May 2017, Vol. 5, No. 11

Timely reporting on developments and legal strategies at the intersection of sports and concussions—articles that benefit practicing attorneys who may be pursuing a claim or defending a client.

Contents

Articles

Are State High School Athletic Association Policies Effective for Concussion Management?

John Miller, Troy University
Robin Ammon, University of South Dakota

Many interscholastic athletes, particularly high school football players, are likely to incur concussions while participating in a sport (McCrea, Hammeke, Olsen, Leo, & Guskiewicz, 2004). Copeland (2010) further indicated that 3.4 out of every 1000 athletes suffer a concussion in interscholastic contests or practices. Because of increasing documentation of sport-related concussions, public awareness has also increased. It is, therefore, essential that high school officials such as athletic directors, coaches, and athletic trainers be aware of the standard of care guidelines to manage the risk of concussion that could reduce potential litigation. A primary source of these guidelines may be found in the state athletic association policies.

Currently all 50 states, plus the District of Columbia, have sport-related concussion laws in place (Weinberger & Briskin, 2013).  However, most state courts have expressed a reluctance to interfere judicially with the contractual relationship between a state high school athletic association and its member schools (Mitten, 2014). Courts have also taken the position that they are not in the best position to decide sports disputes and instead defer to sport regulators and voluntary associations to make decisions according to their own rules (Indiana High School Athletic Association v. Carlberg, 1997). Furthermore, Crane v. Indiana High School Athletic Association (1992) suggested that the state governing body’s rules, interpretations, and applications should be published to provide standard of care guideline to its member schools, students, and parents.

The results of a study on state high school athletic association policies for managing sport-related concussions revealed that concussion education policies for more than 70% of high school athletic directors did not exist (Miller & Ammon, 2017). However, nearly 75% of coaches were required to review concussion information or follow the standards set by the National Federation of High School Associations (NFHS). Almost 65% of the state policies required licensed medical personnel such as team doctors to make the final concussion diagnosis.  Disturbingly, more than 5% did not specify a policy as to who is responsible for a final concussion diagnosis. When describing the type of concussion protocols, 48% did not indicate any type of concussion protocols to be followed during a contest. However, 22% followed NFHS policy guidelines. While nearly 50% of the state policies did not specify return to play guidelines, 36% followed NFHS policy guidelines.  Alarmingly, one state policy allowed a concussed high school athlete to return to play after 24 hours. Finally, 58% of the policies indicated that only a medical doctor could provide the final approval to return a high school athlete to play.

The court in Crane (1992) mandated that all policies of state high school athletic associations must be clear and unambiguous, reasonably interpreted in light of their legitimate objectives, and consistently applied. Clearly, this is not the case regarding high school state policies for concussion management.  Without the implementation of standard guidelines to manage the risks of concussions, the potential exists for a concussed player to be placed in a situation that increases his or her exposure to greater harm, thereby increasing the likelihood of possible litigation against the school (Kleinknecht v. Gettysburg College, 1992; Osborne & Ammon, 2012; Pinson v. Tennessee, 1995). Ideally, the implementation and enforcement of standards for education, prevention, and approval for return to play should set a higher standard of care for sports programs relative to athletes who suffer from concussions. While knowledge by itself does not equal appropriate action, a uniform development and implementation of state policies dealing with concussive incidents would create a culture of safety for concussive incidents of high school athletes.

References

Copeland, J. (February 23, 2010). New data suggest shift in college football concussions rate. Retrieved from http://www.ncaafoundation.biz/wps/portal/ncaahome?WCM_GLOBAL_CONTEXT=/nc

Crane v. Ind. High Sch. Athletic Association, 975 F.2d 1315, 1326 (7th Cir. 1992).

Indiana High School Athletic Association v. Carlberg, 694 N.E.2d 222, 1997 Ind. LEXIS 230 (Ind. 1997)

Kleinknecht v. Gettysburg College, 989 F.2d 1360 (3d Cir. 1993).

McCrea, M., Hammeke, T., Olsen, G., Leo, P., & Guskiewicz, K. (2004). Unreported concussion in high school football players: Implications for prevention. Clinical Journal of Sport Medicine, 14, 13–17.

Miller, J. & Ammon, R. (2017). State high school association policies: What are they doing to manage the risks of concussions?  Paper presented at the Sport and Recreation Law Association conference. Las Vegas, NV.

Mitten, M. (2014). Seventh Circuit and the Wisconsin law jurisprudence. Marquette Sports Law Review, 25(11), 207-251.

Osborne, B. & Ammon, R. (2012). Heading off traumatic brain injury: An analysis of concussion legislation in the United States. Paper presented at the North American Society for Sport Management Annual Conference. Seattle, WA

Pinson v. State, 1995 Tenn. App. LEXIS 807 (Tenn. Ct. App. 1995).

Weinberger, B. C., & Briskin, S. M. (2013). Sports-related concussion. Clinical Pediatric Emergency Medicine, 14(4), 246-254.

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The NFL Concussion Case Shows Lawyers at Their Worst

By Jordan Kobritz

Jason Luckasevic, a Pittsburgh attorney, filed the first concussion lawsuit against the NFL in 2011.  Hundreds of lawsuits brought by thousands of former players and their families soon followed, most of which were combined in a class action lawsuit that was settled, sort of, in August of 2013.  What Luckasevic has seen since then led him to tell Outside the Lines that “This case (concussion lawsuit) has done nothing but show lawyers at their worst.”

After several years of motions and cross motions filed by both parties, and the discovery of documents that suggested the NFL may have hidden medical information from the players, the parties agreed to a billion dollar settlement.  Initially, U.S. District Court Judge Anita Brody of the Eastern District of Pennsylvania, who is overseeing the case, had a number of concerns with the settlement.  Those concerns were finally resolved in 2015 when she approved the settlement terms.  However, appeals delayed the final judgment until late last year when the U.S. Supreme Court declined to hear the case. 

Brody retained jurisdiction over the case and earlier this year urged the more than 4,500 plaintiffs to register to receive benefits from the fund prior to the August 7 deadline.  Failure to register by the deadline will prevent players from sharing in the settlement.  More than 3,000 plaintiffs have already registered.   

Even on their good days attorneys have been known to act, well, not so good, but the concussion lawsuit has not been the profession’s shining hour.  Luckasevic’s comments were uttered after watching attorneys involved in the case fight amongst themselves; attorneys attempt to poach clients from fellow attorneys; and lawyers threaten to sue their own clients to insure they receive their retainer fees - upwards of 40 percent of the amount recovered – in addition to their portion of a $112.5 million legal fund set up by the NFL as part of the negotiated settlement.  While the infighting plays out in the courtroom and behind the scenes, none of the plaintiffs or their families has yet to see a dime from the settlement and it may be years before they do. 

