Time will tell whether a class action lawsuit filed earlier this month by a former high school quarterback against the Illinois High School Association (IHSA) will be the first of many copycat lawsuits around the country.
The plaintiff in the case is Daniel Bukal, who was a star quarterback at Notre Dame College Prep in Niles, Ill. from 1999 to 2003. The plaintiff, who never played college football, alleged in the lawsuit that the “criteria” for returning him to the playing field “was not uniform and followed no consistent, medical protocol that would ensure (that his) return to the field would be safe.” Because of this, he allegedly suffered multiple concussions, which have led to migraines and some memory loss.
Like many associations, the IHSA did not have concussion protocols in place at the time. This placed Bukal and other high school football players at risk, according to the lawsuit.
Bukal, who is represented by Chicago-based attorney Joseph Siprut, is asking the IHSA to tighten rules regarding head injuries and concussions, and include baseline testing and other initiatives. Siprut represented several former college athletes in the recent concussion lawsuit against the NCAA. That litigation was settled with the NCAA committing $70 million to a medical monitoring program to test athletes for traumatic brain injuries. The settlement, which is before a judge, is mired in some controversy about who the winner in the case is — the plaintiffs, their attorneys, or the NCAA.
Siprut told the media that he intends to file lawsuits against other state high school athletic associations. He has not targeted the National Federation of State High School Associations because it does not exert the same control over its members that the NCAA does.
As for the Illinois litigation, the class being specified includes every high school football player who participated for an IHSA member school from 2002 to the present.
Among some of the more unique aspects of the lawsuit is the demand for a system for reporting and tracking concussions. For example, it seeks a way for people to anonymously report schools and coaches who might be placing athletes in jeopardy.
Meanwhile, the Chicago Tribune quoted Dr. Larry Robbins, a neurologist in Northbrook, Ill. who said much of what the plaintiff is seeking “is too expensive and would be too burdensome for financially strapped districts.
“Who’s to say the high school caused their problem?” he told the Tribune. “Kids start playing football much younger. They start mashing their heads together at 6, 7, 8, and (concussion problems) start then. (Medical monitoring) opens up a number of cans of worms and unintended consequences.”
Then again, the plaintiff may have an argument.
Tommy Dean, an athletic trainer and owner of Concussion Solutions (http://concussion-solutions.com), told Sports Litigation Alert that many schools were hesitant to embrace the proper recognition and treatment of concussions back then.
After an in internship with the Miami Dolphins in 2003, Dean moved back to his native Louisiana. “When I returned to Louisiana in the summer of 2004 and started my new job working with local high schools my honeymoon phase consisted of nothing but a push to implement neurocognitive testing along with protocols, etc. into the schools,” he said.
“The response that I got at that time from school administrators and the general public was basically that ‘our culture is not ready for this’ and ‘the coaches won’t go for it.’ Funding was also an issue as it always tends to be. So, we knew lots back then, but didn’t know how to address it. It was mostly attributed to implementing a program that would not cost anything, nor change the way things were already being done in a drastic way. It’ll be tough to convince me that, just like the NFL, high schools and colleges did not know what was happening. It was seven long years before legislation was passed. If it was not for state legislation, the majority of the programs that are around today would not exist. Although I don’t think that the legislation is the solution, it was a good kick in the pants to get the ball rolling.”
IHSA Responds to Lawsuit
On December 3, the IHSA issued its response to the lawsuit:
“Working in conjunction with partners like the National Federation of State High School Associations (NFHS) and the Illinois General Assembly, the IHSA draws input from top leaders in the sports medicine community. We solicit their expertise regularly and apply best practices in all events.
“Risk minimization for high school student-athletes in all sports, including football, has been and will continue to be a top priority for the Association. We believe that since the IHSA began sanctioning football competition, the safety procedures and protocols in place for high school football have been on par with, or have exceeded, those that exist around the country, regardless of the level of football. We recognize that in the past decade new concerns have been raised about the game of football. The IHSA, the Illinois State Legislature, local school boards, and the high school coaches who are on the practice fields every day are all working together to address these concerns.
“While this lawsuit alleges that it exists to help aid in that matter, simply put, high school football should not be subject to being dismantled or reassembled. 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.
“At its core, high school football is not college football, nor is it the NFL, and for the vast majority of these young players this is the highest level at which they will compete. The IHSA bears that in mind as it continues to bring safer standards of play to practice, games and off-season workouts.
“A lawsuit’s attempt to lump all levels of football together has far-reaching implications, potential repercussions that threaten the future of all high school sports for the millions of students around the country who annually benefit from their participation experiences.”
