NFHS Sparks Controversy With Position Paper Claiming No Linkage Between CTE and Playing High School Football

Editor’s Note: Dr. Karissa L. Niehoff is in her second year as executive director of the National Federation of State High School Associations (NFHS) in Indianapolis, Indiana. She is the first female to head the national leadership organization for high school athletics and performing arts activities and the sixth full-time executive director of the NFHS. Clearly, Dr. Niehoff, who was previously executive director of the Connecticut Association of Schools-Connecticut Interscholastic Athletic Conference for seven years, is not afraid to take a position as evidenced by the following paper she released through the NFHS last week.

When it comes to the long-term effects of concussions in sports, there is a wide range of information published – almost on a daily basis. Unfortunately, much of the media coverage as it relates to high school sports – and particularly the sport of football – is misleading.
Last week, the Concussion Legacy Foundation introduced its new public-service announcement that compared youth football dangers to smoking. As the pre-teen football players puff on cigarettes, the voiceover says, “Tackle football is like smoking, the younger I start, the longer I’m exposed to danger.”
The “Tackle Can Wait” campaign by the foundation is an attempt to steer children under the age of 14 into flag football. Although establishing a finite age may be difficult, reducing contact at youth levels is certainly a positive. USA Football is doing just that nationally through its Football Development Model. Likewise, the 51-member state associations of the National Federation of State High School Associations (NFHS) have enacted limitations on contact during preseason and practice sessions.
Our concern is the term “exposed to danger.” These types of messages continue to spread unwarranted fear to parents of high school student-athletes. The “danger” refers to reports that players who incur repeated concussions can develop chronic traumatic encephalopathy (CTE).
A 2017 study from the Journal of American Medical Association (JAMA) linked CTE in the brains of deceased National Football League players. Even if this report is accurate, these are individuals who endured repeated blows to the head for 20 to 25 years BEFORE any concussion protocols were in place.
Less publicized is a study by Dr. Munro Cullum and his colleagues at the Peter O’Donnell Jr. Brain Institute, which is a part of the University of Texas Southwestern Medical Center in Dallas. Cullum’s group studied 35 former NFL players age 50 and older who had sustained multiple concussions throughout their careers. The findings showed no significant association between the length of the individuals’ careers, the number of concussions and their cognitive function later in life.
Two studies, two different conclusions. Regardless of the outcome, however, they are not applicable to kids playing football before and during high school. There is absolutely no linkage to CTE at these levels, and the word “danger” should not be a part of the discussion.
A more applicable and significant study was also published in JAMA in 2017. In a study of about 4,000 men who graduated from Wisconsin high schools in 1957, there was no difference in cognitive function or decline between those who played football and those who did not as they reached 65 years of age. We would assume the majority of these individuals discontinued football after high school.
With more than one million boys – and girls – playing the contact sport of football each year, severe injuries do occur from time to time, but parents should know that efforts to lessen the risk of a catastrophic injury, including head injuries, have never been stronger than they are today.
In fact, new data from the National High School Sports-Related Injury Surveillance Study indicates some positive trends in concussion rates. The study, which was released in the American Academy of Pediatrics online issue of Pediatrics this week, indicated that concussion rates during football practices dropped from 5.47 to 4.44 concussions per 10,000 athletic exposures between the 2013-14 and 2017-18 seasons.
In addition, repeat concussion rates across all sports declined from 0.47 to 0.28 per 10,000 exposures during the same time period.
Concussion laws are in place in every state. All NFHS sports rules books have concussion management protocols. Helmet-to-helmet hits are not allowed in football. Limits on contact in preseason and practice in football are in place in every state.
After considering all the available research, we encourage parents to let their kids play their sport of choice in high school, but we would discourage moving away from football – or any contact sport – solely based on the fear of developing CTE later in life.
 
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Montgomery McCracken Launches Sports Medicine Law Newsletter

Montgomery McCracken is pleased to announce that the firm has partnered with Hackney Publications to launch Sports Medicine and Law, a complete source for news, case summaries, articles, and strategies concerning sports medicine and the law, whether they arise at the professional, collegiate, high school, and amateur levels. Members of Montgomery McCracken’s Sports Injury Practice, including partner Steven Pachman and associates Dylan Henry and Kim Sachs, will serve as editors. Sports Medicine and Law is provided free to members of the sports industry, and readers can subscribe here.

Montgomery McCracken’s Sports Injury practice defends and advises colleges, universities, and high schools, medical professionals (physicians, athletic trainers, and nurse practitioners), coaches, and organizations on a national basis since 2005 in traumatic brain injury (TBI) cases, with a focus on concussion, second impact syndrome, and chronic traumatic encephalopathy (CTE).

