Brooke de Lench, Founding Executive Director of the Moms Team Institute of Youth Sports Safety, hits the target when she calls concussions "the predominant youth sports safety issue of the 21st century." Parents are much more concerned today about the perils of sports-related traumatic brain injuries than parents were even a few years ago. Few parents can avoid concern because medical researchers report that concussions remain a risk for athletes in nearly every youth sport, and at every age and ability level.
As research into youth leaguers' concussions continues, commentators have urged various child-protective strategies. This article compares prevention and litigation, two strategies that tend to dominate the headlines.
I have been a lawyer for nearly 40 years, and I coached youth ice hockey for 42 years. My experiences teach me that prevention efforts must remain the primary strategy to meet the youth sports concussion crisis, not litigation. The reason is that prevention is proactive; litigation is mostly reactive.
When prevention efforts reduce concussion rates, innocent young victims are spared traumatic brain injury, and thus stand a better change of moving unscathed from adolescent sports into a healthy adulthood. Personal injury lawsuits do not spare even successful young plaintiffs who go to court.
Whether a lawsuit results in a court judgment or in a private settlement, it usually does nothing to make a concussed youth athlete's life good; the most that such a lawsuit can often do is make that life less bad. Litigation plays catch-up because the pain and suffering an the injured athlete and their family have experienced, and will likely continue to experience, cannot easily be undone simply by paying money. Benjamin Franklin was right: "An ounce of prevention is worth a pound of cure."
To be fair, the specter of litigation - normally, damage actions for negligence -- can lead decisionmakers to improve safety conditions before injury happens, and individual lawsuits can help a family manage burdensome medical bills and future accommodations where fault for their player's traumatic brain injury rests with a coach, team, or league. But litigation's role in youth sports health and safety is secondary, not primary.
Juvenile Prevention Initiatives Common in America
In youth sports, emphasizing concussion prevention efforts plows no new ground because juvenile prevention programs are already part of America. Inside and outside of schools, prevention programs seek to protect children from an array of potential dangers, such as delinquency, bullying, and peer violence. In each circumstance, prevention's aim is to intervene before injury occurs, rather than only to react by going to court for damages afterwards.
Concussion safety advocates, however, must set realistic goals because no prevention program can eliminate 100% of the targeted conduct or condition. Delinquency, bullying, or school violence programs succeed when they reduce rates of unacceptable incidents, even without achieving total elimination. Concussion prevention efforts in youth sports similarly succeed when they reduce unacceptably high rates of serious childhood and adolescent traumatic brain injury. Reduction, not perfection, is the test.
National, State, and Local Prevention
Concussion prevention efforts in youth sports begin at the national and state levels, but successful prevention ultimately depends on what happens at the local level.
The national and state levels
National youth sports governing bodies (USA Soccer, USA Hockey, and others), and state high school activities associations, weigh rules-based changes and other initiatives that seek to prevent concussions and other traumatic brain injury. A few recent initiatives warrant brief mention here.
USA Hockey recently reached a concussion-related decision to postpone body checking until the Bantam level, which begins at age 13. A growing number of youth and interscholastic football programs have limited the number and frequency of full-gear "hitting practices" that programs may conduct before and during the season (a measure the American Academy of Pediatrics recently endorsed). In both sports, better training of coaches and a focus on teaching "Heads Up" tackling and body-checking, is showing promise in reducing the number of concussions and neck and spine injuries.
In the legislative arena, all 50 states and the District of Columbia have enacted statutes to improve prevention and treatment of youth sports concussions. Most of the statewide concussions statutes enact three core mandates: (1) leagues and teams must provide parents, coaches, administrators, and players with pre-season information and education about the dangers of concussions, how to recognize their symptoms, and how to help promote healthy recovery, (2) coaches must immediately remove from a practice session or game a player who is suspected to have suffered a concussion, and (3) the player may not return to action until a physician or other licensed medical professional clears the player and affirms that return is medically appropriate.
With good-faith local enforcement, the state youth sports concussion statutes show promise by establishing workable protocols. The statutes remain works in progress, however, because many currently regulate only interscholastic sports, and not private youth sports organizations that use public fields and other public facilities.
The local level
Thomas P. (Tip) O'Neill, former Speaker of the U.S. House of Representatives, famously said that "all politics is local." He meant that more than anything that happens in Washington, it are events occuring at the local level that influence the decisions of voters by affecting their daily lives most directly. I sometimes think that all youth sports safety is local, too, because games are played on fields and other venues largely beyond the direct daily supervision of national and state governing bodies based hundreds or thousands of miles away.
Safety rules and statutory standards stand the best chance of preventing concussions when coaches, league administrators, game officials, and parents insist on responsible local enforcement and when they ensure that games are marked by sportsmanship. Intuition and common sense affirm medical studies which suggest that, particularly in contact and collision sports, it is the adults who increase the risk of avoidable injury when a local game spirals out of control as a result of dirty play and disrespect for the rules of the game.
