Douglas A. Wolfe is an attorney with Williams Montgomery & John Ltd. in Chicago. His practice focuses on the defense of individuals and institutions in professional liability, premises liability and general tort claims.
As the current football season winds down, I am reminded of the dog days of high school football camp, where I banged heads with my friends and teammates for countless hours in sweltering heat.
Those were the “good ol’ days” when kids did not worry about incurring lifelong brain damage from repetitive head trauma or dying from heat stroke. In fact, if you asked for water or pulled up from making a big hit, you were viewed as a “sissy.” Such weakness might even be met with extra conditioning drills for the entire team. We were tough and proud of it — or so we thought.
In reality, these intense practices lead to annual heat-related deaths and are linked to permanent neurological injuries, according to many medical journals and surveys.
I would like to think that time has made me wise (some may argue it has made me soft), because I no longer view two-a-day football camps as a right of passage necessary to weed out weak links, toughen up players and prepare them for a physically demanding season of football. I now view two-a-day practices as the “asbestos” of high school athletics: a dangerous relic of the past that may cause injuries that do not manifest themselves for years, if not decades.
Take for example, the case of former Chicago Bears star Dave Duerson, who complained of a deteriorating mental condition in the months before committing suicide at age 50. A post mortem examination of his brain concluded that he suffered from chronic traumatic encephalopathy.
It is time we get smart about how high school football programs practice and prepare for their season, and stop using toughness as a reason to expose our children to unnecessary risk.
House Bill 200, which was signed into law and took effect July 28, 2011, now requires that young athletes be pulled from practice and game situations if they are found to display signs or symptoms of a concussion. The new law says such players will not be able to return to play until they have been evaluated by trained medical personnel. But this new law does nothing to address other issues that may be just as harmful.
I am not alone in my thinking that two-a-day practices expose players to unnecessary risk. The frequency of full-padded, full-contact practices was recently dialed back in the new collective bargaining agreement between the National Football League (NFL) and its players union, the NFLPA.
The NFL’s new practice rules eliminate two-a-day padded practices. Instead, during training camp, teams are allowed four hours of practice per day with one padded practice up to three hours, and a second practice that is a walk through up to the four-hour limit. During the 17-week regular season, NFL teams are limited to 14 full-padded practices.
According to Mark Maske, a Washington Post sports writer, the new rules are intended to reduce the overall wear and tear on professional players’ bodies and limit injuries, with the primary goal of helping players avoid concussions and the possible long-term health consequences associated with them.
Despite the NFL limits on practices, The Associated Press found many Illinois high school football programs continue to hold two-a-day practices. High school football coaches and school administrators should pay close attention to the new practice restrictions implemented by the NFL, lest they expose themselves and their schools to increased tort liability.
If high school football programs do not follow the NFL’s lead on practice restrictions, they could open the door to increased litigation for heat-related injuries and deaths, and neurological injuries.
Liability for injuries
Illinois, like many other states, provides school board members, high school administrators and coaches with immunity for injuries to their players that result from ordinary negligence.
Liability for a public entity such as a school board or district generally falls into one of two categories: vicarious liability for the acts of its employees (such as coaches and teachers) or direct liability for its own conduct. Sections 24-24 and 34-84a of the Illinois School Code provide immunity, except in cases of willful and wanton conduct.
Similarly, Section 3-108(a) of the Local Governmental and Governmental Employees Tort Immunity Act provides these entities with immunity from direct actions concerning supervision of an activity or use of property, except, again, in cases of willful and wanton conduct.
Consequently, plaintiffs will usually be required to prove willful and wanton conduct regardless of whether the suit is filed against a school district, a school board or an individual employee. In Gerrity v. Beatty, the Illinois Supreme Court carved out an exception to this rule: a school district can be held liable for its ordinary negligence in failing to furnish adequate safety equipment to its student athletes.
The NFL’s efforts to reduce injuries by eliminating two-a-day practices creates potential for high schools operating such programs to be found liable for willful and wanton misconduct. According to a ruling in Vilardo v. Barrington Community School District 220, willful and wanton acts show “actual or deliberate intent to harm” or, if not intentional, show “an utter indifference to or conscious disregard for a person’s own safety or the safety or property of others.”
