By Donald C. Collins [1] and Lindsey Barton Straus [2]
Major class action concussion litigation, which began with suits against the National Football League, NCAA, and NHL, reached the high school and youth level last year with the filing of a youth soccer lawsuit in California (Mehr v. FIFA), and one challenging concussion management practices in high school football in Illinois (Pierscionek v. IHSA). In both cases, the defendants filed motions to dismiss. In July 2015, a federal court dismissed the youth soccer lawsuit. A decision from the Illinois state court on whether the high school football lawsuit should also be dismissed or proceed to trial is expected soon.
In Mehr v. Federation Internationale De Football Association, a group of youth soccer players sued FIFA, the US Soccer Federation, the US Youth Soccer Association, the California Youth Soccer Association, US Club Soccer, and the American Youth Soccer Organization in the U.S. District Court for the Northern District of California. In their complaint, the plaintiffs claimed that FIFA and the youth soccer groups failed to adopt and enforce rules which would have reduced the risk and severity of concussions and brain injury allegedly the result of repetitive heading [3].
The soccer players sought to force FIFA and the youth soccer groups to ban heading in soccer below age 17 (at the hearing on the motion to dismiss, plaintiffs' counsel for the first time suggested that they might only be seeking a complete ban for players under age 14 or that the number of times a player could hit the ball with his/her head be limited) [4], relaxation of the rule allowing only three substitutions per game, and the creation of a massive medical monitoring fund for all past, present and future youth soccer players who may have suffered either a concussion or a sub-concussive hit (a group which would essentially include every youth soccer player other than those who never had contact with anybody and never headed a ball).
In a 46-page decision issued in July 2015, Judge Phyliss Hamilton granted the defendants' motions to dismiss, As to FIFA, Judge Hamilton based her dismissal on a finding that FIFA could not be sued in California, or what lawyers call a lack of personal jurisdiction. This lack of jurisdiction illustrates a difference between law and politics.
Under the law, a party cannot be forced to defend a lawsuit in the courts of a state (state or federal) unless it either has continuous and systematic contacts with the state sufficient to establish a physical "presence" in the state, or a three-prong test is met: (1) its activities in the state were such that it could reasonably anticipate being sued in the state; (2) the plaintiff's claims would not have arisen "but for" the defendant's activities in the state; and (3) the court's exercise of jurisdiction over the defendant is reasonable.
In Mehr, the court ruled that FIFA, as an association organized under Swiss law and with its principal place of business in Zurich, Switzerland, and with no office in California, was not sufficiently "at home" in California that it could be haled into a California court to defend a lawsuit
Nor could the soccer players meet the three-prong test for limited jurisdiction. While the court found that allegations that FIFA had entered into various commercial arrangements or agreements in California might satisfy the first or "purposeful availment" prong, plaintiff fell short of alleging that, "but for" FIFA's activities in California, their claims - which were based on FIFA's alleged failure to change the Laws of the Game to require enactment of concussion management protocols, mandate substitution rules that allow for medical evaluation without penalty, and mandate limits on heading in practices and games by younger players - would not exist.
It was not enough to establish jurisdiction over FIFA, the court said, that it exerted "massive worldwide influence and regulation over all aspects of soccer, including in the United States and in California," that FIFA "engages in a broad swath of commercial activities in the U.S. and in California, strategically reinforcing its 'brand' and its primacy in the world of soccer and entrenching its influence[ ]," and that it "has extracted and continues to extract, massive sums of money from the U.S. and California, and has not contributed to protecting the safety of the youth players to which it markets and influences."
In other words, the court was saying, in so many words, that plaintiffs' lawsuit against FIFA was essentially based on political, not legal arguments, based on FIFA's control and influence over world soccer at all levels of the game, including at the lower levels of soccer, which have adopted rules that mirror FIFA's Laws of the Game.
From a political standpoint, the lawsuit made sense: because FIFA is responsible for all things soccer, there could be no more inviting target, politically, if the objective was to generate publicity and put public pressure on FIFA to change the Laws of the Game.
From a strictly legal standpoint, however, the lawsuit was doomed from the start: that, from its headquarters in Switzerland, FIFA exerts a tremendous sway over American youth soccer, is not the same as actually running youth leagues in California , and FIFA's strong influence over rules adopted by youth soccer organizations in California alone was not enough to make them subject to a court's jurisdiction.