The money was intended to compensate former players and the families of deceased players for a range of injuries stemming from concussions suffered during their playing days. Players who suffered the most debilitating injuries – ALS (Lou Gehrig’s disease), Parkinson’s, Alzheimer’s or other severe cognitive impairment – could receive awards up to $5 million each; families of players who were diagnosed with CTE after their deaths are eligible to receive up to $4 million; and payments to players suffering from dementia are capped at $3 million.  The fund also set aside money for medical exams and research.

The settlement was controversial the day it was announced.  Critics were concerned that the amount was insufficient to cover all the damage the game has done to former players.  Others were displeased that the NFL was not required to admit complicity in hiding medical information that tied players’ neurological issues to concussions sustained while playing football.  Furthermore, multiple substantial awards – in the $3-5 million range – would prevent the fund from compensating all the affected players.  The fund was supposed to cover former players for the next 65 years, a term that appears to be highly unrealistic given the number of plaintiffs and the serious injuries that have been alleged.  

The NFL-established legal fund has proven to be confusing and the subject of disagreement as well.  Many plaintiffs were under the impression it would cover all their attorney fees.  However, a majority of the plaintiffs signed contingent fee agreements – typical in such lawsuits - which entitles their attorneys to a 25-40 percent cut of any amount they recover.  It doesn’t take a mathematical genius to figure out that 40 percent of any amount leaves only 60 percent for the intended recipient.  Couple that with the fact a number of attorneys will be double-dipping as recipients of both contingent fees and payments from the legal fund, and it’s safe to say the legal profession has had better days.

The August 7 registration does not signal the end of the controversy, but merely the beginning of the next stage of infighting and disagreement.  Panels will be formed to hear individual claims of injuries and determine the amount of compensation.  Hearings will require medical and other expert testimony and take considerable time, all with the assistance of attorneys, of course.  Those dissatisfied with the outcome of the hearings will file appeals, which will further delay distributions from the settlement fund.  It will take years before all the cases are heard and finalized.   

The legal system was designed in part to protect the little guys from the big guys – those who are better financed and better lawyered.  However, in this case Luckasevic is right:  The only thing certain about the NFL concussion suit is that it has shown – and will continue to show - lawyers at their worst. 

The author is a former attorney, CPA, Minor League Baseball team owner and current investor in MiLB teams. He is a Professor in and Chair of the Sport Management Department at SUNY Cortland and maintains the blog: http://sportsbeyondthelines.com. The opinions contained in this column are the author’s. Jordan can be reached at jordan.kobritz@cortland.edu.

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Pennsylvania Court rules, ‘The NCAA is the Supreme Regulatory Body in College Athletics’ and that It Must Face a Trial

By Paul Anderson, of The Klamann Law Firm

As the NCAA tries to fend off a tidal wave of litigation, its legal defense is quickly eroding. In the latest blow to the NCAA, a trial court in Pennsylvania ruled that the NCAA must face a trial over its alleged failure to protect the health and safety of student athletes.

The case arises from a lawsuit filed by former college football player, Matt Onyshko, who played at the California University of Pennsylvania between 1999 and 2003. He was diagnosed with amyotrophic lateral sclerosis (“ALS”) in 2008. In 2013, he filed a claim against NCAA asserting that the NCAA failed to “adequately supervise, regulate, and minimize the risk of long-term brain injury.”

The NCAA, as it has done repeatedly in litigation, claimed that it did not “owe a legal duty” to protect the health and safety of student athletes. Instead, the NCAA claimed, this duty resides with the member schools. The NCAA doubled down on this assertion and even stated that it “lacks the enforcement mechanisms to implement legislation over its member institutions.”

Flatly rejecting this, the Court stated:

This argument also lacks merit because the NCAA is the supreme regulatory body in college athletics with the stated purpose of ‘hav[ing] a clear moral obligation to make sure we do everything we can to protect and support student-athletes.’

Notably, this “stated purpose” was a quote directly from the NCAA’s President, Mark Emmert, during a congressional hearing where he was grilled by Senator Jay Rockefeller for the NCAA’s tone-deaf response to the Derek Sheely lawsuit. The landmark Sheely lawsuit against the NCAA and other defendants was subsequently settled for $1.2 million.

The Court also rejected the NCAA’s no-duty argument based on “inherent risks” in football. The NCAA often relies on this argument to assert that it has no duty to protect against inherent risks in sports. And since a concussion is an “inherent risk” in football, so the argument goes, the NCAA owes no duty to protect against this risk.

But the Court found that “this argument lacks merit because it oversimplifies and conflates the risk of injury with the negligent treatment, management and prevention of such injuries. While suffering a head injury in the course of playing football is likely a danger inherent to the sport, the negligent treatment and management of such injuries, leading to severe long term damage is beyond the scope of the inherent risk assumed by players.”

This reasoning is consistent with Judge David Boynton’s ruling in the Sheely lawsuit, where that court also denied the NCAA’s motion for summary judgment.

Finally, the Court rejected the NCAA’s statute of limitations argument, which asserted that Onyshko’s claim was barred by the two-year statute of limitation because he last sustained injuries in 2003, but did not file his claim until ten years later. The Court found that the discovery rule tolled the statute of limitations because Onyshko did not know his ALS diagnosis was the result of repetitive brain trauma and the NCAA’s negligence. Onyshko did not become aware of this connection until he “saw a segment on TV regarding Steve Gleason.” The Court found this at least creates a factual issue that the jury must decide.

At bottom, this ruling sets the stage for a jury trial. A jury will be asked to determine, inter alia, if the NCAA breached its duty owed to Onyshko and whether its alleged failure contributed to cause Onyshko’s brain damage. Some evidence that Onyshko put forth in opposing the motion for summary judgment was an admission by his team’s head athletic trainer that “he was not provided, directly or indirectly, [with] any return-to-play guidelines or a concussion management policy from the NCAA.” In response, the NCAA hired an expert, Dr. Robert Harbaugh, who opined that the NCAA “did not in any way violate any standards.” The Court found that this is a factual dispute that must be resolved by the jury.

A trial date has not yet been set, but the heat is surely on the NCAA.

