Marquette Sports Law Review Marquette Sports Law Review
Volume 23
Issue 1
Fall
Article 4
2012
Protecting Kids’ Melons: Potential Liability and Enforcement Protecting Kids’ Melons: Potential Liability and Enforcement
Issues with Youth Concussion Laws Issues with Youth Concussion Laws
Phoebe Anne Amberg
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Part of the Entertainment, Arts, and Sports Law Commons
Repository Citation Repository Citation
Phoebe Anne Amberg,
Protecting Kids’ Melons: Potential Liability and Enforcement Issues with Youth
Concussion Laws
, 23 Marq. Sports L. Rev. 171 (2012)
Available at: https://scholarship.law.marquette.edu/sportslaw/vol23/iss1/4
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COMMENTS
PROTECTING KIDS’ MELONS: POTENTIAL
LIABILITY AND ENFORCEMENT ISSUES
WITH YOUTH CONCUSSION LAWS
PHOEBE ANNE AMBERG∗
I. INTRODUCTION
Sports are an important part of a child’s life. Children have fun on the
field, ice, and court, but sports provide children with much more than
enjoyment. Children learn leadership, time commitment, team values,
teamwork, determination, dedication, perseverance, and many other positive
qualities by participating in athletic activities. According to National Football
League (NFL) Commissioner Roger Goodell, “[youth] sports [] are essential to
[the development of] our kids.”
1
Most people who played a sport and were a
part of a team when they were kids would agree. While youth sports are
generally safe for the kids who participate, safety can still be improved.
Youth sports organizations that want to continue to improve safety focus
on concussions; specifically, they focus on how to decrease the incidence of
concussions and prevent the severe problems caused by concussions. While a
concussion itself may be hard to prevent and can be an unfortunate result of
playing a sport, the severe side effects of a concussion can easily be prevented.
Since 1997, at least fifty youth football players from twenty different states
have died or become seriously disabled from sustaining a concussion.
2
None
of these young athletes should have had their lives cut short due to
concussions. To prevent other young athletes from suffering from the easily
preventable effects of concussions, forty-one states, Chicago, and the District
∗ Phoebe Anne Amberg is a third-year law student at Marquette University Law School. Upon
graduation in May 2013, she will earn a Certificate in Sports Law from the National Sports Law
Institute. Phoebe is a 2009 graduate of the University of Wisconsin-Madison, where she earned her
B.S. in Political Science. Phoebe currently serves as the Articles Editor of the Marquette Sports Law
Review.
1. Part One: The Zackery Lystedt Youth Sports Concussion Law: Background, NFL (Oct. 9,
2010), http://www.nfl.com/videos/auto/09000d5d81c7c3c9/Part-one-The-Zackery-Lystedt-Youth-Spo
rts-Concussion-Law-Background [hereinafter Part One].
2. Young Players, Serious Injuries, N.Y.
TIMES (Sept. 16, 2007), http://www.nytimes.com/inter
active/2007/09/16/sports/20070916_CONCUSSION_GRAPHIC.html.
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172 MARQUETTE SPORTS LAW REVIEW [Vol. 23:1
of Columbia have passed a youth concussion law.
3
Three states currently
have pending youth concussion legislation, while the remaining six states are
not even considering a youth concussion statute.
4
The youth concussion laws that have been passed throughout the nation
with support from the NFL and the Centers for Disease Control and
Prevention (CDC) are an essential part of making sports safer for children.
However, the issue with youth concussion laws, and the focus of this
Comment, is whether states have been able to implement these laws to their
fullest extent. Part II discusses youth concussions. Part III discusses the
history of youth concussion statutes and provides a survey of the current
statutes. Part IV considers the recently passed concussion law in Wisconsin.
Part V examines the problems and effectiveness of implementing youth
concussion laws and the potential liability of coaches and medical personnel
under these concussion laws.
II.
YOUTH CONCUSSIONS
An essential part of youth concussion laws is educating coaches, parents,
and athletes about concussions because they all play a crucial role in
preventing catastrophic incidents caused by concussions. A concussion is a
“mild traumatic brain injury” that affects memory, speech, balance, judgment,
coordination, and reflexes.
5
Unfortunately, an athlete may not realize he has
sustained a concussion because the symptoms, such as confusion, headache,
and nausea, may not be obvious right after the incident.
6
Youth concussions are more serious when compared to adult concussions
because there is a higher chance of complications and permanent damage.
7
In
general, children are more susceptible to concussions and require a longer time
to become symptom-free.
8
Kids between the ages of six and fourteen have a
higher risk of head injuries compared to any other age range.
9
In addition,
children who suffer from head injuries are more likely than adults to have
3. Lindsay Barton, Strong Concussion Safety Laws in Place in Majority of States,
MOMSTEAM, http://www.momsteam.com/health-safety/majority-of-states-have-youth-sports-concus
sion-safety-laws (last updated Sept. 4, 2012); C
HI., ILL., MUN. CODE ch. 7-22 (2011).
4. Id.
5. Kristina M. Gerardi, Tackles that Rattle the Brain, 18 S
PORTS LAW. J. 181, 184 (2011).
6. Id.
7. See generally Marie-France Wilson, Young Athletes at Risk: Preventing and Managing
Consequences of Sports Concussions in Young Athletes and the Related Legal Issues, 21 M
ARQ.
SPORTS L. REV. 241 (2010).
8. Id. at 241.
9. Id. at 247.
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2012] YOUTH CONCUSSION LAWS 173
brain swelling and cerebral edema.
10
As a result of the swelling, the structure
of a child’s brain could be harmed because his brain is still developing.
11
The
evidence of such damage may not be detected until much later, far past the
original injury.
12
Because concussions are more dangerous for children, they
should have the best safety procedures available to prevent tragic events.