We believe the court was correct in concluding that it lacked jurisdiction over FIFA. MomsTEAM readers who aren't lawyers might find the distinction between political sway and legal jurisdiction odd, but let's put the distinction differently. What if a MomsTEAM reader living New York, after suggesting a concussion management protocol that a MomsTeam reader in Minnesota adopted, got sued in Minnesota by a group of Minnesotans who thought that the New Yorker's program was flawed? The New Yorker would probably find it most unfair to be dragged into a Minnesota court, right? Well, the only difference between FIFA and the New Yorker is scale. In other words, just because FIFA's power makes it an inviting target of litigation doesn't change the law.
While there was virtually nothing the plaintiffs' lawyers could have done to prevent dismissal of their claims against FIFA for lack of jurisdiction, the same, in our view, was not true with respect to the California youth soccer groups.
In contrast to the dismissal of the claims against FIFA on jurisdcictional grounds, the court dismissed the claims against the California youth soccer groups because of what can only be described as a comedy of pleading errors, including:
Not only was Mehr correctly dismissed on jurisdictional and standing grounds, but Judge Hamilton was correct in finding that the Complaint failed to state facts sufficient to support negligence claims against the California youth soccer defendants because it failed to make a threshold showing that they owed plaintiffs a duty of care. The reason was because they had no obligation under the law to prevent risks inherent to playing the sport of soccer (such as concussions), and absent from the Complaint was any basis for imputing to any defendant a legal duty to reduce the risks in the sport of soccer, or that any defendant took any action that increased the risks beyond those inherent in the sport of soccer.
The court also found, correctly in our view, that the plaintiffs had failed to plead facts showing that any act or omission by the defendants was a substantial factor in bringing about an injury suffered by plaintiff. Not only did the plaintiffs fail to allege facts that they suffered any injury - including a concussion - as a result of the defendants' negligence, but the court viewed the allegations of injury as "vague, conclusory, and entirely speculative, rather than concrete and particularized." (no doubt because the current state of the science allows for no more than that)
Finally, Judge Hamilton found that the defendant youth soccer organizations did not voluntarily assume a duty to adopt or enforce the consensus guidelines drafted by the various International Conferences on Concussion in Sport [5], nor had they specifically undertaken to take actions to eliminate risks inherent in the sport of soccer or to reduce the risk of injury from improper concussion management.,
The court ultimately found that the soccer players' claims that FIFA and the youth soccer groups' rules were deficient were not claims that they took an action to increase the risk in the sport. The court was correct: failure to decrease the risks is not the same as taking an action to increase the risks, and one must increase the risks to be liable.
In short, the soccer players' attorney forgot three basic principles of negligence law every attorney learns in their first year of law school: that the plaintiff, in order to be entitled to relief, must suffer a concrete injury, that injury must be caused by the action or inaction of the defendant, and that the defendant owed the plaintiff a duty of care. Absent allegations that, if proven, would entitle a plaintiff to relief, the case cannot proceed to trial and must be dismissed. The federal district court in Mehr had little choice but to dismiss the soccer players' case.
The dismissal by Judge Hamilton of the Mehr case teaches us a fundamental truth about the law: it can't be ignored in order to provide a forum for those dissatisfied with a private organization's rules. Rather, courts are a forum to provide remedies for injuries. Sometimes the remedy for the injury may be a change in a rule, so, in that respect, the players weren't completely out of line asking for change. The problem is that they - and, more importantly, their lawyers - chose a forum completely ill-suited for mounting a challenge to the Laws of the Game governing worldwide soccer. We'd be naive to pretend that there aren't political lawsuits, but even a political lawsuit has to honor the legal requirements of jurisdiction and injury. The soccer players' attorneys failed to meet this threshold standard.
In Pierscionek v. IHSA, a former Illinois high school football player is suing the Illinois High School Association in Illinois state court. (the original case was filed as Bukal v. IHSA, but was recaptioned after the original plaintiff, Daniel Bukai, dropped out of the case; for Don Collins' original thoughts on the case, shortly after it was filed, click here [6])
Some of the same flaws that led to the dismissal in Mehr v. FIFA could lead to dismissal in Pierscionek as well. As Mehr demonstrated, a plaintiff in a concussion class action has to do more than assert a claim on a hot button issue, and contend that the governing body of a sport hasn't done enough to protect athletes from harm. It is only human to feel sympathy for a former athlete suffering from the effects of one or more concussions or repeated impacts to the head. But sympathy alone is not enough. The requirements of the law still must be satisfied, whether one is suing the IHSA in an Illinois State court or suing FIFA and youth soccer groups in a California federal court.
