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The Forgotten Sport | NFL Concussion Litigation
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The Forgotten Sport

2013 February 24

The following article first appeared in the Concussion Litigation Reporter. To learn how to subscribe, click here.

Since the concussion era began our focus has primarily been on football — mainly because of the litigation against the NFL, and the inherent violence of the sport.

An activity that is often forgotten, however, is cheerleading. In a not-so-distant past, we thought of cheerleading as girls shaking pompoms, and, at best, jumping a few feet off the ground doing the splits. Perhaps when we visualize cheerleading this is still an image that appears. But, modern cheerleading has evolved into a sport that is more akin to mixed martial arts, where legs and arms are constantly flailing and at any moment a participant is risking a violent shot to the head. Even more dangerous are the various stunts—pyramids, basket tosses—that are now a constant part of cheerleading.

The term “cheerleading” is clearly a misnomer. It marginalizes the true nature of the sport, which in turn, creates a false sense of security that the sport is risk-free. Modern cheerleading involves high-flying acrobatics and gymnastics, where participants are tossed several feet in the air, and their only safety net is a fellow participant. If the safety net fails, the cheerleader slams down on a hard-wood floor (or occasionally a mat). Even more concerning, only 29 state’s high school athletic associations consider cheerleading a sport — for Title IX purposes, cheerleading also is not a sport. This creates a lesser incentive to have safety protocols in place since non-athletic activities are not required to have experts on the sidelines or certified instructors. Other than industry standards, such as the American Association of Cheerleading Coaches and Administrators guidelines, cheerleading, generally, is an unregulated ticking-time bomb.

The statistics for catastrophic injuries—brain and spinal—in cheerleading are staggering. According to Mueller and Cantu’s Catastrophic Sports Injury Research, from 1982 to 2011, cheerleading accounted for 64.8% of all direct catastrophic injuries to girl athletes at the high school level and 70.6% at the college level. Stated differently, cheerleading accounts for approximately two-thirds of all catastrophic injuries to female athletes. Of the 128 high school injuries, 83 were from cheerleading and the second highest occurred in gymnastics and track with 9. Similarly, of the 51 college injuries, 36 occurred in cheerleading with the next closest occurring in gymnastics and field hockey with 3.

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Concussions are also becoming a major concern. Although concussion rates are relatively low compared to other female sports, the rates from 1998-2008 have increased by 26% each year. In other words, concussions are becoming an increasingly dangerous problem, and in all likelihood have been unreported and undiagnosed until recently.

Kimberly Archie is the Director of the National Cheer Safety Foundation and one of the foremost experts and advocates for creating a safer environment for cheerleading. She believes the 2nd Circuit’s decision in Biediger v. Quinnipiac, affirming U.S. District Judge Stefan Underhill’s decision that cheerleading is not a sport, was an opportunity to make cheerleading safer, but the litigants punted this opportunity and effectively foreclosed the ability to bring necessary and uniform safety measures to cheerleading. She argues that the decision barely addressed safety concerns or even considered the catastrophic injuries involved in cheerleading. Instead the court relied on the historical role of cheerleading — that of generating publicity and acting as a support group for genuine sports (e.g. football and basketball).

Archie believes that the only way change will occur is through personal-injury litigation. She says that the accidents occurring in cheerleading is not mere negligence, but rather a case of “child athlete abuse syndrome.” Archie coined this term to describe the phenomenon of coaches, parents and school districts’ win-at-all-costs mentality that unnecessarily places children at a risk that is not an inherent part of the activity.

Since the so-called concussion crisis began, we’ve seen a flood of concussion lawsuits in football, whether it is at the professional or high school level. Similarly, a wave of cheerleading concussion litigation has also started. The fact that cheerleading is, for the most part, unregulated, parents of injured children are alleging that the high schools could have done more to prevent their child’s injuries.

Two lawsuits in particular were filed within the last five months. In September, Olivia Doyer (19) and her parents are suing Poland Regional High School in Maine and her coach for injuries she sustained during a failed “basket toss” stunt. The lawsuit alleges that Olivia’s injuries were caused by her coach’s failure to supervise, observe her injuries, and implement and follow “industry rules, codes and standards.” Olivia, according to her lawsuit, has suffered from post-concussion syndrome, a cervical sprain and disc impingement.

Likewise, Mikaila Manjarrez (15) and her mother are suing Hillsboro School District in Oregon and her coaches for allegedly failing to adequately supervise, instruct, and refer her for evaluation after sustaining “multiple blows” to her head while cheerleading. The lawsuit also alleges that the School District failed to implement and violated Oregon’s concussion law.
Cheerleading lawsuits, historically, like many other sports-related lawsuits have failed under the doctrine of primary assumption of the risk. Under this doctrine, a participant assumes inherent risks involved in the activity, and a defendant owes a duty not to increase these risks, but it owes no duty to decrease the risks. In the seminal case of Aaris v. Las Virgenes Unified School Dist., involving similar facts as the two cases above, the court affirmed this doctrine and granted summary judgment in favor of the School District, stating in dicta, if we were to “hold that respondent has liability for appellant’s injury, it would fundamentally alter the nature of high school cheerleading, perhaps heralding the return of that docile row of cheerleaders…this would either chill, or perhaps even kill, high school cheerleading.”

The court also stated that the law of physics creates an obvious risk inherent in cheerleading. “What goes up, must come down…Whenever gravity is at play with the human body, the risk of injury is inherent.”

Although this case’s reasoning provides persuasive authority, which many other courts have followed, each case must be decided on its individual facts. As the facts of Doyer and Manjarrez’s case is more fully developed in discovery, their cases may be able to allege conduct that involves the coach or school district increasing the inherent risks in the sport and thereby getting past the doctrine of assumption of the risk.

In either event, these cases teach us that serious injuries happen in cheerleading. In order to prevent future liability, schools must have adequate safety protocols in place and they must ensure they are following their state’s concussion laws.

Archie argues, “if a school does not have a rehearsed catastrophic injury plan in place, they will have a serious problem.”

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