Concussion Lawsuits Won’t End Football

Will Oremus writes a well thought out explanation why concussion lawsuits will not end football. The main reasons cited are:

• The initial medical expenses resulting from concussions and CTE are often not that high in most cases and symptoms take years to materialize; therefore, the Accident Medical insurance carried by colleges, schools, and youth football organizations will not be hit hard since such policies limit payouts for medical bills to those that are incurred within one or two years from the date of the injury in most cases. Most CTE symptoms will show up years after a football career is finished and the Accident policy will be off the hook by that time. Therefore, these Accident carriers won’t take a big hit which means that significant premium increases and market withdrawals are not likely.
• The General Liability policies carried by schools and universities cover all the liability exposures such as slip and falls, kids falling off monkey bars, police departments, injuries at school sponsored events, etc. and concussion lawsuits are only a small portion of the overall risks. In 2011, only 13 catastrophic brain injuries were reported out of 4.2 million football participants nationwide.
• The concussion and CTE related lawsuits in the NFL are currently covered under Workers’ Compensation insurance (which overall allows for the collection of lower benefits as compared to civil lawsuits which would be filed under a General Liability policy) even though some 1500 former NFL players have filed lawsuits challenging Workers’ Compensation as the exclusive remedy.
• The links between concussions and CTE to depression and suicide are not yet rock solid even though some limited studies show a connection between NFL participation and CTE.
• In order to win a lawsuit, a player will need to prove negligence (1. Duty owed to act as reasonable governing bodies, administrators, trainers, coaches, etc. in protecting football players, 2. Breach of that duty by not following accepted safety standards, 3. Breach was proximate direct cause of the injury, and 4. Damages resulted). As result in the difficulty in proving negligence, the NFL lawsuits are alleging that the league knew about the dangers of CTE, but hid it from the players.
• In lawsuits against colleges and high schools, no one is claiming that they hid evidence that football resulted in CTE. As a result, the lawsuits against colleges high schools are based on failure to follow accepted safety standards on not removing possibly concussed players from games and allowing too early return to play which may result in second concussion syndrome.
• Even if a public school or university as an entity, coach or other school employee is negligent, many states have governmental or sovereign immunity statutes that protect against liability or at least limit liability to an amount such as $300,000., $500,000., or $1,000,000. depending on the state’s version of the law (if any). These immunity statutes can be defeated upon proving gross negligence (i.e. wanton or willful disregard for safety of players).
• Some state concussion statutes also limit the liability of coaches, trainers, and other medical professionals when complying with the requirements of the statute unless they are grossly negligent.
• The assumption of risk defense to negligence can be a powerful defense tool if the players receive an adequate and documented risk warning of the dangers of concussions.
• If universities and high schools follow the concussion safety standards outlined by state statutes or their state or national sanctioning / governing body, they have a high level of built in protection.
• The governing bodies such as NFL, NCAA, and National Federation Of State High School Associations, will implement rule changes to provide more protection as more research results become available.

Click here for Full Article

See prior Sadler Blog on this topic

Source: After Further Review, Why Concussion Lawsuits Won’t Bring An End To Football; Will Oremus; Thursday, May 10, 2012

End Of Youth Football? – Not So Fast

The media has been working overtime and almost salivating over the prospect of the end of football with high profile articles outlining doomsday prophesies of the chain of events that could force the cancellation of football programs on every level due to lack of liability insurance (see prior blog post), NFL player suicides allegedly due to brain injuries, and lawsuits against colleges and high schools for second impact syndrome injuries due to return to play too soon. While these worst case scenarios are certainly sensational, I say “not so fast”.

I have recently been flooded with media requests for interviews on this topic and am responding with this blog posting as I don’t have time for all the requests. To follow is my first take on this based on the present information at hand.

We need stay away from decisions made on fear and sensationalism and instead make calm decisions based on science. If there is no scientific research on an issue, new studies should be immediately implemented and carefully reviewed before conclusions are drawn and changes made.

