Athletic Commissions exist for one core purpose, the protection of the fighters that they regulate.
It is not unprecedented for Athletic Commissions to be successfully sued for damages where they negligently fail to fulfill their duties. Appreciating this, can a lawsuit succeed against an athletic commission by a fighter who suffers CTE due to too many years of combat?
The answer is unclear but I can think of at least one example where the chances of success exist, I’ll call it a case of regulators ignoring too much ‘mileage’.
There is much that is still being learned about CTE but one thing that appears well established is that it is a disease of mileage. If you get hit in the head enough times there is a point of no return. When that point is going to arise is never known but when the point is crossed is clearer. Think of smoking and cancer; a doctor can’t tell their patient how many cigarettes they can smoke before developing cancer but they can tell when the disease has already manifested. CTE and brain trauma are similar. Its not known how many hits are going to be too many but early stages of CTE can be identified.
Early symptoms of the disease are known. These include
- deterioration in attention
- memory loss
- social instability
- erratic behavior
- poor judgment
Not all athletic commissions screen for these warning signs when giving fight licenses and this omission can be the anchor of the CTE lawsuit in combat sports to the extent that any given commission is mandated to screen for brain impairment.
Without naming any names it is not difficult to think of a few examples in the world of professional boxing and MMA that have displayed these symptoms as they entered the twilight years of their careers. Despite this there are examples of fighters continuing to be licenced by Athletic Commissions.
The damage assessment would be tricky as well in such a lawsuit however there is a legal principle that can assist a Plaintiff and should be of concern to regulators, the principle of ‘indivisible injuries’. It is a principle which states that if multiple events cause an injury, and it is impossible to say which event contributed how much to that injury, anyone legally responsible for an event which contributed to the injury may be liable for the whole of the loss.
CTE is the classic example of an indivisible injury. If the disease is formed from a life time of blows to the head any bout can play a role. All a Court would need to decide for legal liability to potentially follow is if a fight that forms the foundation of a lawsuit “aggravated or exacerbated” this condition. Given the very nature of how the disease is caused most any bout can meet this legal test. From there, the liable party is on the hook for the full toll of the disease. We are talking about a lifetime of care, vocational disability and damages.
It is vital that regulators of combative sports gain a true appreciation of CTE, its causation and the disease’s earlier symptoms. It is also important that this information is integrated into the fighter licence application process. Failing to do so not only exposes Athletic Commissions to potential litigation but more importantly fails in fulfilling their essential role, protection of fighters.