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.
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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
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
Do you realize how much YOU have in common with Joe Paterno, Graham Spanier, Tim Curley and Mike McQuery? No, these men did not commit the physical crimes against children, as did Jerry Sandusky. However, they are responsible and liable for their own actions when there is even a hint that someone is abusing a child. This blog isn’t specifically about the Penn State case and who was (or wasn’t) fired, that will all pan out in court, but it is a REALITY check for all involved with youth that no one is invincible.
While the Penn State case is making national headlines because of its legendary coach and it’s football program, understand that this happens FREQUENTLY in youth sports. Most of our readers are involved in teams/leagues/youth programs in one-way or the other. Are you a coach, athletic director, team mom or a parent on the side-lines? Whatever your position, today is the day to step back and realize where exactly you fit into the lives of the kids participating in your youth sports organization. You are there to protect them at all cost.
Some time ago, we did a blog on Protect Your Kids From Predators In Youth Sports. This blog is a must read for anyone that has or is involved with children. It includes an article from Sports Illustrated from actual predators in youth programs saying “This is how we got away with it …this is how you protect your kids.” (Example from the article, Did you know, Studies have found that the average preferential molester victimizes about 120 children before he is caught? DISTURBING). It also contains useful Risk Management guidelines that can be implemented TODAY!
For more articles on preventing sexual abuse and molestation, visit our blog.
Shart this with others so that we all can make a difference.
Directors & Officers Liability insurance for sports organizations covers certain types of lawsuits that are not covered by the more popular and better known General Liability policy. Whereas the General Liability policy covers certain lawsuits alleging bodily injury, property damage, personal injury, and advertising injury, the Directors & Officers Liability policy typically covers the following types of broad classes of lawsuits:
* Discrimination based on race, sex, age, or handicap.
* Wrongful suspension or termination of league personnel or players.
* Failure to follow own rules or bylaws when making an administrative decision.
* Violation of rights of others under constitutional, federal, or state law.
* Financial mismanagement
The Directors & Officers Liability policy pays covered legal defense costs and pays up to the policy limit in the event of settlement or adverse jury verdict.
Over the past ten years, the types of claims that are potentially covered by the Directors & Officers Liability policy have increased dramatically as the public has become more litigation conscious. The most common categories of lawsuits include handicap discrimination under the Americans With Disability Act ( ADA ), player eligibility disputes, and when league administrators don’t follow their own rules or bylaws when making decisions. We have also seen claims involving breach of contract (usually excluded by most policy forms), race discrimination, violation of expression of religious freedom, failure to make all star team, improper coaching resulting in loss of college scholarship, violation of Sherman Anti Trust / Restraint Of Trade, internal board disputes (usually excluded by most policy forms), injunctive relief to halt tournament due to player eligibility issue (often not covered by most policy forms), etc.
The Directors & Officers policy form varies greatly from one carrier to the next and as a result, a detailed review is required to uncover dangerous exclusions that would take away essential coverages. Unfortunately, most insurance agents are not competent in this area.
Some important policy provisions include employment practices liability and third party liability including discrimination.
Source: John Sadler
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