There are three types of brain injuries that require specific risk management response strategies:

1.      The initial concussion

2.      The more dangerous second impact syndrome due to “too early return to play”. See Wikipedia article: http://en.wikipedia.org/wiki/Second-impact_syndrome

3.      The cumulative less than concussion events (chronic traumatic encephalopathy or CTE) (ex: helmet to helmet contact) that may result in brain damage over the long term. See Wikipedia article: http://en.wikipedia.org/wiki/Chronic_traumatic_encephalopathy

The risks of these brain injury situations and the required protective responses need to be studied differently in the context of youth football, high school, college, and pros. The level of aggression, speed, and strength of the players increases tremendously from youth football to high school football as does the concussion risk. Also, the number of cumulative helmet to helmet hits and other head impacts increases significantly after high school football. The cumulative impacts over a college career are more than double those over a high school career and the number of impacts for pro players are significantly higher even though the NFL has recently changed practice rules to limit helmet to helmet contact. Other complicating factors that may result in additional brain damage and in higher suicide rates in the NFL are the past use of steroids, other drug additions, and unstable lifestyles.

Here are some thoughts from Joe Galat, President of American Youth Football, Inc. (AYF). AYF is the largest youth football and cheer organization in the US with tackle football ages 5-15:

“…structured play is always safer than unsupervised activities. Today’s headlines dealing with the very disturbing developments in the National Football League may discourage some parents from allowing their children to play football… However, I am asking you to not compare your child’s participation with those who play in the extreme world of the NFL. Not just yet. The highways are full of safe drivers who don’t compete in “the extreme sport” of NASCAR. Like driving a car, it is important that kids learn safe techniques while playing youth football. When fundamental techniques are ingrained in a young player they become habits; safe play is the end result. When President Theodore Roosevelt instructed Knute Rockne to make the game safer, the players wore leather helmets and very little padding. Many of today’s safety issues are being solved through research, technology and rule changes. The leather-heads would hardly recognize today’s game.”

My primary interest is studying the concussion risks in youth tackle football so my discussions will be limited to that context.

Are the concussion rates in youth tackle football significantly worse than those in youth baseball, softball, basketball, and soccer? And if not, why are we not hearing anything about the end of those other sports or all youth sports for that matter?

According to my injury database, the percentage of concussions to total injuries are as follows: youth football (ages 5-15) 5.64%; youth baseball (ages 5-18) 3.1%; and youth softball (ages 5-18) 2.43%. According to Pat Pullen of Pullen Insurance Services, Inc., the percentage for youth soccer is 4.5%. I don’t have the percentage on basketball, but it is likely to be similar to baseball. In other words, how can you single out youth football without including the other sports?

What types of insurance policies would youth football organizations carry to cover medical bills from brain injuries and resulting lawsuits?

Youth football organization should carry Accident insurance and General Liability insurance policies with sufficient limits. The Accident policy responds to pay medical bills of injured participants on an “excess” basis after existing family health insurance has responded. Of course, medical bills include all concussion related medical expenses that are approved by the insurance carrier. The limit on the Accident policy should be at least $100,000 for youth tackle football to adequately respond to most medium to serious concussion incidents. Accident policies typically only cover medical bills incurred up to one or two years from the date of the injury depending on the plan design.

