Conflict of Interest

Conflict of interest arises when we have incentives that conflict with our professional duties and responsibilities in ways that cause harm to others and to society.

Discussion Questions

1. What conflicts of interest have you personally experienced in personal or professional roles?

2. If you perceive a potential conflict for yourself, what are some ways you might ensure that this conflict doesn’t lead to unethical behavior for you and others?

3. When have others’ conflicts of interest impacted how you or those you know were treated?

4. What types of policies can or do organizations implement to try to reduce conflicts of interest or their costs?

5. Why do you believe conflicts of interest are so pervasive in society? Why don’t we take more steps to avoid them?

6. Why is it so hard for individuals to recognize their own conflicts of interest, and how is this impacted by behavioral biases?

Case Studies

Cheney v. U.S. District Court

On June 24, 2004, the United States Supreme Court decided the case of Cheney v. U.S. District Court. Believing that U.S. Vice President Dick Cheney’s handling of an energy task force violated the Federal Advisory Committee Act, and suspecting undue influence in governmental deliberations by the energy industry, two environmental groups—the Sierra Club and Judicial Watch—sued to discover official documents relating to the meetings. Cheney and other government defendants moved to dismiss the lawsuit, but the federal district court in Washington D.C. ordered defendants to produce information about the task force. Defendants appealed, and the Circuit Court also held that they had to turn over the information. Defendants appealed again to the Supreme Court. A majority of the Supreme Court, for largely procedural reasons, held that the Circuit Court should reconsider the appeal in light of new legal guidelines that the Supreme Court set out. Dissenters argued that the lower courts had ruled correctly, and the case should be returned to the District Court where it could go forward. Justice Antonin Scalia voted with the majority, but also said that he favored dismissing the case and ruling for Cheney and the other defendants. Justice Scalia also filed a statement explaining why he was refusing requests that he recuse himself from the case.

Justice Scalia’s opinion in favor of Cheney was controversial. While the case against Cheney was pending, Scalia had taken a widely publicized duck hunting trip with defendant Cheney and others. Federal law states that “any justice or judge shall disqualify himself in any proceeding in which his impartiality might be questioned.” Critics of Justice Scalia thought it reasonable to question his impartiality. Stephen Gillers, a New York University law professor and expert on legal ethics, noted, “A judge may have a friendship with a lawyer, and that’s fine. But if the lawyer has a case before the judge, they don’t socialize until it’s over. That shows a proper respect for maintaining the public’s confidence in the integrity of the process.”

Defenders of Justice Scalia argued that these criticisms were politically motivated by people who wished that Scalia not be able to vote in the case. They said it is common for justices to be friends with political actors who might be involved in cases coming before the Court. Defending his actions, Scalia stated, “Social contacts with high-level executive officials…have never been thought improper for judges who may have before them cases in which those people are involved… For example, Supreme Court Justices are regularly invited to dine at the White House, whether or not a suit seeking to compel or prevent certain presidential action is pending.”

Discussion Questions

1. Do you think there is a conflict of interest in this case? Why or why not?

2. Psychological studies indicate that people have an easy time understanding how conflicts of interest may sway the decisions of other people, but often have great difficulty perceiving that similar conflicts might prejudice their own decisions. Is there evidence of this in the case of Cheney v. U.S. District Court? Briefly explain.

3. Do you think it would be easy to rule against a friend or a former employer in a high-stakes case? Does this create a conflict of interest between a judge’s natural motivation and the duty to render justice impartially? Why or why not?

4. What do you think would have been the most ethically defensible action for Justice Scalia to take? Explain your reasoning.

5. What is your reaction to the following passage by professors Max Bazerman and Anne Tenbrunsel commenting upon Justice Scalia’s opinion in this case:

“Scalia’s comments [on conflict of interest] indicate that he rejects or is unaware of the unambiguous evidence on the psychological aspects of conflicts of interest. Even more troubling than this lack of understanding are the Supreme Court’s rules which, like most guidelines and laws that are intended to protect against conflicts of interest, guard only against intentional corruption. Yet most instances of corruption, and unethical behavior in general, are unintentional, a product of bounded ethicality and the fading of the ethical dimension of the problem.”

Do you agree with their assessment? Why or why not?

Bibliography

28 U.S.C. sec. 455(a) – Disqualification of Justice, Judge, or Magistrate Judge
https://www.gpo.gov/fdsys/granule/USCODE-2011-title28/USCODE-2011-title28-partI-chap21-sec455/content-detail.html

Cheney, Vice President of the United States, et al. v. United States District Court for the District of Columbia, 541 U.S. 913 (2004)
https://law.resource.org/pub/us/case/reporter/US/541/541.US.913.03-475.html

Cheney, Vice President of the United States, et al. v. United States District Court for the District of Columbia et al., 542 U.S. 367 (2004)
https://law.resource.org/pub/us/case/reporter/US/542/542.US.367.03-475.html

Justices Scalia and Kagan Duck Washington for Hunting Getaway
http://blogs.wsj.com/law/2014/12/17/justices-scalia-and-kagan-duck-washington-for-hunting-getaway/

Was the duck hunt a conflict of interest?
http://www.csmonitor.com/2004/0213/p02s01-usju.html

Scalia’s Explanation for Recusal Refusal is Unconvincing
http://www.jurist.org/forum/ross1.php

Trip with Cheney Puts Ethics Spotlight on Scalia
http://articles.latimes.com/2004/jan/17/nation/na-ducks17

Scalia Angrily Defends His Duck Hunt with Cheney
http://www.nytimes.com/2004/03/18/politics/scalia-angrily-defends-his-duck-hunt-with-cheney.html

Scalia and Cheney’s outing: No ordinary duck hunt
http://usatoday30.usatoday.com/news/washington/2004-02-06-cheney-scalia_x.htm

Blind Spots: Why We Fail to Do What’s Right and What to Do About It
http://www.worldcat.org/title/blind-spots-why-we-fail-to-do-whats-right-and-what-to-do-about-it/oclc/679940661

Conflicts of Interest: Challenges and Solutions in Business, Law, Medicine, and Public Policy
http://www.worldcat.org/title/conflicts-of-interest-challenges-and-solutions-in-business-law-medicine-and-public-policy/oclc/939111700

Covering Yourself? Journalists and the Bowl Championship Series

This case study examines the conflict of interest that arose from the Bowl Championship Series’ use of news media polls to create their team matchups. News outlets claimed that they could not fairly report sports news if their polls were used to create the news.

The full case study, discussion questions, and additional resources can be accessed through the link below, which will open a new tab at The Texas Program in Sports & Media website.

Full TPSM Case: Covering Yourself? Journalists and the Bowl Championship Series

Ethical Use of Home DNA Testing

Home DNA testing is a booming business. Millions of Americans have sent their DNA to commercial testing companies such as 23andMe or Ancestry to learn more about their heritage or potential for disease. According to Grand View Research, “the global DNA testing market is set to reach over $10 billion by 2022.” (Brown 2018). Successful marketing campaigns have led consumers to believe that home DNA testing is fun, informative, and personal to them. However, what consumers may not realize is that once their genetic information is shared, they have limited control as to who has access to it.

