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Illinois Concussion Class Action Lawsuit: More Questions Than Answers

Bukal v. Illinois High School Ass'n, the much-publicized Illinois high school concussion lawsuit, appears to be the next step in Chicago attorney Joe Siprut's campaign to use class action settlements to implement changes to high school and college football concussion policies.

Bukal makes little pretense to being anything but the opening gambit in a legal chess game designed to get the IHSA to settle.  Indeed, the 52-page complaint - most of which is spent recounting the history of concussion management guidelines issued by national and international organizations since the beginning of the 21st century - dispenses with the threat of monetary damages, and gets right down to business, demanding that the IHSA require pre-season baseline testing of football players (which, so far, has not been mandated by any state), develop a program to track concussions (which a number of states' concussion laws require), require medical personnel, such as certified athletic trainers, with concussion expertise at all games and available for practices, and establish a fund to pay for the medical monitoring of past and present high school football players from 2002 to the present.

If all this sounds familiar, well, that's because it is. Siprut's Illinois high school lawsuit asks for the same relief requested in the settlement he proposed in Arrington v. NCAA, his college concussion lawsuit, which was consolidated with another concussion suit and ultimately went forward as In Re National Collegiate Athletic Association Student Athlete Concussion Injury Litigation in the Northern District of Illinois. Siprut appears to have liked the proposed settlement in his college concussion lawsuit so much that he simply asked for the exact same relief in his Illinois high school lawsuit.

Bad deal for athletes? 

Siprut's proposals may not hold up, however.  The reason is that, on December 17, 2014, District Court Judge John Lee rejected as insufficient the settlement Siprut reached with the NCAA, just as many legal experts predicted he would. The reason was that, while a good deal for college football players and wrestlers, it didn't adequately protect the interests of the numerous college athletes playing other sports who also sustain concussions.  The $70 million earmarked for concussion monitoring in the proposed settlement sounds impressive until one realizes that it didn't factor in non-contact sport athletes who may wish or need to avail themselves of the monitoring. Indeed, Judge Lee specifically noted college baseball catchers and water polo players as examples of non-contact sport athletes who may need monitoring. And that's just the tip of the iceberg: wait until a college cheerleader wants post-concussion monitoring .

Siprut's settlement proposal would also prevent class members (at least those who don't opt out) from suing for damages in the future.  Considering the size of the class, the protection the NCAA would have gotten from future damage suits, and the failure to provide monitoring for non-contact sport athletes, it's safe to say that the NCAA would have gotten a really good deal out of its proposed settlement with Siprut. And, in fairness to Siprut, it's hard to say that he cut a bad deal. His true interest was football players, and the settlement he proposed would have protected them. However, because he represented a class that included, not just football players, but also the numerous other athletes who might suffer a concussion and need testing, his settlement, had it been accepted by the Court, offered very little to benefit those other athletes.

Siprut didn't ask for such a broad duty, but in class actions one's duty in representing the entire class sometimes transcends one's expectations. Siprut wasn't able to transcend his expectations because his focus was on football. He either didn't think of or didn't know of the rich complexities of college sports. This lack of either knowledge or concern proved fatal to his college proposed settlement, at least for now.

Wrong choice of defendant? 

In my view, Siprut has already gotten off on the wrong foot in his high school litigation. His first mistake was in his choice of defendants. Siprut has made it clear that he actually views his Illinois high school suit as an efficient way to get state high school associations to implement the policies that match his vision of safety: in short, it is just the first of a series of 51 separate lawsuits.   That he sued just one high school athletic association, of course, begs the question why Siprut simply didn't sue the National Federation of State High School Associations (NFHS)?

Siprut's answer was puzzling, to say the least.  The reason he didn't sue the NFHS is because, purportedly, it doesn't exert the same control over high school sports that the NCAA exerts over college sports.  As a high school sports administrator, I view the choice of defendant as a clear indication that Siprut has a fundamental misunderstanding of the way high school sports are run in this country.

Siprut is absolutely correct that the NFHS does not exert the same degree of administrative control over high school sports that the NCAA exerts over college sports. However, he completely ignores the fact that player safety at the high school level is not entirely a matter of administrative control, it's also a matter of policy- and rule-setting. The NFHS sets the national high school playing rules, and over the last eight years, it has made it quite clear that it can and will change the rules that govern high school sports to protect the safety of athletes. 

To give just one example, the NFHS has changed the rules for high school wrestling in order to require all wrestlers to engage in a weight management program, hydration testing, and body composition testing to set the maximum weight a wrestler can safely lose (or, in the parlance, "cut") each week. The program prevents wrestlers from unsafely cutting weight, and has most certainly reduced deaths and unhealthy eating practices in wrestling.