A General Liability policy should also be carried to protect the youth sports organization and its directors, officers, employees, and volunteers against lawsuits alleging bodily injury, property damage, and personal / advertising injury. In addition to paying for legal defense costs, this policy will also pay covered lawsuit costs for settlement or adverse jury verdict. In the concussion context, the organization and its administrators and coaches could be sued by the injured player under a number of legal theories such as failure to use up to date helmets and to make sure that they are inspected for defects and are properly fitted; failure to have adequate EMS services available; failure to have an emergency evacuation plan; failure to adequately train coaches on concussion recognition and response; failure to remove a concussed or possibly concussed player from practice or game; failure to have an adequate return to play policy; and failure to adopt and implement rules to limit certain types of contact.  The General Liability policy should have an Each Occurrence limit of at least $1,000,000 and higher options should be considered. General Liability policies with an “occurrence” policy form will cover claims that are reported in later years as long as the bodily injury occurred when the policy was in force. This is important in the youth sports context as a minor may wait until the age of majority (18 in most states) plus two years (depending on state law) for the statute of limitations to run before filing a claim. Some General Liability policies use a “claim made” form which can present complications in providing coverage for lawsuits that are filed in later years in the event that the policy is not renewed every year or if the retro date is not properly set.

For an example of the different policies  /coverages and the per team prices of a comprehensive insurance program for youth football, see the American Youth Football plan: http://www.sadlersports.com/ayf/index.html

Would these lawsuits against youth football organizations likely be successful?

It depends on the nature of lawsuit (ex: initial concussion, second impact syndrome with too early return to play, CTE) and the facts in each case. Most would be negligence based which requires all of the following elements: 1) duty owed to act as reasonable and prudent sports administrators and coaches (based on state concussion laws, national standards per sanctioning / governing body rules, and accepted risk management practices), 2) breach of that duty, 3) breach was proximate cause of injury, and 4) damages result.

Many states now have enacted or have pending concussion laws that protect youth athletes. Some state laws only apply to school sports or youth sports organizations that use school property whereas others apply to all youth sports organizations, even if not affiliated with a school. Here is a link from Little League Baseball, Inc. as regards the status of these laws in each state: http://www.littleleague.org/learn/programs/childprotection/concussions.htm

Youth football organizations must follow the concussion rules of their state (if any) and/or their governing / sanctioning body. Failure to follow a state law or an organization’s own rules can be a prima facie case of negligence assuming that the requirements 3 and 4 are met. If a youth football organization is not part of a sanctioning / governing organization, it must follow nationally accepted risk management practices which may lead back to the rules of the sanctioning / governing body. Furthermore, certain national sanctioning / governing bodies for youth football may instruct members to follow their state’s version of the rules of the National Federation Of State High School Associations (NFHS).

There is a certain amount of built in liability protection in following the safety rules outlined by state law and of the national sanctioning / governing bodies as well as danger in not following them.

As regards liability arising from cumulative less than concussion events (CTE) from repeated helmet to helmet hits, a lot more scientific study needs to be performed in this area. If there is a scientific basis for this concern, the impact on youth tackle football will hopefully be minimal due to the much smaller number of hits at lower forces as compared to high school, college, and the pros. An initial diagnosis of CTE can be made from brain imaging and patient’s medical history. However, definitive proof of the severity of CTE currently requires a brain biopsy (very risky) or autopsy after death. Therefore, the major liability concern for youth football at this time is from initial concussions and second impact syndromes.

On the other hand, college and the pros (and to a lesser extent high schools) should worry more about liability arising from CTE since the numbers of helmet to helmet hits increase dramatically after youth football. CTE is what really scares the sports insurance industry due to the unknowns that could be uncovered from ongoing research and the possibility of class action lawsuits due to the larger number of participants exposed to CTE as compared to actual concussions. Also, CTE is much harder to address from a risk management point of view as compared to initial concussions and second impact syndrome injuries.

Are insurance premiums rising for youth tackle football General Liability insurance?

No, not at this time due to concussions. However, the rates are currently rising due to other reasons. The prices for General Liability insurance for tackle football is a function of the loss history from all sources (not just concussions), overall trends in commercial property & casualty insurance (currently rising slightly), and trends with the carriers that specialize in the sports niche. If claims payments from concussion lawsuits impact the loss history, rates will rise. So far, to the best of my knowledge, there is not a problem with concussion lawsuits in youth tackle football. But, that could always change.

