SPORTS SCIENCE (Quality Work, No Plagarism, A++)

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Concussion Policy and Law: Primacy or Subservience for the Athletic Trainer? Margaret E. Ciccolella, EdD, JD; Chris Ludwig, EdD; Mark Van Ness, PhD; Scott Sailor, EdD; Christopher Pond, MS

ABSTRACT Legal mandates consistent with up-to-

date scientific understanding are neces-

sary for successful enforcement of con-

cussion protocols. The health and safety

of participants in both training and com-

petition is ensured by the diligence of

athletic trainers as their primary respon-

sibility. Coaches must acquiesce to the

health care provider’s return-to-play

recommendation because the coach’s

primary responsibility is coordination of

play and training. This article provides a

review of law and policy necessary for

the enforcement of concussion pro-

tocols. A brief review of the history of

concussions in sport is followed by a

discussion of necessary legal mandates

to support the primacy of the athletic

trainer serving as a health care provider

in determining the return-to-play status

of a student-athlete with concussion.

Legal mandates focus on emerging

statutory law and the employment re-

lationship of the athletic trainer and the

school. The ultimate goal is protection of

student-athletes from the medical con-

sequences associated with concussions.

[Athletic Training & Sports Health Care. 2017;9(4):149-153.]

In 2014, University of Michigan head coach Brady Hoke put his quarterback, Shane Mor- ris, back into the game in front of a packed stadium of fans booing the decision. Morris stumbled onto the field, unstable and ataxic, but con- tinued to play after injuring his leg and taking a blow that seemed to have concussive impact to everyone watching, including fans and televi- sion commentators. There was one major exception to that observa- tion: Coach Brady Hoke had not seen his quarterback get hit, nor did he see the effect on his quarter- back. After the game, the Univer- sity of Michigan’s athletic director issued a statement that he and the coaches have the ultimate respon- sibility of the health and safety of student-athletes.1 This is a disturb- ing statement given its incongru- ence with Coach Hoke’s admission that he did not know the concus- sive status of Morris when return- ing him to play. It defies common sense for an athletic director to as- sume responsibility for decisions relevant to the health and safety of athletes during a game when he or

she may not be well equipped to as- sume that responsibility. Given that athletic trainers are equipped with the knowledge necessary to give primary attention to the health and well-being of the student-athletes, it is disturbing that their insights were absent in the decision to return to play a student-athlete who could have had a concussion.

Concussions represent one of the most serious medical issues facing competitive sports today. When an athlete sustains a blow in training or competition, it is the athletic trainer serving as a health care provider who shoulders the responsibility of identifying and directing treatment or return-to- play decisions. Therefore, athletic trainers stand between the athlete with concussion and the demands of competitive sports.

The role of the athletic trainer can be at odds with the desires and responsibility of the coach and it is possible for the coach to undermine the responsibility of the athletic trainer to implement concussion protocols. The National Athletic Trainers’ Association (NATA) posi- tion statement2 is explicit about the role of the athletic trainer:

As licensed medical profes- sionals, athletic trainers (ATs) receive comprehensive didac-

From the Departments of Health, Exercise, and Sport Sciences (MEC, CL, MVN) and Intercollegiate Athletics (CP), University of the Pacific, Stockton, California; and California State University, Fresno, California (SS).

Submitted: January 5, 2017; Accepted: March 16, 2017 The authors have no financial or proprietary interest in the materials presented herein. Correspondence: Margaret E. Ciccolella, EdD, JD, Department of Health, Exercise and Sport Sciences,

University of the Pacific, 3601 Pacific Avenue, Stockton, CA 95211. E-mail: [email protected] doi:10.3928/19425864-20170504-04

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tic and clinical training in con- cussion management. They are typically the first providers to identify and evaluate injured persons and are integral in the postinjury management and return-to-play (RTP) decision- making process. (p. 245)

However, policy is silent on the authority of the athletic trainer de- spite superior training relevant to concussion protocols. The result is a subservient athletic trainer who forfeits primacy in decision-making because of failures to resolve ten- sions between policy and practice. The strain between policy and prac- tice can challenge both the authority and employment security of the ath- letic trainer. Athletic trainers rou- tinely report that recommendations to sideline athletes are ignored by coaches. They also report concerns about keeping their jobs should they advise that an athlete be sidelined.3

Karl Kapchinski, a Texas A&M athletic trainer for more than 30 years, recently stated that he some- times returned student-athletes to the field before they were healthy because of pressure from head coaches. He stated that “there’s been a lot of great quality athletic trainers that have subsequently lost their jobs because they stood up for the players or were doing the right thing.” The abrupt termination of Kapchinski by the Texas A&M ath- letic director raised questions about the director’s motives given the ex- emplary reviews of Kapchinski’s performance.4

