Pierscionek v. IHSA
In Pierscionek v. IHSA, a former Illinois high school football player is suing the Illinois High School Association in Illinois state court. (the original case was filed as Bukal v. IHSA, but was recaptioned after the original plaintiff, Daniel Bukai, dropped out of the case; for Don Collins' original thoughts on the case, shortly after it was filed, click here)
Some of the same flaws that led to the dismissal in Mehr v. FIFA could lead to dismissal in Pierscionek as well. As Mehr demonstrated, a plaintiff in a concussion class action has to do more than assert a claim on a hot button issue, and contend that the governing body of a sport hasn't done enough to protect athletes from harm. It is only human to feel sympathy for a former athlete suffering from the effects of one or more concussions or repeated impacts to the head. But sympathy alone is not enough. The requirements of the law still must be satisfied, whether one is suing the IHSA in an Illinois State court or suing FIFA and youth soccer groups in a California federal court.
The Illinois high school football case is unlikely to be dismissed on procedural grounds as was Mehr. Joe Siprut, the attorney for the Illinois football players, was far more careful than the youth soccer players' attorney in Mehr. The IHSA has claimed that Pierscionek's complaint is barred by the statute of limitations based on the date Pierscionek says he was injured, but the Complaint is only marginally late, and we believe a court will cut Pierscionek some slack, since he needed some time to realize that he was suffering from the after-effects of the concussion.
The Illinois football case may not have procedural problems, but it has some substantive problems. It may very well be dismissed before trial because, in our view, it simply doesn't state a claim under which the IHSA can be found liable, for much the same reasons as were cited by Judge Hamilton in dismissing Mehr, namely that a football player assumes the inherent risks of the game, so that, as long as the IHSA didn't take steps to make those inherent risks worse, it can't be found negligent. Concussions are clearly an inherent risk of the game, and the Complaint in Pierscionek doesn't allege that the IHSA made the inherent risk of concussions worse.
As much as Siprut wants a trial, if he can't state a claim, the Illinois football case will be dismissed before it gets that far. To his credit, Siprut realizes he has an assumption of risk problem, which he addresses by relying on the Illinois Protecting Our Student Athletes Act, 105 ILCS 5/10-20.54, which requires every Illinois school board to adopt a concussion policy which complies with the IHSA's policies and bylaws, and requires the IHSA to disseminate concussion educational materials to all school districts.
Siprut's problem is that he overplays his legal hand by erroneously claiming that the Act makes the IHSA the only group that can pass concussion regulation, and that the IHSA did not write sufficiently good rules. In truth, numerous entities can and do promulgate concussion management guidelines, including the National Federation of High Schools, whose rules the IHSA must follow. Further, every school district in Illinois, while required by the Protecting Our Student Athletes Act to adopt concussion policies, is free to enact its own rules, as long they meet the IHSA's minimum standards.
As a result, the Protecting Our Student Athletes Act has little legal significance, in effect codifying what was already the case: that IHSA member schools must follow IHSA rules; that the NFHS also writes rules that the IHSA must follow; and that IHSA schools can write regulations that are more strict than IHSA rules. It appears that, in enacting the Protecting Our Student Athletes Act, the Illinois legislature simply meant to highlight an important safety area and have local school boards actively declare that they were adhering to IHSA rules in this particular area. In more common vernacular, the Act really means that "schools have to follow IHSA rules, and we really mean it and we're going to make the schools say so because this is really, really important to us in the Illinois legislature ... so there."
Not surprisingly, the IHSA doesn't quibble with Siprut's error; instead, it uses it to its advantage by arguing that the it can't be found to have acted negligently because it disseminated educational material as required by the Act, and can't be found liable for negligent rulemaking when it is the purview of the Illinois legislature to enact rules.
Stripped of his claim that the Act makes the IHSA solely responsible for enacting rules governing concussion management, Siprut faces the same problem that the attorney for the youth soccer players faced in Mehr: he must find a way to show that the IHSA's concussion regulations made the inherent risks of football worse.
In arguing for dismissal, the IHSA, however, goes even further than the youth soccer governing bodies in Mehr. The IHSA argues that it can't be negligent under the contact sports exception, which says that a player in a sport or activity can't be found negligent where he or she commits an act which is a penalty, foul or harmful act, but is an act that every reasonable person who plays the sport expects to happen and knows that they will have to deal with. In layman's terms, I may be negligent when I commit a personal foul in a basketball game by smacking you in the eye while trying to block your shot, but everybody who plays basketball knows that there's a chance that they'll get poked in the eye during the game. Once in a very rare blue moon, some guy is going to get a detached retina. He doesn't get to sue me because he's the one in a billion guy. The "contact sports exception" applies.
The IHSA may well be correct in relying on the contact sports exception. The exception is supposed to protect players who injure other players in the normal course of play. But in a 2008 case, Karas v. Strevell, the Illinois Supreme Court extended the contact sports exception to protect organizations. Interestingly, Karas relies upon a 2003 California Supreme Court case called Kahn v. East Side Union High Schl. District, which is a bit odd, because Kahn ruled that coaches can only be liable if they are grossly negligent when engaged in coaching actions, which are a lot broader than playing actions, and the logic of protecting a coach is different than the logic of protecting a player from the ramifications of actions he takes while playing. Yes, Karas misses the point, but Karas is the law in Illinois and it may very well win the case for the IHSA.
The Illinois football case will probably be dismissed and never get to trial. It will either be dismissed because the IHSA did not make the inherent risks of play any worse or it will be dismissed under the Illinois expansion of the contact sports exception.