Unfortunately though, by virtue of being a youth athlete, a child is actually
at a disadvantage when he suffers a concussion. Youth athletes do not usually
have baseline medical tests before playing.
13
Baseline testing assesses a
child’s brain function without an injury so doctors can test a child after a
suspected head injury, compare it to the baseline test, and more easily
determine whether a child has suffered a concussion.
14
The baseline test also
helps doctors verify when the child is symptom-free.
15
Furthermore, a team
doctor or trainer is not usually on the sidelines when a child sustains a
concussion,
16
so there is no one specifically watching for concussions and
requiring a child who is suspected of sustaining a concussion to sit out. Since
youth athletes do not have concussion specialists readily available or access to
baseline medical tests, it is easier for them to hide their symptoms and return
to play too soon.
17
Returning to play too soon is a major problem because once a child has
had one concussion, it is much easier for him to sustain another one and suffer
from second-impact syndrome.
18
Second-impact syndrome leads to
inflammation of blood vessels and substantial swelling of the brain, which
causes respiratory failure.
19
There is a fifty percent chance that a person who
suffers from second-impact syndrome will die, and those who survive will
almost certainly be disabled.
20
It is imperative that someone who suffers a
concussion be completely symptom-free before he plays again given the
increased risk of second-impact syndrome.
21
As a result of a youth athlete
who suffered from second-impact syndrome, Washington became the first
10. Id.
11. Id.
12. Id.
13. Id. at 241–42.
14. See Gerardi, supra note 6, at 221.
15. Id.
16. See Wilson, supra note 8, at 242.
17. See id. at 241–42.
18. Id. at 244.
19. Gerardi, supra note 6, at 186–87.
20. Erika A. Diehl, Note, What’s All the Headache?: Reform Needed to Cope with the Effects
of Concussions in Football, 23 J.L.
& HEALTH 83, 92 (2010).
21. Gerardi, supra note 6, at 187.
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174 MARQUETTE SPORTS LAW REVIEW [Vol. 23:1
state to pass a youth concussion law.
22
States have followed Washington’s
lead and have passed youth concussion laws to prevent other children from
returning to play too soon after a concussion.
III.
HISTORY AND SURVEY OF YOUTH CONCUSSION STATUTES
The best way to reduce second-impact syndrome in children is through
education and awareness of the dangers of concussions.
23
Prior to concussion
awareness programs, coaches did not know enough about concussions to deal
with them in an appropriate and safe manner.
24
Even so, education and
awareness programs and guidelines regarding concussions were in effect
before states began instituting concussion statutes. The CDC created
guidelines by instituting its Heads Up program.
25
The CDC website provides
information about preventing and dealing with concussions for coaches,
parents, and athletes, including information sheets and online training
courses.
26
Similar to the CDC, the National Federation of State High School
Associations (NFHS) established concussion guidelines. Unfortunately, the
NFHS did not require each state’s athletic association to adopt its guidelines.
27
However, some high school athletic associations have implemented the
NFHS’s concussion guidelines anyway.
28
For example, the Wisconsin
Interscholastic Athletic Association (WIAA) requires that an athlete who
displays symptoms of a concussion or becomes unconscious not return to play
on the same day.
29
Furthermore, a student must be cleared by a health care
professional, either a physician or licensed athletic trainer, before returning to
play.
30
Obviously, these concussion guidelines are an important part of the
education process, but one athlete’s story led state legislatures to get involved
and do more to keep youth athletes protected from the serious effects of
22. Zackery Lystedt Law, WASH. REV. CODE § 28A.600.190 (2012).
23. See Glassman & Holt, supra note 5, at 33.
24. Matt Rybaltowski, Young Player Helps Turn Trauma into Action on Concussions,
CBSS
PORTS.COM (Feb. 14, 2010), http://www.cbssports.com/nfl/story/12928497/young-player-helps-
turn-trauma-into-action-on-concussions.
25. Heads Up: Concussion in Youth Sports, CDC, http://www.cdc.gov/concussion/HeadsUp/
youth.html (last updated May 29, 2012).
26. See id.
27. Glassman & Holt, supra note 5, at 32; see also N
AT'L FED'N OF STATE HIGH SCH. ASS'NS,
SUGGESTED GUIDELINES FOR MANAGEMENT OF CONCUSSION IN SPORTS (2011).
28. See Concussions, WIAA, http://www.wiaawi.org/Health/Concussions.aspx (last visited
Oct. 17, 2012).
29. Id.
30. Id.
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2012] YOUTH CONCUSSION LAWS 175
concussions.
The athlete who facilitated the first youth concussion statute in the United
States is Zackery Lystedt, whose drive and perseverance on the football field
led to a tragic and unfortunate event.
31
Lystedt was playing middle school
football on October 21, 2006, when he sustained a concussion during the first
half.
32
He returned to the game at the beginning of the second half, and, just
seconds before the game ended, Lystedt sustained a second concussion.
33
He
told his dad that his head hurt and that he could not see.
34
Shortly thereafter,
Lystedt collapsed and had to be airlifted to Seattle where doctors performed
emergency brain surgery to save his life.
35
According to his neurosurgeon, Lystedt was minutes, maybe hours, away
from dying.
36
To save Lystedt’s life, doctors had to take his skull off on each
side of his brain.
37
As a result, the doctors placed labels on each side of
Lystedt’s head to identify the lack of bone on either side of his head and to
alert others that his brain was not protected.
38
Later, Lystedt had to be fitted
with a helmet.
39
Lystedt’s father, Victor, looked into his son’s eyes and
described him as not being there.
40
Lystedt could not talk for nine months and
could not move any part of his body for thirteen months.
41
Six years after
suffering his traumatic brain injury, Lystedt has continued to improved.
42
On
June 10, 2011, he was able to walk across the stage to receive his high school
diploma.
