Using the "Power of the Permit" to Confront the Youth Sports Concussions Crisis

Since 2009, forty-nine states have enacted statutes that seek to improve treatment of concussions suffered by children who play organized sports. The swift, near universal response reflects growing public concern about the prevalence, risks and potentially devastating consequences of these pediatric injuries.

The states have taken a giant step in the right direction, but work remains unfinished because more than 30 of the new statutes reach only interscholastic sports (middle school and high school competition, for example). Millions of youth leaguers who play in private leagues, clubs and associations from coast to coast remain outside protections that are designed to make life better for the nation's youngest athletes.

Most of the state concussion statutes create two core mandates. First, parents, coaches, administrators and players must be provided with information and education about the dangers of concussions, how to recognize symptoms of potential brain trauma, and how to help promote healthy recovery. Second, coaches must immediately remove from a practice session or game a player who is suspected of suffering possible concussive injury. The player may not return to action until a physician or other licensed medical professional clears the player and affirms that return is medically appropriate.

Legislatures often move one step at a time by enacting one or more mandates initially before turning to others. With a nationwide concussions policy in place, the 30-plus states should now take the next step by extending protection to youngsters who play in private sports leagues, clubs and associations. Without awaiting further statewide legislation, city councils and public agencies such as parks and recreation departments and school districts usually may extend the existing core mandates to most private youth sports organizations that operate in their localities.

State and local extension would serve the public health because a concussion is a concussion, regardless of whether a boy or girl sustains it in interscholastic play or youth league play. One way or the other, unrecognized or improperly treated concussions can leave their young victims less able to learn in school, perform functions of everyday life, and perhaps enjoy adulthood free from chronic pain, cognitive dysfunction, and possible mental deterioration. Children deserve better from the games they play.

Where do legislative bodies and public agencies get their legal authority to regulate most private youth sports leagues, clubs and associations? Most of these organizations do not own and operate their own facilities, so they typically use public fields, gymnasiums and other facilities under permits granted by local government agencies, usually the parks and recreation department or the public school district.

Legislative bodies and government agencies may regulate the terms under which private applicants may use public property. I and others have called this authority the "power of the permit," and it means that when a private youth sports organization applies, the decision maker may condition grant or denial on adherence to concussion protocols mandated by legislative action or agency regulation.

The power of the permit can make the difference for distressed youth leaguers. Medical research has aroused greater sensibility about sports concussions than the public had even fifteen years ago. "Sometimes we have ignored concussions in younger athletes and we now realize those athletes are the most significantly affected," says Dr. Daniel Kraft, director of Riley Hospital for Children's Sports Medicine at Indiana University Health.

"[C]oncussion is a risk in almost any sport" and "a common problem for children and adolescents," adds neurosurgeon William P. Meehan. Writing in Pediatrics, two researchers estimate that concussions represent nearly 9% of all high school athletic injuries, perhaps an understated figure because many families do not recognize symptoms and many athletes hide their distress to avoid disdain from coaches and teammates, or removal from the team or the starting lineup.

Participation in sports inevitably brings risk of injury at any age, and contact and collision sports depend on a measure of controlled violence within the rules of the game. As national, state and local youth sports governing bodies periodically review playing rules with an eye toward greater preventive safety, however, state legislatures and local agencies should also continue the quest for safer sports. In states that have not regulated beyond interscholastic sports, the next step is to join other states by extending the two existing core legislative mandates -- education and precaution -- to private sports organizations that seek permits to use public facilities for the millions of boys and girls they enroll each year.

Doug Abrams is a University of Missouri law professor and one of the nation's top experts on the legal aspects of youth sports. On Sept. 12, he will be a featured panelist at the session, "ASPEN TIMEOUT: How Will the Concussion Crisis and Liability Concerns Reshape Youth Sports?" The conversation, held at the Fourth Annual Sports Law and Ethics Symposium at Santa Clara University, will be co-hosted by the Aspen Institute's Project Play, a thought leadership exercise that aims to re-imagine youth sports in America to meet the needs of all children. Follow news of Project Play @AspenInstSports.