In January 2016, Pop Warner reached a confidential settlement with Donnovan Hill, a Los Angeles-area football player who was rendered a quadriplegic at age 13 as a result of a helmet-to-helmet collision with an opposing player which snapped his neck.
Hill's mother alleged in her lawsuit that his coaches encouraged head-first tackling, that her son was punished when he objected to using the technique in practice, and that he used it in games without repercussions.
One of his coaches defended head-first tackling to ESPN's Outside the Lines in 2013; the other claimed he warned Hill against the practice.
Both coaches admitted in deposition that they did not take Pop Warner's mandatory training for head coaches. Pop Warner's Executive Director conceded that the organization does not check whether coaches actually take the course.
The settlement came after a California Superior Court judge denied the motions of Pop Warner and Hill's coaches to end the case at the pre-trial stage in which he rejected the arguments of Pop Warner and the coaches that their conduct did not rise to the level of gross negligence, the standard that must be established to hold volunteer coaches liable for damages in a civil case, and refused to let Pop Warner - which advertises itself as a safety-first organization in which children play for coaches trained in proper tackling technique - out of the case based on its admitted failure to enforce its rules at the local level.
Commenting on that ruling, the plaintiff's attorney, Rob Carey, said that, "Any governing body in the youth sports industry, especially those in contact sports, should be paying attention. They need to know that if they make representations about safety or training, it better be true. And if you know of risks of playing a game, take all reasonable precautions to make sure those risks are mitigat[ed]. In a football context, that means training coaches in tackling at a minimum."
Because some commentators, on social media and elsewhere, viewed the Pop Warner settlement as potentially game-changing, MomsTEAM decided to ask three attorney members of its Board of Advisors (a law professor, Doug Abrams; a high school interscholastic sports commissioner, Don Collins; and a sports law specialist, Alan Goldberger) what they thought the impact of the decision would have, if any.
Here's what they told us:
1. What do you see as the significance of the settlement, since it is not a court decision with any precedential value? (In other words, does it have, even as a settlement, an in terrorum effect?)
Professor Abrams:
In the federal and state courts each year, more than 90% of civil cases are resolved by settlement or similar arrangement without trial. A settlement is a private agreement - a private contract -- between or among the parties. The plaintiff agrees to dismiss the lawsuit, and the defendant agrees to pay damages or make some other accommodation sought by the plaintiff. As a private agreement, a settlement creates no precedent. Indeed, settlement agreements usually recite that the parties must keep the agreement's terms confidential, and that the defendant admits no liability.
Particularly in a well publicized case such as Donnovan Hill's, however, settlement can affect the defendant's future conduct, even in the absence of a formally binding precedent. And the judge's written summary judgment decision is a public document.
A defendant's payout in this case - the amount of which was not disclosed - may affect its ability to obtain future liability insurance, and may also affect the cost of insurance obtained. Once lawyers and others know that the defendant paid to settle a personal injury suit, the settlement may encourage families of future injured youngsters to sue that defendant on similar claims. Settlement here should lead Pop Warner (and other youth sports governing bodies) to closely reexamine local safety practices and protocols.
Every lawsuit has dynamics of its own - one or more future plaintiffs may reject Pop Warner's settlement offers and may opt to go to trial, perhaps recovering damages in amounts that Pop Warner said in the Hill suit would have been large enough to bankrupt the organization. If the case proceeds to trial, some juries may be sympathetic to seriously injured youth leaguers, and some juries might not be.
Commissioner Collins:
As Professor Abrams correctly notes, a settlement is not a legal precedent. But Donovan Hill's case is significant in that it is likely to invite more suits against schools, leagues, and teams, and even youth and perhaps even high school sports governing bodies for not taking adequate steps to ensure that football coaches are trained in ensuring that their players know safety techniques. These types of suits will be different than the highly publicized suits against the IHSA and FIFA (about which I have written for MomsTEAM), which could best be described as bringing a lawsuit in order to either complain about a governing body's existing regulations or to compel the governing body to enact new regulations. Those lawsuits were intended to shape social policy by compelling large governing bodies to take large scale rules based action.
The Hill case rests on classic negligence law: somebody has a duty, breached the duty, somebody got hurt, I'm going to sue you, and if you're sued enough you're going to change your ways because your insurance rates will go up, and everybody in your industry will know that if they don't meet some "standard" they're going to get sued.
Hill's case presents a classic problem for administrators. You know you have some broad duty to make the game safer, but nobody ever tells you what the duty means. The only way to find out the parameters of the duty is to either get sued, have government define the parameters of the duty, or have some huge private entity establish generally accepted principles. Of course, nobody wants to get sued, and people don't really like government telling them how to run their business. So, the only way to get to a standard is to have groups like Heads Up Football tell you what contact is, and what thud is, and what control is, and ultimately these groups have to come up with generally accepted standards on how much contact, thud and control one can have.
