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Using the "Power of the Permit" To Promote Concussion Safety in Youth Sports


On May 10, 2014, the Vineland, New Jersey Daily Journal ran a story under the eye-catching headline, "Midget Football May Be Banned." The Vineland City Council said that the Vineland Midget Football League, which enrolls players between five and fourteen, reported only two of at least eight players who suffered concussions the prior season. The private league also allegedly issued some older players helmets that were designed and recommended only for younger, smaller and lighter players. The city council's vice president said that "nobody followed any protocols" about concussions.

Like most private youth sports programs, the Vineland Midget Football League does not own its own fields; the League uses public fields pursuant to renewable annual permits granted by local government authorities. The city council's vice president said that unless local football administrators agreed to adhere to concussion safety protocols, "we can suspend the league by telling them they can't use the fields."

The vice president was speaking about the "power of the permit," and he was right. The power of the permit is the acknowledged legal authority of local governments to set reasonable terms and conditions under which private applicants may use public property, including public athletic facilities. The power is not controversial, nor is it doubtful or a matter of serious debate.

For decades, the power of the permit has been a bedrock principle of municipal law. This article explains why the power enables local government agencies to enhance reasonable concussion protection for children who play organized sports within their boundaries.


Three Core Mandates

Public regulation of youth sports concussion prevention and treatment begins at the statewide level, and all fifty states and the District of Columbia have enacted concussion safety legislation since 2009. In an age of sharp national political divisions, such national unison is a cause for public notice. Red state legislatures acted, and blue state legislatures acted; red state governors signed the bills, and blue state governors signed the bills.

Most statewide concussion statutes carry three core mandates designed to enhance youth leaguers' safety without changing the playing rules of any sport. First, 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. Second, coaches must immediately remove from a practice session or game a player who is suspected to have suffered a concussion. Third, 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.

The statewide concussion safety legislation shows promise with good faith compliance, but many of the state statutes blunt this promise by regulating only interscholastic sports (primarily high schools and middle schools). These statutes do not reach private youth sports organizations, including ones that hold permits to use fields, gymnasiums, and other public facilities that are managed by city councils, parks and recreation departments, public school districts, or other public authorities.

By exempting these private sports organizations, many states leaves a bulk of youth athletes outside public concussion regulation that, according to every state legislature, reasonably balances the needs of young athletes with the capacities of organized sports programs to implement reasonable health and safety protocols. About 35 million children play organized sports in the United States each year, including about 60% who play in private organizations outside of school. Football alone enrolls about three million players in private organizations, but only about 1.1 million players on interscholastic teams.

The Breadth of Local Authority

Enter the power of the permit. In states whose concussion statutes currently exempts private youth sports organizations, the best approach would see states legislature enact amendments extending regulation to these organizations. But until statewide amendment happens, local government agencies such as the Vineland City Council should exercise their legal authority to issue facility use permits only to organizations that adhere to the three statewide core mandates -- education, removal from the lineup, and medical clearance. 

Courts uphold local exercise of the power of the permit in youth athletics. In USA Baseball v. City of New York, for example, the federal court rejected a challenge to a 2007 New York City Council ordinance which prohibited use of metal bats in high school baseball games sponsored by public or private schools in the City. The court held that "[p]rotecting persons of high school age from baseball injuries plainly falls within the City's police power to protect its residents' health and safety." The court found that "a rational basis exists for legislatively determining that metal and composite bats could . . . result in an increased risk of injury to infielders from hard-struck balls."

The Benefits of Local Regulation

When prudent local government decision makers contemplate public regulation, they weigh likely benefits against potential costs. On the benefits side of the ledger, exempting private sports organizations from public regulation holds no medical justification and likely exposes many young athletes to avoidable risks and debilitating injury. A concussion is a concussion, regardless of whether a boy or girl sustains it in interscholastic play or in a private youth league.

Uncomfortably high youth sports concussion rates have led every state legislature to recognize the significant benefits of public regulation. Two researchers estimate that concussions represent nearly 9% of all high school athletic injuries each year. Americans of all ages suffer about 300,000 reported sports-related concussions each year, and most of the injured are interscholastic and youth league players. The reports are almost certainly underestimates, however, not only because many families may not recognize concussion symptoms, but also because many youth athletes hide their head injuries from their parents and coaches to avoid letting down the team, or to avoid removal from the roster or the starting lineup.