What are the attitudes of the underwriters at the insurance carriers that write youth tackle football insurance? 

The sports insurance industry is known for obsessing on a particular risk at any given time whether it is sex abuse & molestation, transportation of athletes, or dangerous cheer stunts. The concussion risk is the most recent and only time will tell if their fears are founded. And the result could be different for youth tackle football and high school versus college and the pros.

Some of the underwriters for carriers specializing in the youth sports niche are scared about what could happen if concussion lawsuits escalate with a series of large settlements or adverse jury verdicts or class actions. They point out that a youth participant can wait until the age of majority plus another two years for the statute of limitations to run before filing a lawsuit. This type of long tail exposure along with all the recent media attention and the unknown results of yet to be released scientific research definitely raise concerns for sports insurance underwriters. Some have discussed wanting to place an aggregate cap on concussion related lawsuits similar to the special aggregates that are often used for sex abuse & molestation lawsuits. Carriers definitely want to know what precautions are being taken in terms of risk management controls to limit the frequency and severity of injuries. They are also interested in coaching education and if it incorporates instruction on concussions. Once the legal landscape settles down, it will be easier to predict the effects on availability of liability insurance, exact coverages, prices, and required risk management controls.

Will pressure exerted by the insurance carriers (as opposed to angry parents and government legislation) force youth football organization to take the concussion issue more seriously and to implement changes to safety standards? 

It is hard to predict if concussion lawsuits will actually rise to a crisis level in the youth tackle football context. If so, lack of availability of General Liability coverage and premium increases will impact the behavior of sanctioning / governing bodies and local tackle football organizations.

However, I believe that the sanctioning / governing bodies are already moving to address concussion concerns and want to preserve the popularity of the sport and their participant base. 

Where is the state of youth tackle football going from a liability / insurance perspective?

The youth football sanctioning / governing bodies and local organizations will likely attack the problem with the following strategies:

• Request more scientific studies on larger numbers of participants on the forces that cause concussions in youth tackle football. These studies would be both in the lab and in the field and conducted by engineers, doctors, and insurance carrier claim departments. Most of the existing studies are on the high school, college and pro level. Different dynamics are involved in youth tackle football including lower impact forces and decreased development of neck muscles that can absorb impact.
• Continue to ramp up the concussion education of administrators, coaches, parents, and players on the dangers or concussions; warning signs from perspective of the injured player; warning signs from perspective of trainers, doctors, and coaches; mandatory removal from play when concussion is suspected; and return to play policies.
• The use of baseline neuropsychological testing to compare to post concussion event testing to help as a tool to determine appropriate return to play.
• Policies and procedures to teach proper blocking and tackling techniques and to limit contact during practice.
• Formal certification / training of coaches to educate on concussion issues.

Source: John Sadler; Sadler Sports & Recreation Insurance

Weight Limits Not Necessary In Youth Tackle Football To Protect Lighter Players

A new study of injuries occurring from 2009 to 2011 in American Youth Football, Inc. indicates that the risks of injuries to lighter players is about the same in the weighted (age groups and maximum weights for all players), modified (age groups and maximum weights for ball carriers only), and unlimited (age groups only) divisions. This is the most recent study to shed light on the hotly debated topic within the youth tackle football community on the pros and cons of weighted vs. unlimited divisions.

A prior 1997 Mayo Clinic Study concluded that the number one predictor of injuries in youth tackle football is age and that weight groups would not appear to protect players. The study found that the risk of injury to an eighth grader was four times the risk of injury to a fourth grader. Therefore, the higher the age, the higher the chance of injury, and as a result, correct age groupings are critical to limiting injuries. 

The American Youth Football, Inc. study tracked the progression of injuries to players of various weight categories through the weighted, modified, and unlimited divisions. The percentage of total injuries to lighter players (both below average and significantly below average) was about the same regardless of the division in which they participated. The percentage of total injuries to below average weight players ranged from 9.25% (weighted) to 11.50% (modified) to 8.96% (unlimited). The percentage of total injuries to significantly below average weight players ranged from 0.00% (weighted) to .30% (modified) to .71% (unlimited).

