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Concussion suit against IHSA faces uphill battle
BRIAN C. KONKEL
Law Bulletin columnist
Published: December 22, 2014
A former Notre Dame College Prep football player has filed a class-action lawsuit in Cook County Circuit Court against the Illinois High School Association. Daniel Bukal v. Illinois High School Association, No. 2014 CH 19131.
The suit seeks, generally, reform of the IHSA’s concussion protocol with respect to baseline testing, concussion reporting and tracking, treatment and education.
The suit, which does not seek damages, seeks to certify a class of all former football players that played at IHSA member institutions from 2002 to the present. It alleges that the IHSA, as the regulatory body of interscholastic athletics in Illinois, knew or should have known that its actions or inactions would cause harm to players in both the short- and long-term.
The suit is the first of its kind in the United States brought against a high school association and, in many ways, mirrors similar class-action suits brought against the NCAA and the NFL with respect to these entities’ handling of head injuries. These suits have fostered settlements with the plaintiffs, however, a similar outcome is much less likely in this case. For a number of reasons, the plaintiff in this case may find it difficult to prevail.
An initial hurdle for the plaintiff will be establishing class certification. One of the requirements for class certification under 735 ILCS 5/2-801 is that questions of fact or law are common to the class and predominating over questions affecting only individual members. In this instance, the Illinois General Assembly enacted a law in 2012 (105 ILCS 5/10-20.54) that addressed concussion and head injury safety of student-athletes.
Thus, based on the timeline encompassing the proposed class, there is a variance between student-athletes who played football prior to enactment of the law and those that have participated since the law has been in place. The concussion protocol in place today is drastically enhanced relative to the IHSA’s previous policies and procedures.
The question becomes, then, to what extent are the IHSA’s alleged failures related to its actions prior to enactment of this law versus is alleged failures since enactment?
Assuming that the class is certified, another obstacle for the plaintiff is that the General Assembly has already demonstrated a desire and willingness to implement laws designed to protect youths and adolescents with respect to head injuries. In light of laws already on the books in Illinois, the court may, and arguably should, show legislative deference.
Section 5/10-20.54, enacted in 2012, contains several provisions that address concussion and head-injury safety and awareness. Subpart (c) already requires the IHSA to provide educational materials to school districts, and school districts, in turn, are required to educate coaches, student-athletes and parents.
According to IHSA Executive Director Marty Hickman, this year alone, 22,000 high school coaches have taken the IHSA’s concussion education course that was designed in conjunction with the General Assembly along with athletic trainers and medical experts.
Another recently enacted law, Section 25/1.15, further addresses head-injury education and requires online concussion certification for all high school coaching personnel, including assistant coaches and athletic directors. There is also proposed legislation that aims to further protect student-athletes by seeking to limit tackling in football practice to once per week (H.B. 1205).
On the matter of concussion education, the Bukal suit seeks required education for athletic trainers. The current laws are silent on this. This is certainly something that should be taken into consideration given the vital role that athletic trainers play in assessing head injuries.
However, expect the court to be reluctant to impose further requirements upon the IHSA and its member institutions on an issue that the legislature has already undertaken to address.
Similarly, as alleged in the Bukal complaint, the law does not mandate specific guidelines or rules with respect to managing concussions and head injuries. To that end, the complaint requests implementation of required base-line testing, reporting and tracking procedures and a statewide screening and detection protocol.
This would certainly be a positive step to protect student-athletes, but the court may be apprehensive to implement a specific mandate on this issue.
Arguably, many of the remedies sought by the plaintiff would essentially require lawmaking by the court, which infringes upon the power of the General Assembly as set forth in Section 1 of the state constitution. See People ex. rel. Thomson v. Barnett, 344 Ill. 62 (1931) (The General Assembly has the sole duty and responsibility of legislation).
A good deal of the injunctive relief sought by the suit may also be considered unduly burdensome and could be rejected by the court as a matter of equity. For example, the suit seeks the presence of medical personnel with specific expertise in the diagnosis, treatment and management of concussions, not only during interscholastic athletics competition but also during practices.
To put this in context, there are more than 800 member schools that make up the nonprofit IHSA. The financial burden would likely fall upon each member institution and could be cost prohibitive. Conceivably, this could precipitate a drastic reduction in athletic programs across the state. The courts may weigh this cost against the intrinsic benefit of participation in interscholastic athletics.
Similar concerns exist as to who would bear the costs of the proposed medical monitoring that the plaintiff requests as part of its prayer for relief. Taxpayers could be required to pick up many costs associated with the relief sought, which would likely require legislative action and further strain state and local budgets.
From an enforcement standpoint, the IHSA simply does not have the power to impose punitive measures for non-compliance in the same manner that a professional league would.
Overall, the aims of the Bukal suit represent positive steps toward protecting high school student-athletes, but the court system may not be the right vehicle through which these changes are implemented. Head injuries are undoubtedly a pressing issue at every level of sport, and the issue is an evolving one.
However, do not expect significant change to come from the court in this instance. Change is more likely to come through cooperation of the General Assembly working in conjunction with the IHSA, with input from persons with a vested interest in this critical issue — including, perhaps, former student-athletes.
Brian C. Konkel is an attorney in the sports law practice group at SmithAmundsen LLC. The sports law practice group is all-encompassing but focuses on the litigation needs of players, coaches, teams and schools. He can be reached at bkonkel@salawus.com.