High School Concussion Lawsuits Could Alter Game Forever

By Doug Fuglsang. Mr. Fuglsang is a licensed attorney in Illinois and Wisconsin with a Sports Law Certificate from the National Sports Law Institute. He can be reached at doug.fuglsang@gmail.com.

Two-a-days are right around the corner for one million high-school football players. Although participation in football steadily declined the previous five years, last year managed to buck the trend with a slight increase of about 6,600 participants and those still playing will still rule their schools each Friday in the Fall.

Yet while there is no doubt the NFL is King, there could be trouble on the horizon for America’s new favorite pastime. Mimicking the recent lawsuits against the NCAA, Pop Warner, and NFL, the Illinois High School Athletic Association (“IHSA”) is facing a lawsuit over its concussion management program; marking the first time a state athletic association has faced a class-action lawsuit.

Some speculate that lawsuits over the handling of concussions will bring about the demise of football in this country. This theory is misguided for several reasons discussed below, but that hasn’t stopped the IHSA from running the anti-lawyer playbook. Publicly, the IHSA lobbied for public opinion calling the lawsuit “a misguided effort that threatens high school football.” They place heavy emphasis on the increased costs associated with implementing safety precautions and dealing with lawsuits; as is always the case when safety and increased costs are in direct conflict with each other. It’s the typical rhetoric one would expect to sway people that don’t understand how the legal system works.

First, unlike the NCAA, there is no national association responsible for governing high-school sports; instead there are 51 independent associations comprised of the states and the District of Columbia, each with their own rules and regulations governing interscholastic athletics. There is no “Golden Gun” that could bring about the sudden death of football nationwide; it would take a very long time, involving lengthy lawsuits and appeals in multiple jurisdictions.

Secondly, the complex nature of Tort law means success in one state won’t guarantee success in every state. High-school athletic associations aren’t strictly liable for an athlete’s injury. Essentially, strict liability would mean that the activity is so inherently dangerous that the association is automatically liable for injuries sustained during the activity. Therefore, since strict liability does not apply, in order to win a lawsuit, the athlete must prove tortious conduct by the association or an employee of a member school. The main way to do so is to prove that the association breached its duty of care owed to the athlete. The duty of care owed to high-school athletes by their respective associations varies from state to state, with the majority adopting a negligence standard, while others provide sovereign immunity for the agency, opting instead for a reckless standard.

Illinois was a likely forum for a lawsuit of this nature; the legislature abolished sovereign immunity, and in 2011 delegated the authority of establishing concussion regulations to the IHSA. Meanwhile, other states have chosen to write their own policies into law or delegated the job to their departments of health or education, in most cases afforded more legal protection than the Illinois High School Association receives.

Additionally, unlike the NFL and NCAA cases, the plaintiffs aren’t seeking monetary damages, only injunctive relief to prevent the current ill-advised policies and regulations from remaining in place. Their goal is to establish policies that would further athlete safety, such as requiring medical professionals be present at all football games and practices. Additional requirements include: new return to play guidelines, more training in recognizing concussion symptoms, and a medical monitoring program for ex-football players. There will be no $900 million settlement against a high-school association. We are not talking about a private company who withheld crucial information regarding head injuries in order to profit off of athletes with an average career span of 3.3 years. We are talking about a high-school association whose job entails coordinating the rules and regulations for amateur football competitions within their state.

There are two cases that resulted in payments to former players: A Kansas City school settled a case for $3 million with a player that developed post-concussion syndrome after being allowed to play and practice with a concussion, and a San Diego school district paid $4.4 million to a former player that was left without the ability to walk or speak. The outcome of each case was dependent on unique facts, but they did also provide a roadmap for other associations to prevent future liability.  In their motion to dismiss, the IHSA contends the state legislature and IHSA have already taken the appropriate action to protect players from concussions. In fact, since 2009, as more and more information regarding head injuries became available, all 51 high-school associations took remedial steps to improve the management of head injuries for their athletes.

HEAVY BURDEN OF PROOF

The final reason lawsuits won’t destroy football is because the cases are extremely difficult to win. When dealing with a negligence case you must prove causation, which comes in two forms: cause-in-fact and proximate cause. These are very complex issues but for simplicity I’ll summarize as best I can.  Cause-in fact essentially means a cause or act without which the injury wouldn’t have occurred. As in, Car A rear-ended Car B, causing Car A’s driver to suffer a neck injury. Had Car B not hit Car A, there would have been no injury. Proximate cause isn’t necessarily the closest cause in time, but produces foreseeable consequences without the intervention of any independent or unforeseeable cause. It determines if the harm resulting from an action could reasonably have been predicted. For example, it is foreseeable that throwing a baseball at someone could cause an injury. Proximate cause is met if the baseball misses the target and knocks a heavy object off of a shelf that lands on the target.

When dealing with head injuries demonstrating the cause can be extremely difficult for several reasons. With the exception of the cases where an athlete is suffering from post-concussive syndrome, it can be difficult to pin down the exact cause of the injury. Additionally, there are several defenses available like assumption of the risk—as the links between football and head injuries developed so has our understanding of how dangerous the game can be.

