Teams violated contract of ex-CFL player alleging inadequate care after concussion: arbitrator

An arbitrator has ruled that two Canadian Football League teams violated the contract of former player Arland Bruce III, who suffered a game-related concussion in 2012. 

However, the arbitrator said "the evidence does not establish a causal link" between those violations and Bruce's current health.

The two-time Grey Cup champion filed a grievance alleging the Hamilton Tiger-Cats, B.C. Lions, Montreal Alouettes and the CFL failed to provide adequate medical care before, during, and after his concussion, violating the collective agreement between the league and the CFL Players' Association (CFLPA).

The former wide receiver also claimed he suffered permanent physical and cognitive brain damage as a result.

In the ruling, delivered earlier this month, arbitrator Allen Ponak concluded there were two contract violations by the Lions — around clearing Bruce to play in 2012 without pre-season medical followup, and then Bruce's return to game play without a physician's medical clearance.

Ponak also found one violation by the Alouettes around the team's failure to retain a brain injury assessment for Bruce that it claims to have administered.

Earlier applications to address the issue in B.C. courts were rejected, bringing the complex litigation to the recent hearing in the Collective Bargaining Agreement (CBA)'s grievance and arbitration process.

Lawyer Robyn Wishart told CBC News that Bruce and his family are "thrilled" about the decision, after more than a decade of trying to establish that there had been breaches in the collective agreement.

"His lifelong dream has always been to be a Hall of Famer. And, you know, this was a rearview mirror thing for him" over the course the arbitration, she said.

"To get an establishment of three breaches is ... just really so important to him and his family, the most important thing."

The hit

During a game between the B.C. Lions and Saskatchewan Roughriders on Sept. 29, 2012, Bruce suffered a concussion and briefly lost consciousness on the field.

Bruce, who was traded by the Tiger-Cats to the Lions in the middle of the 2011 season, was assisted to the sidelines and sat out the rest of the the game. He returned to play in the Lions' loss in the Western Conference final on Nov. 18. 

Bruce then moved to Montreal, playing a full season with the Alouettes in 2013. The team released him at the end of the season for reasons unrelated to injury, and his time in the CFL came to an end. 

At that point, according to the decision, Bruce's career included over 250 regular-season and playoff games. He was fifth all-time in career receiving touchdowns, and tied for first for most receptions in a single game.

He'd won two Grey Cups, first with the Toronto Argonauts in 2004, then with the Lions in 2011. 

'Failure to follow up'

Key to the case, notes Ponak, is whether the Tiger-Cats, Lions, and Alouettes "met their health and safety responsibilities to Mr. Bruce."

The CFL's collective agreement mandates it to provide a safe workplace for all players and personnel, a requirement that mirrors Canadian labour laws.

Part of that is implementing a concussion protocol, which includes assessments and reports monitoring injuries and tracking recovery. These are completed by players, their doctors and trainers throughout the season.

The decision details evidence from both sides on Bruce's treatment, as well as opinions from leading brain injury experts in what's described as the first arbitration case involving a CFL player alleging inadequate care following a concussion.

For the most part, the arbitrator found little evidence indicating the teams had been negligent. He rejected that Bruce's "exuberant touchdown celebrations" while with the Tiger-Cats, for example, were symptomatic of brain damage that the team ignored.

He also found that Bruce's clearance to practise, then to play with the Lions and later the Alouettes, was reasonable and consistent with results from assessments.

Ponak flagged several lapses, however. 

One of them was the lack of followup on the part of the B.C. Lions ahead of the 2012 season, when Bruce reported previous concussions along with symptoms including sensitivity to light, numbness and tingling.

There was also the question of Bruce's use of a different name in his clinical reports and on his practice jersey, and the claim of a second language he didn't speak.

"He listed his name as Runako Reth and Hebrew as a second language," Ponak writes, adding there wasn't followup regarding these symptoms.

While one doctor characterized the behaviour as "not terribly out of the normal" and another testified it "may have been indicative of mental health problems but not neurodegenerative disease or brain damage," others said it should've been followed up on to determine Bruce's health.

Ponak agreed, saying the fact that Bruce reported no concussion-type symptoms after the season began and continued performing at a high level "does not excuse the failure to follow up."

'A substandard level of care'

Ponak also found that Bruce's return to playing without medical clearance by a physician, specifically, violated the Lions' safety obligations.

Forty-nine days separated Bruce's concussion and his return to the field to play — a length of time that "suggests a cautious approach" to his treatment and recovery.

However, the are no clinical notes from the physician responsible for his treatment, making the decisions around his progress unclear.

"The absence of clinical notes requires that I accept on faith that these [test] scores were consistent with Mr. Bruce's continued improvement ... I would have an easier time reaching such a conclusion if there were contemporaneous clinical doctor's notes to back this up," he wrote.

"I conclude that allowing Mr. Bruce to return to game play without medical clearance represents a substandard level of care. It violated Mr. Bruce's right to a safe workplace under the CFL constitution and collective agreement."

In 2018, when arbitration proceedings were initiated, the Alouettes also failed to provide a 2013 ImPACT Clinical Report for Bruce, which is used to assess brain injury and recovery.

Ponak wrote that while its implications are likely minor, the failure to retain that document violated the team's obligations under the collective agreement.

Social media undermining reported mental struggles

In 2017, B.C.'s Ministry of Social Development approved Bruce's application for a person with disabilities designation, according to the ruling. He was also approved for a disability tax credit by the Canada Revenue Agency.

The decision also details his experiences of psychosis in 2014 and 2015.

Ponak wrote, however, that he found "a level of cognitive and physical functionality well in excess of the claimed level of severe impairment," citing Bruce's social media posts and guest appearances on podcasts. 

Ponak concludes that while violations were made to workplace safety obligations and the retention of medical records, the evidence "does not establish a causal link" between those violations and Bruce's current health.

The next step is for both parties to determine whether Bruce is owed remedial compensation for the violations.