43
Lystedt and his family did not want other parents and their
children to go through the same things they had to suffer through, so they met
with their lawyer to draft a youth concussion bill.
44
The Zackery Lystedt Law passed on May 14, 2009, and became effective
31. See Rybaltowski, supra note 25.
32. Id.
33. Id.
34. Id.
35. Id.
36. Life Changed by Concussions, ESPN (Jan. 31, 2012), http://espn.go.com/video/clip?id=752
5526&categoryid=5595394.
37. Id.
38. Id.
39. Part Three: The Zackery Lystedt Youth Sports Concussion Law: Meet Zackery Lystedt,
NFL (Nov. 30, 2010), http://www.nfl.com/videos/auto/09000d5d81c7a785/Part-three-The-Zackery-
Lystedt-Youth-Sports-Concussion-Law-Meet-Zackery-Lystedt.
40. Life Changed by Concussions, supra note 37.
41. Id.
42. Id.
43. Id.
44. Part One, supra note 1.
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176 MARQUETTE SPORTS LAW REVIEW [Vol. 23:1
on July 26, 2009.
45
The Lystedt Law contains three elements:
(2) Each school district’s board of directors shall work in
concert with the Washington interscholastic activities
association to develop the guidelines and other pertinent
information and forms to inform and educate coaches, youth
athletes, and their parents and/or guardians of the nature and
risk of concussion and head injury including continuing to
play after concussion or head injury. On a yearly basis, a
concussion and head injury information sheet shall be signed
and returned by the youth athlete and the athlete’s parent
and/or guardian prior to the young athlete’s initiating practice
or competition.
(3) A youth athlete who is suspected of sustaining a
concussion or head injury in a practice or game shall be
removed from competition at that time.
(4) A youth athlete who has been removed from play may not
return to play until the athlete is evaluated by a licensed health
care provider trained in the evaluation and management of
concussion and receives written clearance to return to play
from that health care provider.
46
Because of the Lystedt Law, licensed health care professionals determine
when athletes are ready to return to play and coaches no longer have to worry
about making that decision.
47
The Washington legislature charged the
Washington Interscholastic Activities Association (WIAAWA) to develop
guidelines and provide other relevant information related to the Lystedt Law.
48
The WIAAWA lists the licensed health care providers under the law that can
give written clearance to players to return to play after a concussion.
49
The
WIAAWA allows only medical doctors, doctors of osteopathy, advanced
registered nurse practitioners, physician assistants, and licensed certified
athletic trainers to clear players.
50
The law itself provides that a volunteer
who clears an athlete to return to play is not liable for civil damages unless
“gross negligence” or “willful or wanton misconduct” is involved.
51
45. Zackery Lystedt Law, WASH. REV. CODE § 28A.600.190 (2012).
46. § 28A.600.190(2)–(4).
47. Rybaltowski, supra note 25.
48. § 28A.600.190(2).
49. Licensed Health Care Providers, WIAA, http://www.wiaa.com/subcontent.aspx?SecID=
628 (last visited Oct. 17, 2012).
50. Id.
51. § 28A.600.190(4).
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2012] YOUTH CONCUSSION LAWS 177
Washington’s youth concussion law has been an example for all states.
Since the passage of the Lystedt Law, forty-one states plus Chicago and
the District of Columbia have passed similar laws.
52
The NFL and the
National Collegiate Athletic Association (NCAA) support youth concussion
laws by writing letters to state governors requesting the passage of youth
concussion statutes.
53
In general, these youth concussion statutes contain the
three elements that are in the Lystedt Law: (1) education, (2) removal of the
athlete from play, and (3) medical clearance to return to play.
54
Also, the
youth concussion statutes include the same provision found in the Lystedt Law
that provides immunity to volunteers who clear athletes to return to play.
55
However, not all youth concussion statutes completely follow the Lystedt
Law.
Some youth concussion statutes do not include all three of the elements
listed above.
56
For example, the Wyoming youth concussion statute only
includes the education component and does not require any district to adopt
the protocol.
57
While the law only requires education, education is an
essential component in making youth sports safer. Similarly, when Idaho’s
youth concussion statute first passed in 2010, it only included the education
component.
58
The bill began with the three model elements of the Lystedt
Law,
59
but the law that passed in 2010 only mandated that:
The state board of education shall collaborate with the Idaho
high school activities association to develop guidelines and
other pertinent information and forms to inform and educate
coaches, both paid and volunteer, youth athletes, and their
parents and/or guardians of the nature and risk of concussion
52. CHI., ILL., MUN. CODE ch. 7-22 (2011); Barton, supra note 3.
53. See Letter from Roger Goodell, NFL Comm’r, to Christopher J. Christie, Governor, N.J.
(May 21, 2010) (on file with author); Letter from Mark Emmert & Roger Goodell, NCAA President
& NFL Comm’r, to Richard D. Snyder, Governor, Mich. (Jan. 11, 2012) (on file with author).
54. Lystedt Law Overview, NFLEVOLUTION.
COM (Aug. 9, 2012), http://www.nflevolution.
com/article/The-Zackery-Lystedt-Law?ref=270.
55. Wilson, supra note 8, at 285.
56. See Concussion Legislation by State, NFLEVOLUTION.
COM (Aug. 14, 2012), http://www.
nflevolution.com/article/Concussion-Legislation-by-State?ref=767; Lystedt Law Overview, supra
note 55. Compare Zackery Lystedt Law,
WASH. REV. CODE § 28A.600.190, with WYO. STAT. ANN.
§§ 21-2-202(a)(xxxiii) (2012), 21-3-110(a)(xxxii) (2012) (only has educational component and does
not require any district to adopt the protocols).
57. W
YO. STAT. ANN. §§ 21-2-202(a)(xxxiii), 21-3-110(a)(xxxii).
