Daniel, R. W. Rowson, S. Duma, S. M., “Head Impact Exposure in Youth Football,” Annals in Biomedical Engineering 40, no. 4 (2012): 976–981.CrossRefGoogle Scholar

Geertz, C., “Deep Play: Notes on the Balinese Cockfight,” Daedalus 101, no. 1 (1972): 1–37;.Google Scholar

Goldberg, D. S., “Mild Traumatic Brain Injury, The National Football League, and the Manufacture of Doubt: An Ethical, Legal, and Social Analysis,” Journal of Legal Medicine 34, no. 2 (2013): 157–191.CrossRefGoogle Scholar

Consistent with prior usage, we specifically use the term “mild traumatic brain injury” in lieu of the term “concussion” for two reasons. First, our usage is consistent with the preferred terminology in concussion science. Second, our usage signifies that the injury under analysis is in fact a form of traumatic brain injury, and it should be treated with the appropriate gravity. For many decades, concussions were regarded as relatively minor injuries, and we specifically use the term “mTBI” as a rhetorical break with that tradition. Goldberg, D. S., “Mild Traumatic Brain Injury, The National Football League, and the Manufacture of Doubt: An Ethical, Legal, and Social Analysis,” Journal of Legal Medicine 34, no. 2 (2013): 157–191.CrossRefGoogle Scholar

Many of the same institutional structures, and sometimes even the same people, are involved in framing the risks in both sports. For instance, Elliot Pellman, chair of the NFL's mTBI committee from 1994 to 2007, also served as a top medical advisor to the National Hockey League (“N.H.L.”). Fainaru-Wada, M. Wainaru, S., League of Denial: The N.F.L., Concussions, and the Battle for Truth (New York: Random House, 2013).Google Scholar

Daneshvar, D. H.et al, “The Epidemiology of Sport-Related Concussion,” Clinical Sports Medicine 30, no. 7 (2011): 1–17.CrossRefGoogle Scholar

Breslow, J. M., “N.F.L. Commissioner Highlights Safety Record in Letter to Fans,” available at <http://www.pbs.org/wgbh/pages/frontline/sports/league-of-denial/nfl-commissioner-highlights-safety-record-in-letter-to-fans/>(last visited July 13, 2014).(last+visited+July+13,+2014).>Google Scholar

Kreck, C., “States Address Concerns About Concussions in Youth Sports,” Education Commission of the States, March 2014, available at <http://www.ecs.org/clearing-house/01/11/61/11161.pdf>(last visited July 13, 2014).(last+visited+July+13,+2014).>Google Scholar

See also Harvey, H. H., “Reducing Traumatic Brain Injuries in Youth Sports: Youth Sports Traumatic Brain Injury State Laws, January 2009-December 2012, American Journal of Public Health 103, no. 7 (2013): 1249–1254.CrossRefGoogle Scholar

Purcell, L., “What Are the Most Appropriate Return-to-Play Guidelines for Concussed Child Athletes?” British Journal of Sports Medicine 43, Supp. 1 (2009): 151–155.CrossRefGoogle Scholar

See Daneshvar, , supra note 5;.Google Scholar

Goldberg, , supra note 2. In addition, the possible benefit of such RTP guidelines may well turn on the validity and reliability of the assessments utilized, about which significant questions remain.Google Scholar

Wash. Rev. Code Ann. § 28A.600.190 (West 2009).Google Scholar

See Kreck, , supra note 7.Google Scholar

See Purcell, , supra note 8.Google Scholar

Johnson, L. S. M., “Return to Play Guidelines Cannot Solve the Football-Related Concussion Problem,” Journal of School Health 82, no. 4 (2012): 180–185.CrossRefGoogle Scholar

See Harvey, , supra note 7.Google Scholar

Office of U.S. Senator Dick Durbin, “Durbin: NFL, NHL, NBA, US Soccer, NCAA Endorse Concussion Safety Bill,” available at <http://www.durbin.senate.gov/public/index.cfm/pressreleases?ID=00673ac0–2b94–482b-b96a-3b994661ae9f>(last visited on July 14, 2014).(last+visited+on+July+14,+2014).>Google Scholar

Van Dellen, T. R., “How to Keep Well: Football Mishaps,” Chicago Tribune, September 29, 1950.Google Scholar

