July 2016 | By Indrani Nadarajah | 15-minute read
Anxiety over concussion in our youth and professional athletes has not abated, but the political will to help address this issue is becoming stronger. In the US, class action lawsuits against the National Football League and the National Hockey League are progressing in the plaintiffs’ favour. A concussion-related lawsuit filed in B.C. on behalf of a former Canadian Football League player was struck down by the presiding judge on the grounds of jurisdiction. This is now being appealed. Meanwhile, serious problems with the 2016 Rio Olympics include fears over Zika, contaminated water, and poor security. This paper looks at the health risks associated with the world of sports, including travel, and the debate around “crumb rubber,” a component of some forms of artificial turf.
Concussion continues to be a major issue in sports, but public awareness has increased due to mass media coverage and the fallout from high profile lawsuits.
Concussion in youth has been steadily rising, according to Statistics Canada. In a 2011 report, it was suggested that there are approximately 23,000 head injuries annually among the 12-19 year old age group, with 60% of these related to sports activity.
Even so, concussion statistics are thought to be significantly understated as most sports-related concussions are never diagnosed – many athletes may not recognize or report the symptoms of concussion. Many also believe they need to have lost consciousness in order to be concussed.
In June 2016, Ontario became the first Canadian province to pass concussion-related legislation, with the passing of a private member’s bill 149, into law. The Rowan’s Law Advisory Committee Act is named after a 17 year old schoolgirl, Rowan Stringer, who died in May 2013 while playing a game of rugby. She suffered a concussion when she hit her head on the ground, and is believed to have suffered two concussions earlier that week that had been undiagnosed.
An inquest into her death highlighted the woeful lack of concussion protocols in youth sports across Canada. The jury made 49 recommendations, which were published on June 3, 2015.
The Ontario government is now required to appoint a committee to review the coroner’s recommendations.
This committee will be comprised of members appointed by the Minister of Children and Youth Services, the Minister of Education and the Minister of Health and Long Term Care, and the Minister of Tourism, Culture and Sport. It is expected to return a progress report to the Minister of Tourism, Culture and Sport a year after convening.
The coroner’s jury also recommended that the Ministry of Education, the Ontario Physical and Health Education Association (OPHEA) and the Ontario School Boards Insurance Exchange (OSBIE) develop a method to track student concussion injuries. Those organizations should “follow and ensure those students with concussions are treated appropriately, to ensure the Return to Learn and Return to Play process is respected and to provide clear data to assess the effectiveness of concussion prevention and management,” the jury recommended. “The anonymized data should be available for public reporting and assessment of the effectiveness of concussion prevention efforts.”
Canada also aims to have a national concussion strategy by 2017. In November, 2015, the Federal Minister of Sport and Persons with Disabilities, Carla Qualtrough, issued a press release advising that she and her colleague, the Federal health minister, Jane Philpott, have been tasked with forming a “national strategy to raise awareness for parents, coaches and athletes on concussion treatment.”
Gina Bennett, president of Allsport Insurance Marketing, welcomed the legislative moves. She cautioned that it was still too early to predict what kind of impact it would have on underwriting practices. Sports insurers already charge a higher rate for sports that are more prone to concussion. “The risk is already factored in for collision and contact sports like football, hockey and gymnastics,” she explains.
Bennett said, “We are aware of some U.S. organizations that are looking at underwriting concussion protocol, creating concussion supplement applications for sports that are contact sports or intentional collision sports such as football and boxing.”
Concussion treatment in Canada is covered by provincial medical plans, at least while the patients are in hospital. However, the costs for individuals and their families typically mount up during the rehabilitation phase, where physiotherapy is required.
Sport insurance providers can look at providing higher limits for no fault accident coverage, death and dismemberment cover. Allsport has spoken with some sports associations through their brokers, and many of the associations don’t want to be put in the position of administering such policies as part of their group insurance plan. As an example, if a $1million death benefit limit was offered for $50 per member, depending on the size of the association, “they could be cutting a cheque for $2 million premium for the additional coverage alone”. Bennett explained that if sports insurers were to provide limits for catastrophic injury, the cost would be prohibitive, plus there were questions about the willingness of amateur sports organizations wanting to be involved in this.