The full decision by the Court can be found here: Onyshko v. NCAA — Opinion and Order

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Court Cuts NCAA, Patriot League Loose From Concussion Case, Leaves University, Government on the Hook

A federal judge from the District of Columbia has ruled that some claims made by a former American University (AU) student-athlete, centered on the improper handling of a 2011 field hockey-related concussion in September 2011, can continue against a group of defendants.

In ruling for plaintiff Jennifer Bradley, the judge denied the motion to dismiss of AU and the Federal Government, while siding with the NCAA and Patriot League on its respective motions.

By way of background, the plaintiff claimed she “was hit in the head during a field hockey game between AU and Richmond University.” Subsequent to that hit, she allegedly began experiencing symptoms of a concussion, but continued participating in field hockey practices and games and was not “advised to sit out (practices and games) while her symptoms persisted.” According to the plaintiff, this failure has caused her a variety of harms, including monetary damages.

Between August 2014 and October 2014, the plaintiff filed several actions in the Superior Court of the District of Columbia, which were consolidated against the NCAA, the Patriot League, the Federal Government, AU, and others. Shortly thereafter, the defendants filed their respective motions to dismiss the plaintiff's lawsuit, pursuant to Federal Rule of Civil Procedure 12(b)(6), or the failure to state a claim.

Addressing the Federal Government’s argument that the statute of limitations had expired, pursuant to the Federal Tort Claims Act, the court found that the clock on the plaintiff’s claim did not start until she learned the treating doctor, a military fellow, was acting within the scope of his federal employment, and not as an employee of the Medicine Center in which case he would have been a university employee.

“Therefore, because the plaintiff filed her administrative claim within two years after learning of the doctor’s status as a military fellow, the court must reject the government's position that the plaintiff's claims against it are time-barred.”

The government’s argument, pursuant to the borrowed servant doctrine, also failed because the government could not show that the aforementioned doctor was “attached” to a physician’s practice.

The Plaintiff’s Claims Against the NCAA

Turning to the plaintiff’s claim against the NCAA, she claimed the NCAA was negligent because it "was careless and negligent by breaching the duties of care it assumed for the benefit of (the plaintiff). To state a claim of negligence under District of Columbia law, the plaintiff must establish that "(1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached that duty, and (3) the breach of duty proximately caused damage to the plaintiff." Haynesworth v. D.H. Stevens Co., 645 A.2d 1095, 1098 (D.C. 1994).

The NCAA argued that nowhere did the plaintiff plead that the NCAA “did something or did not do something after the alleged injury with respect to her medical care, that the NCAA played any part in the medical decision made by the health care providers she consulted, or even that the NCAA was aware of her injury or that she was receiving medical care.”

The federal judge disagreed, noting that the plaintiff has pleaded sufficient facts “to establish a claim of negligence against the NCAA … because it undertook and assumed a duty to protect the physical and mental well-being of all student-athletes participating in intercollegiate sports, including [her,] . . . [and] a duty to protect student-athletes from brain injuries.”

As for the plaintiff’s allegation that she "has and continues to suffer from severe emotional distress" resulting from the NCAA's alleged negligence, the court sided with the NCAA.

“The plaintiff has not pleaded facts sufficient to establish a claim of negligent infliction of emotional distress against the NCAA,” wrote the court. “In her amended complaint, the plaintiff merely summarizes the same allegations upon which she seeks to establish claims of negligence and gross negligence, and recites, in a conclusory fashion.”

As for the fraudulent misrepresentation claim against the NCAA, the court again sided with the defendant.

“The plaintiff has failed to allege facts sufficient to state a claim of fraudulent misrepresentation against the NCAA to survive a motion to dismiss. The plaintiff claims that the ‘NCAA has both promised and acknowledged that it has a duty to protect the health and safety of student-athletes’ because the NCAA's Constitution states that the NCAA ‘shall assist (member) institution(s) in (their) efforts to achieve full compliance with all rules and regulations,’ and because ‘the NCAA utilizes injury surveillance data to examine, explore, understand, and work to prevent sports injuries.’

“Additionally, the plaintiff asserts that the NCAA's representations to protect the health and safety of student-athletes were false. However, the plaintiff recognizes that the NCAA, through its Constitution, expressly notes that each member institution maintains sole responsibility ‘to protect the health of, and provide a safe environment for, each of its participating student athletes.’ Even accepting the plaintiff's allegation of fraudulent misrepresentation as true, as the court must at this stage of the proceedings, she has not alleged any facts that demonstrate how the NCAA's representations are allegedly false… . Instead, what the plaintiff has done is simply assert a threadbare recital of the elements of a fraudulent misrepresentation claim. Such bare, conclusory allegations satisfy neither the Rule 8 pleading standards as explained under Iqbal, nor the heightened pleadings requirements of Rule 9(b). The plaintiff's fraudulent misrepresentation claim against the NCAA must, therefore, be dismissed.”

Turning to the breach of contract claim, the judge found for the NCAA “because the plaintiff has failed to plead facts sufficient to establish a valid contract between her and the NCAA regarding the NCAA's alleged duty or obligation to provide her medical treatment, the court must grant the NCAA's motion to dismiss the plaintiff's breach of contract claim against it.”

The novel argument that the NCAA, through the Sports Medicine Handbook and its policies, was liable for medical malpractice similarly failed, since it “only provides guidance for the consideration of its member institutions and does not establish a standard of care, instead deferring to the member institutions the responsibility of developing sports medicine policies for the care and treatment of their student-athletes.”

The Plaintiff’s Claims Against the Patriot League

The plaintiff alleged that the Patriot League failed to "provide and oversee a management system for (the treatment of the) concussion" that she suffered. The court found that the plaintiff had not demonstrated that it owed her a duty of care. It went on to note that, like the NCAA, The Patriot League delegates that duty to its respective member institutions.

Interestingly, the Patriot League also successfully argued that post-concussion treatment is a “medical decision, involving individual considerations between the doctor and patient. Medical providers should not be second-guessed by bureaucrats in an athletic conference. Rather, medical decisions as to whether an athlete is physically cleared to play should be left within the sound discretion of trained health care providers, not organizations whose purpose is to provide referees, arrange for competitive fields / courts, and facilitate tournament and championship play.”

The plaintiff also alleged a negligent infliction of emotional distress claim against the Patriot League. Similar to the analysis of the same claim against the NCAA, “the plaintiff has not alleged facts sufficient to plausibly state a claim of negligent infliction of emotional distress against the Patriot League.” Accordingly, “because the plaintiff's conclusory allegations do not rise to the level necessary for the plaintiff to state a claim of entitlement to relief, the court must dismiss the plaintiff's negligent infliction of emotional distress claim against the Patriot League."