Most scientists and doctors who have studied the issue speculate that older players are injured more frequently because they run faster, hit harder, and are more aggressive. However, youth players who are larger don’t necessarily impact with more force if they aren’t fast and strong.

American Youth Football, Inc. and Sadler Sports Insurance are dedicated to giving back to the youth football and cheer community with critical studies on safety issues that impact the quality of the sports experience. All participants in the endorsed AYF Accident / General Liability insurance plan contribute data to these important studies.

Source: John Sadler; Sadler Sports Insurance; American Youth Football, Inc. Accident Insurance Claim Database

Click here for full version of American Youth Football study on injuries to lighter players in weighted vs modified vs unlimited divisions

Click here for prior blog on John Sadler debate script on pros and cons of weighted vs unlimited and a link to the Mayo Clinic study

New Football Helmet Technology And Concussion Risks

“As Americans grow more aware of the risk of brain injury tied to football – the country’s most popular sport – players and coaches are experimenting with the latest technology in a bid to make the game safer.”

“…The largest U.S. helmet manufacturers, as well as independent designers, are testing novel ways to cushion big and small blows to the head, or to provide immediate relief in the minutes after a major injury.”

Examples of new technology include:

The “Guardian” helmet cover   

Model High became one of the first high schools to test a new helmet cover  called the Guardian.  The Hanson Group of Alpharetta, Georgia and Protective Sports Equipment of Edinboro, Pennsylvania developed the unique cover that cushions against helmet-to helmet blows.  The Guardian fits over the helmet and has 37 gel-filled pouches to protect against concussions.

Local league rules are not clear yet as to allowing the use of the covers during games so the team only wore them during practice.

“If we can reduce a lot of the concussions that happen during practice and he compounding of all the hits over and over again, that’s going to maybe save somebody’s life or their brain and prevent future dementia, Hanson said.”

Powers agreed: The year before we used the Guardian, we had 10 to 12 kids that had to either miss a practice or two or even a game because of head-injury symptoms.  And this year we had zero.  So from that aspect, I’m sold on it.”

Air filled pads 

Other companies are testing more dramatic changes such as Xenith LLC’s, which uses air filled pads rather than foam in their line of helmets.  Riddell, the sponsor of the NFL’s helmets, frequently checks the padding and design of its equipment for improvements. 

Helmets that cool down after big hit 

Thermocrown is a product being designed by Themopraxis and Schutt Sports, which is the largest producer of football helmets. 

“Based on an idea developed by Brazilian neuroscientist Renato Rozental, the device is a bladder that can fit inside a player’s helmet.  In the event of a hard hit to the head, a trainer or teammate would attach a source of cooling gas to the bladder to lower the head’s temperature and stave off damage.”

Thermocrown would be comparable to applying an ice pack and will allow time, as much as 4 to 5 hours, for the injured player to be transported to a hospital.

The Bulwark 

Another design, Bulwark, is in process by Michael Princip where several plates are on the helmet’s exterior instead of the common design of one single-piece.  This design will disperse the impact of considerable hits and the smaller repeated ones that are unfortunately a part of the game.

In my opinion:  Helmet technology will need to advance rapidly to reduce the severity and frequency risks of head to head contact.  The future of the sport in light of recent concussion fears will be riding on this new technology in addition to education, further testing, and rule modifications.  

