Concussion and brain injuries in sport: conceptual, ethical and legal perspectives

ABSTRACT

This special issue examines critical ethical, legal, and policy debates surrounding brain trauma in sport, focusing on challenges in concussion management practices and protocols. Brain injury concerns extend beyond traditional contact sports like boxing, encompassing sporting activities involving rapid acceleration, deceleration, and surface impacts, such as cycling and equestrian sports. Among such problems are the identification and management of brain injuries, the roles of officials and healthcare professionals, and the broader implications for sport integrity and athlete careers. The special issue is organized into four sections: ethics of concussion medicine, socio-legal aspects, sport ethical dimensions, and public health policies. Contributions discuss concussion management in youth sport, sport federations’ and athletes’ duties involvement in concussion-related research, strategies to support and enhance athlete autonomy, public health-informed brain injury frameworks, conflict of interest in concussion management protocols, litigation and liability in concussion research and collaboration, race and genomics in brain-injury scientific discourses, rule changes in sport to reduce head impact, the contextual nature of brain injury and athlete decision-making, the ethical use of genetic testing in brain-injury related research, marketing strategies to advertise tackle football to children and adolescents, and policy purposes and evidence underpinning concussion management practices. This comprehensive exploration offers diverse disciplinary insights, making it a crucial resource for sport humanities scholars, policymakers, and medical professionals. Keywords: brain injury, sport ethics, concussion, sport law, sport policy.

KEYWORDS:

• Concussion
• legal
• medico-scientific
• social
• sport

The emergence of ethical, legal, policy, and medico-scientific discussion around brain trauma in sport, and specifically concerning the problems orbiting athlete concussion, has been one of the most prominent problems in sport medicine and what are referred to colloquially as contact and collision sports. The problems are not confined, pace public opinion, to those sports where dramatic but permissible head contact is an everyday occurrence, such as boxing and martial sports, but also those in which the brain is—with or without being struck—compromised by rapid acceleration and deceleration, or where the head more generally comes into contact with other solid surfaces, such as playing environments, and even in falls such as within equine sports or cycling. The list of sports where athletes are at risk of brain injury—within the constitutive rules of those activities—is thus more comprehensive than might initially be thought.

The problems surrounding the identification of brain trauma on and off the field of play, the management of such trauma, and the interventions by officials or healthcare professionals are deeply contested. In some cases, the effect has been thought to jeopardize some sports themselves, impede the careers of athletes therein, and/or compromise the integrity of healthcare providers and researchers who work in the sporting and research spaces. A key response to the range of problems has been the development of global concussion consensus statements that seek to guide healthcare providers, athletes, and broader stakeholders in sport to make evidence-based decisions around care in removal from play. Such a laudable goal has not been without controversy, as the authors of this volume demonstrate. They explore a broad range of associated conceptual, ethical, and legal dimensions of brain injuries in sport, revealing the complex range of disciplinary insights into this key contemporary ethics issue for sport humanities scholars, sport administration, management, and policy specialists. The contributions are divided into the following four sections: ‘I. Ethics of concussion medicine and science’, ‘II. Socio-legal aspects of concussions’, ‘III. Sport Ethical Dimensions’, and ‘IV. Public Health Policies and Considerations’.

The volume begins with Taryn Knox, Alexander Gilbert, and Lynley Anderson’s (2024) essay ‘Concussion Management in Pediatric Patients—Ethical Concerns’, which explores the ethical implications of contact and collision sports where concussions and other head injuries are likely to occur. They specifically consider whether children and adolescents, due to their greater physiological vulnerability to such injuries, should be allowed to play such sports or, put differently, if parents should allow their children/adolescents to partake in those sports. Drawing on the precautionary principle, they argue that restrictions based on the occurrence of sport-related concussions may be justifiable. To further examine the nature and justification of such restrictions, Knox, Gilbert, and Anderson critically examine the ‘best interests’ and ‘right to an open future’ frameworks prevalent in childhood ethics. Drawing on the latter—that is, on the possibility that SCR negatively impacts children and adolescents’ futures in significant ways—they argue that a blanket ban on their participation in contact and collision sports is excessive. Instead, they advocate examining these questions on a sport-by-sport basis by balancing benefits and harms.

