By Libby White
Concussions have been problematic in the sports world for decades, with an estimated 3.8 million occurring every year. A concussion is a type of traumatic brain injury caused by a “bump, blow, or jolt to the head or by a hit to the body that causes the head and brain to move rapidly back and forth.” Repeated and improperly treated concussions subject individuals to various risks, including post-concussion syndrome (PCS), the persistence of concussion symptoms beyond the normal recovery period,  chronic traumatic encephalopathy (CTE), “[a] progressive neurodegenerative disease caused by repetitive trauma to the brain” that can only be diagnosed postmortem, and various mental health issues, such as difficulty controlling emotions (“mood swings”), anxiety, depression, and temper outbursts and irritability.
Concussions compose the majority of head injuries in hockey. While helmet usage has decreased the severity of brain injuries such as subdural and epidural hematomas and fatalities associated with skull fractures, in the National Hockey League (NHL), the concussion rate is ever-increasing. This leads to the question of what the NHL can do to solve this concussion crisis. Although concussion protocols are in place by the league, the NHL is still too lax in enforcing protocols and taking the issue as seriously as it should in order to sufficiently protect its players. Because of current advances in technology, there are better and more efficient ways than its current concussion protocols for the NHL to detect and monitor concussions sustained by players.
The NHL has faced criticism for how it handles head injuries despite the rules, studies, and player committees that have been formed to enhance player safety, including from former players. In late 2018 over 300 former NHL players filed a lawsuit against the NHL, alleging that the league is responsible for the “pathological and debilitating effects of brain injuries caused by concussive and sub-concussive impacts sustained during their professional careers.” They argued that they signed up to play hockey knowing they may be “injured and dinged, but they did not sign up for avoidable brain damage.”
They alleged the NHL knew or reasonably should have known these head impacts were likely to expose players to increased risks of developing neurodegenerative diseases and conditions and had a duty to advise players of this; yet the NHL willfully and intentionally concealed information, causing plaintiffs to disregard the risk and ultimately recklessly endangering them. The NHL admitted to no fault or wrongdoing in the injuries sustained by the former NHLers.
The National Football League (NFL) faced a similar problem with concussions but, unlike the NHL, has been working toward tackling the problem head-on to ensure its players are better protected. The NFL recently formed the Head Health Initiative that is aimed at diagnosing and treating head injuries quicker and more accurately, has invested $200 million in concussion research, and started a 2016 initiative to increase the safety of the game by preventing, diagnosing, and treating head injuries, including providing $100 million in support of engineering advancements and medical research.
The NHL should follow in the NFL’s footsteps to start forming solutions to the concussion problem before it gets out of hand. Current concussion protocols and rules can be ineffective in practice. If the NHL wants to effectively protect players from concussions and their lasting effects, a more effective way of doing so is by implementing concussion detection and monitoring technologies into the league’s protocol. If not, the league risks being held liable for not doing everything reasonably possible to protect its players.
Studies demonstrate that symptom monitoring increases awareness of concussions’ impacts on individuals and assists in the treatment and impact of them. Technologies are being developed that can aid in concussion detection and concussion monitoring that can make current concussion protocols more effective. A few promising technologies include the BrainScope and EQ Active Brain Performance Elite (EQ Elite).
The BrainScope provides an “objective, quantitative, and comprehensive assessment for presenting head injury that can be performed quickly . . . .” This user-friendly disposable headset uses multi-parameter capabilities to help physicians make confident decisions based on objective, physiologically based information to be used within 3 days of mild head injury. It works using a quick, three-step process that includes an EEG measurement, cognitive performance tests, and a digitized concussion assessment that is variable based on the assessments completed by the athlete.
The BrainScope effectually helps monitor symptoms post-concussion. It’s Brain Functional Index (BFI), one of the device’s functional injury assessments, helps to determine the presence and severity of brain function issues that result from concussions. Additionally, the neurocognitive tests and standardized assessments included within the BrainScope serve as supplemental ways of monitoring concussion symptoms in the long-term. When players and doctors know if symptoms have actually subsided based on the results of these tests and assessments, individuals are less likely to return to gameplay before they are ready. This reduces the potential for concussions to negatively impact them in the long-term.
