Vivian E. Hamilton

Volume 71, Issue 1, 151-196

The routine and repeated head impacts experienced by athletes in a range of sports can inflict microscopic brain injuries that accumulate over time, even in the absence of concussion. Indeed, cumulative exposure to head impacts—not number of concussions—is the strongest predictor of sports-related degenerative brain disease in later life. The observable symptoms of disease appear years or decades after initial injury and resemble those of other mental-health conditions such as depression and dementia. The years-long interval between earlier, seemingly minor, head impacts and later brain disease has long obscured the connection between the two.

Risk of injury differs across demographics, implicating questions of social justice and complicating potential policy responses. For example, younger athletes, whose brains are still developing, are especially vulnerable to injury. Black boys and men participate in football at disproportionately high rates and are thus likely to suffer the effects of repeated head impacts at disproportionately high rates. Finally, female athletes have higher rates of injury and take longer to recover than do males in sports played by both sexes. It is unknown whether female athletes also have higher risk of long-term disease, because sex-related differences have received little attention.

Scholarship has addressed the legal implications of sports-related concussions suffered by young athletes, the overrepresentation of African-American boys and men in sport, and the underrepresentation of girls and women in sport. Legal scholars have not yet addressed the insidious effects of impacts that appear to cause no injury at all, or their disproportionate impact on groups already disadvantaged in other respects—the young, female athletes, and AfricanAmerican male athletes. This Article addresses those issues, evaluates current reform measures, and concludes by suggesting a range of reforms including education, litigation, and law reform.