Concussions, the N.F.L., & the Manufacture of Doubt


A new article of mine is out in the Journal of Legal Medicine entitled “Mild Traumatic Brain Injury, the National Football League, and the Manufacture of Doubt: An Ethical, Legal, and Historical Analysis.”  I’ve written on the subject before, but in case anyone is interested, here is the Abstract of the current paper:

This paper integrates legal, historical, and ethical approaches in analyzing the National Football League’s conduct regarding the risks its players face of experiencing concussions and the long-term neurodegenerative pathologies to which such injury is linked.  Given that millions of children and adolescents play American football, and that the NFL concedes its behavior is a strong determinant of football culture, concussion issues are crucial matters of population health.  Examining over 500 pages of testimony generated during Congressional hearings in 2009 and 2010, the paper links claims issued by leading NFL representatives to past efforts by industrial actors to manufacture doubt.  The paper therefore argues that the history of public health is crucial to framing just public health policy in the present.  The paper applies two frameworks drawn from public health ethics to argue first that a robust process of public reason is stymied by the NFL’s insistence on privately holding information relevant to its attitudes, practices and beliefs regarding concussions, and second, that the unequal distribution of ‘football prevalence’ exposes already disadvantaged groups such as African-Americans to higher risks of concussions and neurological disease.  The paper concludes that this latter possibility may contravene mandates of social justice, and, if so, would be ethically suboptimal.

I find the issue of the “manufacture of doubt” in context of industrial harm ceaselessly fascinating, although I admit this has something to do with being an historian and having practiced mass-tort defense.  The ways in which we understand and interpret risk, in which evidence and expertise is mobilized as both the sword and the shield by multiple stakeholders, and, of course, major issues in population health are all at play, no pun intended.

One of the crucial arguments to which I am committed is the idea that the risk of mTBI inheres in football play.  There is consensus among concussion scientists that the evidence that helmets reduce the risk of mTBI is extraordinarily weak, and we have similarly weak evidence that rule changes can significantly reduce incidence or severity.  So we have a real problem, one that is very unlikely to be solved by technical advances (like most population health problems!).

I think it is especially important to understand that issues of mild traumatic brain injury (“mTBI”) are really population health problems.  The details of the NFL concussion litigation are in an important sense a private employment dispute between currently well-compensated employees (which is not remotely to suggest that the amount of their compensation is relevant to the merits of their claims).  But American football is an enormously popular sport in the U.S.; conservative estimates suggest that anywhere from 5-10 million children and adolescents currently play it.

Should 10-year-olds be permitted to play football? And who should decide? Parents Regulators? After all, we permit children to do all sorts of dangerous things (e.g., skiing), and it is not clear why football should be regarded differently.

In addition, it is crucial to consider the larger determinants that structure risks of traumatic brain injury in the overall population, and that render some groups much more likely to experience it than others.  Because African-Americans are disproportionately represented in American football, and because the risks of mTBI inheres in play, we would predict ceterus non paribus that already-significant inequalities in TBI prevalence will only expand in the future.  Is this simply a neutral statistical consequence of football prevalence among different demographic subgroups, or is said prevalence connected to material and structural background disadvantages African-Americans disproportionately experience in the U.S.? And if the latter is relevant, do historical pathways of oppression and structural violence become morally significant?

Anyway, the article covers a lot of ground – maybe too much, admittedly – but there’s a dizzying array of questions relevant to population health.

[Disclaimer: I am not involved in this, and the views expressed here are entirely my own.]

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