By Alan Goldberger, Esq.
Attorneys representing nonprofit sports organizations, municipal recreation agencies, school and college athletic departments and related organizations are often presented with unique challenges. Nowhere are these challenges more pronounced than in the area of dealing with the legal exposures attendant to managing the risk of concussion in sports programs.
Notwithstanding that legal and medical issues incident to concussion have been the subject of rules and administrative changes at all levels of sport, anecdotal evidence tells us that many involved in the delivery of sports programs do not appropriately address even rudimentary risk management techniques to reduce the incidence of traumatic brain injury.
At the same time, in response to the specter of concussion, codified law in virtually all states, new playing rules and other regulations promulgated by sector and sport specific organizations proliferate. Still, this massive regulatory patchwork often does not provide any mechanism for effectuating the legal requirements enacted. What’s more, playing rules codes, in many cases, are often vitiated due to a confusing and disjointed jumble of impractical and strained interpretations that serve only to hamper game officials and others charged with dealing with injuries during a game.
School and College Sports
With responsibility for promulgating playing rules for more than 7.5 million student athletes who participate in some 16 sports, the National Federation of State High School Associations (NFHS) publishes playing rules and “case books.” NFHS playing rules have for many years required the removal of an “unconscious” and, more recently, an “apparently unconscious” student athlete from play. On March 4, 2010 the NFHS announced a historic change in the rules, across all sports, charging game officials to remove any player who shows signs, symptoms or behaviors consistent with a concussion, such as loss of consciousness, headache, dizziness, confusion or balance problems. Under the rules, players so removed are not permitted to return to play until cleared by an appropriate health-care professional.[1]
This change commenced with the 2010 football season. Other NFHS sports rules codes were revised accordingly.[2] Noteworthy is the fact that, with the change in rule, return to play decisions under NFHS rules codes are left to each constituent state high school association’s determination as to who qualifies as an “Appropriate Healthcare Professional.” As a result of the now ubiquitous statutes on the topic, in some cases the rule and state association pronouncements are supplanted and pre-empted by state or local law.
Around the same time that the NFHS reformulated their position on the potentially concussed student athlete, the NCAA Committee on Competitive Safeguards and Medical Aspects of Sports resolved to revise their playing rules codes in a manner similar to the NFHS; and the new rules related to concussion found their way into a number of NCAA Rules books.[3]
In subsequent years, however, these rules in most[4] NCAA sports were ultimately deleted without fanfare in favor of back-of-room placement of a watered down appendix listing the signs, symptoms and behaviors consistent with concussion and containing suggestions for concussion management. These appendices, entitled simply “Concussions,” are largely devoid of any enforcement mechanism to be applied during games.
Youth Sports and Recreational Programs
Nor do NFHS rules or NCAA guidelines address the corresponding concerns regarding the untold number of participants in youth and recreational sports.[5] Given the large number of volunteer personnel involved in coaching — and often in officiating — combined with the budgetary restraints and lack of training and standards so often associated with youth and recreational sports, injury management becomes all the more critical. Against this backdrop, one thing is clear: organizations providing competitive sports and recreation programs of all sizes must insist that game administration personnel be sufficiently apprised of both how to recognize the circumstances necessitating removing a participant from the game and when to permit a participant to return to play.
Practical Solutions
More guidance, however, is needed as most of the regulatory materials waltz around the fundamental question: How do those in charge of the game deal with the potentially catastrophic injury exposure once the student-athletes are out on the playing surface? Ignorance and irresponsibility on the part of those responsible for the delivery of sports programs and administering the related organizations is evidenced by a widespread refusal to acknowledge the indispensable assistance of the one group of individuals — many of whom are licensed and credentialed — who have the most vivid view of traumatic brain injury at its inception: the game officials. Unless and until the officials are provided the tools and the support to do their job, on field and on court management of removal and return to play will continue to be afflicted by imprudent and reckless mismanagement of the risks inherent in sport.
Alan Goldberger, a partner in the Summit, New Jersey firm of Brown Moskowitz & Kallen, P.C. is the author of Sports Officiating: A Legal Guide.
[1] National Federation of State High School Associations Press Release, March 4, 2010.
[2] e.g. . . . NFHS high school basketball rules provide as follows:
2-8-5. The officials shall . . . immediately remove a player from the game who exhibits signs, symptoms or behaviors consistent with a concussion as in 3-3-8. (See NFHS Suggested Guidelines for Management of Concussion in Appendix A.)
3-3-8. Any player 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 game and shall not return to play until cleared by an appropriate health care professional. (See NFHS Suggested Guidelines for Management of Concussion in Appendix A.)
[3] “An athlete who exhibits signs, symptoms, or behaviors consistent with a concussion (such as unconsciousness, amnesia, headache, dizziness, confusion, or balance problems), either at rest or exertion, shall be immediately removed from practice or competition or shall not return to play until cleared by a physician or her/his designee. Athletes who are rendered unconscious or have amnesia or persistent confusion shall not be permitted to continue for the remainder of the day. These athletes shall not return to any participation until cleared by a physician.”
[4] Two notable exceptions are Wrestling and Soccer:
Wrestling: “If a contestant is rendered unconscious or shows signs of a concussion or spinal injury, that wrestler shall not be permitted to continue in the match or return to competition without approval of the team physician or the team physician’s Designee according to each institution’s Concussion Management Plan. Student-athletes diagnosed with a concussion shall not return to activity (or competition) for the remainder of that day.”
Soccer: Players with …signs of a concussion shall be substituted for and may re-enter the game… provided the appropriate medical personnel have given clearance. Note: The injured player is eligible for re-entry only after medical personnel has given clearance. However, if a player leaves the game for displaying concussion-like symptoms, that player must be cleared by the team physician or his or her designee according to the concussion management plan. Student-athletes diagnosed with a concussion shall not return to activity for the remainder of that day. (See Appendix D.
[5] NCAA has recently announced it has “partnered” with a number of organizations in a program designed to help reduce the occurrence of concussion in youth football. Organizations include the NFL Players Association, USA Football, Centers for Disease Control and Prevention (CDC), National Athletic Equipment Reconditioners Association (NAERA), NCAA, National Operating Committee on Standards for Athletic Equipment (NOCSAE), Sporting Goods Manufacturers Association (SGMA), Rawlings, Riddell, Schutt, and Xenith.
