Former Canadian Football Player Has a Hard Row to Hoe In Concussion Lawsuit

(Editor’s note: Among the 10 stories that will appear tomorrow in the September issue of Concussion Litigation Reporter is the following piece by Canadian sports law professor Jon Heshka, which is excerpted below)

By Jon Heshka, Associate Dean of Law at Thompson Rivers University (British Columbia, Canada)

Canadian football has finally seen its first concussion lawsuit. Filed in the Supreme Court of British Columbia in July 2014, former professional football player Arland Bruce has sued the commissioner of the Canadian Football League (CFL), all nine teams in the CFL, an internationally renowned doctor who specializes in sports concussions, a medical centre which employs the doctor, and the president of the players association.Heshka

Bruce claims he was knocked unconscious during a game on September 29, 2012 and was permitted to return to play on November 18, 2012 despite not being 100% recovered and still suffering from the effects of a concussion. He alleges that he sustained multiple sub-concussive and concussive hits in that same game. Bruce further claims that he was permitted to return to play in 2013 for the Montreal Alouettes even though he was still displaying the ongoing effects from the concussions sustained the year before.

At its essence, the lawsuit alleges negligence and negligent misrepresentation. Tearing a page from the NFL class action lawsuit, Bruce claims that, “Part of the CFL’s marketing strategy is to promote and glorify the brutality and ferocity of CFL football, in part, by lauding the most brutal plays and ferocious players and collisions; yet the CFL is claiming to take on a leadership role in the promotion of concussion awareness, prevention, research and treatment.” The claim also dramatically includes the lyrics from a promotional song of the league which includes the lines, “This is a league of fast and crush where there is no safety in a sideline …  This is a league of black and blue” which purports to show the extent to which violence is promoted.

The lawsuit devotes seven pages to “The History of Concussion and CTE” citing studies dating back to 1928 to the present.

Bruce claims that the CFL denied a scientifically proven link between repetitive traumatic head impacts and later in life cognitive brain injury including CTE, that the CFL misled, downplayed, and obfuscated the true and serious risks of these hits, that the CFL failed to warn him of the long term medical risks associated with repetitive head impacts and that he relied upon these statements in playing professional football.

Bruce similarly alleges that Dr. Charles Tator, whom the CFL partnered with as part of its Canadian Sports Concussion Project at the Krembil Neuroscience Centre, is negligent and for an article entitled, “Absence of chronic traumatic encephalopathy in retired football players with multiple concussions and neurological symptomatology” published in Frontier in Human Neuroscience. Bruce claims that the findings in the article …

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