Hill may not be a legal precedent, but if there are enough suits like Hill people will change their organizational behavior.
Attorney Goldberger:
I think the significance of the settlement is to demonstrate that a catastrophic injury will often result in litigation against a spectrum of defendants, often with umbrella or national organizations joined as well as the persons and entities who actually organized and/or supervised or participated in the administration of the game or practice. This litigation has to be defended at significant cost - regardless of the ultimate outcome.
Some may take notice that the case was not dismissed -- giving the plaintiffs a chance to go to trial; and that the defendants elected to make it go away by settling. This, of course, is not an admission of liability but rather a demonstration of the economics of litigation.
Still, I don't believe that one settlement of a catastrophic injury claim in this setting will have a long-term significant effect on anyone other than the defendants involved.
2. Do agree with those who view the settlement as effectively holding youth coaches and organizations responsible for serious player injuries?
Professor Abrams:
Time will tell, but I think it is fair to say that the Hill settlement holds tremendous potential for holding organizations or coaches liable in many cases that involve serious injuries. Even if liability does not extend to most or all cases, the prospect that liability would extend to many cases should concern prospective defendants. As I said above, if a case proceeds to trial, some juries may be sympathetic to seriously injured youth leaguers, and some juries might not be.
At the very least, the Hill settlement stands for the propositions that national, state, and local organizations must take meaningful measures to instruct local coaches (volunteer or paid) about injury-minimization, and that organizations must reasonably supervise how local coaches actually apply that instruction. At a minimum, these obligations would mean (1) that national, state and local organizations must produce educational materials such as "Heads Up," (2) that organizations must assure that local leagues and associations receive these materials and provide them to parents (when their child registers) and coaches (when they volunteer or are otherwise engaged by a program), (3) that coaches must attend safety certification classes, and achieve certification, before they may coach, and (4) that responsible league officials must monitor coaches at practice sessions and games.
In the summary judgment decision in this case, I found it significant that the Pop Warner official conceded that the organization took very few of these safety precautions. To paraphrase House Speaker Tip O'Neill, "all safety is local." Safety rules may be formulated at the national or state levels, but they mean little unless they are actually applied and enforced at the local level.
Does the Hill case mean that organizations and coaches are responsible for serious injuries? Time will tell, but I don't think that the liability will be automatic. Even with the most reasonable safety measures, injuries happen, particularly in contact and collision sports such as football. Fortunately, most of these injuries are not as serious as the one Donnovan Hill suffered. Meaningful safety measures provide no absolute guarantees against injury. But the more safety-prevention measures that authorities take and apply, the stronger the defendants' position would be in settlement negotiations or at trial.
Every state now has enacted concussion safety legislation (so-called Lystedt laws) applying to interscholastic sports, though only about half the states extend such application to youth leagues that use public facilities. As a minimum, authorities must heed this legislation, because it would be negligence not to. Such legislation would not have helped Donnovan Hill, because California's version of the Lydstedt Law only applies to interscholastic sports.
Commissioner Collins:
Well, the settlement will certainly make Pop Warner be more aggressive in requiring its coaches to be trained. It's not clear whether the settlement will impact other organizations. Remember, the Hill settlement doesn't operate in a vacuum. Every state has high school concussion standards, an increasing number of states and organizations, including Pop Warner, regulate football contact, and high schools are adding more and more coaching education and training courses, not just in football but in a whole lot of sports. How lawsuits and settlements add to the current state-mandated training requirements and regulations will only be determined over a long period of time. One settlement and its aftermath isn't likely to give us a full answer.
Attorney Goldberger:
No. I don't believe that the settlement should be characterized as "holding responsible" anyone for anything. The settlement is simply a way to end a lawsuit, with each party agreeing to a result without admitting liability.
As far as "responsibility" for injuries, I think it's not "the settlement." Once a claim is asserted, youth coaches and organization officers sometimes begin to appreciate the cost of "responsibility" for serious player injuries in that time, effort and money is expended to defend the claim -- long before any settlement or verdict is effectuated.
3. What support in the case law is there for imposing tort liability on a national sports organization, such as Pop Warner, the United States Soccer Federation, or the National Federation of State High School Associations, for a sports injury as being proximately caused either by the organization's failure to enact policies consistent with best safety practices or failure to enforce such policies? (In other words, does an organization owe a duty of care to players or, if it does not, does it assume such duty by enacting policies which it then fails to enforce, resulting in injury?
Professor Abrams:
See # 2 above.
Commissioner Collins:
I'm not sure that you're going to find a lot of case law that says that a governing body is going to be liable just because it didn't enact a specific safety rule. Even the high profile lawsuits that asked governing bodies to pass specific legislation usually sought the legislation as a remedy for negligence as opposed to arguing that the lack of legislation was negligence in itself.