The Illinois high school football case is unlikely to be dismissed on procedural grounds as was Mehr. Joe Siprut, the attorney for the Illinois football players, was far more careful than the youth soccer players' attorney in Mehr. The IHSA has claimed that Pierscionek's complaint is barred by the statute of limitations based on the date Pierscionek says he was injured, but the Complaint is only marginally late, and we believe a court will cut Pierscionek some slack, since he needed some time to realize that he was suffering from the after-effects of the concussion.
The Illinois football case may not have procedural problems, but it has some substantive problems. It may very well be dismissed before trial because, in our view, it simply doesn't state a claim under which the IHSA can be found liable, for much the same reasons as were cited by Judge Hamilton in dismissing Mehr, namely that a football player assumes the inherent risks of the game, so that, as long as the IHSA didn't take steps to make those inherent risks worse, it can't be found negligent. Concussions are clearly an inherent risk of the game, and the Complaint in Pierscionek doesn't allege that the IHSA made the inherent risk of concussions worse.
As much as Siprut wants a trial, if he can't state a claim, the Illinois football case will be dismissed before it gets that far. To his credit, Siprut realizes he has an assumption of risk problem, which he addresses by relying on the Illinois Protecting Our Student Athletes Act, 105 ILCS 5/10-20.54, which requires every Illinois school board to adopt a concussion policy which complies with the IHSA's policies and bylaws, and requires the IHSA to disseminate concussion educational materials to all school districts.
Siprut's problem is that he overplays his legal hand by erroneously claiming that the Act makes the IHSA the only group that can pass concussion regulation, and that the IHSA did not write sufficiently good rules. In truth, numerous entities can and do promulgate concussion management guidelines, including the National Federation of High Schools, whose rules the IHSA must follow. Further, every school district in Illinois, while required by the Protecting Our Student Athletes Act to adopt concussion policies, is free to enact its own rules, as long they meet the IHSA's minimum standards.
As a result, the Protecting Our Student Athletes Act has little legal significance, in effect codifying what was already the case: that IHSA member schools must follow IHSA rules; that the NFHS also writes rules that the IHSA must follow; and that IHSA schools can write regulations that are more strict than IHSA rules. It appears that, in enacting the Protecting Our Student Athletes Act, the Illinois legislature simply meant to highlight an important safety area and have local school boards actively declare that they were adhering to IHSA rules in this particular area. In more common vernacular, the Act really means that "schools have to follow IHSA rules, and we really mean it and we're going to make the schools say so because this is really, really important to us in the Illinois legislature ... so there."
Not surprisingly, the IHSA doesn't quibble with Siprut's error; instead, it uses it to its advantage by arguing that the it can't be found to have acted negligently because it disseminated educational material as required by the Act, and can't be found liable for negligent rulemaking when it is the purview of the Illinois legislature to enact rules.
Stripped of his claim that the Act makes the IHSA solely responsible for enacting rules governing concussion management, Siprut faces the same problem that the attorney for the youth soccer players faced in Mehr: he must find a way to show that the IHSA's concussion regulations made the inherent risks of football worse.
In arguing for dismissal, the IHSA, however, goes even further than the youth soccer governing bodies in Mehr. The IHSA argues that it can't be negligent under the contact sports exception [7], which says that a player in a sport or activity can't be found negligent where he or she commits an act which is a penalty, foul or harmful act, but is an act that every reasonable person who plays the sport expects to happen and knows that they will have to deal with. In layman's terms, I may be negligent when I commit a personal foul in a basketball game by smacking you in the eye while trying to block your shot, but everybody who plays basketball knows that there's a chance that they'll get poked in the eye during the game. Once in a very rare blue moon, some guy is going to get a detached retina. He doesn't get to sue me because he's the one in a billion guy. The "contact sports exception" applies.
The IHSA may well be correct in relying on the contact sports exception. The exception is supposed to protect players who injure other players in the normal course of play. But in a 2008 case, Karas v. Strevell, the Illinois Supreme Court extended the contact sports exception to protect organizations. Interestingly, Karas relies upon a 2003 California Supreme Court case called Kahn v. East Side Union High Schl. District, which is a bit odd, because Kahn ruled that coaches can only be liable if they are grossly negligent when engaged in coaching actions, which are a lot broader than playing actions, and the logic of protecting a coach is different than the logic of protecting a player from the ramifications of actions he takes while playing. Yes, Karas misses the point, but Karas is the law in Illinois and it may very well win the case for the IHSA.
