Why Football Safety Is Best For The Courthouse, Not The State House

Earlier this year, Illinois State Rep. Carol Sente floated a bill that would limit tackling practices to once a week for high school football players. Sente’s proposed legislation brought a storm of criticism from all sides, and by the end of February she was sort of calling an audible, telling a public forum at Vernon Hills High School that she became convinced that football players in fact need more time learning how to tackle, not less.

Last week, the bill was voted down 6-5 in the state Elementary and Secondary Education Committee and subsequently tabled.

Sente’s stalled effort is indicative of the challenge lawmakers face in trying to make a fundamentally unsafe game safer. And while public servants will no doubt be compelled to try to tackle the problem in state houses and the U.S. Congress, as they have in recent years, the courthouse is likely where change will have to come.

Right now, there are more than 4,000 plaintiff players with lawsuits pending against the National Football League for claims arising from a history of concussions over the years, many leading to a condition called chronic traumatic encephalopathy (CTE). Some studies suggest that 53 percent of high school athletes nationwide have suffered at least one concussion before entering high school.

With such daunting statistics, a growing number of experts are recommending that tackle football be eliminated altogether for youth players under the age of 14. Sente’s practice-curbing bill was noteworthy because it addressed the high school safety problem through a change in the statutes, rather than a mere revision of the Illinois High School Association (IHSA) football guidelines.

More state legislatures will likely follow suit, as they already have done in Texas, with a new bill to limit the number of full-contact practices in both high school and middle school. But in the near future, the courts will likely be a more effective forum to address football safety issues because they are less constrained by politics and can tip the liability equation radically and more swiftly.

And Illinois might be the perfect laboratory for change.

Some history: Before 1975, the Illinois courts did not even recognize legal causes of action for negligent, reckless, or even willful conduct on the field of play. A principle called the “contact sports exception” insulated players from liability to each other, because even negligent play was an assumed risk of the game. After 1975, however, the courts began to allow civil damages for certain intentional and reckless sports injuries, overriding the contact sports exception for specific forms of malevolent conduct. Now, Illinois is one of at least 15 states whose courts allow players to sue each other for intentional or reckless action.

The Illinois approach applies to all contact sports, and even applies to pick-up games and other playground activities so long as there is a general understanding among participants about what the rules and the expectations of the game are.

In the Chicago suburb of Countryside, a child was injured playing a game called “bombardment,” which operated like dodge ball except with harder objects such as softballs. He was deemed a willing participant in the game, and therefore he could sue only for intentional misconduct, not for negligence. Similar reasoning was applied to a children’s playground game at Chicago’s Immaculate Conception Grammar School, which went by the unfortunate name, “killer ball.” As a result of these cases, schools have been increasingly mindful of safety and liability issues, and have made efforts to prohibit more violent schoolyard activities.

Killer ball, a severe variation of the game “Keep Away,” was banned on school property by Immaculate Conception, even before an injury led to a 1999 court ruling that insulated the defendant from liability on grounds that he had voluntarily assumed the risk of injury. The exceptions to the rule, namely reckless or intentional conduct, raise the stakes of liability and will almost certainly curtail malevolent gamesmanship as a strategy, such as injuring star players to get them out of the game.

For an inherently rough sport like football, there is also a fine line between physical play and actual criminal conduct like battery.

So far, American courts have been reluctant to impose criminal sanctions when play gets out of hand, but that may change for three reasons: criminal accountability is already recognized in nearby Canada; American courts are recognizing and addressing civil liability for reckless and intentional play more frequently; and contemporary technology makes the evidence and facts easier to gather for purposes of proving what happens in real time.

In 2000, A Canadian court convicted former NHL enforcer Marty McSorley of assault, following his infamous stick-slashing incident against Donald Brashear. One reason American courts have historically stayed away from regulating on-field conduct is the blur of “he said, they said” game activity.

