(Editor’s Note: The following is an excerpt from an article written by Dionne L. Koller – Associate Professor of Law and Director, Center for Sport and the Law, University of Baltimore School of Law – for the Pepperdine Law Review (43 Pepp. L. Rev. 681). For more information or to subscribe, visit http://law.pepperdine.edu/law-review/)
There are significant critiques of the legal and policy response to concussions. [n260] Primarily, critics discount the government’s legal and policy response for being at best ineffective and at worst an example of “regulatory capture.” [n261] From this perspective, the legal and policy response to concussions in sports fits comfortably within the current sports law landscape–government involvement that is meant to benefit the sports industry. [n262] Such a view encompasses several important criticisms.
First, critics point out that the NFL lobbied heavily for state and federal concussion legislation. [n263] Critics have explained that this led to legislative outcomes that were “directly relevant to the NFL’s private commercial goals in protecting the image and reputation of football.” [n264] The NFL’s significant lobbying efforts were used to define the issue as reducing the harmful consequences of concussions, not reducing the incidence of initial concussion injuries. This ensured that legislative outcomes did not “directly regulat[e] the content, rules, or procedures of football itself.” [n265] The NFL’s influence over state concussion laws has been described as “a form of regulatory capture” because of the way in which the laws serve to advance the NFL’s agenda. n266
A second critique of concussion statutes is that, regardless of the motivation behind the reforms, they are simply not effective. [n267] Public health researchers have argued that the statutes do not do anything to limit the incidence of concussions in youth sports. [n268] The statutes do not mandate any changes to the games themselves, except to the extent that a player suspected of having a concussion must be removed from play. [n269] It, therefore, can be argued that concussion statutes and other concussion management guidelines provide a false sense of security to parents and athletes by giving the appearance that safety can be regulated into the games as currently played, despite the scientific evidence to the contrary. [n270] Moreover, because the statutes focus on managing concussions that occur, taking as a given that they will occur, [n271] the concussion statutes contribute to the calcified thinking around sports that the traditional games, played in traditional ways, are the only authentic sports experiences. n272
In addition to the statutes being criticized as ineffective from a public health perspective, concussion statutes have also been criticized as being legally ineffective. [n273] Legal scholars have asserted that because the statutes have no enforcement mechanism, [n274] and some even include immunity provisions for coaches and health professionals, there is little accountability for failing to manage youth concussions as required. [n275] The causes of action available to potential plaintiffs and immunities available to potential defendants vary from state to state depending on the language of the concussion legislation. [n276] However, most state statutes do not create any new cause of action and are silent on liability. [n277] For example, Wisconsin (along with several other states) includes provisions protecting coaches, officials, or volunteers from liability if they fail to remove an athlete from competition unless there is gross negligence or gross misconduct. [n278] The statute specifically states that it “does not create any liability for, or a cause of action against, any person.” [n279] Similarly, concussion legislation in Texas offers no new cause of action and gives express immunity to school district officials or employees, emergency responders, and members of the concussion oversight team. [n280] Arizona’s concussion legislation also offers express immunity for volunteer healthcare providers making return-to-play decisions, the school district, its agents, and others. [n281]
The tort litigation that is a significant part of the legal and policy response to concussions also is subject to the familiar critique that tort law is an inefficient means of providing compensation for past harm and preventing future concussions. [n282] A related critique reflects the “hands off” view of government involvement in sports, with some scholars and others making the case that the statutes and litigation are an unwarranted intrusion into sports regulation. [n283] From this view, sports governing bodies and administrators are in the best position to manage the concussion issue. [n284]
Thus, the significance of the legal and policy response to concussions might be discounted because in some respects it fits comfortably within the current paradigm for government involvement in sports. The legal and policy response to concussions, heavily driven by the NFL, can be viewed as simply another example of law in support of the professional sports industry. Moreover, it can be said that the statutes, litigation, and “bully pulpit” initiatives only regulate at the margins of the games and, in so doing, serve to restore confidence that games as traditionally constructed are safe to play, despite considerable scientific evidence to the contrary. However, as explained below, several features of the legal and policy response to concussions can have an important impact on the future of sports regulation.