Bachynski, K. E., “Playing Hockey, Riding Motorcycles, and the Ethics of Protection,” American Journal of Public Health 102, no. 12 (2012): 2214–2220.CrossRefGoogle Scholar

Fekete, J., “Severe Brain Injury and Death Following Minor Hockey Accidents: The Effectiveness of the ‘Safety Helmets’ of Amateur Hockey Players,” Canadian Medical Association Journal 99, no. 25 (1968): 1234–1239.Google Scholar

Ryan, A. J., “What Injuries in Sports Can Be Prevented by the Use of Protective Equipment,” National Conference on Protective Equipment in Sports (Madison, WI: University of Wisconsin, June 14–16, 1968), at 12.Google Scholar

Hodgson, V. R., “National Operating Committee on Standards for Athletic Equipment Football Helmet Certification Program,” Medicine and Science in Sports 7, no. 3 (1975): 225–232.Google Scholar

Hulse, W. F., “Sports Equipment Standards,” in Vinger, P. F. Hoerner, E. F., eds., Sports Injuries: The Unthwarted Epidemic (Littleton, MA: PSG Publishing Company, 1981): At 378–382.Google Scholar

Levy, M. L.et al, “Birth and Evolution of the Football Helmet,” Neurosurgery 55, no. 3 (2004): 656–662.CrossRefGoogle Scholar

Dixon, J. L., “The Canadian Standards Association and the Evolution of Head and Face Protection in Canadian Hockey,” in Castaldi, R. Hoerner, E.F., eds., Safety in Ice Hockey (Philadelphia: American Society for Testing and Materials, 1989): At 207–219.CrossRefGoogle Scholar

Cantu, R. C. Mueller, F. O., “Brain Injury-Related Fatalities in American Football, 1945–1999,” Neurosurgery 52, no. 4 (2003): 846–853.CrossRefGoogle Scholar

Walter, K. D., “No Evidence That Helmet Add-Ons Reduce Concussion Risk,” AAP News 34 (2013): 17–17.Google Scholar

Schwarz, A., “As Injuries Rise, Scant Oversight of Helmet Safety,” New York Times, October 20, 2010, available at <http://www.nytimes.com/2010/10/21/sports/football/21helmets.html>(last visited July 18, 2014).(last+visited+July+18,+2014).>Google Scholar

Schankman, S., “Report Warned Riddell About Helmets,” ESPN.com, May 1, 2013, available at <http://espn.go.com/espn/otl/story/_/id/9228260/report-warned-riddell-no-helmet-prevent-concussions-nfl-helmet-maker-marketed-one-such-anyway>(last visited July 14, 2014).(last+visited+July+14,+2014).>Google Scholar

Schwarz, A., >“Studies for Competing Design Called Into Question,” New York Times, October 27, 2007, available at <http://www.nytimes.com/2007/10/27/sports/football/27riddell.html>(last visited July 18, 2014). Dave Halstead, the technical director of NOCSAE, told Schwarz: “It's a good helmet. But I don't believe that 31 percent for a Yankee minute.” See Schwarz, supra note 27;.“Studies+for+Competing+Design+Called+Into+Question,”+New+York+Times,+October+27,+2007,+available+at+(last+visited+July+18,+2014).+Dave+Halstead,+the+technical+director+of+NOCSAE,+told+Schwarz:+“It's+a+good+helmet.+But+I+don't+believe+that+31+percent+for+a+Yankee+minute.”+See+Schwarz,+supra+note+27;.>Google Scholar

see also Schankman, , supra note 28.Google Scholar

National Operating Committee for Standards on Athletic Equipment, “FAQs,” available at <http://nocsae.org/aboutnocsae/faqs/>(last visited July 14, 2014).(last+visited+July+14,+2014).>Google Scholar

Thompson, H., “The Messier Project: Superstar Looks to Sell Safety through Innovative New Helmet,” USA Hockey Magazine, September 2009, available at <http://www.usahockeymagazine.com/article/2009–09/messier-project>(last visited July 14, 2014).(last+visited+July+14,+2014).>Google Scholar

Brust, J. D.et al, “Children's Ice Hockey Injuries,” Archives of Pediatrics & Adolescent Medicine 146, no. 6 (1992): 741–747.CrossRefGoogle Scholar