Regardless of the reason consumers decide to purchase a home DNA test kit, the information they provide to the testing company is far greater than the information they receive. The benefits that these testing companies can gain from gathering, using, and selling customers’ private information places them in a significant conflict-of-interest situation. Some of this information includes the IP address, name, address, email, and family history, collected from the application, as well as information provided on follow up surveys. Furthermore, according to its website, if customers opt to share their data for research, 23andMe could keep their physical spit sample and the genetic data it contains for up to a decade. Additional information that consumers upload to the companies’ genealogy website, such as pictures, obituaries, family relationships, and even third-party information is probably added to the pool of data linked to customers’ DNA.

Recently, some have felt that privacy and consumer rights have been violated when they used home DNA kits. In June 2019, Lori Collett sued Ancestry for allegedly misleading customers about what it was doing with their DNA. This class action lawsuit claims that personal information was released to outside parties without customer consent. Further contentions include that the waiver of consumer rights through consent forms is often vague, general in scope, and ever-changing. The fine print may not accurately spell out what the company, its third-party associates, and collaborators can or will do with customer information. (Merken, 2019)

Further concerns arise as testing companies often align themselves with pharmaceutical companies, public and private research organizations, and Google. For example, “GlaxoSmithKline purchased a $300 million stake in the company, allowing the pharmaceutical giant to use 23andMe’s trove of genetic data to develop new drugs — and raising new privacy concerns for consumers.” (Ducharme, 2018) Similarly, Ancestry is sharing its data with Google through its research subsidiary Calico. Ancestry admits that “once they share people’s genetic information with partner companies, they can’t be responsible for security protocols of those partners.” (Leavenworth, 2018).

Additionally, both 23andMe and Ancestry use Google Analytics to provide third parties with consumer information for targeted marketing. In its privacy policy 23andMe states that “when you use our Services, including our website or mobile app(s), our third-party service providers may collect Web-Behavior Information about your visit, such as the links you clicked on, the duration of your visit, and the URLs you visited.” This use of shared information allows testing services and third parties to build a comprehensive personal profile on you, which may include your genetic information.

Although privacy may be a concern of consumers, law enforcement with the cooperation of DNA testing companies, either through partnership or warrants, have brought justice to the victims of numerous unsolved cases. Over the past few years, the use of consumer DNA databases have closed many high profile cold cases such as the Golden State Killer and overturned the wrongful conviction of Alfred Swinton. In some cases, such as the Golden State Killer, the DNA used to identify suspects are cross-referenced through the DNA of relatives as far removed as third cousins. However, this has brought additional concerns, as a DNA expert for the American Civil Liberties Union, Vera Eidelman states, “There’s always a danger that things will be used beyond their initial targets, beyond their initial purpose.” (St. John 2019)

The success of consumer DNA databases has led some law enforcement to meet with Bennett Greenspan, the CEO of FamilyTreeDNA, seeking his help to convince consumers to share their genetic data with police. This partnership has resulted in the creation of the non-profit Institute for DNA Justice that has the following stated mission:

“The Institute for DNA Justice was formed to educate the public about the value of investigative genetic genealogy (IGG) as a revolutionary new tool to identify, arrest, and convict violent criminals, deter violent crime, exonerate the innocent, encourage the 26 million Americans who have taken a DNA test to become genetic witnesses by participating in publicly available family-matching databases working with law enforcement using IGG, and to promote the adoption of industry leading best practices guidelines surrounding its use by law enforcement agencies around the country.”

Regardless of public or private testing, laws in the United States have not yet determined a standard for the home DNA testing industry.

Discussion Questions

1. What happens to your DNA profile and genetic material if your testing company goes out of business? What should happen to it?

2. Who should have access to your genetic information? In the case of law enforcement using consumer DNA databases, does the common good out way the individual’s rights? Is there a middle ground?

3. What right do individuals have over their DNA? If you have an identical twin, with the exact same DNA, should dual consent be required?

4. What recourse do you have if the company’s database is hacked and your information ends up on the internet or in criminals’ hands?

5. Does the good that flows from DNA evidence being used to bring some criminals to justice and to exonerate wrongly-convicted people justify the invasions of privacy and other wrongs described in this case study?

Bibliography

Amy Brown, “DNA Testing is Popular, But Many Are Unaware of Privacy Concerns,” TriplePundit, Dec. 18, 2018. https://www.triplepundit.com/story/2018/dna-testing-popular-many-are-unaware-privacy-concerns/55936

Jamie Ducharme, “A Major Drug Company Now Has Access to 23andMe’s Genetic Data. Should You Be Concerned? Time, July 26, 2018.

David Lazarus, “DNA-testing Firms are Lobbying to Limit Your Right to Genetic Privacy,” Los Angeles Times, July 2, 2019.

Stuart Leavenworth, “The Secretive Google Subsidiary with Access to Ancestry’s DNA Database,” Financial Review, June 8, 2018. https://www.latimes.com/business/lazarus/la-fi-lazarus-dna-genetic-privacy-20190702-story.html

Sara Merken, Áncestry.com Sued for ‘Misleading’ Customers About DNA Data,” Bloomberg Law, April 25, 2019. https://news.bloomberglaw.com/privacy-and-data-security/ancestry-com-sued-for-misleading-dna-data-handling-claims.

Paige St. John, “DNA Genealogical Databases Are a Gold Mine for police, But with Few Rules and Little Transparency,” Los Angeles Times, Nov. 24, 2019.

N’dea Yancey-Bragg, “DNA is Cracking Mysteries and Cold Cases. But is Genome Sleuthing the ‘Unregulated Wild West?,’” USA Today, May 14, 2019.

“Privacy Highlights,” https://www.23andme.com/about/privacy/

https://www.institutefordnajustice.org/

Head Injuries & American Football

American football is a rough and dangerous game. “Football is both notorious and cherished for its unapologetic, brute-force violence.”[1] Players suffer bruises, lacerations, torn muscles, dislocated shoulders, torn knee ligaments, broken bones, internal organ damage, and, occasionally, even paralysis. Football rules intentionally create high speed collisions between human beings, making such injuries inevitable and the sport controversial. And new knowledge about brain injuries have caused many people to call football immoral[2] and to advocate its abolition.[3]

A traumatic brain injury (TBI) is “a disruption in the normal function of the brain that can be caused by a bump, blow, or jolt to the head, or penetrating head injury.”[4] A concussion is a form of TBI where the blow causes the brain to move rapidly back and forth, bouncing around in the skull and suffering various types of structural damage. [5] Although concussions can carry serious consequences, they are termed a “mild” form of TBI because they are not typically life threatening. Chronic traumatic encephalopathy (CTE) is “brain degeneration likely caused by repeated head traumas.”[6] Repetitive head impacts (RHIs) can cumulatively lead to CTE and early death, even though no single RHI results in a concussion.[7]

If only one thing is clear about the current science surrounding sports-related concussions (SRCs) and related brain injuries, it is that very little is clear about the current science. The field is surprisingly new.  As told in the movies, a significant scientific breakthrough occurred in 2002 when an African-American neuropathologist in Pittsburgh named Bennet Omalu (played by Will Smith in the 2015 movie “Concussion”) performed an autopsy on Hall of Fame center Mike Webster. Dr. Omalu identified abnormal clumps of the protein tau in Webster’s brain, which he believed to be evidence of CTE.[8] Such proteins develop in tangles that slowly strangle neurons and, consequently, inhibit brain function.[9]