58. H.R. 676, 60th Leg., 2d Reg. Sess. (Idaho 2010) (as amended).
59. Dustin Hurst, Plan to Get Tough on Concussions Stalls in Committee over Legal Concerns,
IDAHOREPORTER.COM (Mar. 18, 2010), http://www.idahoreporter.com/2010/plan-to-get-tough-
on-concussions-stalls-in-committee-over-legal-concerns/.
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178 MARQUETTE SPORTS LAW REVIEW [Vol. 23:1
and head injury including risks associated with continuing to
play after concussion or head injury.
60
Representative Brent Crane wanted to remove the second and third elements—
removal of the athlete from play and written clearance from a health care
provider to return to play—due to fear of liability.
61
Crane did not want to
require coaches to identify concussions while also having to coach the game
because he believed it may create liability for coaches.
62
Representative Liz
Chavez, who co-sponsored the bill, was saddened with the outcome of the law
as she believed the law did not require anything to happen.
63
Two years after Idaho passed its inadequate youth concussion statute,
Idaho successfully revised its youth concussion statute to include all three
tenets of the Lystedt Law.
64
Now, the Idaho youth concussion statute not only
includes the three tenets, but also goes further because it requires “referees,
game officials, game judges, and athletic trainers” to review concussion
guidelines biannually.
65
The majority of youth concussion statutes require
only a one-time concussion training and only for coaches.
66
The Idaho youth
concussion statute illustrates a state that realized the need for a youth
concussion statute but had concerns about liability so it only included the
education component at first. Commendably, Idaho later recognized the need
to improve its youth concussion law beyond the education component. Other
states whose statutes are below the model legislation can look to Idaho as an
example for improving their statutes.
Other states besides Idaho have gone beyond the Lystedt Law model
legislation.
67
For instance, Colorado’s youth concussion statute goes further
in some aspects of the education component.
68
The law states:
60. IDAHO CODE ANN. § 33-1620(1) (2010) (The statute section was later changed to 33-1625).
61. William L. Spence, Chavez’ Concussion Bill Gets Denuded: Lewiston Democrat Says She’s
Disappointed After House Deletes Enforcement Language, L
EWISTON MORNING TRIB. (Idaho), Mar.
24, 2010, at 2.
62. Id.; Dustin Hurst, Stripped-Down Concussion Education Bill Clears House,
IDAHOREPORTER.COM (Mar. 25, 2010), http://www.idahoreporter.com/2010/stripped-down-
concussion-education-bill-clears-house/.
63. Spence, supra note 62.
64. I
DAHO CODE ANN. § 33-1625 (2012).
65. § 33–1625(3); Bryan Toporek, Idaho Strengthens Youth-Concussion Law by Passing
Revision, E
DUC. WEEK (Apr. 6, 2012, 3:01 PM), http://blogs.edweek.org/edweek/schooled_in_sports/
2012/04/idaho_strengthens_youth-concussion_law_by_passing_revision.html.
66. Toporek, supra note 66.
67. Jake Snakenberg Youth Concussion Act, COLO. REV. STAT. § 25–43–103 (2012); see also
Lystedt Law Overview, supra note 55.
68. § 25–43–103; Ivan Moreno, Colorado Concussions Law Is Nation’s Most Far-Reaching,
T
HE HUFFINGTON POST (Mar. 29, 2011), http://www.huffingtonpost.com/2011/03/29/colorado-
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2012] YOUTH CONCUSSION LAWS 179
(1) (a) Each public and private middle school, junior high
school, and high school shall require each coach of a youth
athletic activity that involves interscholastic play to complete
an annual concussion recognition education course.
(b) Each private club or public recreation facility and each
athletic league that sponsors youth athletic activities shall
require each volunteer coach for a youth athletic activity and
each coach with whom the club, facility, or league directly
contracts, formally engages, or employs who coaches a youth
athletic activity to complete an annual concussion recognition
education course.
69
Unfortunately, the education component of the Colorado law does not require
action from parents and their kids like the model legislation does.
70
However,
the law goes further than the model legislation with its requirements for
coaches. Unlike other states’ concussion laws that apply only to coaches in
school sports programs and require only one-time concussion training, the
Colorado statute mandates coaches from both public and private schools, Little
Leagues, and Pop Warner leagues to take concussion classes and attend annual
training.
71
Some states have passed a youth concussion law with the three model
elements and continue to improve upon it. Rhode Island passed a youth
concussion statute that included the three elements of the model Lystedt Law,
but Rhode Island continued to make it better.
72
The proposed legislation
would have improved upon the law in two ways. First, it required that “[a]ll
coaches and volunteers involved in a youth sport or activity covered by [the
law] must complete a training course and a refresher course annually thereafter
in concussions and traumatic brain injuries,”
73
as opposed to the 2010 law,
which did not require annual classes.
74
Second, the proposed legislation stated
that “[s]chool districts shall have all student athletes baseline or ‘impact’
tested prior to the start of every sport season,”
75
whereas the original statute
only recommended that each athlete have baseline testing before the season
concussions-law-_n_842229.html.
69. § 25-43-103(1)(a)(b).
70. See § 25-43-103.
71. Moreno, supra note 69.
72. H. R. 5440, Gen. Assemb., Jan. Sess. (R.I. 2011).
73. Id.
74. See R.I. G
EN. LAWS § 16-91-3(b) (2011).
75. H.R. 5440.
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180 MARQUETTE SPORTS LAW REVIEW [Vol. 23:1
begins.
76
Rhode Island’s amended youth concussion law passed with the first
improvement requiring an annual refresher course, but unfortunately, the
second improvement requiring baseline testing did not get passed.
