On December 17, 2009, Cincinnati Bengals wide receiver Chris Henry was tragically killed in an automobile accident. When researchers performed an autopsy on his brain, they discovered that Henry suffered from Chronic Traumatic Encephalopathy (CTE), a disease associated with repeated traumatic head trauma. CTE is strongly associated with later-life brain deterioration, especially dementia. Such a finding in Henry’s brain shocked researchers for two reasons. First, Henry was only twenty-six years old at the time of his death. Prior to the Henry case, CTE was found only in much older football players’ brains. Second, Henry had never reported a head injury or concussion during his four years of active play in the National Football League (NFL), or during his years at West Virginia University.
The finding of CTE in Henry’s brain has added to an increasing concern among medical professionals and NFL players over the link between concussions and cognitive decline. A handful of former players have already been diagnosed with CTE, and scientific studies have been published linking NFL-related head trauma with dementia. The NFL’s policy regarding concussion safety is under intense criticism from many fronts. Seemingly every week, a fresh news story breaks about concussions in football. Considering the impact of the new collective bargaining agreement between the NFL and the Players’ Association signed in 2011, this development is certainly one of the more significant and polarizing issues in the world of American professional sports.
This Comment examines the feasibility of a retired professional football player’s workers’ compensation claim against the NFL for dementia resulting from head injuries sustained while playing football. Such a claim will be novel in United States workers’ compensation history, but an initial representative suit has already been filed in California and is awaiting hearing. Although such a case seems extraordinary, given the typical workers’ compensation claim, this Comment will show that a professional athlete who suffers head injuries during his employment with the NFL can, and should, be entitled to workers’ compensation.
Part II provides an overview of the basic concepts in workers’ compensation that will be addressed in a retired professional athlete’s dementia claim. Part II.A reviews the purposes and function of workers’ compensation, how state statutory systems can affect professional athletes’ claims, and the procedural limitations which may function as a check on dementia claims. Part II.B discusses current studies and cases that either show, or refute, a causal link between NFL head injuries and later-life cognitive impairment. The fierce battle between independent medical researchers, NFL-sponsored scientists, and the official NFL disability plan is of particular importance. Lastly, Part II concludes with a brief glance at the pending California workers’ compensation case for dementia against the NFL.
Part III offers an argument for the success of a retired professional athlete’s workers’ compensation claim for dementia. Part III.A focuses on how athletes can overcome the seemingly difficult burden of proving causation between decades-old concussions and current symptoms of dementia. Part III.B promotes a flexible classification of dementia—as either a discrete injury or an occupational disease—in order to promote the inclusion of the broadest range of claimants. Part III.C challenges notions that professional athletes should not be covered by state workers’ compensation. Part III.D advocates for the recognition of future medical expenses as reasonable compensation. Part III.E draws attention to the inadequacies of the NFL disability plan to deal with retired professional football players suffering from dementia. Finally, Part III.F refutes meritless equitable arguments that the NFL may make in order to avoid liability.