The NFHS has also used its rule-making authority to set concussion removal and return to play policies in all sports.  Granted, many state legislatures and individual high school state governing bodies have gone further, but it is clear that the NFHS has no problem using playing rules to set health prerequisites to participation and standards for removal from play in the case of suspected head injury.

Clearly, if an attorney was looking for the most efficient way to effect a nationwide change, he would sue the NFHS. It's unfathomable that Siprut didn't do this.

Strategic mistake 

Next, it's not clear why Siprut chose the IHSA to be the first defendant in his planned 51-lawsuit series, other than the fact that Siprut lives in Illinois. To me, it would have been rational to sue the most progressive high school state governing body. Such a body would have been more inclined to amicably entertain Siprut's proposals (or technically his requested relief), and Siprut could use a settlement with an agreeable state as leverage to get other state high school athletic associations to follow that state's lead by enacting the proposals he seeks.

It could be argued that, if efficiency were Siprut's goal, it would have been more efficient to sue a state governing body that has been at the forefront of the type of concussion identification, management, and return-to-play policy changes he seeks, one which answers to an activist state legislature constantly looking for ways to improve the safety of student-athletes (not just at the high school level, but in middle school, elementary, and club sports programs). Illinois appears to be a reasonable state that is neither at the forefront of change, nor lags behind.  Siprut shouldn't have picked a reasonable state; he needed an activist state that would be amenable to cutting a deal.

Alternatively, he could have sued a state that does lag in protecting its athletes, and portray it as a bad actor. The drawback to this approach, however, would be that a state lagging behind the concussion safety curve would probably be reluctant to give Siprut the settlement that he appears to want, and more inclined to aggressively defend the lawsuit, tying Siprut down in time-consuming and costly litigation.

In my view, Siprut also made a strategic mistake in assuming that the IHSA would react positively to his requests for relief. The IHSA is not the NCAA. The NCAA is a wealthy organization. It can afford to spend $70 million on a monitoring program.  The IHSA does not have the deep pockets that the NCAA's national television contracts gives it.  It has to make do (pardon the pun) on member schools' dues, and can only reduce its reliance on those dues,  not eliminate them, with sponsor deals and contracts to webcast or broadcast championships. The IHSA, quite predictably, cried poor-mouth when sued, and made a point of predicting that the changes in concussion identification and management policies that Siprut proposed  would kill football in a number of school districts in the state. Siprut's response was to accuse the IHSA of engaging in "a cheap and cowardly tactic" by noting the economic difficulties some of its schools might face in implementing the changes his suit demands.

Filling a policy-making vacuum

Ultimately, though, the issue is not Siprut. Rather, the issue is whether it is appropriate, and even rational, to place the resolution of serious sports safety issues in the hands of the first attorney to file a lawsuit. Now, let's not be naïve. The first attorney to the courthouse, and the last insurance company willing to provide liability coverage, often have power over policy.  But, the only reason they have that power is because legislatures don't stand up and seize the policy-making reigns.

Sadly, legislatures sometimes get distracted from addressing broad policy issues. Too often, local and state legislatures address provincial questions, such as whether an eligibility policy is too lax or too strict, whether the local team should have made the playoffs, whether private schools are winning a disproportionate share of championships, or whether a state athletic association's Executive Director is making too much money. This opens the door for Siprut, members of the plaintiffs' bar, and insurance companies to fill the policymaking void. But, at the end of the day, serious sports safety issues should be decided by the administrative bodies that regulate and the legislatures that set policy. Siprut should be able to sue for damages on behalf of athletes who can show by a preponderance of the credible evidence that the negligence of a defendant has proximately caused injury, but he is only getting to set policy because a whole lot of other people fell down in their responsibilities and left a vacuum he was only too happy to fill.

Opening Pandora's Box

Here, in my view, are the questions that we, as a society, ultimately needs to answer, not questions that Siprut should answer for us:

First, we need to decide whether to limit the number of football practices or have no limits but require substantial medical monitoring. Do we want to limit all hits or simply get better at limiting, detecting and providing follow-up treatment for athletes who suffer the big hits, the one most likely to cause concussions, and/or focus on the athletes who sustain a high number of less forceful hits? We know that the hits that result in concussion and the cumulative effect of repetitive head trauma can increase the risk of permanent brain injury, and neurodegenerative diseases such as chronic traumatic encephalopathy (CTE), leading to the type of lasting long-term damage that we've seen in a number of NFL players. However, researchers have yet to discover a magic number of hits above which the risk of such brain damage significantly increases, and, without such a threshold, those who propose a so-called "hit count" in football, or who call for a ban on heading before a certain age in youth soccer, are ahead of the science.

