Concussions in Youth Sports: Who’s Liable?

On June 7, 2012, Joseph Chernach of Hixton, Wis., committed suicide at the age of 25. An autopsy found that Joseph suffered from CTE, the disease that has been found in the brains of Junior Seau and other former NFL players who also committed suicide. The difference is that Joseph never played in the NFL. He played only Pop Warner football, from 1997 to 2000, from the time he was 11 years old through age 14.

Paul Anderson [email protected]) is director of the sports law program and National Sports Law Institute at Marquette University Law School.

Joseph's mother, Debra Pyka, sued Pop Warner claiming that it knew of the harm related to concussions in youth football and did nothing to inform Joseph or his family. Pop Warner eventually settled the case, leaving its potential liability unclear.

Much of sports concussion awareness is related to class action lawsuits against the NFL and NCAA. However, while there are thousands of college and professional football players in the United States, there are millions of kids playing youth and high school football — 3.5 million and 1.1 million, respectively. As a result, the number of actual and potential concussions suffered by youth football players is exponentially higher.

Due to a lack of understanding of concussion symptoms and the problem of underreporting, the exact number of concussions occurring in youth and high school sports is difficult to pinpoint. However, a 2016 study by FAIRHealth found a 500 percent increase from 2010 to 2014 in concussion diagnosis for those under the age of 22, with 46 percent of those diagnoses occurring in the 15-to-18 age range.

Debra Pyka's lawsuit on behalf of her deceased son is not unique. When a child suffers a concussion and its debilitating effects, parents often search for someone or some organization to be liable for their child's harm.
 

Blame game
Some have argued that sports participants who cause others to suffer this type of harm should be liable. This is not likely, as a participant's duty is to use due care to not increase the risks of participation in sport, and these days there is virtually no sport in which concussion is not an inherent risk of participation (Knight v Jewett, 3 Cal. 4th 296 (1992)). Some states even have statutes that provide immunity to participants for negligent conduct in sport. In Wisconsin, for example, sports participants would be immune from liability, as no cases have argued that another participant could or did intentionally cause a concussion (Wis. Stat. §895.525(4m)).

Coaches have also been sued when a player suffers a concussion. In 2017, Sean McNamee, a high school football player in Florida, won a $2 million settlement from the Hillsborough County School District after his fall onto field striping equipment caused a serious concussion. The court found that McNamee's coach breached his duty not to increase the risks inherent in football participation by providing inadequate supervision of the football field and by leaving the striper there. Though coaches in every jurisdiction have a similar duty, they also benefit from several immunity defenses — including public official and sovereign immunity — that can come into play if they work for a public school or other public entity.

Medical personnel have also been sued based on claims that their negligence exacerbated the harm caused by a youth sports concussion. According to recent reports, on March 21 a jury in Montana found a health system not guilty after an athletic trainer it had provided to Belt High School cleared a football player to return to the field one week after he had suffered a concussion in September 2014. The player collapsed on the sideline with a severe brain injury during the subsequent game, leaving him a paraplegic — unable to speak or care for himself. Thirteen days of testimony revealed a lack of communication among coaches and care providers, but no liability was assigned to the health system. Although some cases have found that the medical provider's own conduct caused the harm and breached the duty to provide reasonable medical care — for instance, an athletic trainer found liable for not adequately communicating to a physician the symptoms of a concussed football player (Pinson v State, 1995 Tenn. App. LEXIS 807 (Ct. App. Tenn. 1995)) — more often than not at the youth and high school levels there exists no individual qualified to provide proper medical care. After suffering his concussion, Sean McNamee was sent to the locker room, where he was examined by a coach instead of being referred to a medical provider.

Injured high school athletes and their parents have even sued the governing bodies that set the rules and often host the actual competitions during which injury occurs. Targeted organizations have included Pop Warner, USA Water Polo, USA Soccer and the National Federation of State High School Associations, as well as state high school athletic associations in Illinois and Pennsylvania. Each suit has focused on claims that these organizations bear some responsibility because their concussion protocols are inadequate and increase the risk of harm.

Courts, however, have continued to find concussions an inherent risk and have been reluctant to find these organizations liable.
 

While most state statutes mandate education for athletes and parents so that they can recognize the symptoms of concussion, barely more than half of these laws mandate education for coaches — the gatekeepers deciding when an athlete should be removed from a game. [Illustration by Arnel Reynon]

Evolving law
By 2015, all 50 states and the District of Columbia had enacted youth concussion laws modeled after the so-called Zackary Lystedt Law (Rev. Code Wash. §28A.600.190), passed in Washington state in 2009 in honor of a high school football player who suffered serious brain injuries after being sent back into a game with a concussion.

While most state statutes mandate education for athletes and parents so that they can recognize the symptoms of concussion, barely more than half of these laws mandate education for coaches — the gatekeepers deciding when an athlete should be removed from a game. In addition, while every statute includes some sort of return to play (RTP) guidelines, none specifically follows any recognized medical standards for these guidelines. While virtually all statutes leave the RTP decision to a health care provider, it can be difficult to determine exactly who is qualified.

Perhaps most important, half of these state laws provide some form of immunity. Wisconsin's law, for example, provides civil immunity from harm for coaches, officials and volunteers in certain circumstances for failure to remove a player and for improper authorization to participate (Wis. Stat. §118.293(5)). Given this immunity — and the fact that courts will rarely hold other players, coaches, medical care providers and organizing associations liable unless they increase the risk of harm — injured children are left with little hope of recovery.

This situation may have changed in July 2017. Drew Swank had been diagnosed by a physician as having suffered a concussion after a violent hit while playing 8-man football in Spokane Valley, Wash., in September 2009. His symptoms cleared, but while playing in the following week's game, Swank vomited and collapsed near the end of the second quarter. His parents alleged that the team's volunteer coach berated Swank during that game, even pulling on his helmet's facemask. He died two days later.

Faced with a state law and its immunity provision (the model for Wisconsin's provision), the court reviewing the Swanks' claim against the school and coach implied a cause of action into the law that can be brought to enforce educational standards and other requirements (Swank v. Valley Christian Sch., 188 Wash.2d 663 (2017)).

If other states follow this court's lead, we may begin to see statutes containing educational, RTP and other additional standards beyond the already established duty to provide a sports experience that does not increase the risk of harm. This may finally provide some impetus for coaches and others involved to be properly trained and to err on the side of caution when any symptoms of concussion occur.

In the end, this is not a football problem alone. The risk of concussion is high in many other sports — from soccer and field hockey to water polo and cheerleading — and if courts allow enforcement of these laws, perhaps we will shift from focusing on the after effects of concussions to following standards of care that protect athletes from this harm in the first instance.

This article originally appeared in the May 2018 issue of Athletic Business with the title "Concussions in youth sports: Who’s liable?." Athletic Business is a free magazine for professionals in the athletic, fitness and recreation industry. Click here to subscribe.