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, 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.”
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.
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.”•