Bennett also was not sure if parents would pay for the additional protection. “I have not done the research and we don’t know. At this point in time, we are not sure how to price it properly.”
She also explained that in Canada, at least, she is not aware of any sports insurer providing catastrophic no fault limit for individual amateur athletes. This includes Allsport for the time being. Bennett also added that in Canada, at least, no insurer, neither Allsport nor its competitors, are currently offering policies with coverage of $250,000 or more, for individual amateur athletes.
National Football League
Meanwhile, the tide continues to turn against the National Football League. Most recently, executives were put on notice that they may have to testify to insurance companies about what they knew of concussion risks after a judge cleared the way .The insurance companies began proceedings in 2012, and the litigation is tied to the settlement between the league and the thousands of retired players who said the NFL hid from them the dangers of repeated head hits. Players may receive up to US$5 million each. About 150 players opted out of the settlement, meaning they can commence their own action. The NFL is expecting its insurers to pay up.
The league had argued that because the appeals are not exhausted, the current settlement could still change and the information that insurers are looking for may be prejudicial, especially when there are players who have opted out of the settlement. The insurers countered that their request for evidence was reasonable considering the "substantial defense costs" associated with the settlement.
Meanwhile, AIG has stopped insuring NFL players against head injuries. AIG also stopped insuring the U.S’s largest youth football league, Pop Warner, a few years ago as the NFL’s concussion crisis trickled down to the high school level and even younger.
K&K Insurance, an Aon subsidiary, replaced AIG as Pop Warner’s insurer a few years ago. K&K, which covers every player up to US$1 million and, depending on the chapter, up to US$2 million, has not carved out an exception for head injuries.
About 1,000 former NFL players are also suing football helmet maker Riddell. The players allege that Riddell kept quiet about the risks of concussion. This could just be the tip of the iceberg as the 20,000 players who accepted the $1 billion NFL settlement are free to pursue Riddell.
The case is expected to move forward after the NFL settlement gets approved. Riddell was the NFL’s official helmet from 1989 through 2014.
National Hockey League Class Action
The National Hockey League’s second motion to dismiss a class-action lawsuit brought by former players over concussion-related injuries has been rejected for the second time.
The former players are seeking financial damages and medical monitoring for neurological disorders. NHL attorneys have tried to have the case thrown out on two legal grounds: preemption and statute of limitations.
In March 2015, Susan Nelson, a U.S. district court judge in Minnesota, rejected the NHL’s claim that lawsuits like this one cannot be made years after players’ retirements.
In May 2016, Justice Nelson again rejected the league’s claims that its collective bargaining agreement (CBA) should preempt the claim. The NHL had hoped the case would be argued before the National Labor Relations Board, where potential monetary judgments might be lower.
Justice Nelson wrote, “Discovery is necessary to shed light on the nature of Plaintiffs’ claims, when those claims accrued, and which—if any—CBAs might be relevant.” She also warned that the information available to plaintiffs must be thorough, and not “cherry picked” solely to derail the plaintiff’s allegations.
Canadian Football League
Unlike the US, where progress is being made in the NFL and NHL lawsuits, so far, a concussion lawsuit involving a former professional athlete in Canada has been relegated to arbitration.
In the second quarter of a B.C.-Saskatchewan game in Regina in September 2012, BC Lions’ player Arland Bruce was knocked unconscious.
His condition deteriorated with worsening headaches, memory loss, confusion, personality changes, paranoia and delusions. Bruce’s lawyer, Robyn Wishart, filed a lawsuit in British Columbia against the Canadian Football League and its nine member teams in July 2014.
It was the first concussion lawsuit against the CFL. The lawsuit claimed former CFL commissioner Mark Cohon, the CFL and its nine current member teams, Ottawa Renegades Football Club Inc., brain-injury expert Dr. Charles Tator and Krembil Neuroscience Centre in Toronto “knew or ought to have known that multiple sub-concussive and concussive blows to the head lead to long-term brain injury, including but not limited to: memory loss, dementia, depression and Chronic Traumatic Encephalopathy (‘CTE’) and its related symptoms.”
