The pandemic thrust COVID-19 protocols to the forefront of football’s player safety agenda in 2020. All levels of competition were forced to make seismic shifts in day-to-day operations. The conversation was clear: ‘Return to Play’ safely. Youth football presented an array of challenges—and arguably the most daunting among them are parents. Parents largely fuel the dialogue of player safety in youth football and have even begun taking legal action against youth football organizations. Kimberly Archie and Jo Cornell argued their sons’ posthumously discovered degenerative brain disease was linked to trauma sustained in Pop Warner. The case’s dismissal was an attenuation for future youth concussion claims, given the literature on C.T.E. in football is still evolving.
However, state legislatures across the country are scrambling to protect youth football associations from imploding in liability: mandating state governing bodies redefine their concussion protocols which have in the past been challenged. Although the contact sports exemption in Karas makes the assumption of risk a robust defense for athletic associations, it is not an absolute bulwark. Nor are the developing protocols entirely sufficient. And while the state of Illinois, namely, has taken significant strides in updating its concussion laws, it is apparent to us that Concussion Oversight Teams (COTs) as defined by SB1692 can be improved. The law specifies no legal duty on their behalf, and administrative malpractice in under-resourced school districts may leave plaintiff-players with little recourse when the standard of care is compromised. Illinois identifies potential members of COTs for each district. Interestingly, at a minimum, a COT may be “composed of only one person [that] need not be a licensed healthcare professional.”
Medical screening should be a legal function of a breach of duty and a causal connection to a present injury. Medical monitoring, a greater imposition of liability, was an overshot in Pierscioneck v. Illinois High School Association because only a tenuous link existed between the tortious acts of the defendant-association and the damages sought. Though the duty of a COT likely does not rise to that of a medical practitioner, athletes and parents alike should be assured that return-to-play protocols are designed by qualified individuals. A lack of district resources should not exempt the development of these protocols from medically driven standards.
Illinois concussion law seems to be underwhelming in comparison to its peers. Texas’ HB2038 sets forth a stringent set of guidelines: COTs must include a physician, and athletes suspected of suffering a concussion must be cleared by a “physician skilled in concussions.” Illinois, on the other hand, allows athletes suspected of having a concussion to be cleared for play by an “athletic trainer, APN, or PA.”
School districts will continue to center their risk management strategies around concussion education, prevention, and identification. Concussion liability, if not properly thwarted, could reshape and even dismantle the way under-resourced school districts showcase football competition and talent. Courts, as in Pierscioneck, often find youth concussion claims to be “nonjusticiable.” But if youth athletic associations want to continue to field football, they must find ways to solidify the standard of care among COTs. States such as Texas give their COTs force by requiring a physician without exception, while Illinois gives a way out. In this sense, it seems as if COTs in Illinois might be a display for public opinion to meet a legal standard of “reasonable care.” While we consider the athletes to be disadvantaged as a result, under-resourced districts can also suffer legal ramifications without any state financing of COTs. Perhaps this allows athletes to compete in an unsafe environment, putting these districts at legal risk that they are unequipped to combat.