The EQ Elite is the world’s first mobile and FDA-cleared neurological assessment tool that functions as a brain testing and assessment platform. It works by measuring and delivering comprehensive data related to dynamic brain function based on games and tests that can be done anywhere and at any time. The app is composed of seven games testing cognitive, balance, and visual functions of the brain and establishes a picture of an individual’s neurological performance with ongoing data.
Given technologies exist that would better protect NHL players from concussions and their lasting effects, the NHL’s failure to implement devices into their current concussion protocol could lead to potential violations of the Occupational Health and Safety Act of 1970 (OSHA) and require involvement of its enforcers. As the NHL players’ employer, the league is under a professional obligation to ensure players can participate in practices and games free from hazards (save for those included under primary assumption of risk); specifically, those risks and dangers associated with sustaining undiagnosed and/or multiple concussions.
Under OSHA guidelines, “[p]rotective equipment . . . shall be provided . . . wherever it is necessary by reason of hazards . . . encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.” “Protective equipment” could include technology used by the NHL in their concussion protocols to better detect and monitor concussions if and when they occur because the technology would be implemented by reason of hazards capable of causing injury and impairment, namely, concussions and the various diseases that can occur as a result of them.
Jon Hyman presented a relevant analogy in his article Can (or Should) OSHA Regulate the NFL?, which could also apply to the NHL. Hyman analogized the NFL’s lack of concussion protection to that of the coal industry’s ignorance regarding black lung disease, more or less questioning if it had to take a death on the field of play for the NFL to actually get involved and recognize the concussion crisis that was plaguing its league, as it took the death of coal miners for the industry to realize the dangers these individuals were facing in their daily work. The same can be said for the NHL.
The as the players’ union and collective bargaining representative for all current NHL players, the National Hockey League Players’ Association (NHLPA) is arguably in a good position to argue on behalf of the players to get this technology in place and, given its status as a labor union, is in a better position to ensure OSHA forces the league to comply with its regulations in this manner.
There is an important counterargument to note as well: because hockey players are professional athletes and competing at such a high level, hits and collisions that can lead to concussions are incidental to gameplay and players must assume this risk as part of the job description. Primary assumption of risk is an exception to the general rule that all people have a duty of care to avoid injuries to others. This doctrine is applicable to sports and recreational activities in which the conditions and conduct that are viewed as dangerous are an integral part of the sport itself. Because hits, collisions, and overall risky and dangerous gameplay are obviously an integral part of hockey, primary assumption of risk is applies to the sport of hockey.
With hockey specifically, often included in this primary assumption of risk are the following: risk of injury from bodily contact (whether intentionally or illegally inflicted) and that harm will occur at the hands of other players in and outside the play of game. However reasonable it may be to assume a player will sustain some sort of injury given the nature of hockey, to say this includes injuries that have a lifelong negative impact on an individual is a stretch.
That being said, it’s not the gameplay risks that are of issue here; it is the risk that, by being negligent and not doing everything feasibly possible to better protect players, the NHL is promulgating the risk for these long-term and dangerous injuries, more or less breaching its duty of care to the players in the league. However reasonable it may be to assume injuries will be sustained playing hockey, saying this risk includes injuries exacerbated by the NHL’s own negligence that have a lifelong impact on an individual is a stretch and that argument simply does not hold ground.
Therefore, it is imperative the NHL incorporates concussion detection and monitoring technologies into its current concussion protocols. Although detection is the first step in prevention, it is not nearly enough for the NHL to simply improve the ability in the league to accurately detect the concussions; the concussions also need to be properly treated in the long run as well. This can not only help to protect players from the lingering impacts of concussions, but also help the NHL avoid potential liability and involvement of OSHA.