Stories like Kapchinski’s reflect an underlying subservience of ath- letic trainers in the workplace. This is in stark contrast to the primacy given to them in policy, especially with regard to concussion protocol.2 But in the absence of legal mandates embedded in statutory law and em-

ployment contracts, athletic trainers could fear reprisal when they try to do the right thing on behalf of the health and safety of student-athletes. Statutory law could enforce compli- ance with concussion protocol on the part of athletic directors and coaches, thereby giving primacy to athletic trainers serving as health care professionals. For example, Maryland recently passed a bill that incentivizes a coach to defer to an athletic trainer before returning an athlete to play. Additionally, em- ployment contracts could be worded to protect athletic trainers. The most recent National Collegiate Athletics Association (NCAA) convention approved rules for some of its affili- ates that explicitly offer contractual protection, including performance evaluations from individuals outside of the athletic department and pro- viding just cause for termination.

Although athletic trainers are under the direct supervision of a physician in most situations, they should have primacy in decisions directly relevant to the health and safety of student-athletes. Primacy can be undermined by several fac- tors, not the least of which are the responsibilities and reporting re- lationships detailed in an employ- ment contract.

This article reviews emerging changes in policy and law regard- ing the role of athletic trainers and concussions. Legal mandates are discussed that can both protect and affirm the basis on which an athletic trainer directs decisions necessary to the health and safety of student- athletes. Preserving the primacy of the athletic trainers in such deci- sions is dependent on both policy and law and understanding the his- tory of concussions gives insight into current policy and law.

HISTORY OF ATHLETIC CONCUSSIONS IN SPORT

The known history of concus- sions dates back to the 10th centu- ry. Concussions were documented in the Hippocratic Corpus, a collec- tion of medical works from ancient Greece. This collection mentions commotio cerebri, which offers dis- cussion on the various signs and symptoms (eg, loss of speech, hear- ing, and sight) that can result from “commotion of the brain.” This understanding of the disruption of mental function by “shaking of the brain” was widely accepted until the 19th century.5

The history of sports-related concussions can be connected to the early 20th century. Harvard College team physicians released a report on “The Physical Aspect of Ameri- can Football” in the Boston Medical and Surgical Journal.6 This article was written due to the angst that mounted regarding the death of a student-athlete from a head injury in 1905.7 This led to the establishment of the Intercollegiate Athletic Asso- ciation of the United States (which would later become the NCAA) to “protect young people from the dangerous and exploitative athlet- ics practices of the time.” Boasting 62 members, this committee was the result of President Theodore Roosevelt’s efforts to reform safety standards in college athletics.8 The Medical Handbook for Schools and Colleges (1933) was the NCAA’s first acknowledgment of the dangers of concussions. In the handbook, it states that “the seriousness of [con- cussions] is often overlooked” and that concussions “should not be re- garded lightly.”9

The athletic trainer is a key sports medicine team member designated to evaluate, assess,

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and manage head injuries such as concussion. The beginning of the athletic training profession is of- ten tied to Michael Murphy (1887 to 1913), but it was not until the NATA was established in 1950 that further clarification and delineation of the responsibilities of the athletic trainer were outlined.10 The athletic trainer is responsible for the ath- lete’s health from the time an inci- dent or injury occurs, through his or her recovery or treatment, until his or her return to participation.

Concussions have gained atten- tion both on and off the field of play, but the discussion and information regarding sports-related concussion drastically increased after the 1st11 and 2nd12 International Conference on Concussion in Sport, and the 2002 discovery of chronic traumat- ic encephalitis. The NCAA Sports Medicine Handbook has increased almost three-fold in guidelines and recommendations since 2010. This is likely due to an increase in focus and research on sports-related concus- sion. Armed with data from the 4th International Conference on Con- cussion in Sport in 2012, researchers gleaned a better understanding of pathology, prognosis, and proce- dure in overall management.13

Although the recognition of fur- ther exploration exists, unanswered questions remain from both a medi- colegal and a management and student-athlete safety standpoint, requiring ongoing dialogue. Several issues should be addressed, such as a determination as to evaluation, as- sessment, and treatment, and com- mon standard of practice on return- to-play guidelines as additional information is obtained. Many of- ficials in the field have based assess- ments and criteria on practitioner- based information (experience),

with limited peer-reviewed research. This lack of standardization may in- fluence coaches and administrators to make protocol decisions without actual criteria or educational input. As new information and insights are revealed from research, clinicians need to be creating the best practices for athlete treatment and athletic trainers should be upholding and in- stituting these treatment standards.