77
Requiring baseline testing would have improved Rhode Island’s youth
concussion law greatly because testing significantly increases a doctor’s
ability to detect a concussion objectively, so that the doctor does not have to
rely on a child to communicate his symptoms.
78
Also, baseline testing allows
the doctor to independently determine whether the child is actually symptom-
free or if he is hiding his symptoms.
79
Even though the proposed legislation did not pass in its entirety, it still
demonstrates that states do not have to be content with their youth concussion
law even if it has the three model components. States can continue to improve
upon their legislation and continue to make youth athletes safer. Rhode
Island’s ability to take its original youth concussion law and improve upon it
should serve as an example for other states to continue to improve their laws.
In any event, it is important for all states to pass a youth concussion law
because participants in youth sports are not adequately protected when there is
no youth concussion law.
IV.
WISCONSIN’S YOUTH CONCUSSION STATUTE
Wisconsin passed its youth concussion statute on April 2, 2012.
80
Before
Wisconsin had a youth concussion statute, the WIAA already established
concussion guidelines, which led some people to argue that the guidelines
were enough and Wisconsin did not need a youth concussion statute.
81
The
athletic association’s concussion guidelines were definitely important when
Wisconsin did not have a youth concussion statute, but Wisconsin’s new law
is necessary because it improves upon the guidelines and mandates action
instead of only recommending it. The WIAA followed the NFHS’s advice and
adopted its concussion guidelines.
82
The WIAA “strongly encourages coaches at all levels to take [a
76. R.I. GEN. LAWS § 16-91-3(c).
77. R.I. Gen. Laws § 16-91-3 (2012) (as amended).
78. Gerardi, supra note 6, at 221–22.
79. Id.
80. W
IS. STAT. § 118.293 (2012).
81. Don Walker, Goodell Wants Concussion Law for Athletes, JSO
NLINE (May 24, 2010),
http://www.jsonline.com/blogs/sports/94788854.html.
82. Concussions, supra note 29.
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2012] YOUTH CONCUSSION LAWS 181
concussion in sports] free course.”
83
Furthermore, the WIAA rule for return
to play requires “[a] student who displays symptoms of concussion and/or is
rendered unconscious shall not return to practice or competition during the
same day. The student shall not return to practice or competition until
approved in writing by an appropriate health care professional.”
84
Therefore,
the education course seems to be voluntary, while the return to play rule seems
to be mandated by the WIAA.
Still, the Wisconsin youth concussion statute improves upon the WIAA
concussion guidelines. First, in comparison to the WIAA concussion
guidelines, the education component of the law is required, which includes a
concussion information sheet signed by the athlete every year.
85
The law calls
upon the WIAA to work with the Department of Public Instruction to develop
education guidelines, which the WIAA has already done.
86
Second, the
concussion law applies to anybody who engages in a youth athletic activity,
which means “an organized athletic activity in which the participants, a
majority of whom are under 19 years of age, are engaged in an athletic game
or competition against another team, club, or entity, or in practice or
preparation for an organized athletic game or competition . . . .”
87
Therefore,
the law covers public and private schools, athletic clubs, and other
organizations.
88
As a result, the law extends past what the WIAA concussion
guidelines can cover because the WIAA guidelines can only apply to those
schools that are a part of the association.
While the WIAA concussion guidelines may have seemed like an
acceptable way to manage concussions, the youth concussion law is essential
because having a law about concussion management has a greater effect than
just having guidelines from an athletic association. When asked about the law
while it was still pending, Dave Anderson stated, “We need the help this law
would provide in terms of making a stronger statement about the importance
of education and the significance of head trauma.”
89
Additionally, while the WIAA concussion guidelines are important,
having only the WIAA guidelines for concussion management was clearly not
83. Id.
84. Id.
85. § 118.293(3).
86. § 118.293(2); Concussions, supra note 29.
87. § 118.293(1)(c).
88. Don Walker, Bill on Concussions Hits Home with Injured Teen, JSO
NLINE (Oct. 20, 2011),
http://www.jsonline.com/news/wisconsin/bill-on-concussions-hits-home-with-injured-teen-1322900
68.html.
89. Don Walker, Lawmakers Urged to Pass Concussion Guidelines: Bill Would Affect State
Athletes Ages 11 to 19, M
ILWAUKEE J. SENTINEL, Oct. 5, 2011, at B3.
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enough since youth athletes continued to suffer from second-impact
syndrome.
90
For example, Josh Inhof, a Wisconsin high school football
player, most likely suffered a concussion during practice on October 10, 2011;
three days later, Inhof took one or two more hits that left him unconscious.
91
Luckily, Josh was not in as poor condition as Zackery Lystedt, but Josh still
had headaches, trouble focusing, and missed school until he felt better.
92
Although, Josh’s father, a youth football coach, knew the WIAA guidelines of
sitting out athletes and requiring clearance from a health care professional, he
did not question his son as intensely as he should have when Josh told his
father he got “rocked” at practice.
93
Therefore, the law has improved upon the
WIAA guidelines in that athletes and their parents must be educated about
concussions, but even with improvements to the current guidelines, issues still
exists with the Wisconsin law and other youth concussion statutes.
V.
EFFECTIVENESS AND PROBLEMS WITH YOUTH CONCUSSION STATUTES
While the youth concussion statutes are a great improvement in the safety
of youth sports, whether the statutes are actually effective remains doubtful.
The youth concussion statutes would be effective if the statutes educated
students, parents, and coaches about concussions and prevented student-
athletes from returning to play while still being symptomatic. Additionally,
the effectiveness of a statute is questionable when no enforcement mechanism
or consequence for noncompliance exists. Moreover, the youth concussion
laws present issues of liability for coaches and medical professionals. A youth
concussion statute cannot meet its potential if it is not effective or if it has no
enforcement procedures.
