By Christopher R. Deubert, Senior Writer
On October 12, 2023, Massachusetts legislators comprising the Joint Committee on Economic Development and & Emerging Technologies and the Joint Committee on Health Care Financing held an Informational Hearing on the State of Youth Sports. The hearing included testimony from twelve experts in youth sports and sports medicine on “the risks of early sport specialization,” “overtraining,” “the physical and mental health impacts of accessible participation,” and “the landscape of program financing.” The hearing ultimately reflected interest in the possibility of the Commonwealth becoming the first state to directly regulate youth sports. Doing so would not be without legal risks.
The Youth Sports Structure
As a starting point, it is important to understand the current governance structure of youth sports.
The Commonwealth’s 374 public and private high schools are regulated by the Massachusetts Interscholastic Athletic Association (MIAA), a non-profit corporation whose Board Members consist of athletic directors and principals from various high schools. The MIAA sanctions sports, organizes tournaments, and creates and enforces rules of participation, such as student-athlete eligibility.
Similar to the MIAA, the Middle Level Athletic Committee (MLAC) of the Massachusetts Secondary School Administrators’ Association (MSSAA) is the official organization in Massachusetts for regulating sports among middle schools.
Similar structures exist throughout the country. Yet outside the school setting, there are no overarching bodies regulating youth sports. Instead, leagues are typically organized by town recreation departments or, for more elite competition, private organizations. Some of these are non-profit while some are for-profit.
There are few laws directly regulating youth sports. The principal laws relevant to youth sports are what are known as the Lystedt Laws. Lystedt Laws address concussion management in youth athletics and are named after Zackery Lystedt, a youth football player in Washington who suffered a catastrophic brain injury on the football field in 2006. All 50 states have passed some form of a Lystedt Law.
Massachusetts’ Lystedt Law requires coaches, trainers, and parent volunteers at MIAA schools to take annual training in athletic head injury safety. Additionally, the law instructs that if a student becomes unconscious or suffers a concussion during a practice or competition, they cannot return to practice or competition until they are cleared to do so by a healthcare professional. M.G.L. 111 § 222.
The Uncertain Benefits of State Regulation
The principal motivation for considering legislation is the prevention of injuries. In support of this idea, State Senator Barry Finegold described the “young people” participating in sports as “our most vulnerable population.” Perhaps a principal area of focus might be requirements that coaches in youth sports receive training or certification in relevant health and safety issues. Such a rule though might reduce the number of volunteer coaches, which are always in short supply.
More specific health and safety rules would seem challenging. While high school football games often have a medical professional present, that is not realistic for the hundreds (if not thousands) of youth sports activities taking place every weekend. In baseball, most youth leagues have instituted pitch count restrictions so it is unclear more regulation would be helpful.
Finally, the hearing was concerned about kids unnecessarily specializing in one sport. But the government certainly cannot make a law requiring a kid to play more sports or less of a particular sport.
The Risks of State Regulation
The principal risk of state involvement is the potential implication of Constitutional protections and increased litigation against the Commonwealth. In Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288 (2001), the Supreme Court held that the Tennessee Secondary School Athletic Association, the regulatory body for high school athletics in Tennessee, was a state actor by virtue of the “pervasive entwinement of state school officials.” Consequently, the Association had to comply with Constitutional requirements of due process in its decision-making. Similarly, the Supreme Judicial Court of Massachusetts has long held that the MIAA is a state actor. Attorney General v. Mass. Interscholastic Ath. Ass’n, 378 Mass. 342 (Mass. 1979).
Constitutional protections can, appropriately, be burdensome. Take, for example, a state athletic association enforcing an eligibility rule. If the athletic association were to determine a student-athlete was ineligible and disqualify them from competition, they would have to provide the student-athlete a fair and legitimate right to be heard before such disqualification. The rule would have had to have also been previously published and, generally speaking, applied in a rational manner. While there is no right to participate in youth athletics, student-athletes do frequently challenge athletic association rules and decisions as violating due process or some other legal right.
If Massachusetts were to insert itself into youth athletics, either through a new regulatory body or an existing agency, it can expect to be sued with some regularity by aggrieved children and their parents. While the occasional eligibility challenge might not present substantial legal or financial risks, negligence suits could. Youth sports leagues have been targets of lawsuits alleging negligent handling of concussions or other health risks. The Commonwealth’s regulation of youth sports, particularly for purposes of safety, would draw it into such lawsuits.
The Commonwealth’s ability to immunize itself from such lawsuits is complex and beyond the scope of this article. Nevertheless, if the Commonwealth could not be sued for any potential negligent acts in its regulation of youth athletics, it might create perverse incentives and outcomes. Currently, privately run youth sports leagues operate with the assistance of insurance policies. The underwriters of those policies likely require that the leagues and their coaches follow the best practices concerning youth sports safety. Moreover, youth sports leagues are incentivized to act in accordance with those best practices in order to avoid litigation.
The government, particularly in cases of broad immunity, generally lacks such incentive or attention to risk. Moreover, governments are perpetually stretched thin and will not always – if ever – have the resources necessary to energetically regulate youth sports. The result may very well be a gap in enforcement – the private leagues may be able to point to the government as the responsible party and the government may not be sufficiently engaged or subject to suit.
Better to Punt
The Lystedt Laws were an important step in setting new norms concerning youth sports safety. However, beyond the serious health risks presented by concussions, it is unclear how much the government can or should be involved in regulating the sport choices of kids and their parents. Sports will always present risks of injury. Moreover, sports rewards those who train and work harder and smarter. It is difficult to see how the government can meaningfully reduce the risk of injury while not also restraining the positively challenging aspects of sports.