In ‘The Responsibility of Sports Federations to Facilitate and Fund Concussion Research and the Role of Active Participant Involvement and Engagement’, Søren Holm (2024) analyzes sport federations’ obligations to support and facilitate such investigations and athletes’ active role in them. Departing from the identification of a need for more research into the prevention, management, support, and treatment of concussions and other potential long-term injuries in sport, Holm explains that lack of funding is particularly concerning when public agencies are involved, for such injuries are typically considered a major public health issue. Holm examines reasons why sport federations, understood as publicly-funded organizations that oversee sport, should be obliged to devote greater funds to these investigations. From a pragmatic standpoint, better prevention and treatment policies could sustain or increase future participation. From an ethical perspective, Holm highlights that the federations’ ethical duty of care toward athletes is part of the reciprocity of relations between federations and participants. Concerning the former, he explains that while federations are not obliged to revise sports in order to make them concussion-free, they must nevertheless engage with the issue and find ways to reduce its incidence without compromising the identity of the sport itself. With regard to athletes, they must provide the social environment that sustains the sport. This reciprocity generates the moral obligation for federations to support concussion research, ensuring it benefits participants. In turn, active participants, including athletes and parents, should be integral partners throughout the entire process. This includes not only the inception of the research to its publication but also the creation of appropriate interventions. Holm bases his position on epistemic grounds, emphasizing the unique perspectives and knowledges of the parties involved, along with ethical arguments regarding their direct interest in the research results.

Thomas Schramme’s (2023) ‘Scaffolding Athletes’ Choices and Performance in Risky and Uncertain Circumstances’ seeks to develop strategies that address the risk of brain injury in collision and contact sports while preserving athlete autonomy. These strategies focus on improving athletes’ decision-making in situations with uncertain long-term implications to the detriment of solutions that require drastic measures, such as banning sports or altering their fundamental nature through rule changes. According to Schramme, enhancing player autonomy can be achieved through scaffolding, which involves developing external supporting structures that help maintain a sufficiently high level of personal autonomy. In particular, he proposes enhancing the information available to athletes when making decisions (e.g. clarifying the distinction between quantifiable risks and uncertain risks), developing heuristics to enable athletes to make more informed decisions (e.g. natural frequencies of potential long-term harm), and fostering a deeper appreciation for the significance of health throughout one’s life. Besides these decision-making capacities, he also suggests scaffolding athletes’ performance (i.e. athletic capacities) to help them prevent brain injuries (e.g. improving athletes’ skills to avoid collisions by predicting their opponents’ actions in joint activities). To conclude, Schramme recognizes that his proposal is only an initial attempt and calls for additional interdisciplinary research to identify the most effective and preferable scaffolds.

Dominic Malcolm’s (2024) essay, ‘Sport, Neurodegenerative Illness and the Social Determinants of Health’ opens up Section II, on the socio-legal aspects of concussions in sport. He presents a framework of the Social Determinants of Health (SDOH) in order to challenge the dominance of bio-determinist views of the connections between concussions and neurodegenerative conditions in athletes. Malcolm shows that the concussion debate is increasingly influenced by neuro-essentialist tropes, that is, by the notion that neuroscience is the key to explaining behavior and social identity. In the case of sport-related concussions, in reviewing the debate on the causal relationship between repetitive head impacts (RHIs) and chronic traumatic encephalopathy (CTE), Malcolm notes that, while some argue that there is strong causal evidence, others remain unconvinced by this evidence. When reviewing this literature, Malcolm identifies limitations in both autopsy studies (e.g. selection bias) and epidemiological studies of neurodegenerative conditions in athletes to critique neuro-reductionist tendencies among biomedical analyses of CTE. While research on injury mechanisms is valuable, neuro-essentialist and bio-reductionist paradigms obscure the root causes of neurodegenerative conditions. To broaden the scope of current understandings of brain injury in sport, Malcolm calls for a biopsychosocial framework. In particular, he proposes identifying the social determinants of athlete brain health, including education, employment, environment, health services, housing, and income/wealth. From this sociocultural vantage point, he advocates for structural solutions targeting the organizational, medical, and social dimensions of sport to address the apparent increase in neurodegenerative conditions among elite athletes.