The heart of Bruce’s claim is that he should have been warned about long-term health risks, but the CFL appears to be arguing on a technical point of jurisdiction.
Wishart argued that Bruce’s interests weren’t protected under the CFL’s Collective Bargaining Agreement. Chief Justice Christopher Hinkson ruled that the court did not have jurisdiction for the case, that it could only be resolved through the grievance and arbitration process under the league’s collective agreement with the players’ union. Wishart has filed an appeal.
In May 2015, Wishart and several other former players filed a separate $200-million suit that sought class-action status in Ontario. The class-action lawsuit was filed in the Ontario Superior Court of Justice with former Ottawa Renegades defensive back, Korey Banks, and former Toronto Argonauts running back, Eric Allen, as representative plaintiffs.
2016 Rio Olympic Games
The bad news keeps on piling up for the organizers of the 2016 Rio Olympic Games. In advance of the games, a drug-resistant bacteria was found off the coast of Brazil’s beaches; the country is suffering its worst recession in decades; and Rio police and firefighters have not been paid in months.
All this comes on top of concerns of the Zika virus, which scientists have said is linked to birth defects in some babies if their mothers got infected during pregnancy. The virus is spread via a species of mosquito. In May, over 200 prominent scientists took the unprecedented step of calling on the World Health Organization to move the Olympics, something the WHO rejected.
Still, the International Olympic Committee has cancellation insurance worth about US$800 million for the 2016 Olympics, with a premium of about US$13 million. Coverage for events of such calibre is bought at least five years beforehand.
Despite the ongoing Zika virus outbreak, the Rio Olympic Games is commencing as scheduled. Most of that exposure is held by a handful of large reinsurers, including Munich Re, Swiss Re, and Hannover Re. The insurance industry as a whole is estimated to be covering about US$1 billion in potential claims.
In the event of a terrorist attack or natural disaster that were to prevent all or some of the games, insurance would cover the losses of organizers, the host nation, TV networks, and other contract holders for money already spent on the event, and lost revenue. Infectious disease risks usually require separate, additional coverage and most of the insurance contracts were signed four years ago when the Zika virus wasn’t on the radar. Andrew Duxbury, an underwriting manager in the U.K. branch of Munich Re says that once it’s already in the public domain, it’s deemed a pre-existing condition and would be excluded from all policies. Duxbury goes on to explain that if a policy were to leave Zika off a list of this kind, the insurer would have to pay in the event the games didn’t happen for fear of the disease, but he doubts there's much risk of this kind for the insurers.
As far as insurers are concerned, every Olympic Games has had its own risks; The 2012 London Olympics had fears about overwhelming traffic congestion; air pollution fears were rampant for the Beijing Olympics in 2008; and security fears were the major concern for the 2004 Athens Olympics (the first after 9/11).
Crumb Rubber Turf – an emerging risk?
Closer to home, a material commonly used on soccer pitches across North America has come into question whether exposure to it causes cancer. Crumb rubber is ground up car and truck tires that is used on soccer fields to help create a “bounce” for a soccer ball and to reduce sport injury.
Artificial turf is now in its third generation iteration, and crumb rubber is used in thousands of schools, parks, and stadiums around the world. The recycled rubber is often seen laid down in tile formations of between five to eight centimetres thickness, beneath playground equipment. Rows of green plastic are then laid down to simulate the appearance of green grass.
Originally, crumb rubber was considered an environmental success story because it diverted thousands of tires from the landfill. The material also reduced the need for fertilizers, pesticides and water.
However, according to a recent Yale University-led study, half of the compounds found in the crumb rubber substance are considered toxic. Most of the particles are either carcinogens or irritants, which can cause respiratory issues including asthma. The Yale researchers looked at five new samples of crumb rubber tire infill, and nine new samples of rubber mulch. One of the study’s findings is that of the 96 chemicals detected, almost half of them had no toxicity screenings to determine their health effects. The other chemicals underwent incomplete toxicity assessments. “And of those, 20% are considered probable carcinogens. Additionally, 40% are found to be irritants causing problems for either breathing, the skin or the eyes,” the researchers concluded.