But today, nearly every professional and numerous college games are broadcast, while myriad cell phones and video cameras capture the play in high school, middle school, Pop Warner, and little leagues. Courts, therefore, will be better able to assess liability and mete out penalties, for the simple reason they will be equipped with better evidence.

It’s taken a long time to get to this point.

One of the most notable American on-field criminal cases actually occurred in Illinois in 1999 when a 15-year-old New Trier High School hockey player named Neal Goss was blindsided at the end of a game and left permanently paralyzed from the collision.

Eventually, his perpetrator was successfully prosecuted, but only because the buzzer had gone off seconds earlier—and thus the attack was deemed a battery immediately after the game. Had the same injury occurred ten seconds sooner, even with the same motives, the Illinois courts probably would not have recognized any culpability.

Another Illinois incident famously occurred in Chicago on Nov. 23, 1986 when the Green Bay Packers took on the Bears at Soldier Field. After a pass play was long over, Bears quarterback Jim McMahon was trotting to the sidelines when Green Bay defender Charles Martin circled to McMahon’s back, upended him, then body-slammed the quarterback into the turf, ending McMahon’s season and Chicago’s hopes of a Super Bowl repeat.

Had McMahon pursued legal action, Martin and possibly the Packers may have been liable for damages. Martin might have been prosecuted criminally, too, because there not only was a video record of what Martin did, there was also video evidence of premeditation from a Packer hit list of targeted Bears players on various towels worn by the Green Bay players that day.

McMahon was on that list along with four others, including Walter Payton. The incident probably should have raised the NFL bounty issue 25 years sooner than the New Orleans Saints scandal of last year. And if the McMahon incident were to occur today, there would be a greater likelihood of a lawsuit, if not criminal prosecution.

Given the increasing court tolerance for sports liability cases and the evolving status of the law, together with better and more prevalent video recordings, these same principles will almost certainly be tested one day by an Illinois high school incident. Imagine a high school hit list against opposing players that results in a severe injury, all caught on tape. Not only would the assailant be exposed to civil liability, but there may also be a provable conspiracy against the coaches. The possibilities are vast.

Given the renewed focus on CTE and other serious concerns, the NFL will not be immune from liability, and certainly younger players, coaches, and programs will be held accountable. If the conduct is egregious or the injury tragic, or both, it could be enough to change the norms about football accountability.

Football can be made safer, but it can never actually be safe. This is the dilemma behind changing football for the better, and why it is so difficult to evoke voluntary change from the sport itself. The NFL has curtailed kickoffs because of the inherent dangers, for example, but it could not bring itself to eliminate them altogether, expressly preserving some of the danger.

State legislatures trying to fill in the gaps will be met with the predictable resistance Sente faced. Even limiting practices creates an inescapable sports and political conundrum: it’s better to tackle and hit less often, but it’s also good to teach safe tackling with more practice. In the end, such issues of safety and liability will continue to find their way to the courts not as a last resort, but as a first resort, and the courts will be forced to react. If paralysis or some other traumatic injury becomes more common for youth football, prosecutors will take note.

They may be unable to prosecute a youth football player, but there will be more grassroots support for them to respond to aggressive high school conduct. As for the younger leagues, the most effective solution will be to eliminate tackle football altogether for children under the age of 14, since the kids cannot be prosecuted or sued, and no one knows the lasting effects of head trauma and CTE incurred at their level.

Since courts can only react to a situation in the form of an actual case, state legislatures could still take the lead by acting before the known dangers escalate. One way would be to hold hearings and, presumably, to eliminate organized tackle football for players under the age of 14. The governing IHSA could be more aggressive with new rules to mandate more training and to limit unnecessary collisions and injuries, much like the original NCAA did in 1906 at the behest of President Teddy Roosevelt, in response to a rash of football deaths across the country.

If none of this occurs voluntarily, the courts will invoke mandated change by finding more liability, money damages, and even criminal culpability—one case at a time.

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