In ‘Addressing Conflicts of Interest in the Consensus Statement on Concussion in Sport: A Proposal to Increase Transparency by Requiring Authors to Provide a Reflexive Explanation, Not Simply a Declaration, of their Competing Interests’, Brad Partridge (2024) discusses issues connected to conflict of interest declaration practices in concussion management protocols. Specifically, he questions the Concussion in Sport Group’s (CiSG) current practice of merely declaring (but still tolerating) competing interests. This practice is morally problematic for two reasons: (1) it fails to remove the conflicts of interest; and (2) it does little to guide readers in properly assessing the nature, extent, and impact of the declared competing interests. As an alternative, the author sets out a novel proposal to increase the transparency of future Consensus Statements. He argues that authors should be required to utilize the process of reflexivity within qualitative research to offer an explanation (not just a statement) of their conflicting interests. This involves describing why disclosed third-party interests constitute competing interests and illuminating how they may impact the authors’ subjective interpretation of the evidence on concussion sequelae and management, as well as their subsequent recommendations. In his conclusion, he suggests that if the CiSG wants to maintain trustworthiness despite having many competing interests, then they should be worried if readers cannot evaluate their trustworthiness.

David McArdle and Anne L. DeMartini’s (2024) ‘Litigation and Liability in Concussion Research and Collaboration’ examines two legal frameworks relevant to the broader medical, ethical, and interdisciplinary discussions around prevention, mitigation, and restitution for sport-related concussions (SRC), namely: common law principles and statutory provisions. After explaining common law principles governing personal injury litigation through court cases in England and Wales and statutory schemes related to concussion liability through cases of youth players in the United States, the authors identify obstacles in establishing liability for SRC injuries due to the specific characteristics of concussions, and the legal, factual, and evidentiary complexities involved. Consequently, they outline alternative means for concussion prevention and mitigation, such as no-fault compensation schemes, mandatory personal injury insurance for participants, and the widespread adoption of effective and nuanced concussion protocols. They propose that these alternatives merit careful consideration by sport federations and governments in other countries since they are likely a more pragmatic way forward than the far more challenging route of radical legal reforms. To conclude, McArdle and DeMartini hold that, whatever alternative solutions are considered, they will demand interdisciplinary research that incorporates legal scholarship to gain insights into how stakeholders’ perceptions and engagement with protocols vary based on their socioeconomic status, risk perceptions, and aspirations.

In ‘Uses and Abuses of the Concept of Race in Genomics of Sport Performance and Sport-Related Traumatic Brain Injury: Epistemological and Ethical Considerations’, Ludovica Lorusso and Silvia Camporesi (2024) launch Section III, centered on sport ethical dimensions, by exploring the conceptual, epistemic and ethical issues surrounding the widespread use of ‘race’ and other population descriptors in sport and concussion-related research. Although geneticists have sought to identify performance-related genes that may contribute to sport-specific physical and physiological traits, the authors claim that using race as a proxy for innate genetic characteristics that may predispose certain racial groups to excel in specific sports, or highlight their vulnerability to traumatic brain injury following repetitive head impacts, is epistemologically and ethically unjustifiable. The concept of ‘race’, they argue, is no more than a catch-all term for genetic, physiological, psychological, and socioeconomic factors. Moreover, they emphasize that ‘self-identified racial identification’ as a proxy for sports-related genotypes is not only epistemically unacceptable but also serves to reinforce the problematic concept of biological race, leading to stereotype threats, perils of early intervention programs, and the reinforcement of unhealthy habits. Thus, they propose focusing on variables like socioeconomic status, cultural factors, lifestyle behaviors, education, perceived discrimination, and comorbidities to determine risk factors and investigate underlying biological mechanisms. In their view, only by clarifying that the constraints placed on individuals originate from society, not biology, can systemic racial injustice and inequality be eradicated.