A. Effectiveness of the Youth Concussion Statutes
The passage of youth concussion statutes in almost all the states in
America is a success in and of itself, but the true success comes when a youth
concussion statute is actually effective at accomplishing what it was set out to
do: prevent student-athletes from returning to play before being fully
recovered from their concussions, thereby reducing the incidence of second-
impact syndrome. The main issue regarding effectiveness of the concussion
statutes is the lack of enforcement. Other issues relating to effectiveness
include: lack of ability to implement the statute in rural areas, lack of baseline
90. See Walker, supra note 89.
91. Id.
92. Id.
93. Id.
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neuropsychological testing, and lack of medical personnel on sidelines.
In general, the youth concussion statutes do not have any enforcement
mechanisms.
94
Specifically, there are no penalties, criminal or civil, for those
who do not comply.
95
One senator who voted against the Lystedt Law was
concerned about the lack of consequences for those who do not observe the
law.
96
This concern is very real when the protection of a young athlete’s brain
is so important and those who disobey the law cannot be held accountable.
Similarly, enforcing a law that has absolutely no penalties for violations is a
big problem. If someone finds out that a person has not followed the protocols
set forth in the concussion statutes, no recourse is available against that person
even though he has endangered a child. For example, Wisconsin’s youth
concussion law expressly states that there is no cause of action against any
person under the law.
97
The only concussion statute that has a type of enforcement mechanism is
the concussion law for the City of Chicago.
98
Any school that does not
observe the concussion law will have to pay the city water or sewer charges,
which the school is usually exempt from paying.
99
It is still uncertain whether
this enforcement mechanism is a sufficient penalty for those who violate the
law. But at least the law provides some kind of penalty, so a person who is
monitoring the law can enforce it. Regardless, the youth concussion laws have
other issues.
Besides the lack of enforcement, concussion statutes may not be as
effective as possible due to a lack of policies that should be required as part of
the law. The concussion statutes do not require baseline neuropsychological
testing before the start of the season.
100
The purpose behind baseline testing is
to make it easier to determine when a child is back to his pre-concussion
self.
101
For example, some parents in Washington have requested that their
94. See generally Youth Concussions FAQ, NFLEVOLUTION.COM (Aug. 15, 2012),
http://www.nflevolution.com/article/Youth-Concussions-FAQ?ref=936.
95. Id.
96. Chantal Anderson, State Lawmakers Approve Concussions Bills for Young Athletes: The
State Legislature Has Passed Bills Aimed at Preventing Traumatic Brain Injuries Among Young
Athletes, S
EATTLE TIMES, Mar. 11, 2009, http://seattletimes.com/html/politics/2008838865_concus
sionbill10m.html.
97. W
IS. STAT. § 118.293(6) (2012).
98.
See generally CHI., ILL., MUN. CODE ch. 7-22-040 (2011).
99. Id.
100. Rhode Island has pending legislation that would require baseline testing. See H. R. 5440,
Gen. Assemb., Jan. Sess. (R.I. 2011); see also Alan Schwarz, Despite Law, Town Finds Concussion
Dangers Lurk, N.Y.
TIMES, Sept. 23, 2010, at B15.
101. See Schwarz, supra note 101.
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184 MARQUETTE SPORTS LAW REVIEW [Vol. 23:1
schools institute baseline testing, but most schools have declined to do so
because it is not required by the Lystedt Law, it is not recommended by their
insurance or the WIAAWA, and the schools are worried about liability in
instances where the testing is not administered correctly and a child is allowed
to come back before he is ready.
102
Other than issues of liability, schools do not require baseline testing due to
the cost of implementing the program.
103
However, when a child could be at
risk of suffering from second-impact syndrome because the school did not
have baseline testing, no amount of money is too great. Refusal by the schools
to implement a program that could increase safety for students exemplifies the
constraints of the youth concussion laws.
104
The youth concussion laws are
not effective when they do not require baseline testing and schools fear
liability when they could voluntarily put a great program into action.
Additionally, the youth concussion statutes cannot be effective when the
laws do not require medical professionals to be on the sidelines. Lawmakers
were concerned with the ability of rural communities to meet such a
requirement due to cost.
105
For example, the Lystedt Law does not include
such a provision,
106
and without the requirement only thirty-four percent of
high schools in Washington have trainers who are knowledgeable about
concussions.
107
In rural Sequim, Washington, a junior varsity player who
sustained a concussion was not examined on the sidelines by any professional
because medical professionals only attended varsity games.
108
As a result, the
player’s parents had to drive their son to a fire station so that an ambulance
could take him to the hospital.
109
Even though the laws require coaches,
parents, and students to become educated about the signs of concussions,
110
the presence of a trainer on the sideline who has specialized instruction in
concussions is an important component to increase safety for student-
athletes.
111
Even outside rural communities, there have been issues regarding
102. Id.
103. Diehl, supra note 21, at 117.
104. Schwarz, supra note 101.
105. Id.
106. See generally Zackery Lystedt Law, W
ASH. REV. CODE § 28A.600.190 (2012); see also
Schwarz, supra note 101.
107. Schwarz, supra note 101. In the United States overall, only forty-two percent of high
schools have trainers who are knowledgeable in concussions.
108. Id.
109. Id.
110. See § 28A.600.190(2).
111. Schwarz, supra note 101.
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implementing the concussion laws and ensuring student safety. Boston
University researchers approached a youth football program to provide trainers
at games and practices to monitor for concussions and coordinate treatment.
112
The football program declined the offer due to “time and administrative
issues.”
113
Similar to the reasons why schools have declined to implement
baseline testing, the youth football club may have had some fear of liability
associated with allowing these volunteers to be on the sidelines. While cost
has also been cited as a reason for not requiring medical personnel on
sidelines, no excuse exists to deny young kids the extra protection needed
when individuals who are competent in detecting concussions volunteer their
services.