Many recent studies point to how dangerous football is to players’ long-term brain health. These studies are broken down by football league level:

National Football League (NFL):

  • Over two regular seasons (2012-2014), NFL players sustained 4,384 injuries, including 301 concussions. This statistic is up 61% from 2002-2007, perhaps reflecting an improvement of awareness and reporting.[10]
  • In a study of 14,000 NFL players, researchers found that even head impacts insufficient to cause concussions can mount up over the years, leading to CTE and premature death. An NFL player who plays 24 games increases the likelihood of premature death by 16%.[11]
  • A 2019 study of the brains of 223 football players with CTE and 43 players without CTE found that for each additional 2.6 years of play, the risk of developing CTE doubled.[12]
  • Another study found that greater RHI exposure correlated with higher levels of plasma t-tau (a biomarker for CTE) in symptomatic former NFL players as compared to the study’s control group.[13]
  • Of 111 NFL players whose brains were donated for one study, 110 were diagnosed with CTE.[14]
  • A 2012 study of 3,439 NFL players with five years or more in the NFL found that their neurogenerative mortality was three times that of the general U.S. population, and four times higher for two subcategories: Alzheimer’s disease, and Lou Gehrig’s Disease (amyotrophic lateral sclerosis or ALS).[15]
  • Other studies found that NFL players who suffered concussions were more likely to later be diagnosed with depression, [16] dementia-related syndromes,[17] Lou Gehrig’s Disease (ALS),[18] and erectile dysfunction.[19]

 

College & High School:

  • A study of former high school and college football players found that RHI exposure predicted later-life apathy, depression, executive dysfunction, and cognitive impairment.[20]
  • After a single season, college football players had less midbrain white matter than they had started with.[21]
  • High school athletes are reluctant to report concussions.[22]
  • A 2017 study found CTE in 21% of donated brains of deceased high school football players.[23]
  • Over time more evidence has indicated that even mild concussions suffered by high school football players can cause serious consequences.[24]
  • Football causes more concussions than any other high school sport,[25] and these concussions can cause death.[26]

 

Youth Leagues (Under 14):

  • Youth football players average 240 head impacts per season. Some of these are high impacts comparable to those experienced in high school and college games.[27]
  • Children between the ages of 9 and 14 make up the largest cohort of football players in the U.S. They can suffer concussions from milder collisions than would be required to concuss a collegiate or professional player.[28]
  • According to research by neuroscientists, “There seems to be greater consequences if you’re getting your head hit when the brain is rapidly developing [below age 12].”[29]
  • A study of former NFL players found that those who began playing football before age 12 tended to show greater later-life cognitive impairments as compared to those who began after age 12.[30]

THE OTHER SIDE OF THE STORY

Given the results of the studies above, it is not surprising that there has been a strong outcry against football. However, the science in this area is truly not settled. Part of the reason is that “[m]ost of the time when a player has a concussion, standard medical imaging techniques do not show damage.”[31] No “gold standard” for diagnosing concussions currently exists.[32] Many researchers in the area recently published an article saying:

Contrary to common perception, the clinical syndrome of CTE has not yet been fully defined. Its prevalence is unknown, and the neuropathological diagnostic criteria are no more than preliminary. We have an incomplete understanding of the extent or distribution of pathology required to produce neurological dysfunction or to distinguish diseased from healthy tissue, with the neuropathological changes reported in apparently asymptomatic individuals.”[33]

Neuropsychologist Munro Cullum argues: “I worry the pendulum has swung too far. The reality is that we still don’t know who is most likely to suffer a concussion, who will take longer to recover, how anatomic or genetic differences influence concussions, and who may be at risk of prolonged symptoms or developing cognitive problems later in life.”[34]

Furthermore, many of the studies cited by those who would like to abolish tackle football have involved relatively small sample sizes.[35]  Other studies have involved skewed samples, including one where all the NFL players’ brains had been donated because of mental declines that the donors had suffered before their deaths.[36]

Most importantly, other studies seem to indicate that concussions may be more benign. Again, these studies are broken down by league level:

NFL

  • A 2016 study found no elevated risk of suicide in a population of players with at least five years in the league.[37]
  • Another study of 35 former NFL players over age 50 who had sustained multiple concussions during their careers found no significant association between the length of careers, the number of concussions, and their level of cognitive function later in life.[38]
  • One study found no statistically significant difference between the all-cause mortality among career NFL players and NFL replacement players who played just three games during the strike of 1987.[39]
  • A 2007 study found that retired NFL players experienced levels of depressive symptoms no worse than those of the general population.[40]

 

College & High School

  • Suicide rates among NCAA football players are the highest among all sports, but they are substantially lower than the general population age 18-22 or college students in that age range.[41]
  • A study of 3,904 Wisconsin men found no significant harmful association between playing football in high school and cognitive impairment or depression later in life.[42]
  • Reducing tackling in practices has reduced overall concussion numbers among high school players, even though the number of concussions in games has risen slightly. And concussion recurrence has been reduced, most likely by protocols guiding when it is safe to return to play.[43]
  • One expert said “It really seems right now that if your [football] practices are highly controlled and reduced as much as possible and you only play four years of high school, your [CTE] risk is probably pretty low.”[44]

 

Youth Leagues (Under 14)

  • Despite their heightened susceptibility to concussions, youth football players rarely sustain concussions because they are lighter and collide with less force than older players.[45]
  • In one study, use of newly-designed football helmets and safe tackling techniques eliminated concussions for 20 middle school aged players for an entire season.[46]

Studies such as these provide ammunition for those who defend organized football as an institution. However, many such studies were funded or carried out by the NFL, owners of NFL franchises, universities that earn millions of dollars from football, and other interested parties. Given the obvious conflict of interest, the studies have been criticized on that ground.[47] There is also evidence that the NFL sought to influence the findings of some of the research it funded. [48] In addition, evidence indicates (and is consistent with the self-serving bias) that industry funding of research often influences results.[49]

The NFL has taken other concrete steps to respond to the controversy. It paid more than $750 million to settle a civil lawsuit by former players.[50] The NFL has also changed rules to discourage helmet-to-helmet contact,[51] and has instituted protocols for safely returning concussed players to the field.[52]

On the other hand, while football helmets can prevent fractured skulls, they will likely never be able to prevent concussions.[53] Studies indicate that there are helmets that may decrease concussions,[54] but neuroscientist Julie Stamm says: “No helmet will ever be concussion-proof, because the brain still moves inside the skull. And for the same reason, a helmet alone will not prevent CTE.”[55] Furthermore, while the NFL has banned helmet-to-helmet hits, these are neither the only nor the most common cause of concussions.[56] Professor Goldberg argues that “there is little evidence that such incremental changes [e.g., in tackling techniques] have a substantial risk-reducing effect.”[57]

Some people accuse the media (and others) of hysterically overhyping the dangers of tackle football to the brain.[58] Other people believe that media discussions have impeded needed change in minimizing sports violence.[59] At the end of the day, the jury still seems to be out on the question of whether you can go to a football game or watch one on television and still feel good about yourself for supporting a sport that seems to cause irreversible traumatic brain injuries.

