A note before we get into it: the research and case analysis in this post was originally compiled for a final assignment in my Sports Law seminar. The original paper ran about 20 pages and was written in full APA academic format. What you’re reading here is a heavily edited and condensed version, reworked specifically for the blog to avoid self-plagiarism. It has also been written in layman terms where I am able. This article contains discussion of degenerative brain diseases and suicide.
This article is dedicated to every athlete who has suffered, is suffering, and will suffer. You deserved better.
Here is something that infuriates me: for over a decade, professional sports leagues knew – or had every reason to know – that their players were developing a fatal brain disease. And in many cases, they didn’t just stay quiet about it. They actively funded research designed to muddy the waters, issued public statements denying any link, and used legal tools built for labor disputes to keep injured players out of courtrooms. And it mostly worked.
Chronic traumatic encephalopathy, or CTE, is a progressive neurodegenerative disease caused by repetitive blows to the head. Not just big hits that rattle players and leave them limp on the ice. Not just concussions that knock them out of play. Sub-concussive impacts too, the kind that happen on almost every single play of every single game of a professional football or hockey career. The disease causes memory loss, depression, impulse control problems, aggression, and eventually dementia. It was first identified in boxers in the 1920s under the wonderfully blunt name “punch drunk syndrome.” It wasn’t formally connected to NFL players until Dr. Bennet Omalu examined the brain of Pittsburgh Steelers center Mike Webster in 2002 and found the truth.
The NFL’s response was to challenge his findings and demand a retraction.
That tells you pretty much everything you need to know about the next twenty years of litigation.
The Three-Headed Defense
The legal argument leagues have used to protect themselves breaks into three pieces, and understanding all three is important because they work together. Pull on one and the other two are already holding the line.
The first is the duty to warn. Under tort law, if you possess knowledge of a hidden danger that someone else can’t reasonably discover on their own, you have a legal obligation to tell them. This is not a complicated concept. If you know the pool has a crack in the bottom and you rent it to someone without saying anything, you’re liable when it fails. The argument in CTE litigation is that leagues had institutional knowledge, through their own internally funded research, about the long-term neurological risks of their games, and chose not to share it with the players whose brains were bearing the cost.
The NFL ran something called the Mild Traumatic Brain Injury Committee from 1994 to 2010. This committee published studies that denied confirmed CTE in NFL players and minimized the long-term risks of repetitive hits. It did this while Dr. Omalu’s findings were already in the medical literature and while the NFL was simultaneously operating a fund to help players suffering from dementia. They publicly denied the link. They privately funded assistance for the people harmed by it.
Dave Duerson was a Chicago Bears safety who died by suicide at 50 and his brain was posthumously confirmed to have CTE. Before he died, he shot himself in the chest. Not the head. He did that on purpose, so his brain could be examined and donated to the NFL’s CTE research. He left a note requesting it, using his last written words to say “Please, see that my brain is given to the NFL’s brain bank.”
Junior Seau, the San Diego Chargers linebacker, did the same thing two years later, shooting himself in the chest so that his brain could be studied. Two men, in their final moments, understood what had happened to them well enough to preserve the evidence. The league they played for was still publicly denying the link.
The NHL is not meaningfully different. As recently as 2022, NHL Deputy Commissioner Bill Daly responded to a peer-reviewed study by fourteen experts confirming a link between hockey-related head trauma and CTE by saying, essentially, that one study doesn’t determine the league’s view on things. This is a sentence said by a person who works for a league that in 2018 paid $18.9 million to settle a class action brought by more than 100 former players who said the league failed to warn them while actively marketing the violent play that caused their injuries.
The second defense is preemption. This one is the most legally technical but also probably the most consequential. Under Section 301 of the Labor Management Relations Act, state law tort claims that are “substantially dependent” on the interpretation of a collective bargaining agreement have to be resolved through the CBA’s grievance and arbitration process rather than in civil court. Professional sports leagues have CBAs. Those CBAs address player health and safety. So when a former player files a negligence claim arguing the league failed to protect him, the league says: this is a health and safety question, health and safety is in the CBA, therefore you need to go to arbitration, not court. A player will spend his career in scrums but his estate will not be allowed in court. “Justice” for the victim is only allowed to be found in a system negotiated and controlled by the defense.
The case of Derek Boogaard is the clearest example of what this looks like in practice. Boogaard was an NHL enforcer who died of an accidental drug overdose at 28 after years of documented head trauma. His brain showed significant CTE. His estate brought claims against the NHL and the court found that every state tort claim was preempted by the CBA and sent everything to arbitration. A man whose brain was destroyed in service of a product the NHL sold to the public could not get his case heard in a civil court.
The third defense is assumption of risk. This is the one that gets invoked most readily and sounds the most common-sense: you chose to play a contact sport. You knew contact sports involve getting hit. You assumed the risk. A 2024 California appellate decision in Gee v. NCAA applied exactly this logic to a collegiate football player, finding that the risk of repetitive head trauma and its neurological consequences was inherent to the sport itself.
