March 27, 2018
By: Anne Marie Ellis and Paul Alarcon
Youth sports in California face a changing landscape. Recently, two California legislators announced a bill — the Safe Youth Football Act — designed to prevent brain injuries during youth football games by restricting tackle football programs to the high school level.
The Safe Youth Football Act is authored by California General Assembly members Kevin McCarty, D-Sacramento, who chairs the Budget Subcommittee on Education Finance and heavily focused his 2014 campaign themes on education issues, and Lorena Gonzalez Fletcher, D-San Diego, who serves on the Assembly Committee on Education. Both authors anticipate that the act will be considered by the Assembly in Spring 2018.
California’s proposed Safe Youth Football Act comes only a year after the enactment of Assembly Bill 2007, which was designed to expand California’s statutory scheme addressing concussions in youth sports beyond the scholastic environment to include all public or private youth sports organizations. Assembly Bill 2007 imposes various requirements regarding parental informed consent and notification, coach and administrator training, player removal from play and medical clearance for a wide range of contact sports offered by any organization in the state that allows players under the age of 18. Prior to Assembly Bill 2007, only California’s Education Code imposed substantive mandates designed to address concussions in youth sports.
This proposed law comes amid growing concerns about the long-term effects of head injuries on brain development. In recent years, multiple former National Football League athletes have been diagnosed the degenerative brain disease chronic traumatic encephalopathy (CTE) following their deaths. In 2015, the National Football League reached a $765 million settlement with former athletes who alleged the league concealed the dangers of concussions.
The following year, a class action suit was brought against the organization for allegedly failing to institute league-wide safety protocols and ignoring the risks of head injuries in children. The class action centers on the allegations of the parents of three young men who participated in Pop Warner youth tackle football for years during their childhood and who were diagnosed with CTE after their deaths.
The Safe Youth Football Act’s authors contend that medical research demonstrates that exposure to high-contact sports at a young age increases the risk of developing neurological impairments, including CTE. Accordingly, the act’s authors propose establishing a minimum age requirement for payers in organized tackle football programs. Although they do not specify the precise age requirement, the act’s authors state the new law will permit youth tackle football only at the high school level.
California is not alone in its crusade against youth football. Legislation similar to the “Safe Youth Football Act” has been proposed in Illinois, Maryland and New York. The Dave Duerson Act in Illinois, named after the former Chicago Bears player who was diagnosed with CTE after taking his own life, would ban tackle football for children under the age of 12. New York’s proposed legislation would prohibit organized tackle football leagues for children under the age of 14. Finally, the Maryland bill not only would eliminate tackling in football, but also would ban “body-checking” in lacrosse and hockey, as well as “headers” in soccer for athletes under the age of 14 in public athletic programs.
Concussion safety laws are not unique to the United States. Ontario, Canada, recently passed concussion safety legislation designed to protect amateur athletes from, and educate coaches about, the dangers of head injuries. The bill is named “Rowan’s Law” in memory of Rowan Stringer, who died from second-impact syndrome after multiple concussions sustained during rugby.
However, given football’s entrenchment in American culture, there is also growing opposition to the Safe Youth Football Act. That opposition comes not only from parents, but also from coaches, who argue that kids who do not play organized tackle football before high school are vulnerable to increased injuries if they delay playing tackle football until high school. Coaches and parents also argue that unqualified coaches or poor training, not the tackle football itself, are the causes of increases in head injuries to players.
Finally, those opposed to the bill contend that parents are in the best position to make decisions about whether to allow their children to play football. They argue that politicians should not encroach on this parental authority through regulations that completely deprive parents of the right to make this choice.
Should the Safe Youth Football Act become law, organizations with youth tackle football programs that run afoul of its provisions — for example, by hosting tackle football games in California or failing to take adequate steps to ensure all athletes have reached the required age — can anticipate civil liability either through government enforcement actions or private suits, should an athlete suffer an injury. Indeed, under principles of negligence per se, any failure to comply on the part of organization alone will likely serve as a basis for liability if an athlete is seriously injured.
In such a case, traditional defenses such as assumption of risk and waivers would likely not apply. Moreover, governmental immunity defenses, which are sometimes available in the context of state schools, will not be available. If this bill becomes law, there will also be an increased risk of personal liability for coaches and volunteers in organizations that do not comply with the law.
Even where an organization fully complies with the Safe Youth Football Act, plaintiffs attorneys will likely point to the developing medical research touted by the Safe Youth Football Act’s authors as a basis to hold organizations liable under simple negligence for concussion-related injuries arising from youth tackle football, or any other youth contact sport. Youth sports organizations may also expect changes in their liability insurance, including requirements that these organizations are fully compliant with the new laws.
Concerns about the effects of head trauma on youth sports participants are part of a national and international movement. Accordingly, organizations with youth football programs should anticipate that jurisdictions throughout the country will begin advancing similar restrictions on youth tackle football, just as some form of Washington’s Zackery Lystedt Law imposing “return to play” requirements in public education sports programs almost a decade ago was quickly adopted by nearly every other state.
If enacted into law, the Safe Youth Football Act would make California the first state in the country to prohibit youth tackle football below the high school level. If successful, this act is only a beginning. In light of Assembly Bill 2007’s broad application to most, if not all, contact sports, California legislators can be expected to impose broader prohibitions on activities that are perceived as dangerous in other sports, such as checking in hockey and headers in soccer, as Maryland’s proposed bill does.