Daniel S. Goldberg, Global Health Care Is Not Global Health: Populations, Inequities, and Law as a Social Determinant of Health, in The Globalization of Health Care: Legal & Ethical Issues 403 (I. Glenn Cohen ed., 2013).

Admittedly, the effect size will be influenced by a number of variables, including perhaps most notably player position (given the possibility of differential risk across position). At present there is a paucity of good data enabling the precise calibration of any such differential risk. However, there is little basis for suggesting that the extent of this variance would be sufficient to nullify the entire relative increase in mTBI prevalence; at best it might mitigate the rate of increase. I am prepared to concede for the present that if the differential risk across player position and the actual stratification of African-American players across player position is so vast respectively as to vitiate the increase in mTBI prevalence, the concerns of mTBI inequalities adumbrated here may be inapplicable. Finally, I focus here on African-Americans both because racial inequities between African-American and Caucasian neurological health are particularly stark, and also because none of the other football-playing demographic groups are anywhere near as overrepresented as are African-Americans (and therefore any resultant relative increase in burdens of adverse neurological health flowing from football play for other demographic groups would be predicted to be minimal).

Madison Powers & Ruth Faden, Social Justice: The Moral Foundations of Public Health & Health Policy (2006).

Id. at 29–30.

Id. at 16–28.

Id. at 71–77.

For discussion and sources, see Daniel S. Goldberg, Social Justice, Health Inequalities, and Methodological Individualism in U.S. Health Promotion, 5 Pub. Health Ethics 104 (2012).

Powers & Faden, supra note 130, at 191–96.

The literature on this topic is immense. See, e.g., Gilbert C. Gee et al., A Life Course Perspective on How Racism May Be Related to Health Inequities, 102 Am. J. Pub. Health 967 (2012); Gilbert C. Gee & Chandra L. Ford, Structural Racism and Health Inequities, 8 Du Bois Rev. 115 (2011); Vickie Shavers & Brenda L. Shavers, Racism and Health Inequity Among Americans, 98 J. Nat’l Med. Ass’n 386 (2006); David R. Williams, Race, Socioeconomic Status, and Health: The Added Effects of Racism and Discrimination, 896 Ann. N.Y. Acad. Sci. 173 (1999).

Some commentators argue that such overrepresentation is directly tied to the material deprivation to which African-American communities are so disproportionately exposed inasmuch as participation in sports is seen as a viable path out of straitened social and economic circumstances (said material deprivation being largely a product of racism, oppression, and structural violence). See, e.g., Harry Edwards, Crisis of Black Athletes on the Eve of the 21st Century, 37 Society 9 (2000); Michael E. Lomax, Athletics v. Education: Dilemmas of Black Youth, 37 Society 21 (2000). Such claims, if valid, would support an argument that such overrepresentation in and of itself, not to mention the increase in racial neurological health inequities that could result, is unjust. Moreover, the question of the injustice of such overrepresentation is a distinct inquiry from questions regarding potential remedies for addressing the overrepresentation. For example, inequalities in football prevalence could be eliminated by initiating some kind of affirmative action for Caucasian football players, a plan that for good reasons few would seriously entertain. Even presuming that any given set of inequalities are unjust, such does not by itself indicate whether leveling up, leveling down, or some combination thereof is the appropriate response.

Thus, a number of commentators have raised significant concerns regarding the possibility that intercollegiate football is exploitative and unjust given the fact that the NCAA generates billions in revenue on the backs of (disproportionately black) players whose recompense comes in the form of athletic scholarships that are themselves plagued by grave concerns. See, e.g., Neil H. Buchanan, Race, Exploitation, and Football, http://www.dorfonlaw.org/2012/01/race-exploitation-and-football.html (last visited Jan. 21, 2013); David K. Wiggins, Strange Mix of Entitlement and Exploitation: The African American Experience in Predominantly White College Sport, 2 Wake Forest J.L. & Pol’y 95 (2012); Elisia J.P. Gatmen, Academic Exploitation: The Adverse Impact of College Athletics on the Educational Success of Minority Student-Athletes, 10 Seattle J. Soc. Justice 509 (2011); John K. Tokarz, Involuntary Servants: The NCAA's Abridgment of Student-Athletes’ Economic Rights in Perpetuity Violates the Thirteenth Amendment, 2010 Wis. L. Rev. 1501; Mickey C. Melendez, Black Football Players on a Predominantly White College Campus: Psychosocial and Emotional Realities of the Black College Athlete Experience, 34 J. Black Psychology 423 (2008); Krystal K. Beamon, “Used Goods”: Former African American College Student-Athletes’ Perception of Exploitation by Division I Universities, 77 J. Negro Educ. 352 (2008); Kathleen B. Overly, The Exploitation of African-American Men in College Athletic Programs, 5 Va. Sports & Ent. L.J. 31 (2005); Otis B. Grant, African American College Football Players and the Dilemma of Exploitation, Racism and Education: A Socio-Economic Analysis of Sports Law, 24 Whittier L. Rev. 645 (2002).

See, e.g., Alan H. Levy, Tackling Jim Crow: Racial Segregation in Professional Football (2003); Michael E. Lomax, Review Essay: The African American Experience in Professional Football, 33 J. Soc. Hist. 163 (1999).

See, e.g., M. Maria Glymour & Jennifer J. Manly, Lifecourse Social Conditions and Racial and Ethnic Patterns of Cognitive Aging, 18 Neuropsychology Rev. 223 (2008) (documenting robust connections between background environmental conditions and racial inequalities in cognitive impairments); Frank Sloan & Jingshu Wang, Disparities Among Older Adults in Measures of Cognitive Function by Race or Ethnicity, 60 J. Gerontology P242 (Series B: 2005); see also L.L. Barnes et al., Perceived Discrimination and Cognition in Older African Americans, 18 J. Int’l Neuropsych. Soc. 856 (2012); Adina Zeki Al Hazzouri et al., Life-Course Exposure to Early Socioeconomic Environment, Education in Relation to Late-Life Cognitive Function Among Older Mexicans and Mexican Americans, 23 J. Aging & Health 1027 (2011).

See supra note 133.

Everett J. Lehman et al., Neurodegenerative Causes of Death Among Retired National Football League Players, 79 Neurology 1070 (2012) (cited text on page 3 of pdf version), available at http://nflconcussionlitigation.com/wp-content/uploads/2012/09/EMBARGOED-NFL-Players-and-Death-From-ADALS-Lehman-titled-copy.pdf.

Id. at 5.

Id. at 5–6.

Ann McKee et al., The Spectrum of Disease in Chronic Traumatic Encephalopathy, Brain, Dec. 2, 2012, at 1, 1–2, http://brain.oxfordjournals.org/content/early/2012/12/02/brain.aws307.full.pdf+html.

Markowitz & Rosner, supra note 7, at 305. The following sentence reads: “Without such information Americans are dependent upon the limited and sometimes inaccurate information given to them by companies.” Id. Of course, the concussion litigation is predicated on discerning whether the NFL acted in such ways.