Pachman is a partner in Montgomery McCracken’s Litigation Department. His practice concentrates on the defense of TBI cases, and representing individuals and school systems in catastrophic sports injury matters arising out of alleged premature return-to-play decisions and other negligence theories in the sports’ context. His representations include a number of high-profile, nationally-publicized concussion and other TBI cases against NCAA member colleges and universities, high schools, and school personnel, including athletic trainers, coaches, physicians, and nurse practitioners. These cases involve catastrophically-injured football players and other athletes who allegedly sustained prior concussions and second impact syndrome as well as players diagnosed with CTE following a post-mortem autopsy of the brain. Pachman also regularly advises school officials and attorneys, risk managers, athletic departments and their staff, and health care professionals on institutional liability issues concerning sport-related concussions, second impact syndrome, and other sport-related injuries.

Pachman is a frequent speaker on legal matters concerning the proper management of sport-related concussions and other sport-related injuries and has authored a number of articles on the topics of how to minimize the risk of legal liability for sport-related injuries and defend against lawsuits arising out of catastrophic sport-related events. Pachman is regularly quoted by national media, including ESPN, The New York Times, The Washington Post, and CBS Sports, and has guest lectured at colleges and law schools, including the University of Michigan, the University of Oklahoma, the University of North Carolina at Chapel Hill, the University of Maryland, Villanova University, and Virginia Tech. Additionally, he has presented before the NCAA, the Big 10, the Big 12, the Ivy League, the National Athletic Trainers’ Association, the College Athletic Trainers’ Society, and the American Academy of Neurology.

Henry is an associate in Montgomery McCracken’s Litigation Department. He focuses his practice on commercial litigation. Dylan counsels individuals, school systems, and organizations on catastrophic sports injury matters, the proper management of sport-related concussions and other sport-related injuries, and TBI matters. He frequently presents and has authored articles on these legal issues and how these individuals and institutions can minimize their risk of legal liability for sport-related injuries and defend against lawsuits arising out of sport-related events.

Sachs is an associate in Montgomery McCracken’s Litigation Department and recently joined the firm’s Sports Injury practice.

About Montgomery McCracken

Montgomery McCracken is a full-service law firm with offices in Pennsylvania, New York, New Jersey and Delaware. The firm represents leading businesses, multinational corporations, nonprofit organizations and individuals across a wide range of industries in complex litigation matters, significant corporate transactions and challenging disputes. For more information about Montgomery McCracken or its practice areas, please visit us online at www.mmwr.com or on Twitter at @MMWR_Law.

About Hackney Publications

Hackney Publications delivers valuable and important information about the legal side of the sports industry. Its overriding mission, through its publications, is to maintain a narrow editorial focus on issues that matter to its subscribers. The company was founded by journalist Holt Hackney, who has spent more than 30 years writing about sports, business and the law. Besides SFL, Hackney Publications also produces Legal Issues in College Athletics, Sports Litigation Alert, Journal of NCAA Compliance, Legal Issues in High School Athletics, Concussion Litigation Reporter, and Professional Sports and the Law.

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District Court Denies Class Certification in Youth Football CTE Case

By Anthony B. Corleto, Daniel H. Lee, Madison A. Kucker, Ian A. Stewart and Patrick M. Kelly, of Wilson Elser

(Editor’s Note: The following appeared along with 8 other articles in Concussion Litigation Reporter.)

In a significant decision, the U.S. District Court for the Central District of California denied plaintiffs’ motion to certify a class of “All persons who enrolled their minor children in Pop Warner tackle football from 1997 to present.” The plaintiffs in Archie v. Pop Warner, USDC CD CA 2:16-cv-06603, sought class certification for statutory unfair competition (UC) and false advertising (FA) claims, under the California consumer protection statutes.

Archie was brought by the mothers of two former youth football players, each of whom died in their mid-twenties, a decade after they last played youth football; one from a self-inflicted gunshot wound, the other in a motorcycle accident. The mothers sued for money damages and to enjoin advertising that “youth tackle football is safe for minor children.” Front and center in the complaint are allegations that exposure to repetitive contact leads to chronic traumatic encephalopathy (CTE), the disease process found at autopsy of the brains of football players Aaron Hernandez and Junior Seau. The plaintiffs in Archie each claim that their son had CTE as the result of playing youth football. Worth noting, each also played football in high school and one played into college.

Focusing on the “predominance” requirement of Rule 23(b)(3), the court observed that each of the communications offered in support of the UC and FA claims were directed to coaches and other youth sport organizations rather than the public, and that class certification is “only available to those class members who were actually exposed to the business practices at issue.” The communications at issue included a website that went live in 2002, internal administrative materials and a 2012 letter to other national youth sport organizations about a meeting to “preserve the youth sports experience.” Plaintiffs also argued that the requirement to use helmets certified by the National Operating Committee on Standards for Athletic Equipment (NOCSAE) was misleading because Pop Warner failed to disclose that there is not a NOCSAE “youth specific” standard and because the warning label does not expressly call out the risk of “repetitive head trauma.” The court concluded that plaintiffs failed to show that the putative class members were exposed to the alleged misrepresentations, or that they were exposed to the allegedly misleading helmets before enrolling.

The court decided the motion on the papers in advance of the scheduled argument date.

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