Committee on Sports Medicine and Fitness, “Safety in Youth Ice Hockey: The Effects of Body Checking,” Pediatrics 105, no. 3 (Pt. 1) (2000): 657–658.CrossRefGoogle Scholar

Emery, C. E.et al, “Risk of Injury Associated with Body Checking Among Youth Ice Hockey Players,” Journal of the American Medical Association 303, no. 22 (2010): 2265–2272.CrossRefGoogle Scholar

Donaldson, L. Asbridge, M. Cusimano, M. D., “Bodychecking Rules and Concussion in Elite Hockey,” PLoS ONE 8 (2013): E69122.CrossRefGoogle Scholar

See Daneshvar, et al, supra note 5.Google Scholar

Belson, K., “Hits to the Head Don't Differ With Age, Research Indicates,” New York Times, September 24, 2013. See also Daniel, Rowson, and Duma, supra note 1.Google Scholar

Maske, M., “Concussions in NFL Down From Last Season Because of Kickoff Rule Change, Study Finds,” Washington Post, August 7, 2012, available at <http://www.washingtonpost.com/sports/redskins/concussions-in-nfldown-from-last-season-because-of-kickoff-rule-change-study-finds/2012/08/07/7e2effe2–e0c0–11e1–a19c-fcfa365396c8_story.html>(last visited July 18, 2014).(last+visited+July+18,+2014).>Google Scholar

There are reasons to believe otherwise, given the significant trend towards underreporting of mTBI at all levels of American football play, as well as the extensive conflicts of interest that affect NFL athletic trainers and physicians. Regarding the underreporting problem, one recent study suggested that as much as 40–50% of football-related mTBI at the high school level may go unreported. Register-Mihalik, J. K.et al, “Knowledge, Attitude, and Concussion-reporting Behaviors among High School Athletes: A Preliminary Study,” Journal of Athletic Training 48, no. 5 (2013): 645–653. How the NFL fares in comparison is unknown. Similar concerns of underreporting have been observed as to ice hockey in Canada. Echlin, P. S.et al, “A Prospective Study of Physician-Observed Concussion during a Varsity University Ice Hockey Season: Incidence and Neuropsychological Changes,” Neurosurgical Focus 33, no. 6 (2012): E2: 1–11.CrossRefGoogle Scholar

Torg, J. S.et al, “The National Football Head and Neck Injury Registry: 14-Year Report on Cervical Quadriplegia, 1971 through 1984,” Journal of the American Medical Association 254, no. 24 (1985): 3439–43.CrossRefGoogle Scholar

The absence of evidence on the link between rule changes and reduced risk of mTBI does not advance the institutional actors' preferred risk frame, either, given application of the precautionary principle. Munthe, C., The Price of Precaution and the Ethics of Risk (New York: Springer, 2012). Indeed, the principle would suggest that the very absence of evidence regarding increased safety, combined with the available evidence linking football to mTBI and the added vulnerability of developing brains strongly militates in favor of significant restrictions on child and youth participation in football.Google Scholar

Markowitz, J. S. Markowitz, A., Pigskin Crossroads: The Epidemiology of Concussions in the National Football League, 2010–2012 (CreateSpace Independent Publishing Platform, 2013): At 50.Google Scholar

“USA Football: Heads Up,” available at <http://usafootball.com/headsup>(last visited July 14, 2014). USA Football states on its website that it was endowed by the NFL and the NFLPA in 2002, and that it “is the official youth football development partner of the N.F.L., its 32 teams and the N.F.L. Players Association.” Accordingly, the similarity in the risk frame adopted by the NFL and USA Football is hardly coincidence.(last+visited+July+14,+2014).+USA+Football+states+on+its+website+that+it+was+endowed+by+the+NFL+and+the+NFLPA+in+2002,+and+that+it+“is+the+official+youth+football+development+partner+of+the+N.F.L.,+its+32+teams+and+the+N.F.L.+Players+Association.”+Accordingly,+the+similarity+in+the+risk+frame+adopted+by+the+NFL+and+USA+Football+is+hardly+coincidence.>Google Scholar

Pop Warner Little Scholars, Inc., “Football Safety,” available at <http://www.popwarner.com/football/footballsafety.htm>(last visited April 24, 2014).(last+visited+April+24,+2014).>Google Scholar

Hoffmann, B., “Is There a Technological Imperative in Health Care?” International Journal of Technology Assessment in Health Care 18, no. 3 (2002): 675–689.Google Scholar