CHANGE OR BECOME EXTINCT

Thanks to perhaps one of the greatest political pivots of all-time, the NFL has everyone focused on concussions, rather than focusing on the links between sub-concussive hits and chronic traumatic encephalopathy(C.T.E.). Repetitive sub concussive can cause as much damage as a concussion. Don’t get me wrong, just one concussion can have devastating long-term effects, but no amount of Heads Up Football training or “advanced” helmet technology will prevent a human’s brain from rattling around inside their skull while playing football. High-school lineman receive on average 1,000 to 1,500 shots to the head during a single football season, based on Boston University researchers.

Concussions result from massive head to head blows as well as the smaller, repetitive hits integral to the game. (Photo by USA Today)

Nothing short of padding the inside of someone’s skull can prevent the repeated sub-concussive hits the brain takes while playing football. The game is dangerous and will forever be dangerous but that is why we love it. I don’t want the game to change into something reminiscent of Johnny Rico running the “Flip-Six-Three Hole.” I just want full disclosure of the risks associated with the game—I say this as someone who sustained 4 concussions growing up playing football and hockey, not to mention all the times I had my “bell rung.” I’m well aware of the possibility I may develop “pudding brain” down the line, and perhaps I would have made some different choices, but the past is for losers right, coach?

Unfortunately the game’s future is grim. While the death by lawsuit narrative is easy, it is also a lazy attempt to cover the story because lets face it everyone hates lawyers, until that is when they actually need a lawyer. There is a real threat lurking in the waters, and that is the insurance industry, the same industry that is going to take anywhere from 15-18% of the players concussion settlement through medical liens and subrogation; the same practices that took millions of dollars from Bryan Stow, the San Francisco Giants fan assaulted at a Dodgers game in 2011. The NFL is fighting its current and former insurers over who is responsible to contribute and how much they are obliged to pay for the league’s legal bills and hundreds of millions of dollars in damages.

On August 13, 2012, Alterra American Insurance Company, who wrote an excess insurance policy for the NFL, filed an action against the NFL in New York seeking a declaration that it does not have a duty to defend or indemnify the NFL under their primary, umbrella, and excess insurance policies. In response, the NFL filed a lawsuit in California against 32 general liability insurers that issued 187 primary and excess insurance policies over a period of 44 years, alleging that the insurers wrongfully denied coverage and seeking a declaration of the insurers’ duty to defend the NFL and indemnify it for any damages owed for concussion related lawsuits.  Insurance laws vary state to state; New York is viewed as more favorable for the Insurance companies, while California is likely to be more favorable for the NFL.

There are many complex issues at stake in the litigation, but most importantly for the insurers; the alleged injuries took years to develop and manifest. So, the definition of an “occurrence” will likely be key to the outcome the litigation—i.e. should a player’s injuries be treated as a single claim or a series of claims based on the number of concussions he received or the number of seasons he played? The answer to these questions will determine how much of the settlement will be covered by the insurance companies and what will be passed on to fans and media outlets by increasing ticket prices and broadcasting rights.

At the high-school level state athletic associations require either member schools or school districts to offer a minimum amount of insurance coverage; typically the student’s parents pay for this coverage, although some districts help with the costs. Annual premiums for supplemental coverage range from $100-$300, and like most things you get what you pay for; the cheap premiums tend to yield low payouts. In 2013 Illinois passed a law requiring all high schools to provide athletes with catastrophic injury coverage. Under the law, a school’s minimum policy will cover $3 million in aggregate benefits or five years of coverage, which ever comes first.

What effect the NFL’s battle with their insurance companies will have on all contact sports remains to be seen but the outcome will likely trickle down to all levels of sports. Fearful of future lawsuits, its possible insurers will start raising premiums or excluding concussions and other injuries from their policies for football, hockey, and other contact sports. The result would be to essentially price people out of the game or in a worst-case scenario stop issuing policies all together, similarly to what happened with Hurricane insurance in Florida. After a decade of costly hurricanes the major insurance companies pulled out of the market. Since then homeowners are pouring $6 billion a year in premiums into small in-state insurance companies with an unproven track record, which some call an accident waiting to happen.

The future of football is uncertain but almost all agree there will be changes once the dust settles from the litigation.  If in fact insurers decide coverage of football related injuries is no longer worth the cost or effort, they will hasten the death of youth football. Even if the changes are only higher premiums, many high-school associations may not be able to afford the costs and simply dismantle their football programs.

Further compounding the problem are unprecedented budget cuts as across the nation for education. The NFL’s dominance of the sports world may crumble as the talent pool dries up because athletes are picking different sports. At the end of the day, parents and their kids will need to decide if playing youth football is worth the effort to get to the NFL for the opportunity to make on average $1.2 million on a non-guaranteed contract over a 3-year career, which will most likely leave you with “pudding brain.” Perhaps parents might decide making an average of $2 million per year over a 6-year career as a soft-tossing lefty reliever in MLB, without the head injuries, is the smarter choice.

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