The National Football League and the Regulation of Traumatic Brain Injury: A Repeat Player in a Multi-Level Game

Analyses of repeat players leveraging their resources to influence law in ways that serve their long-term interests are not new. Since the publication of Marc Galanter’s seminal 1974 article, “How the Haves Come Out Ahead”, scholars have empirically tested, modified and adapted his observations to explain how certain actors become influential through repeated and strategic engagement with different forms of law and regulation. The National Football League’s (NFL) efforts to shape responses to traumatic brain injury (TBI) offer a contemporary case of repeat playing that includes tactics overlooked by previous socio-legal studies. This paper documents how the NFL has attempted to inform regulatory approaches to TBI in sport and beyond, illustrating an instance of “multi-level repeat playing” that includes—but also extends well beyond—legalistic methods. In doing so, the analysis acknowledges the importance of litigation, particularly in light of the over 1 billion-dollar NFL concussion class-action lawsuit; however, its aims are to shed light on the NFL’s wider strategic response to the growing awareness of risks associated with TBI. Among them, for example, are funding initiatives to shape TBI research priority areas and evidence-based policy. Scrutinizing the NFL as a repeat player thus requires consideration of regulatory pluralism, as well as the roles of science and scientific knowledge production in the wider regulatory agenda around TBI. After detailing recent developments in North America, the paper concludes by reflecting on how this sport-specific case offers new insights into interconnected relationships between science, policy, and regulation.

Dr. Kathryn (Kate) Henne is an interdisciplinary researcher whose work is situated at the intersections of socio-legal studies and science and technology studies (STS), with a focus on how biogovernance—that is, the governance of populations and individual humans through science and technology—informs regulatory practices in everyday life. She is an ARC DECRA Fellow and Associate Professor at RegNet, the School of Regulation and Global Governance at the Australian National University. She also holds the Canada Research Chair (Tier 2) in Biogovernance, Law and Society at the University of Waterloo, where she directs the Law and Society Emerging Research (LaSER) Laboratory. 

All welcome. No RSVP required.