Reprinted with permission, Minnesota Lawyer Magazine, November, 2016.
By allowing her children to play youth sports, Kimberly Archie was no different than the typical parent. Her daughter was a budding cheerleader and her son, Paul Bright, was a dominant football player. News reports describe Archie reminiscing how Paul, although undersized, was quick, which made him a versatile athlete who could play on the field constantly.
Nonetheless, many are now wondering whether Archie, in retrospect, would have allowed her son to play youth football had she been aware of certain risks. At the age of 24, Paul was killed in a motorcycle accident precipitated by excess speed and erratic driving. Leading up to his death, Archie had recognized Paul’s increasingly unpredictable behavior, which led her to ask doctors to conduct an autopsy on Paul’s brain. The results demonstrated that Paul was suffering from Chronic Traumatic Encephalopathy, the cause of which was more likely than not concussive head trauma from contact sports. Shortly after Paul’s posthumous diagnosis of CTE, Archie brought suit against Pop Warner Football and other entities associated with youth football.
Class action claims involving CTE are not a novel theory for many litigators. CTE is a destructive neurocognitive disease which affects the brains of athletes who suffer repeated head trauma. CTE has no distinct symptoms, and in many cases resembles dementia. There is no cure for the disease, and it can only be diagnosed by autopsy. Scientists are able to verify the existence of CTE by posthumously examining clusters of certain ‘tau’ proteins located in critical areas of the brain.
In addition to the high stakes in these two matters, the youth sports programs that serve as the venerable pipeline to the professional leagues are now in the crosshairs. Parents who withhold their children’s participation from the youth sports leagues may ultimately affect the quality of the professional leagues.
This the primary reason why so many in the industry are analyzing Archie’s lawsuit. In Archie’s complaint, she alleges that Pop Warner Football, USA Football, and the National Operating Standards Committee on Standards Athletic Equipment could have done more to protect the 250,000 children that play youth football. NOCSAE is a separate accreditation body that provides certifications and standards on athletic equipment, including equipment used by children. In the complaint, Archie alleges that the defendants “misrepresented material facts to Plaintiffs … regarding the safety of Pop Warner Tackle Football, including the safety of the equipment used by minor child participants.”
For example, the complaint states that all youth football helmets are governed by NOCSAE standards. Indeed, many youth football helmets possess stickers placed on the rear (or on the inside) of the helmet which indicates that the helmet complies with NOCSAE standards. Archie then alleges, that “NOCSAE concedes that there is no youth-specific helmet standard.” As a result of this alleged material misstatement, parents have a false sense of security that their children’s helmets meet a defined industry standard.
In addition, Archie contends that Pop Warner and USA Football have made similar misstatements that have mislead parents. As an example, Archie contends that Pop Warner Football has insisted that its tackling methodology, “Heads Up”, has reduced injuries by 87 percent. According to Archie, that percentage offered by Pop Warner is false, and the number of injuries has not been reduced at those respective rates. Moreover, USA Football informed parents that over 40,000 volunteers involved with youth football receive training to offer safe programs, however, in a deposition, the CEO of USA Football admitted that there is no verification process to confirm those numbers.
None of these allegations cast a favorable light on the defendants, and will no doubt create a public relations nightmare. However, similar to the NFL and the NHL, the defendants in Archie’s case will still have many of the same affirmative defenses. For example, proving causation will be a significant hurdle, as many of these youth players will continue to play well into their high school and college years. As such, the class members will have trouble demonstrating that it was Pop Warner football that caused their injuries. In addition, the youth sports leagues will also argue that players and their parents have signed waivers allowing them to participate in youth sports. Undeniably, the use of athletic participation waivers has precluded some plaintiffs from bringing lawsuits in other situations.
The larger problem for the defendants, however, may be the increased scrutiny and costs that these youth leagues will experience. While the defendants have insurance, the increased premium costs will have to be shouldered by the youth sports leagues, or will have to be passed onto parents. Moreover, some experts have opined that the principles that govern the game might have to be changed, namely, reducing contact between young players. Indeed, USA Soccer has modified its rules to disallow certain young children from using their foreheads in practice or in games.
Archie’s lawsuit against Pop Warner Football will be troublesome for youth leagues in the coming future as those leagues grapple with how to make their sport safer without diminishing the quality of play. These changes will present some legal hurdles for the entire industry and will only be fleshed out with time. Parents, administrators and coaches are watching closely to see if the youth sports industry gets turned upside down.