By Robert L. Clayton, Partner, and Christien D. Oliver, Esq., of Goldstein & McClintock, LLLP
Lawmakers in California, Illinois, Maryland and New York have proposed legislation that will set an age minimum for youth to participate in tackle football. These Bills are supported by the mounting research indicating that (1) Chronic Traumatic Encephalopathy (CTE) is caused by repetitive impacts to the head sustained over a period of time, and (2) children who play contact sports during their most critical years of brain development face a greater risk for CTE and other brain damage later in life.
Hits absorbed by young athletes are particularly problematic because their developing brains are less capable of healing themselves. Young athletes also have weaker neck muscles and are therefore less able to brace for impact, and support the weight of a football helmet.
In 2015, the National Football League (NFL) acknowledged a connection between blows to the head and brain disease, and agreed to a $1 billion settlement with former players. A week before this landmark settlement, Aaron Hernandez, a former NFL player for the New England Patriots, was sentenced to life in prison for murder. Hernandez would later commit suicide in his prison cell at age 27, and his autopsy would uncover that he had stage 3 CTE. Prior to Hernandez, stage 3 CTE had never been found in an individual younger than 46.
By creating a minimum age for youth to participate in tackle football, the proposed legislation seeks to encourage the identified youth to participate in noncontact sports alternatives. These alternatives include touch football, flag football, and 7-on-7 football. Proponents of the proposed legislation cite NFL legends Jerry Rice, Walter Payton, Lawrence Taylor, Jim Brown, and Tom Brady as participants in noncontact youth football.
California State Assembly members Kevin McCarty (D-Sacramento) and Lorena Gonzalez Fletcher (D-San Diego) introduced the “Safe Youth Football Act” in February. The Bill would prevent California youth from participating in tackle football until they become high school freshman. Assemblymember Gonzalez Fletcher issued a statement regarding the Bill, explaining “the science is clear: head injuries sustained at a young age can harm kids for the rest of their lives.” Assemblymember McCarty noted “the Golden State’s children need to know that no touchdown or interception is worth the long-term damage to their brains caused by tackle football.”
Illinois State Representative Carol Sente (D-Vernon Hills) introduced “The Dave Duerson Act to Prevent CTE” (House Bill 3431) in January. The Bill is named for Dave Duerson, a former Chicago Bears player who was diagnosed with CTE after committing suicide. Duerson shot himself in the chest so that his brain could be studied. The Bill extends beyond its Californian counterpart and precludes Illinois children younger than 12 years old from participating in organized tackle football. Regarding the proposed legislation, Representative Sente reasons that “the overwhelming data and powerful stories of our supporters…show the risks of playing tackle football before turning 12 just aren’t worth it.”
Dave Duerson’s son Tregg, who played football at Notre Dame like his father, issued a statement supporting the bill, noting that “thanks to increased attention and research on brain trauma, we know that part of the solution is to guard young children’s developing brains from the risks of tackle football.”
Maryland State Delegate Terri L. Hill sponsored House Bill 1210 in February. Delegate Hill is a practicing physician and her comprehensive Bill reflects her professional experience. In addition to banning children younger than 14 from participating in tackle football on publicly-funded fields, House Bill 1210: bans body-checking in hockey and lacrosse; prohibits “headers” in soccer (players using their head to shoot or pass the ball); and mandates that coaches and youth athletes receive training on the risks associated with head injuries.
Delegate Hill notes that while a football helmet may protect young children from a fracture, “it doesn’t protect them from the brain flopping back and forth inside the skull.” The Bill is also supported by Madieu Williams, who played football at the University of Maryland and for nine seasons in the NFL. Williams distinguishes the bill from an outright football ban: “What the bill is saying is to delay tackling in football.”
New York State Assemblyman Michael Benedetto (D-Bronx County) sponsored “The John Mackey Youth Football Protection Act” (A. 01269) in January. Benedetto initially introduced the Bill in 2013, but decided to reintroduce it in light of recent scholarship linking years of tackle football to long-term cognitive and neurological problems. The Bill bears the name of John Mackey, a New York native and NFL Hall of Fame member who battled memory loss and severe dementia – largely stemming from brain injuries — prior to his death in 2011.
If enacted, the Mackey Act would preclude children younger than 12 years old from playing tackle football. Assemblyman Benedetto likens the Bill to laws requiring the use of seatbelts, car seats, and bicycle helmets. Nonetheless, the Bill faces long-odds because it does not have a co-sponsor in the State Senate.
Each of these proposed laws face several shared obstacles and criticisms. First, given that these bills have been put forth by Democrats in legislatures with a Democratic majority, partisanship will likely be a factor. Second, despite a recent decline in youth football participation, more boys still play football than basketball and baseball combined. Third, despite a recent decline in television ratings, the NFL remains the largest and most watched sports league in the county. Fourth, youth football leagues have recently introduced a number of rules to prevent brain injuries, including eliminating kickoffs and reducing contact time in practice.
Finally, the science regarding brain injuries in tackle football is still evolving, and there is no consensus as to the precise age when youth should be permitted to play. To that point, Dr. Robert Cantu, the co-founder and medical director of the Concussion Legacy Foundation, reasons that this lack of consensus is immaterial: “health experts set age minimums for all sorts of activities like drinking, smoking, and driving, and the science is never purely black and white.”