Furthermore, the laws are certainly not effective when medical personnel
are vague in their written return to play authorization. While the following
situation may not be representative of how the law has been implemented,
even one child who could be at risk for returning to play before he is
completely asymptomatic is a problem. Another football player in Sequim,
Washington was given discharge papers at the emergency room that stated,
“[m]ay return to sports when able.”
114
It is entirely possible that these
discharge papers may not satisfy the law’s requirement that written
authorization must be given before a child may return to play. There is also
the possibility that it could be enough, which would place the child in danger
when he feels he is able to return to play but he is not actually symptom-free.
The emergency room doctor should have written that further evaluation by the
child’s primary doctor was required before activity could resume. This one
example demonstrates that the law has not been effective when doctors do not
provide the medical advice requested by the law, which requires athletes to be
completely asymptomatic before returning to play. Children returning to play
before being symptom-free is still a problem even in the state where the first
youth concussion law passed. Related to the effectiveness of the youth
concussion statutes is the potential liability associated with the concussion
statute.
B. Liability or Lack Thereof Associated with the Youth Concussion Statute
It is hard to enforce a law that does not provide a deterrent, that is, where
somebody who violates the law is not held accountable. According to NFL
Health and Safety, the youth concussion statutes do not impute greater liability
112. Id.
113. Id.
114. Id.
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186 MARQUETTE SPORTS LAW REVIEW [Vol. 23:1
on those individuals affected by the laws.
115
In general, the youth concussion
statutes will decrease liability because the statutes create a consistent standard
that everyone must follow.
116
Without the youth concussion laws, school
districts would likely have had their own standard, forcing coaches and
doctors to keep track of several different standards. As a result of the uniform
rules, the concussion statutes should decrease litigation, as coaches and other
parties will have better knowledge to deal with concussions, which will
consequently decrease injuries.
117
However, there are still issues with the
liability, or lack thereof, associated with the laws, including the possibility of
holding some individuals potentially liable while others are seemingly exempt.
Legislators were concerned about the potential liability associated with the
laws. Liability is the main reason the Idaho youth concussion statute only
included the education component of the model legislation at first.
118
The
Idaho State Affairs Committee questioned the potential liability of coaches
when they are asked to remove a player who is suspected of sustaining a
concussion.
119
Similarly, one Washington senator voted against the Zackery
Lystedt Law.
120
He was worried about who would be held accountable for the
decision to remove a player from a game or practice.
121
In fact, the Lystedt
Law does not mention who should remove the player, only that the player
“shall be removed.”
122
The liability concerns are not without merit. In general, the concussion
statutes remove negligence liability for volunteers who allow a player to return
to play.
123
But there is no mention of removing the coach’s liability, or
anyone else’s liability for that matter, for civil damages for not taking a child
out of the game. A coach is there to manage the game and may not be as
attentive as needed to determine whether a player has suffered a
concussion.
124
The Wisconsin concussion statute actually addresses the
liability concern for coaches by removing civil liability for “[a]ny athletic
coach, official involved in an athletic activity, or volunteer who fails to
remove a person from a youth athletic activity [who is suspected of having a
115. Youth Concussions FAQ, supra note 95.
116. Id.
117. Wilson, supra note 8, at 275.
118. See I
DAHO CODE ANN. § 33-1620 (2010) (The statute section was later changed to 33-
1625).
119. Spence, supra note 62.
120. Anderson, supra note 97.
121. Id.
122. Zackery Lystedt Law, W
ASH. REV. CODE § 28A.600.190(3) (2012).
123. See § 28A.600.190(4).
124. Spence, supra note 62.
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concussion].”
125
Other coaches, in states where liability is not clearly defined,
should be wary of liability and the ambiguity associated with the law
regarding who is actually responsible for removing a player who may have
sustained a concussion.
1. Potential Liability of Coaches
Coaches can be liable for their actions regarding student-athletes.
126
Every coach is held to the standard of a reasonable coach.
127
A coach’s duties
that come into play with the concussion statutes include (1) a duty to provide
adequate supervision and (2) a duty to provide swift and proficient medical
assistance.
128
Under the duty to provide adequate supervision, the coach is
required to reasonably supervise games and practices.
129
For instance, a coach
could breach the duty of adequate supervision by encouraging a player who
has been hurt to continue to play.
130
Under the duty to give swift and
proficient medical assistance, a coach needs to know if medical staff is
available and, if not, a coach needs to determine where the medical staff will
be.
131
Therefore, when coaches have an injured athlete, they have the
responsibility to give aid before emergency help arrives and to send a player to
receive medical assistance.
132
Coaches need to be aware of these general
duties so they do not act below the standard of care.
Although coaches must not breach their general duties and are ordinarily
held to the standard of care of a reasonable coach, under the youth concussion
statutes, a coach may be held to a higher standard of care.
133
In Cerny v.
Cedar Bluffs Junior/Senior Public School, the Nebraska Supreme Court
determined the standard of care of a coach to be “that of the reasonably
prudent person holding a Nebraska teaching certificate with a coaching
endorsement.”
134
The coaching endorsement required “familiarization with
the common symptoms of a concussion in order to enable a coach to make a
reasoned determination of when to withhold a student athlete from
competition until a medical professional evaluates the athlete and clearance is
125. WIS. STAT. § 118.293(5)(a) (2012).
126. See G
LENN M. WONG, ESSENTIALS OF SPORTS LAW 110–17 (4th ed. 2010).
127. Id. at 110.
128. See id. at 110–17.
129. Id. at 111.
130. Id.
131. Id. at 115.
132. Id. at 116.
133. Wilson, supra note 8, at 275.
134. 628 N.W.2d 697, 706 (Neb. 2001).
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188 MARQUETTE SPORTS LAW REVIEW [Vol. 23:1
obtained.”