The claim brought against the Patriot League on a breach of contract theory also failed because the plaintiff “has failed to identify a valid contract between her and the Patriot League to proceed with a breach of contract claim.”

In addition, the judge dispatched with the plaintiff’s claim of medical malpractice against the Patriot League because she has not alleged or proffered any facts demonstrating that the Patriot League is an "entity licensed or otherwise authorized under District law to provide healthcare services."

The Plaintiffs Claims Against the University

The plaintiff was more successful in its bid to defeat the university’s motion to dismiss, at least as far as its negligence claim was considered. Additionally, at this stage of the case, the court finds that “it was reasonably foreseeable that the university's alleged negligence regarding its duties to take precautions to minimize additional risks by prohibiting the plaintiff from further participation in field hockey activities would likely cause additional injuries. Accordingly, the court concludes that the plaintiff has alleged facts sufficient to give rise to a duty of care to pursue her negligence claim against the university, and therefore, the court must deny the University's motion to dismiss this claim.”

For a third time, the plaintiff was unsuccessful in overcoming a motion to dismiss its intentional infliction of emotional distress claim against a defendant, with the court noting that “bald assertions and conclusory allegations … do not satisfy the pleading requirements.”

The plaintiff also came up empty on its breach of contract claim against the university. “Like the other defendants, the university successfully argued that dismissal was justified “because the plaintiff has not identified the existence of a valid contract that it breached.”

The court, however, was reluctant to grant the motion to dismiss the medical malpractice claim against the university. It found that the plaintiff has alleged facts sufficient to demonstrate that the University and its athletic and medical staff provided health care services that qualify them as healthcare providers in the District of Columbia. Even though “there does not appear to be a case in this jurisdiction that has addressed whether a university, coach, or athletic trainer qualify as a ‘health care provider’ under District of Columbia law, … the clear language of District of Columbia Code section 16-2801(2)” leaves the door open for interpretation through further discovery.

https://scholar.google.com/scholar_case?case=1120500842313482460&hl=en&as_sdt=6&as_vis=1&oi=scholarr

Bradley v. National Collegiate Athletic Association et al., Dist. of Columbia; Civil Action No. 16-346 (RBW); 4/12/17

Attorneys of Record: (for plaintiff) Matthew Andrew Naci, PAULSON & NACE, PLLC. (for defendant NCAA) J. Christian Word, LATHAM & WATKINS LLP, Kevin Andrew Chambers, LATHAM & WATKINS LLP & Sarah M. Gragert, LATHAM & WATKINS LLP; (for defendant PATRIOT LEAGUE) Daniel C. Costello, WHARTON, LEVIN, EHRMANTRAUT & KLEIN, P.A. & Michelle R. Mitchell, WHARTON, LEVIN, EHRMANTRAUT & KLEIN, P.A. (for defendant AMERICAN UNIVERSITY) Christine Frazier Hein & John J. Murphy, III, WALKER, MURPHY & NELSON, LLP. (for defendant MARYLAND SPORTS MEDICINE CENTER) H. Kenneth Armstrong, ARMSTRONG, DONOHUE, CEPPOS, VAUGHAN & RHOADES, CHARTERED & Mary Kathleen Fallon, ARMSTRONG, DONOHUE, CEPPOS, VAUGHAN & RHOADES, CHARTERED (for defendant UNITED STATES OF AMERICA) Derrick Wayne Grace, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA.

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Ahead of the Game: Brain Injuries in Sport

(Editor’s Note: Chloe Morgan, a senior solicitor, from English law firm Bolt Burdon Kemp’s brain injury team writes in the following article about the prevalence and seriousness of brain injury in the world of sport, and what more is being, and can be, done to prevent serious brain injury at all levels of sport.)

Heading Towards Concussion

There are always risks associated with playing sports, especially so with contact sports such as football, rugby and hockey. Fortunately, the majority of sporting injuries are relatively minor and can be remedied with bandages, spray and a friendly handshake from the opposition. However, in some instances, the injuries sustained are significantly more severe and can be difficult to spot.

The very nature of concussion is such that the symptoms may not be immediately apparent and can occur some time after the injury has been sustained. Symptoms include: confusion, nausea, dizziness, blurred vision, headache, loss of balance and memory loss. This can ultimately result in it being very difficult for an individual or team to decide whether it is safe for a player to remain in play or whether to cease play and seek immediate medical assistance.

In the English Premier League alone, we have seen several incidences involving high profile players who have sustained serious head injuries during play, for example:

Both Lloris and Martial continued to play, despite suffering concussion.

These incidences have helped to increase awareness of the risk of head injuries in sport and have raised some important questions as to who should be making decisions relating to the care of the player and whether better protocols need to be in place when these situations arise.

Grassroots Decisions – Enough Awareness About Brain Injury Risks?

At a professional and semi-professional level, players will often be supported by a team of medics who are best placed to exercise their judgement as to whether the player should continue. However, at a grass roots or amateur level, these critical decisions are often made by someone with no medical background, such as a parent, coach or first aider (who only possesses basic knowledge of emergency care but does not have the benefit of extensive medical training). Sadly, those decision-making procedures can often lead to devastating outcomes for those with otherwise bright futures ahead of them, as demonstrated in the following real-life stories.

Nic O’Leary demonstrated a fighting team spirit when, in 2008, 16 year old Nic suffered a blow to the head whilst playing rugby in London. Determined to play on, Nic sustained a further head injury and subsequently suffered a concussion and stopped breathing. Nic was left with a brain injury which now affects his cognitive abilities, motivation and personality.

In 2011, 14 year old Ben Robinson participated in a school rugby union match. He was treated on three separate occasions for head injuries and sent back on to the field on each occasion. He subsequently collapsed on the pitch and later passed away. The Coroner found that the cause of death was Secondary Impact Syndrome. Ben’s father believes that there should have been a chain of health and safety procedures in place, which included input from players, coaches, referees and parents and that had this been in place, Ben may have had a chance at survival if one link in the chain had removed Ben from the pitch earlier.

Concussion is an example of brain injury and every brain injury suffered by a child must be taken seriously because it is likely to impact the child for life. As a child’s brain is still developing, an injury to the brain during childhood can interrupt development and make it difficult for the child to learn new skills. The examples above show that child head injury can lead to devastating consequences, despite the appearance in the immediate aftermath of an accident being seemingly innocuous.