Discussion Questions

General Discussion Questions 

  1. Which approach do you think should be used to determine the ethicality of banning, or at least seriously reforming, football to reduce head trauma? Utilitarian? Deontological? Explain why and how using that approach might play out.
  2. If you apply Systematic Moral Analysis to the question of whether or not it is moral to continue to support and/or play football, do you get different results for different league categories and age groups? Explain. Is there a case to be made for “justified harm” in any of these leagues? Why or why not?
  3. New Yorker writer Ingfei Chen observed that Fisher-Price had been required to recall a collapsible crib that was associated with 32 infant deaths. Five million cribs had been sold. Chen noted that “there is no such thing as an acceptably risky crib,” but contrasted it with sports like football where “hazards are part of their attraction.” She asked: “How much risk is too much?”
    1. How do we answer that question? What factors go into each side of the equation?
    2. Are the answers different for NFL players, college players, high school players, and under-14 players? Discuss your reasoning.
    3. Is this an ethical issue? A policy issue? A political issue? All three? Explain.
  4. Chen also points to the uncertainties of the science, noting: “For now, these complexities make certain questions about the disease unanswerable. If subconcussive blows are the cause of C.T.E., how much impact is too much? How do the tau clumps relate to the clinical syndrome—do the lesions fully explain the mood and memory problems? (Probably not; other kinds of brain abnormalities, such as inflammation or damage to neural wiring from head injuries, may play a role.)”[60] Chen further notes that the type of decades-long study that might resolve these issues would be terribly expensive and that no such study is on the horizon.[61] In light of this continuing uncertainty, how do we decide whether (and how) to reform or even abolish football when we have lives on one side of the scales and livelihoods on the other?
    1. Do these choices remind you of the COVID-19 pandemic when governments, in deciding whether to shut down society and later when to reopen it, had to weigh lives vs. livelihoods? Why or why not?
  5. The NFL and universities, among others, urge no rash actions until there is more concrete proof of a causal link between concussions and adverse health outcomes. Others suggest that the uncertainty favors taking actions now rather than waiting until too much damage is done, as happened with tobacco.[62] Sports sociologist Matt Ventresca argues: “As sports executives and researchers issue precautionary calls for more conclusive evidence, countless athletes are exposed to repeated head impacts without the benefits of future knowledge gained from pending scientific investigations.”[63] Professor Daniel Goldberg claims that the Precautionary Principle[64] demands that we prevent youngsters from playing football even if the evidence that it will cause serious damage to their brains is not yet clearly established:[65] “[W]aiting for robust evidence of causality is historically a very poor guideline for maximizing population health.”[66] Other public health experts similarly argue that the evidence of risk is sufficiently high to meet both parts of OSHA’s test for “significant risk of material impairment of health” that justifies government intervention.[67] In the face of medical uncertainty, what is the proper approach to this debate?
    1. Where should the burden of proof lie?
    2. Which approach do you find more persuasive, and why?
    3. Do you think this an ethical issue or just a policy issue? Explain.
  6. Regarding sports concussions, President Obama stated: “We have to change a culture that says ‘you suck it up and play through a brain injury…. [Reporting a concussion] doesn’t make you weak, it means you’re strong.” On the other hand, President Trump has stated that rule changes to diminish head injuries are “ruining the game.”[68] Are politics, as well as ethics, involved in this debate? Discuss your reasoning.
  7. One scientist said: “Don’t forget there’s risk in everything we do. Riding a bicycle carries risk and not a whole lot of parents are not letting their kids ride a bike. So, we just need to kind of put it in context.”[69] Do you find this argument persuasive? Why or why not?
    1. Is your opinion altered by the fact that the scientist quoted above is the neurologist for the Michigan State University football team?
  8. Some argue against paternalism and in favor of individual choice, believing that adults (at least) should be able to choose to engage in boxing (and presumably to play football) despite its potentially adverse consequences for brain health.[70] Using John Stuart Mill’s Harm Principle,[71] others argue that the individualists overlook the damage that such a choice by a football player might have on others. For example, on the people the player might later beat up in a rage caused by brain deterioration, on the burden on caregivers of caring for a dementia-ridden patient, or the sorrow a premature death might cause relatives, and the burden on society caused by high medical expenses to take care of an impaired ex-player.[72] Where do you stand on the paternalism vs. individual choice debate? Support your position with data and facts.

Discussion Questions on the NFL

  1. Many people who are in favor of abolishing football or significantly reforming the way it is played are pro-choice when it comes to abortion, minor drug use, and assisted suicide. Why, then, do you think they oppose letting adults choose freely to play football? [73] Can these contradictory positions be reconciled? Explain.
    1. How about the reverse—why do many people who believe football players should be free to decide what they do with their bodies take decidedly un-libertarian positions on issues such as abortion, marijuana legalization, and assisted suicide? Explain.
  2. Our society allows people to voluntarily choose to undertake many risky professions, including coal miners, fire jumpers, soldiers, underwater oil rig welders, and others.[74] Why, then, should NFL players not be able to do the same?
  3. Steve Almond argues that “a civilian leisure class … has created, for its own entertainment, a caste of warriors too big and strong and fast to play a child’s game without grievously injuring one another.”[75] Do you think this a moral issue? Why or why not?
    1. Relatedly, should fans of the game be ashamed of themselves? Why or why not?
  4. One suggested solution to the concussion problem is to outlaw helmets on the theory that players will be forced to reduce headfirst collisions and other trauma-causing actions.[76] Does this sound like a viable solution to you? Explain your reasoning.
    1. The co-chair of the NFL’s Health and Safety Advisory Committee has said that the committee thinks helmets are part of the culture and tradition and will not be outlawed in the foreseeable future.[77] Football’s rules have been changed frequently over the years, so why do you think this is different? Or is it?
  5. Some take the view that the NFL has acted like the tobacco industry did when it was confronted with lawsuits seeking to prove to juries that smoking caused cancer.[78] In light of very strong evidence associating football violence with brain injuries, the NFL’s goal has simply been to “manufacture doubt” and thereby delay regulation.[79] Do you think that is true? Why or why not? Do you find it to be a moral issue? Explain.
  6. African-Americans make up 12.6% of the American population but 68% of NFL rosters. Thus, they are disproportionately exposed to concussions and other injuries that arise from the game. This has led some to suggest that the NFL is a modern plantation.[80] And that concussions present not just a public health issue but also a social justice issue.[81] Are these fair criticisms? Discuss your reasoning.
    1. Do you think these critiques are counterbalanced by the fact that the riches that are often lavished upon NFL players go disproportionately to African-Americans as well? Explain.
    2. Do you think that the NFL would make more safety-related changes if white players dominated rosters? Why or why not?
  7. It has been suggested at both the NFL and collegiate level that team physicians are faced with conflicting loyalties. They have a duty to preserve the players’ health, but simultaneously feel pressure to get players back out on the field so the team can win.[82] What is your opinion?
    1. How might the self-serving bias impact team physicians’ and trainers’ judgments and actions?

