High schools, districts not in open field yet on football concussion lawsuits, but recent dismissal raises bar

By Hoang Tran | Nov 17, 2015

CHICAGO - High schools in Illinois could still face legal trouble over the traumatic brain injuries suffered by the state's high school football players. But the legal bar potential plaintiffs must clear when suing Illinois' statewide high school athletics association has been raised, following a Cook County judge's decision to toss a class action over just that issue.

In late October, Judge LeRoy K. Martin Jr. ruled in Cook County Circuit Court in favor of the Illinois High School Association (IHSA), granting the high school athletics association's motion to dismiss a class action football concussion lawsuit brought against the association about a year earlier, during the 2014 state football championships.

Jacqueline Gharapour Wernz, an attorney specializing in litigation involving school districts for the Chicago-based law firm Franczek Radelet, said this ruling likely short-circuits other potential actions against the IHSA.

“This case may not foreclose all future lawsuits by injured players against the Illinois High School Association, but it should foreclose many,” Wernz said. “The court dismissed the case because of many deficiencies in the allegations in the complaint."

Further, she noted this case was dismissed with prejudice, with the judge saying he supported the IHSA’s progressive safety record, and that he believed the IHSA has acted to protect student athletes in Illinois. 

Martin also declared he believed the best route to address player safety was through the enactment of laws, rather than lawsuits.

"Other plaintiffs who might want to raise identical claims would also face difficulty in doing so because of this decision," Wernz said. "So this case really raised the bar of difficulty for any injured player wishing to hold the IHSA responsible for a concussion he or she suffered while participating in football or other sports.”

However, as Wernz noted, while this dismissal makes it difficult to hold the IHSA liable for concussions, it does not close the case on future cases against individual school.

On one hand, Wernz said some of the judge's holdings, including his emphasis on the "contact sports exception" and the risks assumed by students and parents when the students participate in sports involving violent physical contact, like football, could mitigate some of the potential impact of future legal actions against individual high schools. 

But the case didn't involve claims against any individual schools, so it remains to be seen just how directly the ruling will come to bear on such future claims, Wernz said.

“So it is unclear that this case really changes the landscape for potential liability for entities other than the IHSA," she said.

Wernz noted that, regardless of the victory for IHSA, safety should still be a high priority for schools and the association. She advised school districts and high schools to "continue to take seriously the risks of concussions and other head injuries" for the sake of the students, the schools and the districts.

In a statement following Judge Martin's ruling, the IHSA noted the launch of its “Play Smart. Play Hard.” campaign in May 2014 to help spotlight the numerous steps the IHSA and its membership have made in the name of safety across all sports, including football.

The IHSA said it is also working in conjunction with the Illinois Advisory Council on Player Safety, a new committee consisting of certified athletic trainers, student-athletes, coaches, officials, parents and other invested constituents. The IHSA said it is working to review current programs and offer new recommendations.

  “We maintain that the way to make high school football in Illinois safer is not through divisive lawsuits, but rather through collaborative efforts with key stakeholders," IHSA Executive Director Marty Hickman said in a statement. "We have followed this practice for years, and it’s obvious the court agrees with our approach." 

Wernz stated that, while she doesn’t believe the suit against the ISHA will affect how schools are already addressing safety concern, change is still coming, noting legislation to increase the regulation of head injuries for student athletes participating in officially sanctioned sports.

"I don’t see this lawsuit having a significant impact on the requirements of that statute,” Wernz said.

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