Noble, D. F., The Religion of Technology: The Divinity of Man and the Spirit of Invention (New York: Random House, 1997).Google Scholar

Rothman, D.J., Beginnings Count: The Technological Imperative in American Health Care (New York: Oxford University Press, 1997).Google Scholar

McGuire, A. Serra-Sastre, V., “What Do We Know about the Role of Health Care Technology in Driving Health Care Expenditure Growth?” in Costa-Font, J. Courbage, C. McGuire, A., The Economics of New Health Technologies: Incentives, Organization, and Financing (New York: Oxford University Press, 2009): At 3–18;.CrossRefGoogle Scholar

Cutler, D. M. McClellan, M., “Is Technological Change In Medicine Worth It?” Health Affairs 20 (2001): 11–29;.Google Scholar

Newhouse, J. P., “Medical Care: How Much Welfare Loss?” Journal of Economic Perspectives 6, no. 3 (1992): 3–21.CrossRefGoogle Scholar

See Breslow, , supra note 6.Google Scholar

There is overwhelming evidence that substantiates this claim. An excellent starting point is the Final Report of the World Health Organization's Commission on Social Determinants of Health entitled Closing the Gap in a Generation: Health Equity through the Social Determinants of Health (2009), available at <http://www.who.int/social_determinants/thecommission/finalreport/en/index.html>(last visited July 14, 2014).(last visited July 14, 2014).' href=https://scholar.google.com/scholar?q=There+is+overwhelming+evidence+that+substantiates+this+claim.+An+excellent+starting+point+is+the+Final+Report+of+the+World+Health+Organization's+Commission+on+Social+Determinants+of+Health+entitled+Closing+the+Gap+in+a+Generation:+Health+Equity+through+the+Social+Determinants+of+Health+(2009),+available+at+(last+visited+July+14,+2014).>Google Scholar

Deyo, R.et al, “Overtreating Chronic Back Pain: Time to Back Off?” Journal of the American Board of Family Medicine 22, no. 1 (2009): 62–68;.CrossRefGoogle Scholar

Chou, R.et al, “Imaging Strategies For Low-Back Pain: Systematic Review and Meta-Analysis,” Lancet 373, no. 9662 (2009): 463–472.CrossRefGoogle Scholar

McCrory, P.et al, “Consensus Statement on Concussion in Sport: The 4th International Conference on Concussion in Sport held in Zurich, November 2012, British Journal of Sports Medicine 47, no. 5 (2013): 250–258.CrossRefGoogle Scholar

Partridge, B. Hall, W., “Conflicts of Interest in Recommendations to Use Computerized Neuropsychological Tests to Manage Concussion in Professional Football Codes,” Neuroethics (2013), available at <http://link.springer.com/article/10.1007%2Fs12152-013-9182-z>(last visited July 14, 2014);.(last+visited+July+14,+2014);.>Google Scholar

Goldberg, D. S., “Concussions, Conflicts of Interest, and Professional Football: Why the NFL's Policies Are Bad for Its (Players') Health,” HEC Forum 20, no. 4 (2008): 337–355.CrossRefGoogle Scholar

Pennington, B., “Flubbing a Baseline Test on Purpose Is Often Futile,” New York Times, May 5, 2013, available at <http://www.nytimes.com/2013/05/06/sports/sandbagging-first-concussion-test-probably-wont-help-later.html>(last visited July 18, 2014).(last+visited+July+18,+2014).>Google Scholar

Bauer, R. M.et al, “Assessment Devices: Joint Position Paper of the American Academy of Clinical Neuropsychology and the National Academy of Neuropsychology,” Archives of Clinical Neuropsychology 27, no. 3 (2012): 362–373, at 369. However, several other studies indicate that “sandbagging” on such testing is easily detected and hence success is unlikely. Schatz, P. Glatts, C., “‘Sandbagging’ Baseline Test Performance on Im PACT, Without Detection, Is More Difficult Than It Appears,” Archives of Clinical Neuropsychology 28, no. 3 (2013): 236–244;.CrossRefGoogle Scholar

Erdal, K., “Neuropsychological Testing for Sports-related Concussion: How Athletes Can Sandbag Their Baseline Testing without Detection,” Archives of Clinical Neuropsychology 27, no. 5 (2012): 473–479.CrossRefGoogle Scholar