Discussion Questions on High Schools & Colleges

  1. In the wake of the recent pandemic, Oklahoma State head football coach Mike Gundy said “In my opinion, if we have to bring our players back, test them. They’re all in good shape. They’re all 18, 19, 20, 21 and 22-year-olds. They’re healthy … And people say that’s crazy. No, it’s not crazy because we need to continue and budget and run money through the state of Oklahoma.”[83] One commentator cited this remark as stark evidence that “[t]he supremacy of commercial and hedonic interests over the social welfare has, unfortunately become indelibly imprinted into the ethical fiber of American culture.”[84] Do you agree? Why or why not?
    1. Do you see parallels between the debate as to whether to begin playing football again in the wake of the pandemic and the debate as to whether to abolish or reform football in light of the evidence on brain trauma? Explain.
  2. Ramogi Huma, executive director of the National College Players Association, argued that schools should be required to fully inform [college] players about the risks of playing football now, including information about their susceptibilities to underlying health conditions. Do you agree?[85]
    1. Is this disclosure enough? Explain.
    2. Are college (and high school) players sufficiently mature to make reasoned judgments based on such disclosures? Support your position with data and facts.
  3. Statistician Ted Tatos[86] cites the California Supreme Court in University of California v. Rosen as ruling that “[s]tudents are comparatively vulnerable and dependent on their colleges for a safe environment. Colleges have a superior ability to provide that safety with respect to activities they sponsor or facilities they control.”[87] Do you agree with this statement? Why or why not? How does it impact your position on the debate about concussions in football?

Discussion Questions on Youth Leagues (Under 14)

  1. A public health professor has said that letting pre-teens play tackle football is “an abdication of moral responsibility for children’s welfare.”[88] Do you agree, or is this getting a little hysterical? Explain.
  2. Empirical research supports the notion that allowing children to engage in dangerous forms of play is key to their optimal development.[89] It helps them learn to assess risks, for example. Based on such findings, philosopher John Russell has argued that children should be allowed to play tackle football.[90] He believes in the distinctive value of physically “self-affirming” behavior which he argues is available mainly in childhood. Russell states: “Dangerous sport in its best exemplars, particularly those in which substantial bodily danger is an immediate and ever-present risk, represents an opportunity for confronting and pressing beyond certain apparent limits of personal, and indeed human, physical and psychological capacities in ways not afforded by other normally available human activities.”[91] On the other hand, Philosopher Patrick Findler argues that children may not be able to fully realize the dangers they face when playing football, and that other, less dangerous activities, can provide the benefits Russell desires.[92] Whose argument do you find more persuasive, and why?
  3. Daniel Goldberg observes that “there is also a crucial social and political question that is not simply a function of that empirical evidence base: to what risks is it acceptable to expose youths and adolescents?”[93] Is that risk level different than it would be for older players? Explain.
  4. Would you prevent kids under 14 from playing tackle football? Why or why not?

Bibliography

[1] Ingfei Chen, Exactly How Dangerous Is Football?, The New Yorker, Feb. 1, 2020.

[2] Steve Almond, Is It Immoral to Watch the Super Bowl?, New York Times, Jan. 24, 2014; Pamela R. Sailors, Personal Foul: An Evaluation of the Moral Status of Football, Journal of the Philosophy of Sport, 42(2): 269-286 (2015).

[3] Dave Bry, American Football is Too Dangerous, and It Should Be Abolished, The Guardian (UK), Jan. 4, 2016.

[4] Center for Disease Control, at https://www.cdc.gov/traumaticbraininjury/index.html.

[5] Center for Disease Control, at https://www.cdc.gov/headsup/basics/concussion_whatis.html.

[6] Mayo Clinic, at https://www.mayoclinic.org/diseases-conditions/chronic-traumatic-encephalopathy/symptoms-causes/syc-20370921.

[7] Julian E. Bailes et al., Role of Subconcussion in Repetitive Mild Traumatic Brain Injury: A Review, Journal of Neurosurgery, 119: 1235-1245 (2013); Breton M. Asken, Research Gaps and Controversies in Chronic Traumatic Encephalopathy: A Review, JAMA Neurology 74(10): 1255-1262 (2017); Philip H. Montenigro et al., Cumulative Head Impact Exposure Predicts Later-Life Depression, Apathy, Executive Dysfunction, and Cognitive Impairment in Former High School and College Players, Journal of Neurotraumua 34(2) (2017); Ann C. McKee et al., The Neuropathology of Sport, Acta Neuropathologica, 127: 29-51 (2014).

[8] Jeanne Marie Laskas, Concussion (2015). See Bennet I. Omalu et al, Chronic Traumatic Encephalopathy in a National Football League Player, Neurosurgery, 57: 128-134 (2005);

[9] Ann McKee et al., The Neuropathology of Chronic Traumatic Encephalopathy, Brain Pathology, 25: 350-364 (2015).

[10] David W. Lawrence et al., Descriptive Epidemiology of Musculoskeletal Injuries and Concussions in the National Football League, 2021-2014, Orthopedic Journal of Sports Medicine, 2015:3(5):2325967115583653.

[11] Justin Ehrlich et al., Mortality Risk Factors Among National Football League Players: An Analysis Using Player Career Data, F1000Research 2019, 8:2022. See also Ann C. McKee et al., The Spectrum of Disease in Chronic Traumatic Encephalopathy, Brain, 136(1)): 43-64 (2013)(study of donated brains of 64 athletes found “the stage of [CTE] correlated with increased duration of football play, survival after football and age at death” for 34 football players).

[12] Jesse Mez et al., Duration of American Football Play and Chronic Traumatic Encephalopothy, Annals of Neurology, 2019; DOI: 10.1002/ana.25611.

[13] Michael L. Alosco et al., Repetitive Head Impact Exposure and Later-Life Plasma Total Tau in Former National Football League Players, Alzheimer’s & Dementia: Diagnosis, Assessment and Disease Monitoring, 7: 33-40 (2017).

[14] Jesse Mez et al., Clinicopathological Evaluation of Chronic Traumatic Encepahalopathy in Players of American Football, JAMA, 318(4): 360-370 (2017).

[15] Everett J. Lehman et al., Neurodegenerative Causes of Death Among Retired National Football League Players, Neurology, 79(19): 1970-1974 (2012).

[16] Kevin M. Guskiewicz et al., Recurrent Concussion and Risk of Depression in Retired Professional Football Players, Medicine & Science in Sports & Leisure, 39(6): 903-909 (2007).

[17] Kevin M. Guskiewicz et al., Association between Recurrent Concussion and Late-Life Cognitive Impairment in Retired Professional Football Players, Neurosurgery 57(4): 719-726 (2005).

[18] Ernest L. Abel, Football Increases the Risk for Lou Gehrig’s Disease, Amyotrophic Lateral Sclerosis, Perceptual Motor Skills, 104(3): 1251-1254 (20007).

[19] Rachel Grashow et al., Association of Concussion Symptoms with Testosterone levels and Erectile Dysfunction in Former Professional US-Style Football Players, JAMA Neurology, 2019: DOI: 10.1001/jamaneurol.2019.2664.

[20] Philip H. Montenigro et al., Cumulative Head Impact Exposure Predicts Later-Life Depression, Apathy, Executive Dysfunction, and Cognitive Impairment in Former High School and College Players, Journal of Neurotraumua 34(2) (2017).

