Those in charge of sport could benefit from the sympathy generated by claims of degenerative brain disease. By inflaming public opinion the public then act as the voice of the injured player and so the sentimental bond is strengthened. This will be good for the sentimental player-focused business model. But will it be good for the players?
One result of the clamor to speak out for the player is the development of blood testing for evidence of possible brain injury.
If a player knew they were risking a non-trivial degenerative brain disease in exchange for manufactured fame and fortune they might seek a different occupation, they might not. But being banned from playing, because of signs of brain injury, no matter how trivial, no matter how reversible, no matter how many times the signs are false positives gives them no option at all. Their careers are damaged by being ‘seen to be protected’.
The loss is almost always economic in nature and may perhaps be insured in a sports policy or other accident and health policy, the uncertainty in liability though arises from whether or not the loss is also a valid trigger for a personal injury claim?
In the UK, the combination of a positive screening result with a policy of reassignment is now classed as a personal injury no matter that the biological change is symptomless, may be reversible and, on its own will not lead to detectable impairment, ever. This is the result of the recent Dryden case decided by the Supreme Court.
If blood tests are used to identify possible evidence of brain trauma and the result of a positive test (even a false positive) is exclusion from participation, then the logic is that the player has been injured.
Consider those players who have no detectable signs or symptoms of injury other than the blood test. There is no inevitable constraint on their performance, there is no measurable effect on their daily lives, even their appeal to the public is not impaired, but they are excluded. If they had not been tested they would not be injured, and, if the policy was not one of restriction, they would not be injured. Yet according to the Supreme Court, they are injured in the sense that gives rise to liability. A liability policy might well respond.
Even more vexing is that 100% of those who are restricted because of a positive test are by definition injured, but only a very small % would develop a detectable impairment, ever. Would it be wise for sports managers to introduce testing? It depends on the business model. Part of this is the cost of liability insurance.
Blood tests for brain injury are set to become commonplace. Inflation in liability exposure is foreseeable, but the rate of increase and the extent of increase depend on may rational and irrational factors. Perhaps a model is the next step for liability insurers?
How will personal injury insurance respond?
Its not just sports where people get knocks on the head as a result of third party actions.