Sigmund Loland (2024), in ‘Sport-Related Concussion (SCR) Prevention and the Nature of Sport: Possibilities and Limitations’, proposes a consequentialist ethical framework (i.e. weighing the efficiency of preventive concussion measures against their costs) to determine the conditions under which athlete exposure to SRC risks should be regarded unacceptable, acceptable, or even valuable. Building upon Alasdair MacIntyre’s notion of ‘social practice’, which has been heavily influential in sport ethics, Loland focuses his analysis on potential modifications to the core or constitutive rules of sport. For him, this analysis benefits from incorporating non-quantifiable intrinsic values of collision and combat sports, such as the experiential qualities of joy and challenge, excitement, community bonding, as well as a sense of rivalry, and weighing them against health- and wellbeing-related aspects. This contrasts with most SCR-related recommendations and analyses, for they tend to leave the nature of sport untouched, focusing only on biomedical elements to establish when to permit or restrict the participation in a sport of individuals who suffer from a head injury. For Loland, these measures address the symptoms, not the problem. Loland sets out a tripartite norm formulation to evaluate SRC risks: (1) SRC-preventive constitutive rule changes are acceptable if they align with the sport’s standards of excellence and internal goods or support developments that help the sport flourish; (2) SRC-preventive constitutive rule changes become problematic when they challenge current standards of excellence and internal goods or seem to diminish them; (3) SRC-preventive constitutive rule changes are unacceptable if they remove or lessen SRC risks integral to the sport’s standards of excellence and internal goods. An important implication of this proposal is that it requires athlete involvement. In particular, it needs the development of open and critical deliberation within sporting communities to ensure that solid understandings of a sport’s standards of excellence and internal goods SCR-related policies are informed.

In ‘Autonomy, Relationality, and Brain-Injured Athletes: A Critical Examination of the Concussion in Sport Group’s Consensus Statements between 2001 and 2023’, Francisco Javier L’ópez Frías and Mike McNamee (2024) critically evaluate the development of the CiSG’s six Statements up to date by drawing on insights from medical ethics generally and, more specifically, frameworks of relational autonomy. In doing so, they elucidate the challenges that contextual forces pose to developing effective and devise recommendations for crafting ethically justifiable medical guidelines for managing brain-injured athletes. The authors first uncover the implicit and explicit ethical framework and goals underlying the Consensus Statements. Secondly, drawing on a relational account of athlete choice, they critically assess the identified framework, concentrating on those resulting from a simplified understanding of athlete autonomy. In doing so, they identify key areas where the protocols fall short, particularly the understanding of athlete autonomy, the influence of conflicting interests, and the sensitivity to contextual aspects. Building upon this assessment, they formulate four recommendations crucial not only for increasing the effectiveness of concussion management but also for aligning these practices with principles of medical ethics and nuanced views of (relational) autonomy: (1) adopting a broader understanding of autonomy built upon relational accounts, beyond traditional dyadic healthcare professional-athlete relationships; (2) further minimizing conflicts of interest that increase athletes’ vulnerability and hinder decision-making ability; (3) enhancing healthcare professional training to allow better adjustment of treatment plans to athletes’ contexts; and (4) promoting research on sociocultural elements affecting athletes’ autonomy and vulnerability.

Section IV, on public health policies and considerations, begins with Tatiana Spitsyna and Pascal Borry’s (2024) ‘Ethical Concerns in Integrating Sport-Related Concussion (SRC) Genetic Testing into Return-to-Play (RTP) Protocols’, which raises the question of whether genetic tests should be used to guide concussion management practices and protocols, especially those concerning return-to-play decisions. Their essay explores the clinical and ethical aspects of concussion genetic testing and its potential integration into return-to-play protocols, challenging the widespread belief that genetic testing, particularly involving Apolipoprotein ε4 (APOE4)—a genetic variant of the APOE gene affecting lipid metabolism and brain repair—can determine the severity and long-term effects of brain injuries. Specifically, Spitsyna and Borry raise the following concerns. First, genetic variations are not the only risk factor for developing diseases after concussions; non-genetic factors like injury history and age also play a role. The relationship between APOE4 and disease risk is complex, and its precise impact after a concussion is unknown, requiring further research. Secondly, APOE4 testing raises concerns about incidental findings, potentially revealing other gene variants indicating higher risks for neurological and cardiovascular diseases, causing anxiety and emotional distress without proper counseling and consent. Third, testing can psychologically impact athletes, jeopardizing their careers, financial stability, and future. Additionally, it can infringe on their dignity and potentially lead to discrimination based on genetic information. Thus, they conclude that although genetic testing may provide insights into concussion outcomes, it is unlikely to be a stand-alone diagnostic tool and must be used alongside other clinical information. Instead, return-to-play decisions should be based on a comprehensive clinical evaluation that considers patient, injury, sport-specific, and sociocultural factors. In addition, it must involve a multidisciplinary team with expertise in sport and traumatic brain injuries.

