Tag Archives: professor

The Legal Design for Parenting Concussion Risk

Katharine Silbaugh,Professor of Law and Law Alumni Scholar at the Boston University School of Law, recently published a 74-page article entitled “The Legal Design for Parenting Concussion Risk.” The full article can be found at https://scholarship.law.bu.edu/faculty_scholarship/791/

The abstract follows:

This Article addresses a question as yet unexplored in the emerging concussion risk literature: how does the statutorily assigned parental role in concussion risk management conceptualize the legal significance of the parent, and does it align with other areas of law that authorize and limit parental risk decision-making? Parents are the centerpiece of the “Lystedt” youth concussion legislation in all fifty states, and yet the extensive legal literature about that legislation contains no discussion of parents as legal actors and makes no effort to situate their statutory role into the larger legal framework of parental authority. This Article considers the Lystedt framework from the perspective of other law engaging parental authority and parental decision-making, placing Lystedt’s parental role in that larger family law framework. That lens reveals that the Lystedt legislation may be using the cultural capital of parental authority to shield youth athletic leagues from having to fully grapple with concussion risk. Under the Lystedt framework, parents are unwittingly functioning as an impediment to safety improvements, shielding athletic associations from conventional pressures to improve. The operation of Lystedt is in this way a departure from related areas of law that set boundaries on parental authority to accept risk of injury on behalf of a child, including limitations on the enforcement of parental waivers of liability. Finally, Lystedt unrealistically elevates parental responsibility without adequately providing parents the capacity and opportunity to be effective protectors of their children’s welfare. I argue that in a time of intense cultural ambivalence about concussion risk in athletics, the rich concept of parental authority is expropriated in the Lystedt concussion statutes to avoid threats to the structure of youth sports that would otherwise be vulnerable to pressures to change in order to reduce concussion risk. The NFL lobbied states to adopt this legislation, under which parents function to preserve the status quo.

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The NFL Concussion Settlement and the Ethics of Informed Choice

(Editor’s Note: What follows is an execrpt from an exclusive article written by Richard Robeson and Nancy M. P. King for the February issue of Concussion Litigation Reporter. The authors are professors from Wake Forest University)

In January 2014, Judge Anita B. Brody rejected1 the terms of a class action settlement between the National Football League (NFL) and a litigation class consisting of former NFL players with concussion-related health issues and the descendants and heirs of deceased players whose deaths were related to concussions — mild traumatic brain injury (MTBI) — sustained during their playing careers. Although the amount of the settlement was agreed to by both plaintiffs’ attorneys and attorneys for the NFL, Judge Brody expressed concern that its $765 million cap would be inadequate to the medical and financial needs of not only the more than 5, 000 former players who filed suit but also some 18, 000 former players who would be eligible over the settlement’s 65-year term.2 Judge Brody therefore ordered the cap to be lifted and the settlement renegotiated. Some current players also expressed dissatisfaction with the settlement, with one player pointing out that $765 million divided by the League’s 32 teams was equivalent to one-third of the average one-year salary per team.3 Another player called it “hush money,”4 because one of the conditions of the agreement was that the NFL would not admit to any wrongdoing regarding its handling of concussions or its own concussion research.5

The renegotiated settlement approved in April 2015 by Judge Brody is now worth $1 billion;6 and over the last several years the NFL has drastically altered how it handles possible concussions7 and Return-to-Participation.8 Even so, the settlement’s exclusions9 — not least among them being that no one who retired after July 7, 2014 can benefit — have been the cause of yet more recrimination and appeal. Some plaintiffs are especially dissatisfied that chronic traumatic encephalopathy (CTE), a degenerative brain disease that is associated with repeated concussions (recurrent MTBI), is a diagnosis that is expressly not covered by the settlement.10 This latter exclusion is the essential cause of the appeal, a ruling upon which is anticipated early this year. These putative shortcomings have significant implications for current players, including how the matter of informed consent may be regarded. … (To read more, subsccribe here.)

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Northern Illinois University Faculty Delving into Concussions

NIU faculty delving into concussions | NIU Newsroom

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