Sports’ Governing Bodies Need to Take the Lead on Protecting Players’ Heads

These tragic stories serve as important reminders of the need for better awareness of the subtlety of head injuries, and the need for safer practices when these situations arise. All sports clubs, especially those involving contact sports, should be adopting injury-prevention strategies to minimise the risk to players of head injuries. Below are some examples of strategies which could help:

World Rugby issued a directive which came into force in January 2017 and applies at all levels of the game, clamping down on high tackles with a view to protecting the ball-carrier from suffering concussive blows to the head. They have a zero-tolerance approach to reckless and accidental head contact in the sport and said they “aim to change culture in the sport to ensure that the head is a no-go area.”

The effectiveness of this directive has been called into question but Morgan feels that this is a really positive step towards ultimately changing the sport’s mentality in respect of high tackles and consequent concussion injuries. Whilst some commentators think that injuries may increase before the figures fall, it is hoped that by educating players, coaches and teams as to the devastating life-changing effect a brain injury can have, even in the most seemingly innocent or ordinary of situations, a drop in these figures can be achieved.

Inevitably, given the often unpredictable nature of sport, head injuries will still occur despite putting in place injury-prevention strategies. Concussions are not always easily identified and often players are reluctant to admit that they have suffered injury. Further education is needed in order to help them understand the devastating consequences that they could face as a result of not speaking up there and then. Fortunately, sporting bodies such as the FA and England Rugby have released very clear guidance as to how best to deal with scenarios where players are concussed or there is a suspicion of concussion:

The FA Guidance is particularly clear that everyone involved in the sport, from team mates, coaches, match officials, team managers, administrators to parents, have a role to play in doing their best to ensure that players are removed from play safely if concussion is suspected.

The consequent decision not to impose sanctions on Northampton Saints after they allowed George North to continue playing despite appearing to lose consciousness when he landed heavily on his neck, raises questions as to how seriously the guidance is being taken.

Heading Forward: Prevention and Vigilance

The solicitors in Bolt Burdon Kemp’s Child Brain Injury Department work solely for children who have suffered injuries arising from accidents and medical negligence. They see the devastating day to day impact of brain injury on their young clients and their families. These experiences have only served to highlight the importance of raising awareness of brain injury prevention campaigns. The risk of brain injury in contact sport must be taken seriously. The tragedy of the cases referred to above, is often that the injury could potentially have been avoided. It is hoped, through injury-prevention strategies and adopting an ethos of every person involved in the game taking responsibility for the care of the players’ wellbeing, that we can keep instances of significant head injuries as low as possible.

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Another Sports Concussion Suit: NHL Enforcer Sues Various NHL Teams and Insurer

By Joseph M. Hanna, of Goldberg Segalla

Mike Peluso, a former NHL enforcer, slapped the New Jersey Devils, St. Louis Blues, and an insurer with a lawsuit, is maintaining that a “newly discovered” medical report proves the teams were aware of the risks associated with head injuries, and nevertheless, continued to encourage him to play and fight.

According to Peluso, he has played in over 450 games as an enforcer — a position with the primary purpose of agitating opponents and getting into fights in order to shield the skilled players — and the various teams and insurer knew about the long-term risks that would arise if he suffered from a heady injury, but hid those risks from him. Essentially, his argument centered on the idea that the teams knew he was at a greater risk of long-term injury, but rather than prevent further injuries from occurring, continued to send him out onto the ice and encouraged him to fight, ultimately leaving him with permanent damage to the right side of his brain, dementia, and permanently disabled.

Peluso’s complaint alleged that “[t]his is not simply a case where defendants are alleged to know the link between head injuries and permanent brain damage.” His complaint maintained that “[t]his is a case where defendants knew the link between Mr. Peluso’s head injuries and permanent brain damage because they had their own Board Certified Team Neurologist tell them that Mr. Peluso would have brain damage if they allowed him to continue to receive head injuries.”

As support, Peluso referenced to a medical report written by Dr. Marvin Ruderman, a board-certified neurologist, after Peluso suffered a grand mal seizure. The report concluded that the seizure was directly connected with a fight in which Peluso was knocked to the ice in 1993, warning that if Peluso “were subjected to additional head injuries, he would have long–term brain damage.”

The complaint further alleged that “[d]espite widespread knowledge that head injuries are inherent in ice hockey – especially those who have Mr. Peluso’s job title of enforcer, the Devils sent Mr. Peluso back to work despite his documented increased vulnerability to additional head injuries and brain trauma.” Notably, Peluso claimed that neither the Devils nor Ruderman ever shared this report with him, even though it was later shared with the Blues when he was acquired by them.

During his nine years as an enforcer, he engaged in a total of 240 bare knuckle fist fights, which resulted in at least nine grand mal seizures. Allegedly, despite a workers’ compensation action requesting production of the test’s results, the defendants never produced the report, and it was not discovered until May, 2016.

The complaint maintained that “[t]he Devils intentionally misrepresented his condition and informed Peluso he was fit to return to play, pushed him to return to his duties, and instructed him to continue his role as the team’s enforcer.” Further, “[h]ad Peluso been made aware of the severe risk identified by Dr. Ruderman, he would not have continued his career as a professional hockey player. Unfortunately, no Defendant ever informed him that he was at excessive risk of further seizures or permanent brain damage if he were to sustain more head injuries.”

Subsequently, Peluso participated in over 100 more fights. His suit alleges claims for battery, intentional and negligent infliction of emotional distress, fraud and fraudulent concealment, and spoliation of evidence.

Accordingly, Peluso’s complaint maintained that “[d]efendants, each of them, knowingly and fraudulently concealed material information regarding Peluso’s injuries as a professional hockey player as well as his heightened risk of neurological injuries throughout his career. . . Team defendants further knew and fraudulently concealed the likelihood of head trauma and long term injuries relating to professional hockey players from Peluso.” The complaint continued, “Chubb intentionally concealed the aforementioned information from Peluso throughout his career and during proceedings before the WCAB despite its obligation to provide such information through discovery.”

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As the Sport of Lacrosse Continues to Grow, have some of the Sports’ Leading Equipment Manufacturers Misrepresented the Safety of their Equipment?

By Dan Ballou

In today’s sport era, heightened levels of research and medical attention have been focused on head trauma and concussions in contact sports. Much of this attention has been focused, and deservedly so, on the game of football, which is arguably the most popular American sport at levels ranging from the very young to the highest level of professional athletes.

Because of this level of increased scrutiny, equipment manufacturers are continually searching for processes to develop new and safer products, as well as making changes to existing product lines. As one of the fastest growing sports in terms of participation, men’s lacrosse is a contact sport where helmets are required and the safety of these helmets has been a source of recent litigation.

