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Guidelines aim to raise concussion awareness

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Indiana Lawyer Focus

In 2011, Adrian Arrington, a student and former football player at Eastern Illinois University, filed a lawsuit accusing the National Collegiate Athletic Association of failing to institute proper, safe concussion protocol or demand accountability from its member schools. The suit is one of many recently filed by former college and pro football players who claim that negligent oversight contributed to long-lasting cognitive and emotional problems caused from repeated head injuries.

As more athletes begin calling for greater awareness regarding concussion, athletic associations overseeing high school, collegiate and pro sports are drafting policies in response. Some states, like Indiana, are going a step further by creating new laws.

Indiana’s new law

Indiana is one of 26 states that enacted concussion legislation last year. The new law requires the Indiana Department of Education to provide high schools with handouts, forms and guidelines that emphasize the risk of concussion in high school athletics.

The law – I.C. 20-34-7 – also mandates that a player removed from a game due to displaying concussion symptoms may not return to play that same day. The law does not say who is responsible for removing that player initially, however.

robert baker Baker

Robert Baker, general counsel for the Indiana High School Athletic Association, said the IHSAA adopted its concussion protocol from the National Federation of State High School Associations.

“I think the National Federation protocol is directed toward the official’s role,” Baker said. “Essentially, if an official sees a player who’s exhibitive of concussive signs, he is then to alert or notify the coach, and advise that the player ought to be seen by a healthcare provider.”

Attorney Matthew Breeden, former vice president and general counsel for Champ Car World Series, said the new law requires coaches to be responsible for collecting signed concussion awareness forms and keeping those on file.

“As the language of the statute is vague, it likely does nothing to shift any common law (or other statutory law) responsibilities,” Breeden said. “Schools and the coaches will continue to be seen as the primary responsible parties.”

Doctor’s advice

todd arnold Arnold

Dr. Todd Arnold, co-director of the Athletes Concussion Alliance of Indiana, has been working to reduce the incidence of undetected and untreated concussion in high school athletes. He is a team physician for Carmel High School, the Indianapolis Indians and USA Synchronized Swimming and is a consultant for the Indianapolis Colts.

Arnold said Indiana’s new law serves an important purpose in that it supports coaches who pull a player from a game, so even the most overzealous parents cannot argue that their child should return to play immediately.

“It takes the passion and emotion out of game day because there’s a law that says you can’t put that kid back in,” Arnold said.

College and professional athletes can recover more quickly from concussion than younger athletes, with high school freshmen needing on average 21 days to recover, Arnold explained. But often, young athletes will try to push through recovery more quickly than they should, he said.

Responsibilities differ at level of play

The cause for debate in cases filed by NFL players concerns assumption of risk, said Mike Straubel, director of the Sports Law Clinic at Valparaiso University School of Law.

In Dorsey Levens v. National Football League and NFL Properties, No. 1:11-CV-04448, Dorsey Levens claims he sustained multiple concussions in his 11-year NFL career and that the NFL downplayed or denied the danger of concussion. Now 41, Levens is retired and reports suffering from memory loss, sleeplessness and headaches.

“To begin, on the professional level, when courts have examined the question of how much risk of injury a player assumes, they apply a standard of what a ‘reasonable’ NFL player would know and accept as a risk,” Straubel said in an email to Indiana Lawyer. “Therefore, the test of how much risk a player accepts and how much responsibility the NFL (or a coach) has depends on the breadth of knowledge the player has vs. the knowledge that the NFL has (and maybe doesn’t share with the players).”

Using that test of assumed risk, Straubel said that cases brought by retired players may have some merit, but as more players are told about the risks associated with concussion, they will assume a greater portion of that risk. And while high school and college athletes do assume some risk by playing sports, schools probably have a heightened duty to protect athletes from even known risks, Straubel said.

In Arrington’s class-action complaint – Adrian Arrington v. National Collegiate Athletic Association, No. 1:11-CV-06356 – Arrington claims that when he played football for EIU between 2006 and 2009, his coaches encouraged players to hit opponents with their helmets, despite the NCAA’s public criticism of dangerous tackles. Arrington claims that he sustained multiple concussions while playing for EIU and now suffers from migraines, memory loss and depression.

The NCAA filed an answer in that case Dec. 21, stating that because Arrington and members of the proposed classes signed forms acknowledging the risk of concussion, they “expressly assumed the concussion risks associated with the sports they chose to play.”

But Straubel said the NCAA’s answer may be too broad.

Enforcement of policies

Arrington stopped playing football in 2009, one year before the NCAA enacted a rule requiring all member schools to develop a plan for educating athletes about concussion. Its Concussion Management Plan – like Indiana’s new law – requires a player exhibiting signs of concussion to be removed from play but does not specify who is responsible for making that determination. Also like Indiana’s law, that athlete may not return to play in the same day.

The NCAA does not require schools to submit their Concussion Management Plans for review; schools are required to keep the plans on file, should the NCAA request to see them. Schools are also not required to report incidents of concussion to the NCAA, although the NCAA tracks injury trends from a handful of schools that voluntarily participate in a survey.

pattersonPatterson

Tony Patterson, a personal injury attorney with Parr Richey Obremskey & Morton’s Lebanon office, said simply having a policy may not be enough to protect NCAA athletes from debilitating brain injury.

“I would say from a legal standpoint, I’m not sure the NCAA would have any responsibility because each member organization is responsible for enforcing policies,” Patterson said. “From an overriding moral obligation, I do think the NCAA would have a moral obligation to make sure plans are in place. Whenever they implement these plans, I don’t think it’s necessarily enough to say, we’ve asked our member institutions to do this.”

Even if student athletes are trained to recognize symptoms of concussion, they may not always own-up to their symptoms during a game. Patterson, who played high school basketball, said coaches have an obligation to look out for the well-being of young athletes, knowing that players may not always make the best decision.

“It’s just like you see in the NFL – people who are athletes, they’re not going to remove themselves from a situation if they think they can play because obviously athletes are told, you’ve got to go in there and battle, you’ve got to fight through it,” he said. “With concussion, you have the same pressures, but that person has a decreased ability to make those decisions. You can’t leave that up to a kid, and you can’t leave that up to somebody who has a head injury.”

Patterson said coaches and trainers should remember the pressures of being a young athlete.

“I think that in general, anybody that’s played sports knows that when you’re a high school athlete, that seems like the most important thing in your life, and you don’t have to the ability to see the big picture,” he said. “Obviously life’s a lot longer than a game on Friday night.”•

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  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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