n260 Harvey, supra note 209, at 104.
n261 Id. at 99.
n262 See John C. Weistart, Judicial Review of Labor Agreements: Lessons from the Sports Industry, 44 L. & CONTEMP. PROBS. 109, 109-10 (1982).
n263 Harvey, supra note 209, at 102-03; Amy L. Bernstein, Comment, Into the Red Zone: How the National Football League’s Quest to Curb Concussions and Concussion-Related Injuries Could Affect Players’ Legal Recovery, 22 SETON HALL J. SPORTS & ENT. L. 271, 275 (2012) (“In addition to the policies implemented on the field and in the locker room, the NFL has gone to the United States Congress and to various state legislatures in the hopes of encouraging more states to adopt legislation that establishes a standard for identifying concussions for younger players and for managing their recovery and return to the field.”); Settlement Tackles NFL Concussion Problem, CITIZENS FOR RESP. & ETHICS WASH. (Aug. 30, 2013), http://www.citizensforethics.org/blog/entry/settlement-tackles-nfl-concussion-problem (stating that “congressional attention to concussions was a factor behind the league’s increased spending on lobbying and campaign contributions”); NFL, NCAA Lobby for Concussion Laws, ESPN (Jan. 12, 2012), http://espn.go.com/nfl/story//id/7454729/nfl-ncaaurge-states-pass-concussion-laws (“NFL commissioner Roger Goodell and NCAA president Mark Emmert are urging 19 governors to support legislation this year aimed at cutting down on concussions in youth football.”);
n264 Harvey, supra note 209, at 102.
n265 Id.
n266 Id. at 99.
n267 Maggie Clark, Sports Concussion Laws Are a Headache for States, GOVERNING (July 20, 2012), http://www.governing.com/news/state/mct-sports-concussion-bills-headache-for-state-lawmakers.html.
n268 Id. (explaining that “none of the legislative efforts has addressed prevention” and “[n]ot a single piece of any of these laws is going to keep a kid from getting a concussion in the first place”).
n269 Harvey, supra note 209, at 96-98.
n270 But see Brandwein, supra note 206, at 30 (explaining that state legislation is “properly focused on an achievable goal of preventing [Second Impact Syndrome]”).
n271 Harvey, supra note 209, at 107 (explaining that state concussion statutes “all take the existence of a concussion for granted”).
n272 Id.
n273 Lowrey & Morain, supra note 213, at 294.
n274 Id. at 290, 294
n275 Id. at 296
n276 See, e.g., ARIZ. REV. STAT. ANN. § 15-341 (2011); TEX. EDUC. CODE ANN. § 38.151 (West 2011); Wis. STAT. § 118.293 (2013).
n277 Lowrey & Morain, supra note 213, at 296; see also Summary Matrix of State Laws Addressing Concussions in Youth Sports, NETWORK FOR PUB. HEALTH L., http://www.networkforphl.org/_sset/7xwh09/StateLawsTableConcussionsFINAL.pdf (last visited Jan. 12, 2016).
n278 WIS. STAT. § 118.293.
n279 Id.
n280 TEX EDUC. CODE ANN. §§ 38.151, 38.159.
n281 ARIZ. REV. STAT. ANN. § 15-341
n282 Douglas E. Abrams, Confronting the Youth Sports Concussion Crisis: A Central Role for Responsible Local Enforcement of Playing Rules, 2 MISS. SPORTS L. REV. 75, 82-83 (2013).
n283 See Brandwein, supra note 206, at 38. But see Lowrey & Morain, supra note 213, at 296.
n284 Abrams, supra note 282, at 82-83; see also IHSA Responds to Concussion Lawsuit, supra note 109 (“Those who oversee safety measures on a day-to-day basis are the people best equipped to address these improvements, not those operating within the courts.”).