Source: Insurance Journal, April 3, 2012

Athletic Participant Exclusion Often Difficult To Understand In Context Of Special Events Or Competitions

The Athletic Or Sports Participants Exclusion is often found on General Liability policies where the insurance carrier intends to exclude exposure for sports activities such as those that may occur at special events for not for profit associations and corporate picnics. However, the wording that is found in this exclusion is unclear and can lead to surprising results when interpreted by claims departments and courts. The exclusion states that the insurance policy does not apply to cover “bodily injury to any person while practicing for or participating in any contest or exhibition of an athletic or sports nature sponsored by the named insured.” The two most common issues involve whether a particular activity is an athletic or sports contest and what is meant by “practicing for or participating in.” Unfortunately, most policy versions of this exclusion do not define these terms. The court decisions are all over the board with respect to the results on these issues.

Here are examples of how various courts have ruled:

•  A rodeo event where participants attempted to remove ribbons from a bull’s horn was found to qualify as a contest of an athletic or sports nature since the participants were engaged in physical activity for pleasure. The Oklahoma court instructed that the word “contest” means a competition or struggle for victory and “sports” is defined as physical activity engaged in for pleasure.
• The Louisiana Supreme Ct ruled that cheerleading activities during a football game did not constitute a sports contest since cheerleading was ancillary to the real sporting event – the football game.
• A New Mexico Court ruled that a jockey was not practicing for a horse race while exercising a racehorse. The court reasoned that “practicing” means the same act or acts required to be successful in the sport in question or at least so similar as to develop the particular capabilities and skills essential to success. Furthermore, the risks accompanying practice must be the same as those faced by a participant in an actual competition.
• A Louisiana Court ruled that a football team’s school supervised off season weight lifting program was not “practicing” football since practicing for football involved running of plays, passing, blocking, tackling, etc.
• Despite the above referenced case, Louisiana has a volunteer immunity statute for sports volunteers which defines “practice” as “the actual preparation, training, and participation in contests or games of physical skill, including, but not limited to, post-practice, post-contest, or post-game treatment and follow ups at a school facility, pre-season conditioning programs, teaching or other instructional seminars, team meetings, agility drills, and pre-participation fitness evaluations.”
• A Michigan court ruled that a referee was not a participant in a hockey game because a participant is “actively involved in the contest either individually or jointly with team members, “ but the referee has “an uninvolved role and is responsible for the application of the rules to the contest.”

Where the exclusion is present, what would the claims department of the insurance carrier or the courts decide in the event of an injury at a company sponsored fishing tournament? This question was recently posted to the Big I University Faculty in their April, 2012 online publication and the faculty was divided on the predicted outcome.

Based on the lack of definitions in the Athletic Or Sports Participants Exclusion and the unpredictability of the above rulings, policyholders should always assume that the Athletic Or Sports Participants Exclusion removes all coverage for anything similar to an athletic event or practice unless written clarification has been received from the underwriter or claims department of the carrier.

Source: A Closer Look At Tricky Coverage Issues; Robert Redfearn, Jr.; Insurance Journal; Sept. 3, 2007

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IntelliCorp

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Southeastern Security Consultants, Inc. (SSCI)

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A good track record counts for a lot, and as you may know, Protect Youth Sports has established a very firm and reputable standing within the youth sports market for background screening.   Benefiting from this very much proven history could not be any simpler, as over 5,000 organizations have found before.

Many of the problems that youth sports leagues encounter with background checks are caused by low quality instant checks and state-level-only background checks. Instant checks and state-level-only checks lead to missed records, incomplete records, out-of-date records and inadequate protection from sexual predators.

New and Enhanced Techniques Included in the Latest Version of the “Re-Verified” National Background Check from Protect Youth Sports

“True” 50 State Sex Offender Search, National Criminal Database (over 400 mil­lion records), Free Alias Name Search, No False Positives or Incomplete Records, 100% Industry Compliance Guaranteed

·    Free Video Course – backgrounds checks and streamlining the screening process

·    No Signup Fees – when you are a qualified youth sports organization

·    NAYS Discounts – up to 20% off on already discounted packages

Nothing could be easier than getting started with Protect Youth Sports. Start by requesting your Free Video Course at www.protectyouthsports.com or call (877) 319-5587.