A Maryland state appeals court has affirmed a lower court’s ruling dismissing the claim of a high school volleyball referee, who had challenged the Maryland Public Secondary Schools Athletic Association’s (Association) PowerPoint slides on concussions. Specifically, the referee challenged whether the slides went far enough in requiring “a duty of care when a youth athlete has a suspected concussion.”
In its ruling, the appeals court wrote: “We agree with the Association that the circuit court did not err because the Association’s slide in no way restricts appellant’s free speech rights and communicate his belief that a player may have a concussion.”
By way of background, Plaintiff Duncan S. Morgen-Westrick has been a high school referee since 2021. “To officiate any Maryland interscholastic volleyball games, there are two requirements,” wrote the court. “First, one must register as a member of the Beltway Region Volleyball Officials Association (BRVO) and pay a fee. Appellant is a member in good standing of the BRVO. Second, one must annually complete an online Association sponsored “Rules Interpretation Clinic” (Clinic). The materials for the training are prepared by the Association’s Coordinator of Officials and the Association’s Rules Interpreter. The Clinic is comprised of two units of material: one unit is the same across all sports, and the other is sport specific. The volleyball Clinic for 2022-2023 and 2023-2024 included PowerPoint slides that contained information about Maryland law on concussion protocols and hair adornments.”
The pertinent slide states:
“Concussion Protocols
- Any athlete who exhibits signs, symptoms, or behaviors consistent with a concussion (such as loss of consciousness, headache, dizziness, confusion, or balance problems) shall be immediately removed from the contest and shall not return until cleared by an appropriate health-care professional.
- It is not the responsibility of an official to assess a potential concussion.
- It is appropriate for an official to suggest to a coach to attend to a player exhibiting the above signs, refraining from assessing that you think the player has a concussion.”
On July 24, 2023, Morgen-Westrick “filed a complaint for declaratory judgment and injunctive relief against the Association. Appellant sought a declaration that the PowerPoint slides on concussions and hair adornments were invalid regulations because they did not comply with the rulemaking process of the Administrative Procedures Act (APA). See Md. Code Ann., State Government (SG), Title 10, Subtitle 1.”
He also sought to enjoin the Association from using the slides. On November 2, 2023, a court hearing was held on the Association’s motion to dismiss for failure to state a claim. Following the hearing, the circuit court dismissed the complaint without prejudice, finding that the PowerPoint slides were not regulations.
Four days later, Morgen-Westrick filed a second complaint for declaratory judgment and injunctive relief. He again sought a declaration that the PowerPoint slides on concussions and hair adornments were invalid regulations because they did not comply with the APA and a declaration that sports officials have a duty of care when a youth athlete has a suspected concussion. He also added a new claim that the Association’s slides on concussions and hair adornments infringed upon his First Amendment right by preventing him from advocating for the health and safety of student athletes. The Association again filed a motion to dismiss.
On February 7, 2024, a hearing was held. Following argument by the parties, the circuit court ruled from the bench and dismissed the complaint with prejudice. As with the first complaint filed by Morgen-Westrick, the circuit court similarly found that the Association’s PowerPoint slides were not regulations but were “merely interpreting the law to give the public a clearer understanding of what the law requires.”
Morgen-Westrick appealed, presenting the following questions on appeal:
“I. Did the circuit court properly conclude that certain Association PowerPoint slides on concussion protocols and hair adornments were not regulations?
II. Did the circuit court properly conclude that certain Association PowerPoint slides did not violate appellant’s constitutional free speech rights?
III. Did the circuit court erroneously dismiss appellant’s second complaint with prejudice because the Association had not properly presented or supported its arguments?”
The court noted that “the crux of this dispute is that appellant believes that the Association violated Maryland’s APA when it created the PowerPoint slides on concussion and hair adornment protocols. He contends that the slides fall within the APA definition of regulation, and therefore, the slides must be adopted by formal APA rulemaking. The Association argues that appellant wrongly seeks to ‘equate training slides that implement existing law with ‘regulations’ that establish new law.’ The Association argued that the PowerPoint slides only ‘explained concussion protocols that have already been promulgated as regulations and highlighted the need for hair adornments to be reviewed on a case-by-case basis at the local school level to prevent discrimination based on hairstyle under amended nondiscrimination statutes.’”
The appeals court cited the following reasons for affirming judgment:
It noted that Maryland regulations are enacted in accordance with the procedures set forth in the Maryland APA. But it concluded, citing extensive case law, that the slides were not regulations. Rather, they were rules that did not need to go “the formal rulemaking process.”
Also of significance, the court noted that in 2011 the Maryland General Assembly enacted legislation, titled “Concussion policy and awareness,” that tasked the State Board of Education (State Board) to “develop policies and implement” a statewide program for elementary and secondary public schools to provide concussion awareness for “coaches, school personnel, students, and the parents or guardians of students,” establishing “a program of concussion awareness and prevention throughout the State of Maryland for student-athletes, their parents or guardians, and their coaches.” The statute further directed “the State Board to establish a program that ‘shall include a process to verify that a coach has received information on the program developed’ and, before a public school student ‘may participate in an authorized interscholastic athletic activity, the county board shall provide a concussion and head injury information sheet to the student and a parent or guardian of the student.’
“As to concussions, the statute provides that a student ‘who is suspected of sustaining a concussion or other head injury in a practice or game shall be removed from play at that time’ and ‘may not return to play until the student has obtained written clearance from a licensed health care provider trained in the evaluation and management of concussions.’ Noteworthy, nowhere does the statute mention referees or sports officials.”
Turning to Morgen-Westrick’s claim that the circuit court erred in dismissing his free speech claim, the appeals court wrote: “We agree with the Association that the circuit court did not err because the Association’s slide in no way restricts appellant’s free speech rights and communicate his belief that a player may have a concussion. Moreover, as the Association points out, when speaking pursuant to their duties as sports officials, rather than as citizens, their speech is subject to at least a modicum of control. Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 527, 142 S. Ct. 2407, 213 L. Ed. 2d 755 (2022).”
Turning to Morgen-Westrick’s last contention that the circuit court erred in dismissing his complaint for failure to state a claim because the Association failed to properly make that argument in its reply motion in contravention of Md. Rule 2-311(c),” the court also found for the defendant.
Duncan S. Morgen-Westrick v. Maryland Public Secondary Schools Athletic Association; Appellate Court of Maryland; 2025 Md. App. LEXIS 460 *; 2025 LX 134524; 2025 WL 1603528; 6/6/25