In the class-action lawsuit, the plaintiffs (Lindsey Held and Matthew Hemberger, et al. v. Performance Lacrosse Group Inc., Case No. 3:14-cv-01842-WIG, in the United States District Court for the District of Connecticut) alleged that Performance Lacrosse Group, Inc., parent company for the Cascade brand of lacrosse equipment, and specifically the Cascade Model R helmet, was sold under the premise that the helmet was approved by the National Operating Committee on Standards for Athletic Equipment (NOCSAE). In all actuality, NOCSAE had voided approval on the helmet, but it was still sold as if it had approval. Part of the confusion in this case was tied to tests that the helmet had originally passed, but after other required variables were added, the helmet later failed.

NOCSAE depends on all equipment manufacturers to self-test their products to deem that they meet safety standards. NOCSAE does not necessarily check this equipment prior to allowing its stamp of approval to be adhered to the equipment. NOCSAE’s role is to issue standard guidelines that equipment manufacturers sign licensing agreements with stating that equipment will meet those safety standards as published (Pilon, 2014). The internal test results are required by NOCSAE to be kept for at least 10 years and made available upon request by the safety standards committee.

What made this case even more intriguing was that NOCSAE only became aware of issues related to the Cascade Model R helmet because another equipment company, STX, reported the helmet to NOCSAE just days before STX released its own new helmet.

This issue with the Cascade helmet was that as temperatures increased, the helmets became more unsafe. The Model R helmet passed on the NOCSAE standards for temperatures below 72 degrees, but as the temperature rose above 72, the helmet failed the industry-standard tests. One of the tests that the helmet failed was the “drop test” at temperatures above 72 degrees. Components within the overall design of the helmet were failing, and the consequences for increased risk of traumatic head injury could have been substantial had the failed tests not been reported. As a spring sport, temperatures in parts of the country surpass 72 degrees in the spring, and soar to much higher temperatures as the summer season is played. Fortunately in this case, damages were confined to economic reasons as the defect in these helmets was discovered before serious injury occurred.

The uproar over the safety of lacrosse helmets runs a parallel path to concerns related to safety issues of football helmets. The number of deaths in football starting in the 1960’s led to the creation of NOCSAE and its purpose was to investigate and research helmets and ways to make them safer related to skull fractures (Pilon, 2014).

This specific class action lawsuit claimed misrepresentation and was filed for economic reasons. The complaint stated that economic suffering occurred because many universities, colleges, high schools, and youth leagues purchased the helmets secure in the knowledge that they were NOCSAE safety certified. Once it was determined that NOCSAE standards were not met, the plaintiffs claimed other helmets would have been purchased. Each helmet retails at costs between $200 — 250, and industry experts have predicted that Cascade’s share may be as high as 90%, providing evidence that the financial aspect was significant.

Cascade’s defense rested on a massive return and retrofit program, which NOCSAE approved, and which modified the helmets to meet NOCSAE safety standards. The case was settled in May, 2016 as Performance Lacrosse Group denied the misrepresentation allegations, but agreed on the return and retrofit policy accepted by the court (Bucher, 2016). In exchange for agreeing to the return and retrofit program, customers received vouchers for future purchases of Cascade products and with that, gave up any rights to sue over this particular case in the future.

The take home message in this case that is of great value to professionals in the field, and students aspiring for athletic careers, is to conduct extensive research on equipment and manufacturers, especially with the medical information available with ongoing studies on head injuries suffered in sporting contests. Clearly a stamp on a helmet or other protective gear, does not guarantee that the equipment has met all the necessary safety requirements, or has undergone an entire series of tests to ensure compliance with NOCSAE standards. Had this helmet not been turned in to NOCSAE as failing standard equipment testing, lacrosse athletes at a variety of levels may have seen increased potential for traumatic head injuries that medical and industry experts are working diligently toward reducing.

Leagues, educational institutions, and even individuals would be well-served to directly contact equipment manufacturers prior to making final purchases. Most often, equipment orders are processed in large volume and time should be taken to contact the manufacturers to obtain test results prior to finalizing a purchasing agreement. If manufacturers are not readily forthcoming with this information, other options should be explored and league officials, collegiate governing bodies, national governing bodies, and NOCSAE itself should be notified if a manufacturer isn’t willing to provide this information.

As more information is made available related to the short-term sustaining of concussions, and the long-term impacts resulting from them, the injuries caused by the nature of the sports themselves while using safety certified equipment is enough of a concern already. When equipment companies don’t comply with safety standards due to lack of quality control in safety checks, an already severe situation could potentially turn catastrophic.

References

Bucher, A. (2016, October 7). Cascade lacrosse helmet class action settlement. Top Class Actions.com. Location: Phoenix.

Pilon, M. (2014, December 6). After 2 helmets are decertified, lacrosse faces safety concerns. The New York Times, P. D1.

Dan Ballou, Ph.D. is an Assistant Professor in the Sport Management program at Central Michigan University. Ballou has spent more than 25 years in the athletics industry, working in collegiate athletics at Kansas State University. He spent 17 years as the Director of Sports Marketing for the Albuquerque (NM) Convention & Visitors Bureau, where he brought and managed hundreds of sports events to the city, including many rounds of NCAA Championship and USOC National Championship events.

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California Supreme Court Declines to Make Exception for ‘Double Concussion’ Case

The California Supreme Court has affirmed that a plaintiff waited too long to file a negligence claim against a school district in a case in which he alleged that the high school allowed him, after suffering a concussion, “to participate” in “full-contact football practice” even though he had not been cleared. As a result, he experienced “headaches, dizziness, and nausea.” A doctor then diagnosed him with “double concussion syndrome.”

Central to the high court’s ruling was the plaintiff’s failure to comply with the requirements of the California Government Claims Act, which sets forth certain timelines for filing a claim. Under the Act, a party presenting a claim for personal injury must present it to the board of the public entity within six months of the accrual of the cause of action. When a claim is untimely, the injured party may present a written application to the board for leave to present a late claim within a reasonable time not to exceed one year after the accrual of the cause of action.

The incident involving J.M., a 15—year—old student at Fountain Valley High School, occurred on Oct. 27, 2011. Despite being informed by the athletic trainer that J.M. may have suffered a concussion, the coach allowed him to practice. Four days later, or the date of accrual, the doctor issued the diagnosis.

J.M. did not present a claim to the District within six months of the date of accrual of his causes of action, as required by the Act. He retained counsel and, on Oct. 24, 2012, his counsel presented an application for leave to present a late claim. The district did not act upon the application, which was its right.

