Federal Judge Finds for School District, Others in Concussion Case

(Editor’s Note: What follows is a brief excerpt from a case summary in the June 2015 Concussion Litigation Reporter. For more details on the case and numerous others, please subscribe at http://concussionpolicyandthelaw.com/subscribe/)

A federal judge has dismissed the lawsuit of a high school student athlete in a case that tested the limits to which public high school coaches, administrators and school districts can be held liable for concussions sustained by student athletes during interscholastic competition.

In so ruling, the court found that the defendants’ conduct did not abridge the plaintiff’s Constitutional rights. In addition, the defendants are immune from the state’s tort liability law. However, the plaintiff may file an amended complaint with regard to some aspects of her claim.

The plaintiff, now 17, suffered the concussion during a preseason soccer scrimmage in 2012. The plaintiff collided with another player while going for a header. The plaintiff alleged that she heard the opposing coach say she should be taken out of the game. One of her teammates allegedly told the coach that the plaintiff had been hit in the head and needed to come out of the game to be evaluated. The plaintiff stayed in for the rest of the game, during which time she had collisions with other players and headed the ball several more times. She began to experience headaches on the bus ride home from the scrimmage. The next day, she was dizzy and had black spots in her field of vision.

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NCAA Concussion Lawsuits a Plea for Strict Liability

(Editor’s Note: What follows is a brief excerpt from a contributed article in the June 2015 Concussion Litigation Alert. For the rest of the article and numerous others, please subscribe at http://concussionpolicyandthelaw.com/subscribe/)

By Barbara Osborne, J.D.

University of North Carolina at Chapel Hill

As of this writing, the NCAA Concussion Litigation settlement has still not been approved.  U.S. District Court Judge Lee rejected first settlement, expressing uncertainty whether the $70 million testing fund was enough and lack of clarity in the way that the NCAA would enforce its concussion management policy.  The new offer, filed April 15, 2015, does not specify a limit on the amount of funding to provide testing for student-athletes and former student-athletes who have suffered brain injuries.

While NCAA-bashing has become a popular sport of its own, the plaintiffs in the various lawsuits are misguided in directly their claims at the NCAA.  The NCAA is a voluntary membership association; schools are not required to join an association.  If a school chooses the join, they assume the responsibility of following the rules.  However, the concept of institutional autonomy is a bedrock principle of NCAA membership.  Schools independently determine how to manage their athletics programs and are only subject to NCAA interference if they violate an NCAA rule.

Article 3 of the NCAA Constitution delineates expectations for members.  All active members are required to have a Concussion Management Plan ( since August 2010.  In January 2015, requirements for a Concussion Safety Protocol ( and to provide that information to a Concussion Safety Protocol Committee ( were added.  The addition of these requirements to the organizational constitution begs the question:  do these rules establish a duty by the NCAA to student-athletes relative to head injury?   If so, should the NCAA be liable for student-athletes who suffer head injury as a result of athletics participation?

The basic elements of a negligence claim are duty, breach, causation and damage.  Duty is established by a special relationship between the parties or by statute.  Historically, the NCAA does not have a duty to protect student-athletes, as they are not members of the NCAA.  Student-athletes are third party beneficiaries of the relationship between the NCAA and the member school.  As such, the duty to provide a safe program for student-athletes lies within each member institution.  However, if one were to equate the constitution and bylaws of the organization with that of our governing Constitution and statutes, it is possible to make a straight-faced argument that the NCAA voluntarily assumed a duty through these membership requirements.

Assuming that duty was established by the membership requirements, an injured student-athlete would still have to prove breach and causation in order to succeed in a negligence claim.  Breach could be established if … (to read more, please subscribe at the link above.)

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Measure Announced Today Could Lead to More Athletic Trainers for Underserved High Schools

At the National Athletic Trainers’ Association (NATA) 66th Clinical Symposia and AT Expo in St. Louis today, the NFL Foundation, NATA, Gatorade and the Professional Football Athletic Trainers Society (PFATS) announced the expansion of the athletic trainer outreach program for the 2015-2016 school year, funding additional athletic trainers in underserved high schools nationwide. The groups will contribute more than $2 million to the program, doubling last year’s $1 million contribution, as well as provide educational resources, hydration solutions, equipment and programmatic support.

In August, a nationwide contest will launch to give high schools across the country an opportunity to win funding for athletic trainers to help ensure the safety of their youth athletes. In addition, NFL teams will continue to provide athletic trainers in NFL communities where they are most urgently needed, building on efforts started by the Chicago Bears in 2013 and taken up by 16 NFL teams in 2014. To date, the outreach program is impacting more than 160,000 youth athletes across more than 670 schools nationwide.

“The NFL Foundation is proud to expand this program to more schools keeping more athletes of all levels safer,” said Dallas Cowboys Executive Vice President Charlotte Jones Anderson, chair of the NFL Foundation. “We are pleased that Gatorade is joining NATA, PFATS and NFL teams as we continue improving youth athlete safety across all sports for boys and girls by making available athletic trainers across the country.”

“The National Athletic Trainers’ Association continues to champion the need for increased athletic trainers and the importance of sports safety protocols in high schools across the country,” said NATA President Jim Thornton, MA, ATC, CES. “With just 37 percent of all high schools having full-time athletic trainers, we know the expanded NFL Foundation high school initiative with the support of NATA, Gatorade and the Professional Football Athletic Trainers Society will help to ensure best practices are in place for underserved schools. Together, we will improve the quality of health care young athletes receive.”

“We know how important secondary school athletic trainers are to the health and safety of the over eight million U.S. high school athletes – which is why supporting this profession has been a focus of our 30+ year partnership with the NATA,” said Jeff Kearney, senior director, Gatorade Sports Marketing. “We believe this program is an important step toward the ultimate goal of having a full-time athletic trainer in every high school in the country, and we couldn’t be more excited to support the NFL and NATA’s efforts.”

“The Professional Football Athletic Trainers Society has a longstanding commitment to youth sports safety and recognizes the important role we play in providing NFL athletic trainers on-site at schools for additional expertise and education,” says Rick Burkholder, MS, ATC, PFATS president and head athletic trainer of the Kansas City Chiefs. “Our collaborative work with the NFL Foundation, NFL teams and NATA in year one of this program had such terrific impact and success that we know this expanded effort, now with Gatorade’s support, will make a difference in the health care these young athletes receive.”

In May 2014, at the first-ever Healthy Kids and Safe Sports Concussion Summit at the White House, President Obama announced the NFL Foundation was committing $25 million to test and expand health and safety projects over the next three years. That commitment included $1 million to fund athletic trainers in underserved high schools nationwide in 2014 in collaboration with the National Athletic Trainers’ Association and the Professional Football Athletic Trainers Society.

Athletic trainers play an important role in keeping young athletes safe. According to a new benchmark study, just over one third of every high school in the United States has at least one full-time athletic trainer.  A study from the American Academy of Pediatrics showed that the presence of athletic trainers can have a significant positive impact on student-athlete health, resulting in lower injury rates, improved diagnosis and return-to-play decisions for concussion and other injuries, and fewer recurrent injuries.

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