[21] Adnan A. Hirad, A Common Neural Signature of Brain Injury in Concussion and Subconcussion, Science Advances 5(8), Aug. 2019.

[22] Steven Senne, Student Athletes Still Reluctant to Report Concussions, Nationwide Children’s Study Finds, Columbus Dispatch, Nov. 24, 2019, at https://www.dispatch.com/news/20191124/student-athletes-still-reluctant-to-report-concussions-nationwide-childrens-study-finds.

[23] Steven Senne, Student Athletes Still Reluctant to Report Concussions, Nationwide Children’s Study Finds, Columbus Dispatch, Nov. 24, 2019, at https://www.dispatch.com/news/20191124/student-athletes-still-reluctant-to-report-concussions-nationwide-childrens-study-finds.

[24] Michael W. Collins et al., Adolescent Sports Concussion, Physical Medicine and Rehabilitation Clinics of North America, 19(2): 247-269 (2008); Mark R. Lovell et al., Recover from Mild Concussion in High School Athletes, Journal of Neurosurgery, 98(2): 296-301 (2003).

[25] Jacqueline Howard, These High School Sports Have the Highest Concussion Rates, CNN, Oct. 15, 2019, at https://www.cnn.com/2019/10/15/health/concussion-high-school-sports-study/index.html.

[26] James P. Kelly et al., Concussion in Sports: Guidelines for the Prevention of Catastrophic Outcome, JAMA, 266(20): 2867-2869 (1991).

[27] Bryan R. Cobb et al., Head Impact Exposure in Youth Football: Elementary School Ages 9-12 Years and the Effect of Practice Structure, Annals of Biomedical Engineering, 41: 2463-2473 (2013).

[28] Eamon T. Campolettano et al., Development of a Concussion Risk Function for a Youth Population Using Heal Linear and Rotational Acceleration, Annals of Biomedical Engineering, 48(1): 92 DOI: 10.1007/s10439-019-02382-2.

[29] Julie Mack, What Parents Need to Know about Football, Concussions and Head Injuries, mlive.com, Nov. 24, 2019, at https://www.mlive.com/news/2019/11/what-parents-need-to-know-about-football-and-head-injuries.html (quoting neuroscientist Julie Stamm).

[30] Julie M. Stamm et al., Age of First Exposure to Football and Later-life Cognitive Impairment in Former NFL Players, Neurology, 84(11): 1114-1120 (2015).

[31] Christie Aschwanden, Football’s Concussion Crisis is Awash with Pseudoscience, Wired.com, Oct. 2, 2019.

[32] Matt Ventresca & Mary G. McDonald, Forces of Impact: Critically Examining Sport’s “Concussion Crisis,” in Sociolcultural Examinations of Sports Concussions (Ventresca & McDonald, eds., 2019).

[33] William Stewart et al., Primum Non Nocere: A Call for Balance When Reporting on CTE, Lancet Neurology, 18:231-232 (2019).

[34] Munro Cullum, Is Football Bad for the Brain? We Know Little About the Long-term Effects of Concussions, Statnews, Sept.27, 2019.

[35] Munro Cullum, Is Football Bad for the Brain? We Know Little About the Long-term Effects of Concussions, Statnews, Sept.27, 2019.

[36] Munro Cullum, Is Football Bad for the Brain? We Know Little About the Long-term Effects of Concussions, Statnews, Sept.27, 2019.

[37] Everett J. Lehman et al., Suicide Mortality Among Retired National Football League Players Who Played 5 or More Seasons, American Journal of Sports Medicine, 44(10): 2486-2491 (2016).

[38] Jesse Mez et al., Duration of American Football Play and Chronic Traumatic Encephalopothy, Annals of Neurology, 2019; DOI: 10.1002/ana.25611.

[39] Atheendar S. Venkataramani et al, Association Between Playing American Football and Long-term Mortality, JAMA, 319(8): 800-806  (2018).

[40] Thomas L. Schwenk, Depression and Pain in Retired Professional Football Players, Medicine & Science in Sports & Leisure, 39(4): 599-605 92007)(but finding that when coupled with difficult with pain, problems with sleep and social relations often followed).

[41] Ashwin L. Rao et al., Suicide in National Collegiate Athletic (NCAA) Athletes: a 9-Year Analysis of the NCAA Resolutions Database, Sports Health 7(5): 452-457 (2015).

[42] Sameer K. Deshpande et al, Association of Playing High School Football with Cognition and Mental Health Later in Life, JAMA Neurology, 74(8): 909-918 (2017).

[43] Zachary Y. Kerr et al., Concussion Incidence and Trends in 20 High School Sports, Pediatrics 144(5): e20192190.

[44] Julie Mack, What Parents Need to Know about Football, Concussions and Head Injuries, mlive.com, Nov. 24, 2019, at https://www.mlive.com/news/2019/11/what-parents-need-to-know-about-football-and-head-injuries.html (quoting neuroscientist Julie Stamm).

[45] Eamon T. Campolettano et al., Development of a Concussion Risk Function for a Youth Population Using Heal Linear and Rotational Acceleration, Annals of Biomedical Engineering, 48(1): 92 DOI: 10.1007/s10439-019-02382-2.

[46] Robert F. Heary et al., Is Youth Football Safe? An Analysis of Youth Football Head Impact Data, Neurosurgery (Jan. 2020), available at https://doi.org/10.1093/neuros/nyz563.

[47] Ingfei Chen, Exactly How Dangerous Is Football?, The New Yorker, Feb. 1, 2020.

[48] Kathleen Bachynski & Daniel S. Goldberg, Time Out: NFL Conflicts of Interest with Public Health Efforts to Prevent TBI, Injury Prevention, at https://injuryprevention.bmj.com/content/24/3/180.full; Ingfei Chen, Exactly How Dangerous Is Football?, The New Yorker, Feb. 1, 2020; Mark Fainaru-Wada & Steve Fainaru, League of Denial: The NFL, Concussions, and the Battle for Truth (2013).

[49] Lisa Bero, Industry Sponsorship and Research Outcome: A Cochrane Review, JAMA Internal Medicine, 173(7): 580-581 (2013).

[50] Ken Belson, Judge Approves Deal in N.F.L. Concussion Suit, New York Times, April 22, 2015.

[51] Kevin Seifer, Did the Helmet Rule Actually Work? And How Will It Change in 2019?, ESPN, Aug. 19, 2019, at https://www.espn.com/nfl/story/_/id/27372974/did-helmet-rule-actually-work-2018-how-change-2019.

[52] Janine Armstrong, NFL Concussion Protocol Explained: How Does It Work?, Sportcasting, Oct. 13, 2019, at https://www.sportscasting.com/nfl-concussion-protocol-explained-how-does-it-work/.

[53] Christie Aschwanden, Football’s Concussion Crisis Is Awash with Pseudoscience, Wired.com, Oct. 2, 2019.

[54] Marc Siegel, Concussions and Football: New Helmets, New Tools, The Hill, Aug. 19, 2019.

[55] Julie Mack, What Parents Need to Know about Football, Concussions and Head Injuries, mlive.com, Nov. 24, 2019, at https://www.mlive.com/news/2019/11/what-parents-need-to-know-about-football-and-head-injuries.html (quoting neuroscientist Julie Stamm).