LEGAL MANDATES Statutory Law

State statutory law is vital to the enforcement of concussion proto- cols. Currently, every state in the country has some legislation ad- dressing concussion protocols.14 There is constancy in language on the importance of concussion edu- cation and the protection of the health and safety of athletes, but few laws offer language that provides in- centives or punishment relevant to the adherence to such protocols.

The statutory language of a bill recently passed by the Maryland legislature is used in this article as a template for language containing both incentives and punishment. Maryland HB 0029,15 “Educa- tion–Participants in Youth Sports Programs–Concussions–Penalties for Coaches,” is new legislation designed to enforce existing state law. Maryland already has a law that provides awareness to coaches, schools, students, and parents on the risks of concussions and crite- ria for student-athletes returning to play, among other issues. Maryland also currently requires clearance from a licensed health care pro- vider before a student suspected of concussion can return to play.16 Like other states with similar laws, Maryland’s current statutes are eas- ily ignored and are evidence that

policy without enforcement is in- sufficient. HB 0029 is intended to remedy that issue.

HB 0029 incentivizes coaches to defer to athletic trainers in deter- mining when an athlete with con- cussion should return to play. The bill provides for the suspension of a coach who “violates specified provi- sions relating to the removal from play of a student who is suspected of sustaining a concussion or other head injury in a practice or game and the return to play of the stu- dent.”15 The legislation also protects coaches from civil liability when they remove or return athletes to play without first securing clearance from a licensed athletic trainer.

In HB 0029, coaches are subject to escalating penalties if they vio- late the law. Failures on the part of coaches to follow the recommen- dations of licensed athletic trainers become a trigger for the imposition of potentially career-ending penal- ties. For a first violation, the penal- ty is suspension from coaching any athletic activity for the remainder of the season. For a second viola- tion, temporary suspension from coaching can be imposed. A third violation is career ending because it results in permanent suspension from coaching any athletic activity.

The wisdom of HB 0029 is that the bill also operates from a prospec- tive perspective. Coaches who follow the recommendation of the health care provider before returning an athlete to play are given protection from civil liability. This language is critical to safeguarding the health and safety of student-athletes by in- centivizing deference on the part of coaches to health care providers15:

A coach who removes from play a student who is suspect- ed of sustaining a concussion

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or head injury in a practice or game or allows a student to re- turn to play after the student has obtained written clearance from a licensed health provider trained in the evaluation and management of concussions in accordance with law is not civ- illy liable for any act or omis- sion in removing from play or returning to play the student. (p. 1)

HB 0029 represents improve- ment, but not perfection. Recent- ly, the term “youth sports” was dropped from the language of the bill. The concern was that coaches would no longer volunteer for fear of personal liability and that this could be fatal to youth sports.16 The issue of youth sports is especially serious given the relative absence of athletic trainers on the sidelines and the reluctance of legislators to provide enforcement to concussion protocols. Another issue with HB 0029 is the bill’s silence on the issue of legal protection for the athletic trainer. Although serious penalties may be imposed on coaches, the ul- timate authority remains with them. This leaves the athletic trainer vul- nerable to employment pressures that are now widely documented. Employment contract provisions are the necessary collateral legal mandate to laws such as HB 0029.

Employment Contracts Unequal bargaining of power be-

tween the school and athletic trainer is the rule rather than the exception in negotiating the terms of an em- ployment contract. Employment contracts are often pre-written ad- hesion documents that simply await the signature of the prospective em- ployee. Clauses dictate terms and most schools serving as employers operate from a superior position.

The result is a contract that may leave the athletic trainer vulnerable in the employment relationship.

Multiple national surveys show that most athletic trainers have felt pressure to prematurely recommend an athlete be returned to play. This situation occurs more frequently when athletic trainers report di- rectly to the athletic department.15 Professional activism can influence this reporting mechanism. For ex- ample, the NCAA recently passed a rule for some of its member insti- tutions restricting coaches’ input in the hiring, retention, or dismissal of athletic trainers.17 The new NCAA rule is laudable, but it has limited application because it only applies to some NCAA conferences. More importantly, it is silent on the issue of whether the athletic director has such authority. Athletic directors are commonly charged with the re- sponsibility of the athletic trainer. For example, a sample NATA con- tract states, “Designate an individual (Athletic Director) to directly moni- tor and evaluate compliance of the Contractor.”18

For Kapchinski, a policy or contract clause limiting the author- ity of only the coach would likely not have changed his termination by the athletic director. Only a change in the parties to the contract that eliminated athletics altogether could have protected him. Given the inherent conflict of interest in competitive athletics, it may be bet- ter for athletic trainers to be hired, fired, and evaluated by another di- vision of the school. The division charged with the health and safety of all students is likely qualified and motivated to properly supervise and evaluate athletic trainers.

