How do you differentiate brain injuries caused by sports from those caused by accidents?

Given Ashton & Price’s lengthy experience head injury cases, it’s no surprise that the All Things Legal team takes a particular interest in legal situations like the NFL’s legal difficulties with the spate of brain injury diagnoses in ex-players.

Well, the situation just got even more complicated, according to an article about BMX rider Dave Mirra that will appear in the next issue of ESPN The Magazine.

Craig Ashton led off: “Let’s go ahead and talk about Dave Mirra. Dave Mirra was one of the most famous BMX riders, [who] won more gold medals at the X Games than anybody else [with the exception of snowboarder Shaun White, and was the first to do] a double backflip… in competition.

“The reason he’s legally interesting is that, unfortunately, he committed suicide, and based upon that [and changes in his behavior shortly before he died], his wife had his brain examined.”

Dave Mirra is far from the first sports player to be posthumously diagnosed with CTE.

Craig: “When you’re dealing with Chronic Traumatic Encephalopathy, which is essentially repeated brain injury, there aren’t any tests now that are sophisticated [enough] to determine whether or not there’s a neurological deficit that’s appreciable… You can’t do a CAT scan, an MRI, etc.

“The only way you can do that now is through autopsy. [Autopsies have now been done on a number of former players]: Junior Seau played for the NFL, he shot himself in the chest to preserve his brain. [Note: Seau did not leave a suicide note saying that he had specifically preserved his brain for the purposes of study, but the nature of his suicide was similar to that of fellow former NFL player Dave Duerson, who sent text messages shortly before his death requesting that his brain be studied.] You have others: Frank Gifford, he died of natural causes…

Tim Hodson volunteered, “Ken Stabler, he died of natural causes.”

Craig: “So anyway, all their brains were examined through autopsy and determined that they had CTE, or Chronic Traumatic Encephalopathy. So this is going back to the NFL, because the NFL has made an offer to all of the players, up until recent players, going all the way back, to compensate them if they can prove that they have symptoms of CTE… which I think is a relatively fair compromise, because there’s a causation issue.”

How do you separate brain injuries caused by a specific sport from those with other causes?

Craig: “You play Pee Wee, you play high school, you play college, you play NFL: where did you get the Chronic Traumatic Encephalopathy? Which trauma was it? When I was little, man, that’s back before helmets, and I was skateboarding, I Pete Rose’ed it at 30 miles an hour, I broke my wrist, I loved to skateboard, I probably knocked myself unconscious as a little boy a few times just by playing and jumping out of trees. I was X Games before X Games were X Games, you know?

“So the idea is that the Chronic Traumatic Encephalopathy, it’s hard to pinpoint exactly which brain injury caused the symptom, but in this particular case, Dave Mirra’s interesting in that it’s factoring into the legal issues pertaining to diagnosing this problem [and] where did it come from, which factors into what’s going on with the NFL?”

It’s not just the NFL that has to worry about CTE.

Ed: “Well, the NFL, at least they’re ahead of the game on this one. They protected themselves going forward, but what about, like, soccer? Guys are head-butting balls. Then you’ve got hockey, we’ve got fights out there… Boxing! MMA. Uh… Karate, judo, all these other sports, where is it going to end, and at what point do you start telling anybody that’s in any type of sport where you have head contact, ‘You’re assuming the risk from this point forward?’”

Craig: “It is so complicated. This morning I read an article [saying] that they think there may be a link between Alzheimer’s Disease and mild infections in the brain. [The brain fights off the infection] and you don’t have any symptoms, but [the immune response] creates these plaques, which then cause brain function to deteriorate as you get older, so it may not be a genetic problem, it may just be a response to an autoimmune response.

“So the point is, any time you’re dealing with head injury [or] brain injury, the complexity of the neurological structure of that which we have in our unbelievably beautiful specimens which are our brains, it’s hard to understand, and they don’t fully understand it. So when you’re trying to apply a legal adage to something that is not completely black and white, its gray matter, right?”

Craig’s pun aside, the revelation about Mirra’s brain injury hints that the legal grounding of CTE-related court cases will become increasingly complicated as more and more individuals are examined for CTE. While CTE—long referred to as ‘dementia pugilistica,’ or ‘DP’—was first described in 1928, it was long believed that it could only be triggered by repeated extreme blunt force trauma to the head, such as that commonly experienced by boxers. However, in the last decade, CTE has been discovered in the brains of those who participated in sports including professional wrestling, hockey, several different professional football leagues, rugby, baseball, and now BMX. But as cases like Mirra’s continue to expand our understanding of what can cause CTE, courts will have to carefully consider just how much responsibility professional sports leagues bear, versus the players themselves.