Think about majestic buildings (national and state safety standards) which take years to design and construct, but which can be imploded in a few moments (adult misconduct at a local game). Think too about a handy injury-prevention formula that I offered my teams' parents: "Sportsmanship + Respect = Safety."
The specter of injured youth leaguers' lawsuits may encourage national and state governing bodies, school districts, leagues, or individual coaches to take safety more seriously. A coach who suspects a concussion without being certain, for example, may be quicker to remove the player from the game because the coach and other school officials understand the potential consequences of allowing the player to continue: personal injury lawsuits resulting in large settlements or court awards, producing career-threatening personal embarrassment, and/or jeopardizing the program's every existence by increasing insurance premiums.
A negligence lawsuit, however, can compensate a youth athlete only for injuries that have already occurred. A third or more of the recovery after settlement or trial may go to the plaintiff's lawyer under the contingent-fee retainer agreements common in personal injury suits. Compensation surely is no small matter to players and their families facing daunting medical expenses and potential lifelong distress for injuries that evade prevention efforts, but compensation does nothing to reverse the injury's immediate and sometimes permanent consequences.
Safety is Goal #1
I recognize that participation in sports inevitably brings risk of injury at any age, and that contact and collision sports depend on a measure of controlled violence within the rules of the game. Advocacy for greater safety in a particular youth sport presumes that the sport will continue to enroll youngsters. Prohibition is not the safety advocate's goal.
My parents allowed me to play youth hockey years ago, and I remain thankful that they did. I write often now about player safety in youth hockey because I want the game to thrive locally and nationwide in an atmosphere marked by the greatest possible safety. (That is why I applaud USA Hockey's forthright leadership on safety issues that concern parents and families.)
We know much more about concussion prevention today that we did a generation, or even a decade, ago. A decade from now, we will know more than we do today. Advocacy for greater concussion safety continues to stimulate discussion on this website, in medical journals, and the popular media. Plug in the word "concussions" in the search box on this website yields a treasure trove of valuable articles written by Brooke, Lindsey Barton Straus, and an array of medical researchers and other nationally prominent contributors over the past 15 years. Moms Team Institute's Youth Sports Concussions Safety Center now has more than 4,000 pages of information, videos, and other resources, and it is continually updated to reflect the latest in medical research and expert consensus.
Building on the Six PillarsTM concussion risk management model featured in MomsTEAM's PBS documentary, The Smartest Team: Making High School Football Safer , the Institute is working with national, state, regional and local youth sports organizations (YSOs), university athletic training departments, parents, health care professionals, allied non-profits, governmental agencies and other experts to aggregate and/or develop and disseminate comprehensive, sport- and issue-specific, and easy-to-understand "best practice" standards of care templates and checklists covering all aspects of youth sports health and safety, from injury prevention and risk reduction, and nutrition and hydration guidelines, to preventing all forms of physical, psychological and sexual abuse. Once such best practices are established, local programs will be encouraged to apply to become SmartTeams.TM
As a member of MomsTEAM's Board of Directors, I am thrilled that MomsTEAM and Brooke de Lench's long and outstanding record of advocacy for greater youth sports concussion safety prompted Sony Pictures to invite the Institute to participate in a social media campaign called #ForThe Players, not just to publicize the studio's new movie, Concussion and increase public awareness of the dangers of traumatic brain injury in football, but to support the important work of the Institute in making football, and all contact and collision sports, safer through its "Dance or Donate" challenge in which football fans are asked to post a video on Twitter, Instagram, or YouTube of the touchdown dance they perform after their favorite team scores, and challenge their friends to either post a video of their own (Dance) or make a contribution to MomsTEAM (Donate). I am heartened to learn that many people are doing both: dancing and donating.
Together, we can make youth sports safer, not through litigation, but through advocacy.
Sources: Clinical Journal of Sports Medicine Blog, 5 Questions with Brooke de Lench, MomsTEAM Institute of Youth Sports Safety, http://cjsmblog.com/2015/11/23/5-questions-with-brooke-de-lench-momsteam-institute-of-youth-sports-safety/ (Nov 23, 2015). This article also adapts, with permission, two of my law review articles: Confronting the Youth Sports Concussions Crisis: A Central Role for Responsible Local Enforcement of Playing Rules, Mississippi Sports Law Review, vol. 2, p. 75 (2013); Player Safety in Youth Sports: Sportsmanship and Respect as an Injury-Prevention Strategy, 39 Seton Hall Journal of Sports and Entertainment Law, vol. 39, p. 1 (2012).
Douglas E. Abrams is a nationally recognized youth sports expert and professor of law at the University of Missouri, specializing in family law and children and the law. For Professor Abrams' full biography, click here.