Kathryn Bachynski and Asher Clissold’s (2024) ‘NFL’s Dangerous Strategies of Marketing Football to Youth: Shades of Big Tobacco’ critically examines the National Football League’s (NFL) advertising strategies to target children and adolescents by comparing these efforts with the tactics the tobacco industry employed to reach that consumer population. They argue that both the NFL and the tobacco industry used deceptive marketing techniques to entice youth to consume pleasure-producing products with detrimental health effects—although, unlike the tobacco industry, the NFL has evaded legal restrictions on promoting its product to young people. Bachynski and Clissold focus on a notable strategy: the NFL’s collaboration with Nickelodeon (and Disney+) to produce television programs, such as NFL Rush Zone, that target young people through cartoon mascots, bright colors, and child-friendly symbols, promoting positive associations between tackle football and beloved animated characters while minimizing the risks of tackling. For the authors, these strategies are problematic because of their deceptive character: they deflect public attention away from the risks of repetitive head collisions, concussions, traumatic brain injury (TBI), and CTE, portraying football as an attractive and, at times, beneficial physical activity. The portrayal of tackle football using these strategies leads to the sport being associated with positive perceptions and values, while the substantial risks resulting from repeated, full-body collisions are downplayed. Consequently, the authors conclude their article with a series of recommendations: (1) Tackling should not be marketed to young children due to its significant risks; (2) Since self-regulation by industries is inadequate, stronger regulations are required to prevent deceptive advertising that downplays risks to children; (3) Such regulations must prohibit the ‘cartoonizing’ or celebration of dangerous impacts in broadcasts aimed at children; (4) Announcers should be trained to report on concussions and brain injury risks more accurately; and (5) The NFL should ultimately promote flag football or other non-collision alternatives in media targeting young children.

The volume closes with ‘Informing Evidence-Based Policy for Sport-Related Concussion: Are the Consensus Statements of the Concussion in Sport Group Fit for this Purpose?’ by Mike Weed (2024). This article examines the development of evidence-based policy for SRC by focusing on the Consensus Statements of the CiSG. In his essay, Weed explores the policy purposes and evidence underpinning the Consensus Statements. He identifies three potential policy purposes: (1) mitigating acute SRC impacts; (2) reducing/eliminating known SRC causes like direct blows to the head/neck/body; and (3) improving athletes’ long-term brain health outcomes. Weed argues the Consensus Statements predominantly focus on the first purpose of treating acute symptoms, especially among elite and professional athletes, while neglecting stakeholder concerns about long-term effects and preventive rule changes. He also contends that while the Statements provide robust evidence for recommendations on recognizing and treating acute SRC symptoms in elite/pro settings, there is a lack of implementation evidence for youth/recreational levels. Furthermore, no recommendations are made for treating potential long-term brain health issues, as the link between SRCs and such outcomes is questioned due to imperfect evidence. Weed posits that instead of downplaying these concerns, the CiSG should shift its primary policy purpose to address the identified causes of SRC directly. In this sense, the Consensus Statements give limited attention to rule modifications that could reduce or eliminate purposeful head/neck/body impacts inherent to how some sports are played, even when discussing prevention strategies. Weed concludes that the Consensus Statements should prioritize recommending rule changes that remove impacts causing SRCs. This would better safeguard child/adolescent and recreational athletes, render debates about SRC-related long-term effects superfluous, and align with stakeholder priorities by co-producing legitimate, evidence-based SRC policy by addressing the root causes.