[56] Christie Aschwanden, Football’s Concussion Crisis Is Awash with Pseudoscience, Wired.com, Oct. 2, 2019 (quoting brain scientists Adnan Hirad).

57 Daniel Goldberg, What Does the Precautionary Principle Demand of Us? Ethics, Population Health Policy, and Sports-Related TBI, in Sociolcultural Examinations of Sports Concussions (Matt Ventresca & Mary McDonald eds, 2020).

[58] Daniel Engber, Concussion Lies, Slate, Dec. 21, 2015, at https://slate.com/culture/2015/12/the-truth-about-will-smiths-concussion-and-bennet-omalu.html; Kevin Lomangino, Journalists Drop the Ball on Big Concussion/CTE Story, HEALTHNEWSREVIEW.ORG, Jan. 19, 2018, at https://www.healthnewsreview.org/2018/01/sports-desks-drop-the-ball-on-big-concussion-story/;

[59] Matt Ventresca, The Curious Case of CTE: Mediating Materialities of Traumatic Brain Injury, Communication & Sport, 7(2): 135-156 (2019).

[60] Ingfei Chen, Exactly How Dangerous Is Football?, The New Yorker, Feb. 1, 2020.

[61] Ingfei Chen, Exactly How Dangerous Is Football?, The New Yorker, Feb. 1, 2020.

[62] Matt Ventresca, The Curious Case of CTE: Mediating Materialities of Traumatic Brain Injury, Communication & Sport, 7(2): 135-156 (2019).

[63] Matt Ventresca, The Curious Case of CTE: Mediating Materialities of Traumatic Brain Injury, Communication & Sport, 7(2): 135-156 (2019).

[64] https://en.wikipedia.org/wiki/Precautionary_principle

[65] Daniel Goldberg, What Does the Precautionary Principle Demand of Us? Ethics, Population Health Policy, and Sports-Related TBI, in Sociolcultural Examinations of Sports Concussions (Matt Ventresca & Mary McDonald eds, 2020).

[66] Daniel Goldberg, Mild Traumatic Brain Injury, the National Football League, and the Manufacture of Doubt: An Ethical, Legal, and Historical Analysis, Journal of Legal Medicine, 34: 157-191 (2013).

[67] Adam M. Finkel & Kevin F. Bieniek, How Public Helath Science Evaluates Evidence, Human and Ecological Risk Assessment: An International Journal, 25(3): 564-589 (2019).

[68] Bill Pennington, Trump Says N.F.L. Is Getting Soft. Players Hit Back, New York Times, Sept. 26, 2017.

[69] Julie Mack, What Parents Need to Know about Football, Concusions and Head Injuries, mlive.com, Nov. 24, 2019, at https://www.mlive.com/news/2019/11/what-parents-need-to-know-about-football-and-head-injuries.html (quoting neurologist David Kaufman).

[70] Nicholas Dixon, Boxing, Paternalism, and Legal Moralism, Social Theory and Practice, 27(2): 323-344 (2001).

[71] https://en.wikipedia.org/wiki/Harm_principle.

[72] Daniel Goldberg, Mild Traumatic Brain Injury, the National Football League, and the Manufacture of Doubt: An Ethical, Legal, and Historical Analysis, Journal of Legal Medicine, 34: 157-191 (2013). Pamela R. Sailors, Personal Foul: An Evaluation of the Moral Status of Football, Journal of the Philosophy of Sport, 42(2): 269-286 (2015).

[73] Dave Bry, American Football is Too Dangerous, and It Should Be Abolished, The Guardian (UK), Jan. 4, 2016. Bry’s answer is that it’s not the players who are immoral, it is the fans who are comparable to Romans sitting in the Colosseum watching lions devour Christians.

[74] Dave Bry, American Football is Too Dangerous, and It Should Be Abolished, The Guardian (UK), Jan. 4, 2016. Bry’s answer is that only the football players are being paid to do this “for our entertainment.”

[75] Steve Almond, Is It Immoral to Watch the Super Bowl?, New York Times, Jan. 24, 2014.

[76] Dave Bry, American Football is Too Dangerous, and It Should Be Abolished, The Guardian (UK), Jan. 4, 2016. Bry believes that this will never happen.

[77] Dave Bry, American Football is Too Dangerous, and It Should Be Abolished, The Guardian (UK), Jan. 4, 2016 (quoting CBS News quoting, in turn, Dr. John York).

[78] David Gee, Doubt is Their Product: How Industry’s Assault on science Threatens Your Health, Journal of Public Health Policy, 29(4): 474-479 (2008)

[79] Peter Benson, Big Football: Corporate Social Responsibility and the Culture and Color of Injury in America’s Most Popular Sport, Journal of Sport and Social Issues, 41(4): 307-334 (2017); Daniel Goldberg, What Does the Precautionary Principle Demand of Us? Ethics, Population Health Policy, and Sports-Related TBI, in Sociolcultural Examinations of Sports Concussions (Matt Ventresca & Mary McDonald eds, 2020); Alan Schwarz et al., N.F.L.’s Flawed Concussion Research and Ties to Tobacco Industry, New York Times, March 24, 2016.

[80] Anthony E. Prior, The Slave Side of Sunday (2006).

[81] Peter Benson, Big Football: Corporate Social Responsibility and the Culture and Color of Injury in America’s Most Popular Sport, Journal of Sport and Social Issues, 41(4): 307-334 (2017). Alan Schwarz et al., N.F.L.’s Flawed Concussion Research and Ties to Tobacco Industry, New York Times, March 24, 2016.

[82] Stephen S. Hanson, ‘He Didn’t Want to Let His Team Down’: The Challenge of Dual Loyalty for Team Physicians, Journal of the Philosophy of Sport, 45(3): 215-227 (2018).

[83] Des Bieler, Oklahoma State’s Mike Gundy Says His Team Needs to Play for Benefit of State Economy,” Washington Post, April 7, 2020, at https://www.washingtonpost.com/sports/2020/04/07/oklahoma-states-mike-gundy-says-his-team-needs-play-benefit-state-economy/. See also Michael Cunningham, Player Safety Takes Back Seat as NCAA Rushes to Allow Campus Workouts, Atlanta Journal-Constitution, May 22, 2020.

[84] Ted Tatos, Playing Games with College Athletes’ Lives, The American Prospect, May 20, 2020.

[85] Michael Cunningham, Player Safety Takes Back Seat as NCAA Rushes to Allow Campus Workouts, Atlanta Journal-Constitution, May 22, 2020 (quoting Huma).

[86] Ted Tatos, Playing Games with College Athletes’ Lives, The American Prospect, May 20, 2020.

[87] 4 Cal. 5th 607 (2018).

[88] Kathleen Bachynski, Youth Football is a Moral Abdication, The Atlantic, Feb. 1, 2020.

[89] Mariana Brussoni et al., Risky Play and Children’s Safety: Balancing Priorities for Optimal Child Development, International Journal of Environmental Research and Public Health, 9:3134-3148 (2012).

[90] J.S. Russell, Children and Dangerous Sport and Recreation, Journal of the Philosophy of Sport, 34: 176-193 (2007).