135
According to Cerny, a majority of coaches would likely be held to a
standard of care that includes concussion education.
136
Overall, the youth
concussion statutes require coaches to be educated about concussions.
137
For
example, the Lystedt Law requires the WIAAWA and each school district to
come up with concussion guidelines and information to disseminate to
coaches.
138
Most statutes have a very vague education requirement, which is
put into action with the help of the school districts and athletic associations. A
court would likely find even the vague education element of the youth
concussion law analogous to the Nebraska coaching endorsement because the
law charges the state’s athletic association to implement explicit education
guidelines.
139
Either way, a coach needs to be very cautious of his potential
liability under the youth concussion statutes.
2. Potential Liability of Medical Personnel
Another group of people who may need to be cautious are medical
professionals. Medical professionals are held to different standards of care
depending on the certificates and training they hold.
140
For example, a
concussion specialist is held to a higher standard of care than a general
practitioner.
141
Notwithstanding the youth concussion statutes, a doctor who
does not diagnose a concussion and allows a player to play has the potential to
be liable for negligence.
142
But a doctor will not be negligent as long as his
decision is within the realm of the accepted standard of care for a doctor.
143
The youth concussion statutes require certain medical professionals to
provide written clearance for players to return to play.
144
This responsibility
seems to hold medical professionals, who make the written authorization,
liable for negligence. However, the youth concussion statutes remove liability
for medical professionals who are volunteers and authorize a child to return to
135. Id.
136. See Wilson, supra note 8, at 271.
137. Lystedt Law Overview, supra note 55.
138. Zackery Lystedt Law, W
ASH. REV. CODE § 28A.600.190(2) (2012).
139. The Colorado concussion statute requires coaches to participate in concussion training
annually, which would definitely lead to a higher standard of care like in Cerny. See Jake Snakenberg
Youth Concussion Act, C
OLO. REV. STAT. § 25-43-103(b) (2012).
140. W
ONG, supra note 127, at 138.
141. Wilson, supra note 8, at 279.
142. Id. at 276.
143. Id. at 277–78.
144. Lystedt Law Overview, supra note 55.
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play.
145
The statutes do not define who is considered a volunteer. A volunteer
is usually someone who is not being paid.
146
Therefore, it would seem that a
student who goes to his normal doctor to be cleared would not be covered, that
is, not protected from liability, under the statutes since the doctor received pay
for his services. Wisconsin’s youth concussion statute remedies this issue by
stating it “does not create any liability for . . . any person.”
147
Medical professionals in other states should also be concerned about
liability because a young athlete is less likely to go to a concussion specialist
and more likely to be seen by either an emergency room doctor or his
pediatrician who is not specialized in the diagnosis and treatment of
concussions.
148
It is entirely possible that a child may be cleared to play who
has not fully recovered, and the medical doctor could be subject to liability.
Although there may be a potential for liability, youth concussion statutes
are helpful in decreasing liability. Doctors will be more cautious and wait a
longer period of time before authorizing a child to return to play. Similarly, as
a result of the youth concussions law, medical personnel may be more aware
of the concussion protocol and have a better understanding of how to make
sure a player is fully recovered from a concussion.
149
VI.
CONCLUSION
Concussion laws are essential to increasing safety in youth sports. All
three elements of the Lystedt Law model legislation are important. Coaches,
athletes, and parents need to be educated about the severity of a concussion.
Education will create cooperation to make sure the athlete who suffered the
concussion is taken out of the game and will not participate until completely
symptom-free and cleared by a medical professional. Every state should pass
a concussion law that contains, at minimum, the three model elements of the
Lystedt Law so children can at least be protected more than if there was no
statute.
Still, there are obvious faults with the legislation, as there are seemingly
145. See Zackery Lystedt Law, WASH. REV. CODE § 28A.600.190(4) (2012). The WIAAWA
allows the following medical personnel to authorize players to return to play: medical doctors, doctors
of osteopathy, advanced registered nurse practitioners, physician assistants, and licensed certified
athletic trainers. Licensed Health Care Providers, supra note 50.
146. B
ALLENTINE’S LAW DICTIONARY 1352 (3d ed. 1969) (defining volunteer as “One who
works for another without engagement of services.”)
147. W
IS. STAT. § 118.293(6).
148. Wilson, supra note 8, at 279.
149. The athletic associations provide return to play programs. See Concussions, supra note
29.
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no penalties or fines for violating the rules. States may not be able to
implement the law as easily as they might have thought. Zackery Lystedt and
his family made it their mission to pass a concussion law in Washington so
that no other family would have to go through what they continue to tackle
every day. However, it is entirely possible that other youth athletes may suffer
the same fate as Zackery Lystedt because a coach or athlete did not take the
concussion law seriously since the law does not have any penalties for
noncompliance.
States should require baseline testing and medical professionals to be on
the sidelines to further increase protection for youth athletes. Schools worry
about the cost of these requirements, but schools could ask athletic trainers or
other medical professionals to volunteer their time and solicit parents to help
with the cost of baseline testing. Legislators should at least implement a fine
for those who do not obey the law. Since cost is a concern for youth sports
organizations, a fine is a suitable deterrent, as the organizations do not have
the money to spend on fines. For those that end up having to pay the fine, the
money could go to a concussion education fund.
The current laws have no legal penalties or fines in the laws themselves,
but the natural penalty for not following the law could mean the end of a
playing career, or much worse, for an athlete. At this point, with no
enforcement measures written into the law, the natural consequences have to
be an appropriate deterrent for coaches, parents, athletes, and medical
professionals to abide by the law. For others involved, the threat of litigation
can possibly deter them from noncompliance. In the future, all states will have
passed a concussion law and will continue to improve on those laws, like
adding penalties for noncompliance.