The argument can be made that the NFL’s elimination of two-a-day practices puts high schools on notice that such practices are dangerous, and that a football program’s decision to continue with two-a-day programs demonstrates a reckless disregard for the safety of their young student athletes.
“It’s inconceivable to me that you can take a young scholar athlete at an age that is more vulnerable and have them play more dangerously than at the highest professional level,” said Robert Cantu, co-director of Boston University’s Center for the Study of Traumatic Encephalopathy.
Concussion litigation
A flurry of recent concussion lawsuits have been filed against the NFL that may ultimately impact amateur programs. Michael McCann, writing in Sports Illustrated, reported that these lawsuits allege, among other things, that the league hid the long-term neurological dangers of playing football and trained players to tackle with their heads, knowing that players would become more susceptible to neurological injury.
It is too early to know what will happen with these concussion cases against the NFL. However, if a jury finds a causal link between the players’ neurological injury and playing football, high school programs should be concerned about a cottage industry of copycat litigation.
These concussion cases have the potential to become the next “asbestos” litigation. Once a former player is diagnosed with a trauma-induced neurological injury, which may not be for many years, they will look to recover from all the football programs in which they participated.
As soon as one program is found liable, a blueprint will be created for plaintiffs to use against other programs. Football programs will become homogenized in legal complaints, in the sense that allegations of wrongdoing will be identical against all programs. Schools will find it cheaper to settle cases than to pay for trials that might result in significant verdicts. The settlements will spawn more lawsuits because plaintiffs will be able to recover without putting in much effort.
Whether the legal system already entered this rabbit hole through the NFL concussion lawsuits remains to be seen. However, it is never too late for amateur programs to take corrective action.
Sensible solutions
The best place to effect meaningful change in practice regimens and player safety is at the state level. Shockingly, the Illinois High School Association (IHSA), which governs interscholastic athletics, has “no specific policy regarding practice during extreme heat conditions,” according to information in an August 3, 2011, IHSA bulletin.
Likewise, no IHSA restrictions exist on two-a-day practices. Universal rules that apply to all football programs need to be implemented in order to maintain competitive balance. Football coaches will be reluctant to eliminate two-a-day practices if the school’s biggest rival is continuing with them.
The IHSA or state legislature should adopt practice limitations at least as strict as those contained in the new NFL collective bargaining agreement. Rules that eliminate two-a-day practices, place time limits on padded practices, place limits on practice during heat and humidity and require mandatory hydration breaks should all be implemented.
In addition, programs should limit the number of practices throughout the season during which a helmet is worn to reduce the frequency of helmet-to-helmet contact.
Long-time Penn State University football coach Joe Paterno has suggested that modifications to standard equipment should be explored, such as removing the face mask in order to curb the number of violent collisions. Others, such as Reed Albergotti and Shirley Wang, reporters for the Wall Street Journal, have suggested removing the helmet altogether. These ideas have their own obvious drawbacks, but illustrate the point that when it comes to player safety, nothing should be off the table.
Another suggestion is to prohibit linemen from lining up in a three-point stance to eliminate them from springing head-first into other players. A universe of untapped ideas can be explored to enhance player safety.
Critics of these changes will argue that the sport will be ruined. NFL analyst Bucky Brooks has argued that players won’t be able to fine tune their fundamentals without repetition. He and others also argue that teams will not be able to adequately prepare for the season, and the quality of play will decline. These complaints are unfounded, or at least offset by positives.
D. Orlando Ledbetter, a 26-year veteran sports writer with the Atlanta Journal Constitution, says less intense practice regimens will lead to fresher legs and fresher bodies, which creates a better game.
Without changes, and as awareness over trauma induced neurological injuries increases, fewer kids will be willing or permitted to participate in the sport. A decrease in participants will deprive the sport of many potential superstars, which will lead to a decline in the quality of play. Ultimately, it is just as likely that practice limitations and increased safety regulations will enhance the game as much, if not more than, they might arguably hurt the game.
The time is now for high school football programs to act, not only for the safety of their players, but also to limit exposure to potential tort liability. While it is too late for the IHSA to implement universal policies for this season, individual schools can still take their own steps to increase player safety by limiting the number of helmeted practices and requiring that walk-throughs and film sessions be implemented in lieu of full-contact drills.
