Tackle Football and Traumatic Brain Injuries: Law, Ethics, and Public Health
Daniel S. Goldberg
Johns Hopkins University Press, 2024
What do we do when an underregulated industry widely regarded as too big to fail, deeply and culturally supported by society's inhabitants, is fundamentally unsafe for the participants on which such an industry relies? With what urgency should we propose guardrails which fundamentally limit the way such an industry is to exist in the public square, noting that most of those participants are children, among the most vulnerable members in society, lacking the ability to offer their full consent? In proposing regulations, how do public health advocates manage not to succumb to the charge that they are doing the bidding of a “nanny state,” straying out of their lane? And strategically, how can health advocates surmount the mountain of “manufactured doubt” (66-70) with which industry insiders habitually flood information outlets in messaging intended to derail reform?
In Tackle Football and Traumatic Brain Injuries, Daniel S. Goldberg proposes legal and ethical arguments for engaging in such policy-making endeavors on behalf of public health, identifying American football as a species of the larger genus of harmful industries, historically beginning with the railroad industry in this country. These have successfully fought back regulation by resorting to a combination of effective tactics. In the case of football, the tactics include: (1) employing insiders as company physicians whose conflicts of interest prevent them from having the backs of those for whom they are supposed to advocate, most importantly players at risk for experiencing Chronic Traumatic Encephalopathy (CTE), a devastating neurodegenerative condition that sets in after multiple concussions (84-86); (2) discrediting claimants who report injury; (2) obfuscating any causation, and even correlation, between participation in the industry's harmful activity and adverse health effects; (3) inundating the airwaves with misleading data or irrelevant anatomical evidence; (4) buying off scholars meant to study the problem objectively; (5) supporting a “regulatory capture” by which agencies that are supposed to protect the public from the hazards caused by an industry end up protecting the industry's interests against the public's instead; and (6) selling cosmetic modifications as “safer versions” of the industry's product without addressing any of the real underlying issues (46, 70).
Goldberg's thesis is that the persistent threat of Traumatic Brain Injury (TBI) among football players, evidenced by CTE, is the result of the successful deployment of all these tactics, collectively feeding into a “script” that undermines concerns about safety (20). In the face of such odds, his project is to empower public health advocates by methodically analyzing all the available epidemiological evidence demonstrating the dangers of this contact sport, to justify interventions that will provide better regulation. To this end, Goldberg invokes the “precautionary principle” (21, 126-129), a guiding norm for providing the warrant for intervention, especially, in this case, on behalf of the 5-6 million children aged 6-17 who play tackle football, still neurologically developing and without fully formed skulls, leaving them scarcely protected against helmets which become weaponized when banging into their heads (17). Just a minute fraction of these youths ever goes on to play football professionally, where they will at least be monetarily compensated for the occupational hazards they assume.
Tackle football in America, argues Goldberg, is in this respect “structurally violent” (12-15; 157-158) in the way the railroad, dust/mining, and tobacco industries have been. All feature insiders and lobbyists who seek a regulatory vacuum while construing the “imperative” to technologically innovate as a catch-all remedy (95), a promise they hope will be enough to mollify critics who are in favor of genuine and urgent reform. Goldberg exposes the deep pockets and far-reaching influence of such spin doctors whose powerful social scripts (19-21; 67) are almost always successful in swaying public opinion against public safety. These actors purchase credibility and enmesh themselves in insurmountable conflicts of interest while managing to sell their efforts as being on the side of the participant (108).
In his analysis, Goldberg raises two interesting and debatable questions of ethical epidemiological import, namely, “what level of proof is needed to justify intervening to prevent a public health harm? And what intensity of interventions is justified to counter the risks of a given problem of exposure?” (128) Bringing to bear a preponderance of compelling evidence linking tackle football to severe neuropathy like CTE (142), Goldberg makes the case for introducing policy interventions to this underregulated industry. These include: banning tackling from participants under the age of 14 (158); requiring the monitoring, and, if need be, intervention, on the part of non-conflicted health care professionals on site wherever American football is taking place (165); an evidence-based approach on the part of experts, including academics, to crafting policy and implementing rules intended to create a safe environment in the sport (168); and removing tackle football from all public primary and secondary schools, which tax payers support (177). Goldberg concludes by answering objections likely to be raised against these recommendations, both by industry insiders committed to not disrupting the status quo, and public health practitioners who don't think they go far enough.
Tackle Football and Traumatic Brain Injuries is a masterful exemplification of the challenge well-intended and compassionate public health advocates face trying to alter the way money-making industries which also promote a highly valued social pastime conduct their dangerous business. Goldberg calls our attention to the uphill battle of trying to recommend policy modifications in order address unacceptable risks, the real dangers of which are constantly being cast into doubt by self-interested actors expertly motivated to do whatever it takes to resist change. As such, this is a book which could not be more relevant or make a better case for the value of regulation during a time when the very idea of “regulation” finds itself out of vogue, hardly fundable, and a concept often billed as counter to the “American way.”