The problem with applying that logic to professional players suing over CTE is that assumption of risk requires actual knowledge of the specific risk being assumed. You can’t assume a risk you were never told about. If leagues were actively working to ensure that players did not have accurate information about what repetitive brain trauma does over a career, and the evidence strongly suggests they were, then players who continued playing were not doing so with full knowledge of what they were signing up for. They were doing so with the version of reality the league had constructed for them.
Where Things Stand Now, And Why It Matters
The NFL’s concussion litigation eventually settled for over a billion dollars. The NHL’s settled for $18.9 million. Neither settlement required any admission of liability. The underlying legal questions were never fully resolved. The leagues walked away without a definitive ruling on whether they had a duty, whether they breached it, whether preemption applied the way they claimed, or whether their players could actually be said to have assumed a risk the leagues had spent years concealing from them.
That legal equilibrium is now under pressure from a few different directions.
In 2022, the National Institute of Health (NIH) formally revised its guidance on CTE to recognize a causal relationship between repetitive traumatic brain injury and the disease. The CDC had already done this in 2019. This matters enormously because leagues spent years telling courts, and players, that the science was unsettled. Regulatory bodies like the NIH are exactly the kind of institutional authority courts rely on when assessing what a reasonable organization should have known and when. The argument that the causal link was scientifically uncertain is now much harder to make when the NIH says otherwise.
There’s also a 2014 case called Green v. Arizona Cardinals Football Club that established something important: a duty to warn can arise from common law, from the general obligation not to expose someone to a known hazard you’ve concealed, independently of anything the CBA says. If a court doesn’t need to interpret the CBA to resolve the duty question, preemption doesn’t apply.
The assumption of risk doctrine is also being tested. Courts in different jurisdictions are actively working through the question of whether CTE’s neurological risk is truly inherent to contact sports or whether it’s an extrinsic risk (one created or magnified by the leagues’ choice to suppress what they knew). If it’s the latter, assumption of risk doesn’t protect the leagues from the harm that concealment caused. You can’t invoke voluntary acceptance of a risk as a defense to fraud.
And then there’s the diagnostic question. Right now, CTE can only be confirmed post-mortem. You have to be dead and have your brain examined. This has made every major lawsuit so far complicated because plaintiffs can’t produce a definitive diagnosis. They’re working from symptoms, cognitive testing, and documented exposure history. Research into blood-based biomarkers and tau PET imaging suggests that may change. When a living person can walk into a courtroom with a confirmed CTE diagnosis, supported by twenty years of documented exposure and evidence of institutional concealment, that case looks very different from anything that has been fully litigated so far.
The leagues should bear a greater share of the long-term health costs of this disease. I know that’s not a hot take to the general person but it’s the reality of the court system that they don’t have to. But it’s what the duty to warn doctrine was designed for, allocating the costs of latent hazards to the party best positioned to prevent them. The leagues had the research capacity, the financial resources, and the regulatory influence to understand what repetitive brain trauma does to human beings long before they acknowledged it publicly. The choice not to disclose it was not an innocent failure of knowledge. It was a decision. And it had a financial logic to it.
The legal system hasn’t fully caught up to that yet. But it’s getting closer.
There is a kind of grief that comes with being a hockey fan who carries this knowledge.
It doesn’t go away when the puck drops. If anything it gets worse. You watch a guy take a hit into the boards and you feel it differently now, not just the wince, not just the breath you hold until he gets up, but the longer math of it. The accumulating weight of every shift, every fight, every head that snaps back on a clean check that nobody even calls. The game keeps moving. The clock keeps running. And somewhere in the back of your head you know that the body that just got up and skated to the bench is carrying something that won’t show up on any medical report for another thirty years, if it shows up at all.
That’s the thing about CTE. It’s cumulative. It builds. Quietly, incrementally, in the dark of a brain that looks fine on the outside and is deteriorating on the inside. By the time there are symptoms, the mood swings, the memory gaps, the depression that doesn’t respond to anything, the damage is already done. And right now, the only way to confirm it is after death. So you watch these men play and you cheer and you love them and you know that some percentage of them are already living inside a timeline that ends short.
Hockey players are warriors. They play through things that would end most people’s seasons, most people’s careers. They tape up injuries and get back on the ice because that’s who they are and that’s the culture they were raised in. But being a warrior is a choice. Being a martyr is what happens when the people responsible for your safety decide that their liability exposure matters more than your brain.
These men were not given the full picture. They were handed a version of the sport’s risks that the leagues had carefully curated to protect themselves, and they made decisions based on that incomplete information, and now some of them are living with the consequences and some of them are not living at all. That is not a tragedy that happened to the leagues. It’s a tragedy that happened to the players that the leagues had the power to prevent and chose not to.
I still love this sport. I don’t think loving it requires pretending any of this isn’t true. It requires sitting with the discomfort of both things being true, that hockey is one of the most beautiful, communal things I have ever given my heart to, and that it has broken and will break the people who play it in ways the law is only beginning to reckon with.
The least we can do is know that. The least we can do is say it out loud.
All case citations and claims made here are supported fully with citations that are from the original academic paper. If you want the full reference list, slide into my DMs and I’ll send it over.
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