The Illinois football case will probably be dismissed and never get to trial. It will either be dismissed because the IHSA did not make the inherent risks of play any worse or it will be dismissed under the Illinois expansion of the contact sports exception.
The concussion class action litigations against the National Football League and NCAA resulted in highly publicized settlements, so what are the chances that the high school football and youth soccer class actions will go that route? Two things to note:
First, the NFL and NCAA cases were settled on terms that most observers feel were highly favorable to the defendants. In fact, the NCAA's initial concussion settlement in Arrington v. NCAA was rejected by a US District judge because it didn't sufficiently address the needs of the class of plaintiffs, as was the case in the NFL concussion lawsuit as well.
Second, that a professional sports league and the governing body for college sports settled don't necessarily provide a template for suits involving high school or youth athletes. Unfortunately, they probably led some attorneys to think that, if they filed lawsuits, the governing bodies for sports at those levels would be quick to settle as well. That hasn't happened. Clearly, Mehr and Pierscionek are more a product of wishful thinking by the plaintiffs' attorneys than sound cases on the actual merits.
Besides, youth sports and high school leagues don't have the deep pockets possessed by the N.F.L. and the NCAA (which is undoubtedly one of the reasons the plaintiffs in Mehr sued FIFA, which does have deep pockets), so they are much less likely to see a monetary settlement involving expensive medical monitoring programs, as sought by the plaintiffs in Mehr and Pierscionek, as something they could afford.
Undoubtedly, the plaintiff personal injury bar (what we lawyers call tort lawyers) will learn from their mistakes in Mehr and Pierscionek. They'll stop trying to bring big cases to challenge and change sports' governing bodies' rules, and instead target individual schools, school districts and leagues for not enforcing the rules that do exist and for egregious departures from best safety practices. A number of schools and districts may even settle for some of the remedies that the sports governing bodies found objectionable in Mehr and Pierscionek.
Finally,it should be noted that the NCAA and NFL concussion settlements are not going to be the end of concussion litigation involving pro and college sports. A suit against the NHL is ongoing, a significant number of former NFL players have opted out of the settllement reached between the NFL and some are opting out of the NCAA settlement as well.
If those plaintiffs, through the discovery process, obtain documents showing that the NCAA or a professional sports league had actual knowledge of the long-term risks of concussions, then we could very well see juries return huge verdicts which could change the face of sports in the way the huge punitive damage awards against Ford Motor Company (Pinto) and General Motors (Corvair) in the 60's and 70's did for car safety by showing that athletes may assume the inherent risks of play, but the law may find that they do not assume risks that won't manifest for decades where a sports governing body knew about those risks and hid them. (although not out of the realm of possibility, the likelihood that organizations overseeing sports at the youth and high school level possess those kind of documents is remote)
The bottom line: the NFL, NCAA, NHL cases and Mehr and Pierscionek aren't the beginning of the end for concussion litigation, they are likely just the end of the beginning.
Donald C. Collins, JD, is an attorney, long-time basketball referee, Commissioner of Athletics for the California Interscholastic Federation, San Francisco Section, and author of numerous articles on sports administration, sports officiating, legal issues affecting sports officials, and sportsmanship. Mr Collins is on the MomsTeam Institute Board of Directors.
Lindsey Barton Straus is a a practicing attorney, Senior Editor of MomsTEAM.com, and Director of Research/Senior Editor for MomsTEAM Institute. She has written extensively about the subject of sports-related concussions for the past fifteen years.
Posted August 21, 2015
Links:
[1] https://mail.momsteam.com/team-of-experts/bios/donald-c-collins
[2] https://mail.momsteam.com/team-of-experts/bios/lindsay-barton-straus
[3] https://mail.momsteam.com/health-safety/heading-in-youth-soccer-debate-continues
[4] https://mail.momsteam.com/subconcussive/frequent-soccer-heading-linked-brain-damage-impaired-memory-study-finds
[5] https://mail.momsteam.com/5-7/concussion-evaluation-management-return-play-different-younger-children
[6] https://mail.momsteam.com/health-safety/Suprit-Illinois-concussion-class-action-lawsuit-bukal-Illinois-high-school-association-raises-questions
[7] https://mail.momsteam.com/team-of-experts/cheerleading-as-a-contact-sport
[8] https://mail.momsteam.com/sub-concussive/sub-concussive-hits-growing-concern-in-youth-sports