Dr. Lyle J. Micheli, the dean of pediatric sports medicine and a member of the MomsTEAM Institute's Board of Directors, calls youth sports concussion rates a "true health crisis." Football attracts the lion's share of public attention, but Dr. William P. Meehan (a member of MomsTeam's Team of Experts) correctly concludes that "concussion is a risk in almost any sport," and "a common problem for children and adolescents," boys and girls alike. The American Academy of Pediatrics finds that "[a]mong the more commonly played high school sports, football and ice hockey have the highest incidence of concussion, followed by soccer, wrestling, basketball, field hockey, baseball, softball, and volleyball." That is quite an array of sports, and the array defines the benefits of public regulation.

Negligible Local Costs

Benefits are one half of the local regulatory equation; costs are the other half. Conditioning local facility use permits on adherence to the three statewide concussion mandates - education, removal from the lineup, and medical clearance - would not impose significant additional costs on private youth sports organizations. For eleven years, I served as president of a private youth hockey association that played in an ice rink operated by the city parks and recreation department. Before preseason practice opened each year, the association and the city signed an agreement that recited the terms and conditions of use. The states' three concussion mandates under its version of the Lystedt Law were still years away, but none would have burdened the youth hockey association's resources.

With minimal additional costs, if any, the hockey association could have incorporated the first mandate - education - into instruction, videos, and printed materials that parents and coaches already received at preseason meetings. The second mandate -- removal from the lineup - depends on prudent, cost-free responses from coaches and parents, even ones who would have to err on the side of removal in the absence of medical training. The third mandate - medical clearance - typically imposes costs on a player's parents for medical examination and treatment, but these costs are no different than costs imposed on parents of concussed interscholastic players. 

"The Predominant Youth Sports Safety Issue"

What a difference a few years makes. A comprehensive, well-researched 552-page history of professional football and the National Football League, published in 2004, never even mentioned the word "concussions," and never suggested that traumatic brain injury posed any risk for professional football or its players. The book's silence was remarkable because the players had worn such flimsy headgear for so many years.

Thanks to a growing body of medical research about a variety of sports for the past decade or so, hardly anyone today bats an eyelash when Brooke de Lench, MomsTEAM Institute's Executive Director and a co-participant at a recent concussions symposium at the University of Maryland School of Law, calls concussions "the predominant youth sports safety issue of the 21st century." Her call resonates because the toll of broken lives resonates.

"We Can Do a Lot Better"

The power of the permit recognizes that sports inevitably brings risk of injury at any age and any level of competition, and that many sports depend on controlled aggression within the rules. The power of the permit also recognizes, however, that national, state and local tolerance levels for concussions should be much lower in youth sports than in professional sports.

The pros are adult millionaires who, if they receive full information and proper care, presumably can make their own risk-taking decisions in the billion-dollar business enterprises that employ them. The law grants competent adults considerable autonomy to make decisions about their own safety and health care in the absence of potential or actual harm to others.

Children are not miniature adults. Youth leaguers play games for their upbringing, and not for lucrative compensation or to provide mass public entertainment. Only a minuscule few will ever reach the professional ranks, but all deserve futures as free as possible from the chronic effects of early athletic injuries. With knowledge and perspectives that concussion researchers have provided, says neurosurgeon and CNN chief medical correspondent Sanjay Gupta, "we owe it to our . . . kids . . . to make them as safe as we know how to do, and we can do a lot better than we have been doing."

Thomas P. (Tip) O'Neill, former Speaker of the U.S. House of Representatives, famously said that "all politics is local." Decision making in Washington surely influences voters, but the Speaker recognized that local happenings can influence voters even more by affecting their daily lives most directly. Robust use of the power of the permit adapts O'Neill's observation to concussion prevention and care because sometimes "all safety is local" too.

Sources: Joseph P. Smith, "Midget Football May Be Banned", Daily Journal (Vineland, N.J.), May 10, 2014, p. A1; Douglas E. Abrams, "Concussion Safety In Children's Sports: A Central Role for the 'Power of the Permit.'" J. Bus & Tech Law. 2014; 10 (symposium issue, Fall 2014).