On Oct. 28, 2013, J.M., still represented by counsel, filed a petition with the superior court for an order relieving him from the claim requirement. The superior court denied J.M.'s petition as untimely because it was filed more than six months after the date on which his application to present a late claim was deemed to have been denied by the school district's inaction. J.M. appealed. The appeals court affirmed. The plaintiff appealed again.

In a majority opinion, the court noted that the plaintiff presented “nothing in the way of legislative history to support (its position), and its logic is difficult to discern. Section 946.6(c)(2) gave J.M. a clear avenue to challenge the denial of his application (because he is a minor). His counsel simply failed to take advantage of it.”

The court continued: “As an alternative to his statutory arguments, J.M. asserts claims to equitable relief under the doctrines of estoppel and tolling.”

He based “his claim of estoppel on the district's failure to send him written notice of its deemed denial of his late claim application.” However, the district “was not required to notify J.M. after his application had been pending for 45 days. Furthermore, J.M. does not argue the district intended that he rely on its inaction to his detriment, as would be required for estoppel to apply. As a matter of law, the only possible way for J.M. to have relied on the District's failure to act was to recognize that his application was deemed denied.”

Further, the appeals court properly “rejected J.M.'s equitable tolling argument because he did not pursue an alternate remedy,” wrote the high court.

J.M., a Minor, etc. v. Huntington Beach Union High School District; S. Ct. Calif.; S230510, 2017 Cal. LEXIS 1609; 3/6/17

Attorneys of Record: (for plaintiff and appellant) Janet R. Gusdorff; Russell & Lazarus and Christopher E. Russell, of Gusdorff Law. (for defendant and respondent) Stephen M. Harber and Dominic A. Quiller, of McCune & Harber. Susan Knock Beck, of Thompson & Colegate. Gordon & Rees and Don Willenburg for Association of Southern California Defense Counsel and the Association of Defense Counsel of Northern California and Nevada as Amici Curiae on behalf of Defendant and Respondent. 

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Court Deals Blow to NHLPA and NHL in Wideman Case

By Jon Heshka, Associate Dean, Faculty of Law, Thompson Rivers University


Jon Heshka

In the curious case of National Hockey League v. National Hockey League Players’ Association where the victim became the assailant and the sanction imposed wound its way through the NHL and the courts, there is finally closure after a New York district court denied the defendant NHL Players’ Association’s motion to dismiss on procedural grounds, granted the defendant’s motion to confirm the reduced suspension, and denied the plaintiff NHL’s motion for summary judgment.

On its face, the facts of the case are clear. During a NHL hockey game on January 27, 2016, Calgary Flames player Dennis Wideman was cross-checked by Nashville Predator player Miikka Salomaki causing Wideman’s head to hit the boards. This collision caused Wideman to suffer a concussion. Wideman remained on the ice in a crouched position for several seconds and then began skating towards the Flames’ bench. While he was doing so, linesman Don Henderson was skating backwards towards Wideman. Wideman raised his stick in the air so that the stick made contact with the official’s back. Henderson fell to the ice, hit his head on the boards and suffered a concussion.

NHL director of hockey operations Colin Campbell imposed a 20-game suspension, without pay, on Wideman for conduct violating Rule 40 of the league’s player’s rules. Wideman was to forfeit $564,516 in salary. Rule 40 governs the physical abuse of officials.

In particular, Rule 40.2 says, “Any player who deliberately strikes an official and causes injury or who deliberately applies physical force in any manner against an official with intent to injure, or who in any manner attempts to injure an official shall be automatically suspended for not less than twenty ... games. The rule defines intent to injure as “any physical force which a player knew or should have known could reasonably be expected to cause injury.”

The rule is triggered when a game misconduct penalty is called on the play. Wideman was not assessed a game misconduct penalty. This should have exempted Wideman from supplemental discipline but the NHL relied on the rule as a touchstone for its inquiry concluding that his conduct met the relevant definition of intentional or reckless conduct and that a 20-game suspension was warranted.

The NHL Players’ Association appealed under Article 18.2 of the CBA to NHL Commissioner Gary Bettman. The NHLPA presented the testimony of two physicians who were experts in concussions and who had interviewed Wideman over FaceTime, a videotelephony application developed by Apple, several days after the incident.

It is interesting that in an atmosphere where the NFL was gearing up to settle its almost $1 billion class action lawsuit that the best the NHL Players’ Association could do in an incident in which a concussed player injures an official is to have doctors examine Wideman via video-conference days afterwards.

In rejecting the NHLPA’s argument that Wideman’s concussion rendered him “confused and/or physically incapable of avoiding contact with Mr. Henderson,” and that the collision was therefore “not deliberate,”, Commissioner Bettman ruled a week later that the evidence was clear and convincing to warrant the NHL’s imposition of a 20-game penalty.

The NHL Players’ Association then appealed under Article 18.13 of the CBA to the Neutral Discipline Arbitrator. The Arbitrator was James Oldham, a law professor at Georgetown University, who had been a neutral arbitrator for the NHL and NHLPA for over a decade.

During the two-day hearing, new evidence was presented including a frame-by-frame interpretation of the video of the collision by the Special Assistant to the Executive Director of the NHLPA who believed “Wideman lost control of his body” after the Salomaki hit, and the testimony of Dr. Ian Auld, lead team physician for the Calgary Flames, who averred that he did not examine Wideman until after the game because he did not believe he saw “any specific motoring incoordination [or] balance troubles” and when he did Wideman indicated that he was “dazed” after the cross-check.

The Arbitrator held that Commissioner Bettman’s “conclusion ... that Wideman’s behavior constituted intentional action within the meaning of Rule 40.2 ... [was] not substantially supported by the totality of the evidence presented at the [Neutral Discipline Arbitrator] hearing,” and that the proper penalty should have been that specified in Rule 40.3 which holds that any player who deliberately applies physical force to an official in any manner in which the force is applied without intent to injure shall be automatically suspended for not less than ten games.

As part of the decision, the Arbitrator analyzed and articulated the appropriate standard of review: The Arbitrator “has full remedial authority if the [Arbitrator] determines that the totality of the evidence presented at the [Neutral Discipline Arbitrator] hearing does not provide substantial support for the Commissioner’s decision.”