[91] J.S. Russell, The Value of Dangerous Sport, Journal of the Philosophy of Sport, 32: 1-19 (2005).

[92] Patrick Findler, Should Kids Play (American) Football?, Journal of the Philosophy of Sport, 42(3): 443-462 (2015).

[93] Daniel Goldberg, What Does the Precautionary Principle Demand of Us? Ethics, Population Health Policy, and Sports-Related TBI, in Sociolcultural Examinations of Sports Concussions (Matt Ventresca & Mary McDonald eds, 2020). Daniel Goldberg, What Does the Precautionary Principle Demand of Us? Ethics, Population Health Policy, and Sports-Related TBI, in Sociolcultural Examinations of Sports Concussions (Matt Ventresca & Mary McDonald eds, 2020).

Teaching Notes

This video introduces the behavioral ethics bias known as conflict of interest. A conflict of interest arises when we have incentives and responsibilities in our personal and professional lives that are at odds and cause harm to others and to society. Conflicts of interest can appear in a variety of contexts and for many different reasons. For example, we may fail to see the ethical dimensions of a decision depending on the “role” we’re playing at work or in our broader lives. Or, the way in which we “frame” a situation may omit or obscure a conflict of interest. Or, a potential conflict of interest can lead us to develop incentives that “game the system.”

To learn about related behavioral ethics concepts, watch Ethical Fading, Framing, Incentive Gaming, and Role Morality.

The case studies on this page explore the legal and ethical ramifications of conflict of interest in politics and sports media. “Cheney v. U.S. District Court” illustrates a controversial court case where Justice Scalia’s personal friendship with Vice President Cheney presents a possible conflict of interest. “Covering Yourself? Journalists and the Bowl Championship Series” examines whether news outlets covering a Bowl Championship Series can fairly report sports news if their own polls are used to create the news. “Negotiating Bankruptcy” presents a case study focusing on conflict of interest in a business context.

Terms defined in our ethics glossary that are related to the video and case studies include: behavioral ethics, bounded ethicality, conformity bias, moral emotions, moral equilibrium, moral reasoning, and obedience to authority.

Behavioral ethics draws upon behavioral psychology, cognitive science, evolutionary biology, and related disciplines to determine how and why people make the ethical and unethical decisions that they do. Much behavioral ethics research addresses the question of why good people do bad things. Many behavioral ethics concepts are explored in detail in Concepts Unwrapped, as well as in the video case study In It to Win: The Jack Abramoff Story. Anyone who watches all (or even a good part) of these videos will have a solid introduction to behavioral ethics.

Additional Resources

Ariely, Dan. 2012. The (Honest) Truth About Dishonesty: How We Lie to Everyone—Especially Ourselves. New York: HarperCollins Publishers.

Brawley, Otis Webb, and Paul Goldberg. 2011. How We Do Harm: A Doctor Breaks Ranks about being Sick in America. New York: St. Martin’s Press.

De Cremer, David (Editor). 2009. Psychological Perspectives on Ethical Behavior and Decision Making. Charlotte, NC: Information Age Publishing.

McFadden, David W., Elizabeth Calvario, and Cynthis Graves. 2007. “The Devil Is in the Details: The Pharmaceutical Industry’s Use of Gifts to Physicians as Marketing Strategy.” Journal of Surgical Research 140 (1): 1-5.

Moore, Don A., Daylian M. Cain, George Loewenstein, and Max H. Bazerman (Editors). 2005. Conflicts of Interest: Challenges and Solutions in Business, Law, Medicine, and Public Policy. New York: Cambridge University Press.

The latest teaching resource from Ethics Unwrapped is an article, written by Cara Biasucci and Robert Prentice, that describes the basics of behavioral ethics, introduces the videos and supporting materials along with teaching examples, and includes data on the efficacy of Ethics Unwrapped for improving ethics pedagogy across disciplines. It was published in Journal of Business Law and Ethics Pedagogy (Vol. 1, August 2018), and can be downloaded here: “Teaching Behavioral Ethics (Using “Ethics Unwrapped” Videos and Educational Materials).”

For more resources on teaching behavioral ethics, an article written by Ethics Unwrapped authors Minette Drumwright, Robert Prentice, and Cara Biasucci introduces key concepts in behavioral ethics and approaches to effective ethics instruction—including sample classroom assignments. The article, published in the Decision Sciences Journal of Innovative Education, may be downloaded here: “Behavioral Ethics and Teaching Ethical Decision Making.”

A detailed article by Robert Prentice with extensive resources for teaching behavioral ethics, published in Journal of Legal Studies Education, may be downloaded here: “Teaching Behavioral Ethics.”

An article by Robert Prentice discussing how behavioral ethics can improve the ethicality of human decision-making, published in the Notre Dame Journal of Law, Ethics & Public Policy, may be downloaded here: “Behavioral Ethics: Can It Help Lawyers (And Others) Be their Best Selves?

A dated but still serviceable introductory article about teaching behavioral ethics can be accessed through Google Scholar by searching: Prentice, Robert A. 2004. “Teaching Ethics, Heuristics, and Biases.” Journal of Business Ethics Education 1 (1): 57-74.

Transcript of Narration

Written and Narrated by

Lamar Pierce, Ph.D., M.S.
Department of Organization and Strategy
Olin Business School
Washington University in St. Louis

“Incentives are pervasive in every aspect of society. People are rewarded for taking certain actions, and not rewarded for taking others. Workers are paid for their effort and productivity, salespeople are paid for their sales, and small business owners are rewarded with profits for successful ventures. So long as these incentives are well understood by everyone, they work reasonably well. They motivate effort, performance, and social welfare. But sometimes, individuals have incentives that conflict with their professional responsibilities, often in ways that are not transparent to the public or even in their own mind. These conflicts of interest produce serious economic and social problems.

Conflicts of interest are pervasive in markets and in society, and can motivate professionals to act in ways that violate their responsibilities and hurt their clients and employers. Doctors, for example, may face a conflict of interest when they are paid more for some procedures than for others. Their professional responsibility is to do what is best for the patient, but their financial incentive is not always aligned with this responsibility. If an oncologist profits from selling chemotherapy agents to their patients, and some agents are more expensive than others, this conflict becomes a problem. Most doctors would never think of profiting in ways that hurt their patients, but some may either consciously or subconsciously.

When there are conflicts of interest, you can almost guarantee that they will sometimes lead to bad outcomes. Surprisingly, in many states, real estate agents can represent both the buyer and the seller in a home transaction. The conflict in such transactions is clear. The agent could never have both parties’ best interests in mind, just as an attorney could never adequately represent both a plaintiff and defendant in civil lawsuit. Even professors face a conflict of interest when they are designing courses that will be evaluated by students seeking high grades and low workload. If the professor is ultimately promoted based on their popularity with students, will they consider making the course a little easier?

The key implication is that managers and policy-makers must constantly evaluate whether professionals and employees might face incentives to act counter to their responsibility. Eliminating conflicts of interest is one of the simplest and most effective ways to reduce unethical behavior. But in order to do so, we must be willing to acknowledge that professional codes of conduct, like those followed by doctors, lawyers, accountants, and real estate agents, do not make people immune to these conflicts, and that these codes are rarely a justification for ignoring the likely outcomes that conflicts of interest create.”

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