Second, we need to decide whether we should focus on regulating football or whether we need to regulate all sports that have a high number and/or risk of concussions. If we're addressing all sports with a high concussion risk, then we need to determine how to address situations where teams in two different sports with high concussion risk are playing or practicing at the same time.   A single certified athletic trainer cannot be in two places at once.  Requiring that schools have two or more ATs on staff would be cost prohibitive for many high schools. IHSA Executive Director Marty Hickman is absolutely right to point out that we cannot ignore the cost of the safety measures we either choose to implement safety measures voluntarily, or which we are forced to take, as a result of litigation or legislation.  Hickman argues that requiring ATs at high school football games will end up killing the sport in some places, but it's possible that what will really be killed is some less popular sport which will be sacrificed so we can continue to fund expensive sports such as football. The policy question, though, is who gets to make that call, and what that call will ultimately be. Again, we should make a collective social decision on how to strike the right balance between safety and providing as many high school students as possible with the chance to play interscholastic sports.

Third, we need to address the effect of Title IX.  Requiring athletic trainers to be present at football games, but providing no comparable coverage for a girls' sport such as soccer, which also has a high concussion rate, could be viewed as gender discrimination under Title IX. Girls deserve the same access to athletic trainers as boys. 

Fourth, we need to make sure that whatever enhanced safety measures are implemented don't end up discriminating against poor people. The IHSA talked about medical expenses killing football, but there's a bigger question. We hear more and more about new products, such as impact sensors, and tests, such as baseline neurocognitive testing, which are being used most often by schools which can afford to pay the rather substantial cost of acquiring them.  In responding to Siprut's demands that every high school in Illinois be required to shoulder the cost of baseline neurocognitive testing and of having a certified athletic trainer at every football game by saying that such measures could harm schools and people who can't pay, the IHSA is actually making an equity argument dressed up as a public relations statement against a lawsuit, essentially conceding that its poorer schools have trouble implementing some of the most progressive, advanced sports safety initatives. That's not right.  Safeguarding high school athletes should not be reserved just for those who are fortunate enough to live in rich school districts.  Sports safety should not be an unfunded mandate.

Fifth, we need to know what exactly Siprut means in demanding that athletic trainers or other health care professionals with concussion expertise should be "available" for football practices.  Is he suggesting that impact sensors be used to record the number and force of impacts an athlete has sustained to his head in practice for off-site review by such a concussion expert?  Again, if establishing such a concussion management infrastructure is an unfunded mandate, it may be beyond the reach of poorer school districts, which also may not have available in their communities the kind of health care professional needed to be "on call" for its football practices. 

Sixth, we need to make a collective social decision as to whether to subject athletes to genetic testing. Scientists are beginning to understand that there may be genetic markers which make some athletes more susceptible to concussions and the cumulative effect of repetitive head trauma than others. The same number and type of hits that lead one athlete to develop CTE may not lead another athlete to develop the disease. The question for us is whether our societal obligation to protect young athletes from head injuries means that we have an obligation to conduct intrusive medical tests that will allow us to determine who needs protection the most (or should be advised not to play a contact or collision sport) and how much protection they need if they do play. I don't believe that we've reached the point where we have full knowledge or full testing capacity in this area, but, when we do, we'll have some difficult decisions to make.

Seventh, and finally, we as a society need to decide whether we should be mandating the use of other expensive diagnostic testing as part of an athlete's pre-participation physical exam (PPE).  For example, we know that a certain number of athletes die every year from undetected heart conditions such as hypertrophic cardiomyopathy (HCM). Such congenital conditions can generally be detected with an EKG. However, we as a society have opted to incur a certain number of "statistical deaths" each year because the price of giving every athlete an EKG is simply too great.

In that sense, the HCM problem is no different than the concussion problem. The price of testing is considered too high; so society has accepted a certain number of "statistical deaths." We know the deaths will happen; we just don't know where. The only difference between the HCM "statistical deaths" and the football concussion "statistical deaths" is that the prominence of NFL football players has helped us to see the real people behind the statistical deaths, and led us to personalize the battle against concussions. This personalization makes the football concussion issue different from the HCM heart ailment issue. People directly impacted by an athlete who suffers an unexpected sudden heart death clearly personalize the death, but such deaths have not impacted a large group of people known by vast segments of society. Suffice to say that we're not likely to see a class action of HCM victims and their families asking for EKGs any time soon, but don't they have the exact same legal case for increased testing as the concussion victims?

At the end of the day, the questions we need to address are too big for Joe Siprut to answer. However, until the people who need to answer them step up, they will be resolved by the first lawyer up or the last insurer to be fed up instead of via a coordinated legislative and administrative series of actions that address all the issues arising from concussions and other aspects of athlete safety.

Donald Collins, J.D. is an attorney, and long-time Commissioner of Athletics for the California Interscholastic Federation, San Francisco Section.  The views expressed in this article are his own and do not necessarily reflect the views of the editors of MomsTEAM or MomsTEAM Institute.