See Markowitz, Markowitz, , supra note 44.Google Scholar

Randolph, C., “Baseline Neuropsychological Testing in Managing Sport-Related Concussion: Does It Modify Risk?” Current Sports Medicine Reports 10 (2011): 21–26, at 23.CrossRefGoogle Scholar

McGrew, C., “Section Editor Response,” Current Sports Medicine Reports 10, no. 1 (2011): 394.CrossRefGoogle Scholar

See Harvey, , supra note 7.Google Scholar

Rivara, F.et al, “The Effect of Coach Education on Reporting of Concussions Among High School Athletes After Passage of a Concussion Law,” American Journal of Sports Medicine 42, no. 5 (2014): 1197–1203.CrossRefGoogle Scholar

Chokshi, D. Farley, T., “The Cost-Effectiveness of Environmental Approaches to Disease Prevention,” New England Journal of Medicine 367, no. 4 (2012): 295–297;.CrossRefGoogle Scholar

Starfield, B.et al, “The Concept of Prevention: A Good Idea Gone Astray,” Journal of Epidemiology & Community Health 62, no. 7 (2008): 580–583.CrossRefGoogle Scholar

PGA, Inc. v. Martin, 532 U.S. 661 (J. Scalia, dissenting). Wittgenstein launches his Philosophical Investigations by engaging similar questions, supporting the notion that at least some games are deep play.Google Scholar

NFL player Ryan Clark professed that he was “disgusted” with one proposed set of changes, observing that if the NFL followed through, “they might as well put flags on” (i.e., play flag football, a form of play in which tackling of any kind is prohibited). Smith, M. D., “Steelers' Ryan Clark: “‘I'm So Disgusted with the NFL Right Now,”’ available at <http://profootballtalk.nbcsports.com/2013/08/28/steelers-ryan-clark-im-so-disgusted-with-the-nfl-right-now/>(last visited July 14, 2014). Similarly, in 2012 current NFL player Troy Polamalu voiced concern over the extent to which rule changes altered the “essence of the sport…In Polamalu's view, there's a point at which rules designed to make the game safer in reality just make the game softer.” Smith, M. D., “Polamalu Says Players Should Have a Vote in Rule Changes,” available at <http://profootballtalk.nbcsports.com/2013/03/29/polamalu-says-players-should-have-a-vote-in-rule-changes/>(last visited July 14, 2014).(last visited July 14, 2014). Similarly, in 2012 current NFL player Troy Polamalu voiced concern over the extent to which rule changes altered the “essence of the sport…In Polamalu's view, there's a point at which rules designed to make the game safer in reality just make the game softer.” Smith, M. D., “Polamalu Says Players Should Have a Vote in Rule Changes,” available at (last visited July 14, 2014).' href=https://scholar.google.com/scholar?q=NFL+player+Ryan+Clark+professed+that+he+was+“disgusted”+with+one+proposed+set+of+changes,+observing+that+if+the+NFL+followed+through,+“they+might+as+well+put+flags+on”+(i.e.,+play+flag+football,+a+form+of+play+in+which+tackling+of+any+kind+is+prohibited).+Smith,+M.+D.,+“Steelers'+Ryan+Clark:+“‘I'm+So+Disgusted+with+the+NFL+Right+Now,”’+available+at+(last+visited+July+14,+2014).+Similarly,+in+2012+current+NFL+player+Troy+Polamalu+voiced+concern+over+the+extent+to+which+rule+changes+altered+the+“essence+of+the+sport…In+Polamalu's+view,+there's+a+point+at+which+rules+designed+to+make+the+game+safer+in+reality+just+make+the+game+softer.”+Smith,+M.+D.,+“Polamalu+Says+Players+Should+Have+a+Vote+in+Rule+Changes,”+available+at+(last+visited+July+14,+2014).>Google Scholar

Molcho, M. Pickett, W., “Some Thoughts about ‘Acceptable’ and ‘Non-acceptable’ Childhood Injuries,” Injury Prevention 17, no. 3 (2011): 147–148.CrossRefGoogle Scholar

Jonas, M. F. Thornley, S. J., “Smoky Rooms and Fuzzy Harms: How Should the Law Respond to Harmful Parental Practices?” Public Health Ethics 4, no. 2 (2011): 129–142.CrossRefGoogle Scholar