Not so fast
The media has been practically salivating about a potential end of football. There’s no end to 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 Concussions and the Future of Football), connecting NFL player suicides to brain injuries, and lawsuits against colleges and high schools for second-impact syndrome injuries early return to play. These worst-case scenarios are certainly sensational, but I say not so fast.
I have recently been flooded with media requests for interviews on this topic. I am responding with this blog posting as I don’t have time for all the requests. What follows is my first takebased on the present information at hand.
We need stay away from decisions made out of fear arising from sensationalism. Instead we should make calm decisions based on science. If there is no scientific research on an issue, new studies should be immediately launched and carefully reviewed before conclusions are drawn and changes made.
There are three types of brain injuries that require specific risk management response strategies:
- The initial concussion
- The more dangerous second-impact syndrome due to “too early return to play”.
- The cumulative less-than-concussion events known as chronic traumatic encephalopathy or CTE (ex: helmet to helmet contact) that may result in brain damage over the long term.
The risks of these brain injury situations and the required protective responses need to be studied differently in the context of youth, high school, college, and professional athletes. 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 increase 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.
“…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 comments 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 of athletes ages 5 to 15 are as follows:
Youth football 5.64%
Youth baseball 3.1%
Youth softball 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 and General Liability insurance policies with sufficient limits.
The Accident policy pays medical bills of injured participants 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 costs for a settlement or adverse jury verdict. In the concussion context, the organization, 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, 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 million 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, which is 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.
Would these lawsuits against youth football organizations likely be successful?
It depends on the nature of lawsuit and the facts in each case. Most would be negligence-based, which requires all of the following elements:
- 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)
- Breach of that duty
- Breach was proximate cause of injury
- Damages result.
All 50 states and the District of Columbia have enacted 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. Little League Baseball, Inc. provides information regarding the these laws.
Youth football organizations must follow the concussion rules of their state and/or their governing/sanctioning body. Failure to follow state law or an organization’s own rules can be a prima facie case of negligence, assuming that requirements 3 and 4 above 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.
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 for liability arising from cumulative CTE, 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 a patient’s medical history. However, definitive proof of the severity of CTE currently requires a risky brain biopsy or autopsy. Therefore, the major liability concern for youth football at this time is from initial concussions and second-impact syndrome.
On the other hand, colleges and the pros (and to a lesser extent high schools) should worry more about liability arising from CTE since the number 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 compared to actual concussions. Also, CTE is much harder to address from a risk management point of view 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 sex abuse or 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 raises 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 and 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 organizations 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?
- Request more scientific studies on larger numbers of participants on the forces that cause concussions in youth tackle football. These studies would be conducted both in the lab and in the field 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 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.