Technologies such as the BrainScope and EQ Brain Performance have the potential to provide an accurate and immediate concussion diagnosis and also effectively monitor the symptoms while they occur and until they subside when used in tandem. The EQ Elite can be administered first to the athlete in order to give an accurate determination of what is occurring in the athlete’s brain. The BrainScope can then be used to confirm the diagnosis. The trainer for each team can proceed to administer the BrainScope daily to monitor the athlete’s symptoms until they subside and it is safe for the athlete to return to play. By having this effective monitoring, the likelihood of long-term effects of concussions and that additional concussions will occur decreases greatly, better protecting players in the short-term as well as the long-term.
As the collective bargaining representative and players’ union, the NHLPA should pressure the NHL to incorporate these concussion technologies into current protocols. If the NHL refuses compliance, the NHLPA, on behalf of current players, can sue the NHL in their capacity for OSHA violations, or report the issues to OSHA themselves and have spur an investigation into the safety practices of the league.
By incorporating these technologies into existing protocols, the NHL will be able to quickly identify when the concussion occurs, accurately treat its symptoms, and, ultimately, help players minimize any long term affects these injuries can pose, while also minimizing the NHL’s own liability at the same time.
 Ashley Welch, Everything You Need to Know About Concussions in Sports, Everyday Health (Mar. 22, 2018), https://www.everydayhealth.com/concussion/everything-you-need-know-about-concussions-sports/.
 Concussion and Sports, BRAINLINE, https://www.brainline.org/article/concussion-and-sports.
 What is a Concussion?, Centers for Disease Control and Prevention (last visited April 1, 2020), https://www.cdc.gov/headsup/basics/concussion_whatis.html.
 PCS Resources, Concussion Legacy Foundation, https://concussionfoundation.org/PCS-resources/what-is-PCS.
 Gay Culverhouse, Throwaway Players: The Concussion Crisis from Pee Wee Football to the NFL 58 (2012).
 Emotional Problems After Traumatic Brain Injury, MSKTC, https://msktc.org/lib/docs/Factsheets/TBI_Emotional_Problems_and_TBI.pdf.
 Brian Chaze & Patrick McDonald, Head Injuries in Winter Sports: Downhill Skiing, Snowboarding, Sledding, Snowmobiling, Ice Skating, and Hockey, 20 Physical Medicine and Rehabilitation Clinics: Sports Neurology 1, 291 (George H. Kraft, ed., 2009).
 Id. at 218.
 Id. at 219.
 In re NHL Players Concussion Injury Litig., 189 F.Supp.3d 856, 860 (2016).
 Id. at 861.
 NFL Concussion Fast Facts, CNN (Aug. 15, 2019), https://www.cnn.com/2013/08/30/us/nfl-concussions-fast-facts/index.html.
 Concussion Prevention Technology, Medium (Jan. 21, 2019) https://medium.com/@support_87397/concussion-prevention-technology-966c2d399aef.
 NFL Concussion Fast Facts supra note 47.
 See Emotional Problems After Traumatic Brain Injury, supra note 19 (discussing lasting impacts of repeated concussions).
 Revolutionizing Head Injury and Concussion Assessment, BrainScope, https://static1.squarespace.com/static/55ce0fd9e4b0cb735592eb88/t/5cab943415fcc0efd221347f/1554748507154/Brainscope_Overview_4-8.pdf.
 mTBI Assessment Capabilities: Assessment Across the Full Spectrum of Brain Injury, Including Concussion, BrainScope, https://brainscope.squarespace.com/healthcare-professionals-2.
 See generally id. (describing these tests and assessments).
 EQ Elite, Highmark Interactive, https://www.highmark.tech/eqelite/.
 29 C.F.R. § 1910.132(a) (emphasis added).
 Hyman, supra note 116.
 Frequently Asked Questions, NHLPA, https://www.nhlpa.com/the-pa/what-we-do/faq.
 Jim Tomlinson, Inherent Risks in Hockey: Recent Developments in the Law, McCague Borlack (Feb. 2017), http://mccagueborlack.com/emails/articles/hockey-risk.html.
 Id. at 69.
 Id. at 69-70.
 See generally EQ Elite supra note 74 (discussing uses of the EQ Elite).
 See generally Revolutionizing Head Injury and Concussion Assessment supra note 65 (discussing uses of the BrainScope).