There have been reports that soccer goalies, because of their constant diving to save the ball, are coming into repeated close contact with the rubber pieces, and sometimes accidentally swallowing them or inhaling the fumes given off by the rubber, particularly on hot days. Some commentators have said that goalies also appear to be particularly vulnerable to developing lymphoma.
According to figures from the Synthetic Turf Council, a US industry body, more than 11,000 synthetic turf sports fields are in use in the U.S. Industry leaders say while they encourage additional research, studies have shown that the substances found in crumb rubber are not at high enough levels to be at risk to children or athletes.
Other researchers have said that one of the problems with studying the potential health hazards of crumb rubber fields is the sheer variety of materials used in the product. For example, “tens of thousands” of different tires from different brands may be used in one field. A dizzying array of compounds, including mercury, lead, benzene, polycyclic aromatic hydrocarbons, and arsenic, among several other chemicals, heavy metals, and carcinogens, have been found in tires.
Artificial turf is also made of heat retaining materials which can increase the surface temperature of fields.
In 2009, the Environmental Protection Agency conducted an extremely limited scoping study of crumb tire and artificial turf. The team studied two synthetic turf sites and one playground, fewer than the targeted four turf fields and four playgrounds. In a December 10, 2009 press release, the EPA said it “found that the concentrations of materials that made up tire crumb were below levels considered harmful.”
Since then, bowing to media and consumer pressure, the EPA, the Centers for Disease Control and Prevention/Agency for Toxic Substances and Disease Registry (ATSDR), and the U.S. Consumer Product Safety Commission (CPSC) have announced they are launching a multi-agency action plan to study key environmental human health questions about recycled tire crumb.
Canadian perspective on artificial turf
In Canada, Vancouver Park Board is trying out a new infill product for artificial turf.
The new turf product will be installed in the Kerrisdale multi-use park as part of the park's upgrades. It will be progressively rolled out to other playing fields over the next few years.
The board has chosen to replace the crumb rubber with a thermoplastic elastomer — a synthetically produced compound mix of plastic and rubber that produces less heat and is fully recyclable.
An April 2015 report by Toronto Public Health concluded that, based upon a review of the available evidence, third generation artificial turf is not expected to result in exposure to toxic substances at levels that pose a significant risk to human health, but with certain caveats – that the turf is properly installed and maintained; users must follow good hygienic practices (for example washing hands, avoiding eating on artificial turf and supervision of young children to ensure they do not eat the infill material).
Erring on the side of caution, the report authors recommended that artificial turf be installed “only in situations where the conditions on the site and the high use of the space would prevent the maintenance of a healthy natural turf.”
While much of the new risk arising around sports injury and liability is still in its early stages of research, testing and court rulings, awareness of such issues are coming to light to help protect both professional and recreational athletes.
There is also much travel in the world of sports, especially at the professional level, where athletes are travelling across the globe to compete. With travel comes the risk of pandemics as we have most recently seen with the Zika virus in South America. The industry must be prepared to address and mitigate the risks associated with these unique situations.
So long as there is sport, there will be injury, and the insurance industry needs to be on top of changes to legislation as we become more knowledgeable about the long-term effects of head injury and other risks exposure of our athletes.
ADVANTAGE Monthly trends papers
This paper is part of an open online library of ADVANTAGE Monthly trends papers, published by the CIP Society for the benefit of its members and of the p&c insurance industry. The trends papers provide a detailed analysis of emerging trends and issues, include context and impact, and commentary from experts in the field.
The CIP Society represents more than 18,000 graduates of the Insurance Institute’s Fellowship (FCIP) and Chartered Insurance Professional (CIP) programs. As the professionals’ division of the Insurance Institute of Canada, the Society’s mission is to advance the education, experience, ethics and excellence of our members. The Society provides a number of programs that promote the CIP and FCIP designations, continuous professional development, professional ethics, mentoring, national leaderships awards, and research on the issues impacting the p&c insurance industry in Canada.