A contract clause that allows “termination without cause” pro-

vides the option to discontinue the employment relationship de- spite good performance reviews on the part of the athletic trainer. This clause allows termination with cause, without cause, for no cause, or even for a morally wrong cause. Common contract language includes: “the School Board shall have the option to terminate the contract without cause”19 and, “Notwithstanding anything herein contrary, either party shall have the right to terminate this Agreement, with or without cause.”19

This harsh clause is being over- turned in some jurisdictions where the discharge is contrary to public policy.18 But that is an after-the-fact remedy that does not help the ath- letic trainer who is offered an adhe- sion contract and has little bargain- ing power other than the option to decline employment.

The “golden” rule of contracts is known as “Good Faith and Fair Dealing,” which is a rule rooted his- torically in a principle that imposes high ethical standards.20 “Good faith” requires cooperation, fair- ness, and decency consistent with the “parties’ agreed-upon common purposes and justified expecta- tions.”21 It is a reasonable assertion that the agreed common purpose between the athletic trainer and the school is the health and safety of the student-athlete. If the employment contract for the athletic trainer does not reflect this common purpose, it puts both the student-athlete and athletic trainer at risk.

CONCLUSION The medical consequences of con-

cussions remain one of the most seri- ous issues facing the health and safety of student-athletes. Athletic trainers serving as health care providers must

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have primacy in decisions without fear of a change in employment sta- tus. In the absence of both primacy and employment-related protection, both the student-athlete and athletic trainer face unnecessary risk.

Several years ago, the NATA took on the entire country by ad- vocating licensing of athletic train- ers. The resounding success of this enduring effort beat all odds and there is now statutory recognition for athletic trainers in 49 states and the District of Columbia. The chal- lenge now facing this profession is the statutory protection of the health and safety of student-athletes with concussion by laws similar to the bill recently passed in Maryland. Additionally, the employment con- tracts of athletic trainers and coaches should give explicit recognition to their respective authority, providing legal protection to both student- athletes and athletic trainers.

The NCAA’s recognition of this challenge prompted policy and rule changes at the January 2016 confer- ence. The NATA also needs to ad- vance the argument of statutory and employment protection for athletic trainers. There is no basis to believe that athletic departments will pro- actively pursue legal mandates that give primacy to athletic trainers on behalf of students. The conflict of interest is too great, especially at the upper levels of collegiate sport. Ul- timately, waiting for Coach Brady Hoke to do the right thing is tanta- mount to assuming the risk realized by player Shane Morris.

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2. Broglio SP, Cantu RC, Gioia GA, et al.; Na- tional Athletic Trainers’ Association. Na- tional Athletic Trainers’ Association posi- tion statement: management of sport concussion. J Athl Train. 2014;49:245-265.

3. Sherrington, K. Sherrington: reports swirl over the ‘dirty little secret’ at Texas A&M, ex-Tech coach. Dallas News. February 2, 2016. Available at: https://sportsday. dallasnews.com/college-sports/texas- amaggies/2016/02/02/sherrington-for- mer-trainers-admission-shows-coaches- playing-doctor. Accessed February 3, 2016.

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8. National Collegiate Athletic Association. About the NCAA history. NCAA site. Available at: https://web.archive.org/ web/20110807060521/http://www. ncaa.org:80/wps/wcm/connect/public/ ncaa/about+the+ncaa/who+we+are/ about+the+ncaa+history. Published November 8, 2010. Updated August 7, 2011. Accessed March 16, 2016.

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2002;36:6-10.

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14. Straus LB. Concussion safety laws in place in every state. MomsTEAM site. Available at: http://www.momsteam. com/health-safety/ever y-state-has- youth-sports-concussion-safety-law. Updated April 3, 2015. Accessed 2017.

15. General Assembly of Maryland. Educa- tion–Participants in Youth Sports Pro- grams–Concussions–Penalties for Coach- es, GAM HB0029, Regular Sess (MD 2016). Available at: http://mgaleg.maryland. gov/webmga/frmMain.aspx?pid=billpag e&stab=02&id=HB0029&tab=subject3&y s=2016rs. Accessed February 19, 2016.

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17 Vertuno J. NCAA autonomy group ap- proves new concussion protections. Yahoo Sports. January 15, 2016. Avail- able at: https://uk.sports.yahoo.com/ news/ncaa-autonomy-group-approves- concussion-protections-174929092-spt. html?soc_src=mediacontentstory&soc_ trk=ma. Accessed February 19, 2016.

18. National Athletic Trainers’ Association. Agreement for out-reach services. NATA site. Available at: www.nata.org/sites/ default/files/contract-for-outreach-ser- vices.docx. Accessed February 28, 2016.

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21. Beh HG. Student versus university: the university’s implied obligation of good faith and fair dealing. Maryland Law Re- view. 2000;59:183-224.

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