The Arbitrator noted that as Wideman skated towards the bench after Solamaki’s cross-check, “[i]t [was] possible, given the speed of events and Wideman’s condition, that Henderson may have been but a blurred distraction.” The Arbitrator also analyzed the collision in near-nanoscopic detail from Henderson possibly being in a more vulnerable position due to the position of his left skate to the weak positioning of Wideman’s hands on his stick. The Arbitrator also noted that “There was not even a scintilla of evidence to suggest why a player with Wideman’s excellent disciplinary record would intentionally strike Linesman Henderson” and that “the complete absence of any imaginable motive can give pause in assessing whether Wideman made contact with Henderson with intent to harm him.” In the end, the Arbitrator concluded that in light of Wideman’s “concussed state” and his analysis of the video, Wideman could not have anticipated that his push would cause Henderson to fall and bang his head against the boards sufficiently hard to put Henderson also in a concussed state.

The Arbitrator reduced the suspension from 20 to ten games after Wideman had already sat 19 games.

This led to the NHL suing the NHLPA. The United States District Court Southern District of New York was invited to procedurally stickhandle the case and to resolve whether or not the Arbitrator acted within the scope of his authority and the appropriate standard of review. The NHL sought vacatur of the Arbitrator’s decision on the basis that he failed to adhere to the standard of review laid out in the CBA and thus exceeded his authority under that agreement. The NHL Players’ Association filed a motion to dismiss or, in the alternative, to confirm the arbitration award.

In the end, the Court denied the NHL Players’ Association’s motion to dismiss the Complaint on procedural grounds but granted the Players’ Association’s motion to confirm because the Arbitrator was at least “arguably construing or applying” the CBA in reaching the decision and at least “arguably ... acting within the scope of his authority” as defined by the CBA (Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509 (2001)).

The NHL released a statement after the decision saying: “We obviously disagree with the court's decision today, but also recognize the very high judicial standard we needed to meet to disturb the arbitrator's decision. While we believe we met that standard, we are prepared to turn the page and move on. We are hopeful that, if and when there is next an appeal proceeding involving supplementary discipline, the Neutral Discipline Arbitrator will properly apply the standard of review we and the NHLPA negotiated and agreed to in collective bargaining. That was clearly not done in this case.”

Post-script: James Oldham, the Neutral Discipline Arbitrator, was terminated after his decision but before the Court’s ruling. Don Henderson, a 22-year veteran, had surgery to repair two ruptured discs in his neck and has not officiated another game. Dennis Wideman is still playing professional hockey with the Calgary Flames.

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Analyzing the International Consensus Statement on Concussion in Sport

By Leanne Yohemas, University of Calgary

The International Consensus Statement on Concussion in Sport, was published on April 26 in two special editions of the British Journal of Sports Medicine. Researchers at the University of Calgary's Faculty of Kinesiology, who have been involved in the process, recently offered their assessment.

"This consensus was built on the latest scientific evidence and will have a profound impact diagnosing and treating sport-related concussions," says Dr. Willem Meeuwisse, MD, a sport medicine physician and epidemiologist who co-chaired the consensus conference. "While most people recover in the initial 10-14 day time period following injury, in some cases individuals may have symptoms that may persist."

This consensus statement builds on the previous 4th conference in Zurich, updates the assessment tools in light of the new evidence.

‘Recognize and Remove’ Is Essential

The document was written to assist doctors and health professionals in the care of athletes of all levels, including adults and children, that may have suffered a concussion. It also includes a tool with specific information for the general public and a specific tool for use in children under the age of 12.

"The new tools created from this consensus are designed to assist parents, coaches, officials and players to identify athletes with a potential concussion and remove the athlete from further risk of injury," says Dr. Carolyn Emery, PhD, physiotherapist and professor in the Faculty of Kinesiology.

"The overriding theme presented in this document is: 'recognize and remove.' In other words, when concussion is suspected, the athlete should be removed from the sporting environment and a comprehensive assessment should be conducted in a standardized way. If a concussion is diagnosed, they should not return to sport the same day," adds Meeuwisse.

International Collaboration

Recognizing the impact of this potentially serious injury, the world's biggest sport bodies have helped support the consensus process and the statement created by scientists studying the current literature. These organizations include: the International Ice Hockey Federation (IIHF), the International Olympic Committee (IOC), FIFA, World Rugby, and the International Federation for Equestrian Sports (FEI).

More than 400 academics from 24 countries participated in the 5th International Consensus Conference in Berlin in October 2016. Over the past two years, a scientific committee and expert panel consisting of 33 individuals from around the globe with expertise in sport concussion, contributed through defining the key questions, completing literature reviews and met to come to a consensus on the research presented at the conference. The consensus statement is the summary of a list of specific topics that was agreed upon by the expert panel.

"One of the amazing things about this document is that it is a collaborative achievement by many people across the globe with different areas of expertise in sport-related concussion who have collaborated to come up with a unified answer to key questions in concussion," says Dr. Kathryn Schneider, PhD, physiotherapist and assistant professor in the Faculty of Kinesiology.

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Mother Frets Over Risk of Another Concussion After Coaches Threw Baseballs at Players

The mother of a high school baseball player, whose son had suffered multiple concussions in the months leading up to the baseball season, was alarmed when she heard that her son’s baseball coaches allegedly threw baseballs at players, who were told they could not leave the batter’s box during a practice.

The Tennessee Department of Children's Services opened an investigation on March 10 investigating the incident involving Hardin Valley Academy coaches Joe Michalski and Zach Luther.

Sheri Super, the mother of junior shortstop Ryder Green, told the media that her son and other players were forced to stand in the batter’s box while Luther threw the pitches and Michalski watched from first base during the drill.

The mother said that the impetus for the drill was a decision by a player to step out of the batter's box during a March 8 scrimmage to avoid being hit by a pitch. Thus, during the practice, no one was allowed to leave the batter's box until they were hit by a pitch.

“What makes me angry is that my son has had two concussions since May of last year,” Super told the media. “What if they would have accidentally hit him the head? At that point we are talking about double vision and cognitive functioning, not whether he has a career playing at Vanderbilt." Green has reportedly committed to play baseball for Vanderbilt University in 2018.

Some parents expressed their support for the coaches, including writing letters to the superintendent and visiting with DCS officials. Players allowed DCS to evaluate them for injuries, according to Shane Parks, whose son Drew is a senior infielder and pitcher.

"There isn't any mental or child abuse going on at practice," Parks said. "This is a mama trying to get a coach fired and we don't appreciate it right here before the season."

Parks said the ball used in the drill was not a regulation baseball, but a hard rubber ball, lessening the risk.

"It is intended for this specific kind of drill," he told the media. "High schools and colleges around the country are known to teach this drill — not that everyone accepts it. But we don't have an issue with it and (the coach) was not trying to abuse my son."

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