Fifth Circuit Affirms Magistrate Judge’s Dismal of Parents’ Constitutional Law Claim in Concussion Case

May 6, 2022

The panel of judges from the Fifth U.S. Circuit Court of Appeals has affirmed a magistrate judge’s dismissal of a lawsuit brought the parents of a high school football player, who claimed the school district and several individual defendants violated their son’s Constitutional rights when they allowed him to continuing playing football, which led to multiple concussions.

In so ruling, the panel determined that the defendants did not act with “deliberate indifference by allowing the student to participate.” The decision upheld the ruling of a magistrate judge from the Eastern District of Texas for the Sante Fe Independent School District and several school officials.

Plaintiffs Donna and Troy Yarbrough, who filed suit on behalf of their minor son, were seeking in excess of $5 million in damages.

In their claim, they noted that this was “a critically important civil rights case concerning traumatic physical and mental injuries sustained by a male high school student. Each year numerous children are injured across the country participating in sporting events. A number of injuries result due to a systemic culture of winning at all costs.”

They added that “in order to win championships, child athletes are subjected to training regimens that disregard their health, safety, and well-being. Drills are conducted in practice that are dangerous and are known to cause long term serious injuries while under the supervision of the coaches.”

The incident leading to the concussion occurred on Sept. 21, 2016, when the minor was at football practice. Participating in a scrimmage, he collided, helmet-to-helmet, with a much larger player.

“The coaches were yelling at (the students) to line up again, and again, and again, and to hit harder, harder, harder,” according to the lawsuit. “Indeed, the coaches encouraged, if not demanded, an aggressive and repetitive full-on head-to-head and upper body contact.

“The coaches ran the same drill over and over resulting in continued, repetitive head-to-head and upper body contact. The coaches never stopped or intervened in the constant helmet to helmet contact.”

Shortly thereafter, the minor began experiencing severe headaches, and two days later was diagnosed with a concussion.

In their complaint, the plaintiffs took the novel approach of alleging that the “defendants failed to enact … proper and adequate policies … relating to the prevention of head injuries resulting from athletic activities. This deliberate indifference to the health, safety and welfare of student athletes in failing to educate said student athletes on the causes, symptoms, and dangers of traumatic head injuries was the common policy and custom of the defendants.”

The Magistrate Judge’s Ruling

It was significant that the couple did not claim the coaches knowingly forced their son into danger involving a known victim, according to the magistrate judge. Instead, their suit focused on “the overall danger of the sport and the coaches continuously urging players to meet aggression with aggression.

“Notably, Yarbrough does not complain that the coaches knowingly forced him to continue contact drills after he suffered a concussion,” the magistrate wrote.

“The present lawsuit is, in essence, a condemnation of the football culture which pervades much of society in this part of the country,” Edison wrote. “Boiled down, Yarbrough contends that the game of football, with its constant physical contact, aggression and violence, is an inherently dangerous sport. Allowing high school football players to repeatedly hit each other, Yarbrough maintains, puts these youngsters in harm’s way.”

The plaintiffs appealed.

In its ruling, the appeals court noted that the “student’s headaches started after practice concluded, and days after he was initially injured. Once school officials knew that student was injured, they immediately instructed him to avoid football until he could consult a doctor.

“Student thus failed to plead facts showing that the defendants consciously disregarded an immediate threat to his safety. Without such allegations, student’s claim could not succeed even if the state-created danger theory was embraced.”

The court elaborated on the theory.

“To prove a state-created danger, Yarbrough would have to show that the defendants used their authority to place him in immediate danger and did so with ‘deliberate indifference’ to his plight. See Doe, 675 F.3d at 865; see also Lester v. City of College Station, 103 F. App’x 814, 815 (5th Cir. 2004) (‘[L]iability exists only if the state actor is aware of an immediate danger facing a known victim.’). Football is dangerous. But football does not present such an immediate or specific danger to the players that schools and coaches can be held liable for any injuries that result. Indeed, courts have frequently rejected civil-rights claims based on football injuries—some of which involved more glaring and unreasonable dangers than those at bar. See e.g., Davis v. Carter, 555 F.3d 979, 984 (11th Cir. 2009) (finding no liability for the death of a player who was refused water during a strenuous football practice); Myers v. Troup Indep. Sch. Dist., 895 F. Supp. 127, 130 (E.D. Tex. 1995) (same for a player who suffered nerve and muscle damage after he was ordered back onto the field moments after being knocked unconscious); see also Lesher v. Zimmerman, 822 F. App’x 116, 118 (3d Cir. 2020) (finding no liability when softball practice left plaintiff with a fractured jaw and four lost teeth).

“Even if Yarbrough could show that football is a qualifying danger, his claim would still fail because the defendants did not act with deliberate indifference by allowing Yarbrough to participate. See Doe, 675 F.3d at 865. ‘To act with deliberate indifference, a state actor must know of and disregard an excessive risk to the victim’s health or safety.’ McClendon v. City of Columbia, 305 F.3d 314, 326 n.8 (5th Cir. 2002) (cleaned up). Yarbrough does not allege that his coaches knew he was concussed and forced him to play anyway. Nor does he allege that he suffered any obvious injury during football practice, which should have led coaches to take him off the field. Rather, Yarbrough’s headaches started after practice concluded, and days after he was initially injured. And, once school officials knew that Yarbrough was injured, they immediately instructed him to avoid football until he could consult a doctor. Yarbrough has thus failed to plead facts showing that the defendants consciously disregarded an immediate threat to his safety. Without such allegations, Yarbrough’s claim could not succeed even if we were to embrace the state-created danger theory.

“There is growing debate in this country about the dangers of football. The problem of concussions has reached the court system via tort suits. See, e.g., In re: NFL Players’ Concussion Injury Litig., 821 F.3d 410 (3d Cir. 2016). But we do not see a role for the Constitution in the weighing of risks and benefits that participants in America’s most popular sport must make.”

Yarbrough v. Santa Fe Independent School District et al.; 5th

 Circuit; No. 21-40519; 3/25/22

Attorneys or Record: For Chase Yarbrough, Plaintiff – Appellant: Seth Kretzer, Law Office of Seth Kretzer, Houston, TX; Lewis M. Chandler, Chandler Law Firm, L.L.P., Houston, TX; Sherry Scott Chandler, Houston, TX; James Alfred Southerland, Southerland Law Firm, P.C., Houston, TX.

For Sante Fe Independent School District, Doctor Leigh Wall, Mark Kanipes, Richard Davis, Jess Golightly, Matthew Bentley, Christopher Cavness, Raymond Buse, Marie Griffin, Taylor Wulf, Defendant – Appellees: Jonathan Griffin Brush, Amy Dawn Demmler, Clay Thomas Grover, Esq., Rogers, Morris & Grover, L.L.P., Houston, TX.

For Texas Association of School Boards Legal Assistance Fund, Amicus Curiae: Thomas Phillip Brandt, Laura Dahl O’Leary, Francisco J. Valenzuela, Fanning Harper Martinson Brandt & Kutchin, P.C., Dallas, TX.