The NFL paved the way for high schools by placing sensible restrictions on practice regimens. It is time for high school programs to follow the NFL’s lead and take significant steps to enhance player safety.
Policymakers need to ask themselves, what is more important, the quality of play during a high school sports game or the life and safety of the young adults who play the game?
Court cases
Barrett v. Unified School District No. 259, 172 Kan. 250, 32 P.3d 1156 (Kan. 2001)
Covington County School District v. Magee , 29. So.2d 1 (Miss. 2010)
Gerrity v. Beatty, 71 Ill.2d 47, 373 N.E.2d 1323 (Ill. 1978)
Kobylanski v. Chicago Board of Education, 63 Ill.2d, 165, 347 N.E.2d 705 (Ill. 1976)
Tarlea v. Crabtree , 263 Mich. App. 80, 687 N.W.2d 333 (2004)
Thomas v. Chicago Board of Education , 77 Ill. 2d 165, 395 N.E.2d 538 (Ill. 1979)
Vilardo V. Barrington Community School District 220 , 406 Ill.App.3d 713, 941 N.E.2d 257 (2d Dist. 2010)
References
Loyola University, “High School Athletes Begin Two-a-day Workouts,” August 5, 2011, http://www.lumc.edu/Template/luhs/newsrelease/reportdetail.cfm?autonumber=973441529
Shankar Vedantum, “The National Brain Damage League: The epidemic of head injuries in football is even worse than you thought,” Slate, January 18, 2011, http://www.slate.com/id/2281515/
Alan Schwarz, “Duerson’s Brain Trauma Diagnosed,” The New York Times, May 2, 2011, http://www.nytimes.com/2011/05/03/sports/football/03duerson.html
Bucky Brooks, “How practice changes could negatively impact NFL games,” August 10, 2011, http://www.nfl.com/trainingcamp/story/09000d5d8215c8ab/article/how-practice-changes-could-negaitvely-impact-nfl-games
D. Orlando Ledbetter, “Fear is new NFL practice rules could hurt play,” Atlanta Journal Constitution, July 31, 2011, http://www.ajc.com/sports/atlanta-falcons/fear-is-new-nfl-1063041.html
National Football League Players Association, main terms, 2011 collective bargaining agreement,http://msn.foxsports.com/nfl/story/Terms-of-NFL-owners-proposed-collective-bargaining-agreement-072111
Mark Maske, “New Rules on NFL contact haven’t altered training camps much,” The Washington Post, August 13, 2011, http://www.washingtonpost.com/sports/redskins/new-rules-on-nfl-contact-havent-altered-training-camps-much/2011/08/13/gIQA68BvDJ_story.html
The Associated Press, “Some football coaches say two-a-days outdated, others insist the tradition is needed,” The Republic, August 11, 2011, http://www.therepublic.com/view/story/8e2a9ba529e74aa8bc2d038410eb381a/FBH—Two-a-Day-Practices
James Wagner, “Despite NFL limits, high school football programs continue two-a-day tradition,” The Washington Post, August 21, 2011, http://www.washingtonpost.com/sports/highschools/despite-nfl-limits-high-school-football-programs-continue-two-a-day-tradition/2011/08/12/gIQAJXaEVJ_story.html
Michael McCann, “Concussion lawsuit could cost NFL, whether decided in or out of court,” Sports Illustrated, August 19, 2011, http://sportsillustrated.cnn.com/2011/writers/michael_mccann/08/19/concussion.lawsuit/index.html
IHSA bulletin, August 3, 2011, http://www.ihsa.org/NewsMedia/Announcements/tabid/93/ID/75/Heat-and-Hydration-Reminders.aspx
Darren Everson, “Paterno: Lose Face Masks for Safety,” Wall Street Journal, October 21, 2010,http://blogs.wsj.com/dailyfix/2010/10/21/paterno-lose-face-masks-for-safety/
Reed Albergotti and Shirley S. Wang, “Is it Time to Retire the Football Helmet?” Wall Street Journal, November 11, 2009, http://online.wsj.com/article/SB10001424052748704402404574527881984299454.html