I think the best way to describe the law on this is as follows: (a) a player assumes the inherent risks of a game. (b) a sports governing body can't take steps to make the inherent risks worse. (c) concussions are clearly an inherent risk of the game. I think everybody would agree with this.
Where people disagree is on factual matters and on remedies. The facts lead to findings of negligence. There are probably some attorneys (most notably Joe Siprut, the attorney who sued the IHSA) who would argue that not writing specific laws is tantamount to negligence, but I think most attorneys have argued that negligence is found through poor coach training, poor concussion return-to-play practices, and I think a number of people would contend that some larger governing bodies (like the NFL or NCAA) may have rigged the game by having knowledge of risks that they did not disclose to large classes of victims (in all fairness, though, nobody has found the smoking gun yet).
I don't think that we will see a lot of governing bodies found liable because their rules weren't good, but we'll still see some of those organizations settling if the economics support a settlement. Remember, nobody really wants to have a bunch of witnesses testifying about their concussions. A governing body could easily lose the trial and win the appeal, which is an expensive and dangerous way to live. Fortunately, state legislatures are passing so many laws that a governing body may be able to argue that if it is meeting the legislative requirements, it is doing exactly what it is supposed to do.
Governing bodies may escape liability for not writing a specific rule, but there may be a day where they face lawsuits that challenge how they investigate, audit, and enforce their policies. In short, some attorney may ask a governing body whether their failure to properly or effectively enforce a safety rule leads their member schools to not abide by the rule, and whether a large scale practice of coaches not abiding by a concussion rule or football safety rule somehow proximately caused some widescale harm. I don't know if such a case would fly, but it wouldn't be fun to defend. My guess is that this type of problem may be better flushed out by a journalist who looks into some coaches as opposed to an attorney. Let's face it, a newspaper expose on coaches who aren't trained or are not following rules will move the public far more than a lawsuit,unless the lawsuit is a class action against a very large organization.
Attorney Goldberger:
I cannot comment on any specific organization named. Generally speaking, I agree with Don and Doug that there is little support for theories of liability against national organizations that can't possibly be expected to either (1) promulgate policies in a field where there is so little consensus or understanding of the practical problems of enforcement; or (2) to police conformance with all standards of care throughout the continent.
That said, there is ample support for the proposition that national organizations need to be sensitive to the legal environment that necessitates managing the risk of injury by all organizations through placing much emphasis on training techniques and procedures that will minimize risk. In this regard, the most instructive statement I've read in the past 7 years (since the "new" concussion data swept the sports world) was that made by Doug Abrams to the extent that "all safety is local. [meaning] Safety rules may be formulated at the national or state levels, but they mean little unless they are actually applied and enforced at the local level." In other words, Doug has wonderfully focused on the crux of the crisis: On field personnel need to know - and care about -- when to remove a player - and when it's ok for the player to return-to-play. Little else matters in preventing concussion claims.
With regard to the prospective duty of care to players which may be assumed by promulgating policies, there are no easy answers. Organizations that publish playing rules, for example, frequently publish interpretative materials relative to the rules; as well as officiating manuals; and guidelines for coaches and administrators. Obviously, the people delivering athletic programs, especially for a youth population, need to have the knowledge and ability to follow the rules and other guidelines and protocols which are published to carry out the governing organization's purposes.
Whether an organization can reasonably be held liable for a particular injury during an event connected in any way to the organization is a fact-sensitive inquiry. I believe the weight of authority suggests that liability of a publisher of a rules code or other standard, or even of a national organization that maintains local affiliations that engage coaches and officials and others, is circumscribed by a number of factors. The national governing body and other umbrella type sports organizations rarely can exercise sufficient control over all events to justify liability on a uniform basis. That said, I agree with Don that all organizations need to be ready to defend claims in the future, as plaintiffs' attorneys seek to expand the concepts of "control" and other theories of both direct negligence and vicarious liability in a variety of contexts.
Douglas E. Abrams is a nationally recognized youth sports expert and professor of law at the University of Missouri, specializing in family law and children and the law. He is is a longtime contributor to MomsTEAM, and a member of the Institute's Board of Directors.
Donald C. Collins is an attorney, long-time basketball referee, and Commissioner of Athletics for the California Interscholastic Federation, San Francisco Section. Like Professor Abrams, he is a longtime contributor to MomsTEAM, and a member of the Institute's Board of Advisors.
Alan Goldberger is a New Jersey attorney whose practice focuses on sports, business and administrative law, sports and athletic risk management, and related litigation) with a background in sports law . He is a member of the Institute's Board of Advisors.
Posted February 12, 2016
