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Guidelines aim to raise concussion awareness

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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. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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