The nation’s first high school sports governing body to face a class-action concussions lawsuit warned Friday the legal action could result in wealthier schools keeping their football programs and poorer ones eliminating them.
Court-imposed policies, such as mandating physicians be present at all games and practices, could be prohibitively costly to many cash-strapped schools, especially Chicago’s public high schools, Illinois High School Association Director Marty Hickman said at a news conference Friday.
“If you are going to do that, what you are going to have is some very poor, depressed areas that are going to eliminate football,” he said. “The haves are going to continue to have it and the have-nots are not going to have it.”
The IHSA and its 800 member schools have been proactive on the issue, Hickman said, pointing to 22,000 coaches in football and other sports who have taken an IHSA course on concussions after a new Illinois law mandated it.
“It’s not that we’ve been sitting on our hands,” he said.
Former star high-school quarterback Daniel Bukal sued in Cook County Circuit Court last Saturday. He alleges the IHSA failed to protect him from concussions when he played at Notre Dame College Prep in Niles and still doesn’t do enough to protect the 50,000 high-school football players in Illinois now.
Bukal’s attorney, Joseph Siprut, said Friday that predicting football’s demise as a consequence of legal action was “a cheap and cowardly tactic.” Football is already dying, he said, because parents fearful of concussions were refusing to let their kids play.
“As more and more parents keep their children out of the sport, football will die,” he said. “The way to avoid that fate is to make changes to get with the times. This lawsuit is … a mechanism for change.”
While Bukal says he suffers from lingering effects from the concussions, including memory loss, he isn’t seeking damages. Instead, he asks a judge to order the IHSA to force schools to implement policies that go beyond the requirements of the state’s head-injury law.
Head injury suits against the NFL and NCAA led to proposed settlements, but high school litigation likely will be messier. One reason is that high-school football isn’t governed by one national body, but by a combination of state laws, school boards and 50 separate associations.
Among the policies Bukal’s suit seeks to be imposed is a baseline testing, which is not mandated by Illinois law. The neurological test would be given in the preseason to establish a baseline of normal cognitive function for individual players and referred to during the season to determine when athletes have suffered and recovered from a concussion.
Hickman estimated that about half of all schools already do the tests. He said the IHSA did not have the authority to simply mandate baseline testing by schools.
“It’s not a kingdom kind of deal,” he said.
Several high school coaches and IHSA attorneys participated in Friday’s news conference. Attorney Thomas Heiden said judges shouldn’t be called in when a sports body, legislators, school boards and schools are already doing all they can.
“Courts should not step in to referee this issue unless others … refuse to act, which they have not,” he said. “Going to the courts should be a last resort, not a first resort.”
Coach Frank Lenti of the perennial Illinois powerhouse Mount Carmel High School said the right balance needed to be struck.
“My concern is that we don’t legislate football out of existence,” he said. “We don’t want to over- or under-react.”
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