Strategic mistake 

Next, it's not clear why Siprut chose the IHSA to be the first defendant in his planned 51-lawsuit series, other than the fact that Siprut lives in Illinois. To me, it would have been rational to sue the most progressive high school state governing body. Such a body would have been more inclined to amicably entertain Siprut's proposals (or technically his requested relief), and Siprut could use a settlement with an agreeable state as leverage to get other state high school athletic associations to follow that state's lead by enacting the proposals he seeks.

It could be argued that, if efficiency were Siprut's goal, it would have been more efficient to sue a state governing body that has been at the forefront of the type of concussion identification, management, and return-to-play policy changes he seeks, one which answers to an activist state legislature constantly looking for ways to improve the safety of student-athletes (not just at the high school level, but in middle school, elementary, and club sports programs). Illinois appears to be a reasonable state that is neither at the forefront of change, nor lags behind.  Siprut shouldn't have picked a reasonable state; he needed an activist state that would be amenable to cutting a deal.

Alternatively, he could have sued a state that does lag in protecting its athletes, and portray it as a bad actor. The drawback to this approach, however, would be that a state lagging behind the concussion safety curve would probably be reluctant to give Siprut the settlement that he appears to want, and more inclined to aggressively defend the lawsuit, tying Siprut down in time-consuming and costly litigation.

In my view, Siprut also made a strategic mistake in assuming that the IHSA would react positively to his requests for relief. The IHSA is not the NCAA. The NCAA is a wealthy organization. It can afford to spend $70 million on a monitoring program.  The IHSA does not have the deep pockets that the NCAA's national television contracts gives it.  It has to make do (pardon the pun) on member schools' dues, and can only reduce its reliance on those dues,  not eliminate them, with sponsor deals and contracts to webcast or broadcast championships. The IHSA, quite predictably, cried poor-mouth when sued, and made a point of predicting that the changes in concussion identification and management policies that Siprut proposed  would kill football in a number of school districts in the state. Siprut's response was to accuse the IHSA of engaging in "a cheap and cowardly tactic" by noting the economic difficulties some of its schools might face in implementing the changes his suit demands.

Filling a policy-making vacuum

Ultimately, though, the issue is not Siprut. Rather, the issue is whether it is appropriate, and even rational, to place the resolution of serious sports safety issues in the hands of the first attorney to file a lawsuit. Now, let's not be naïve. The first attorney to the courthouse, and the last insurance company willing to provide liability coverage, often have power over policy.  But, the only reason they have that power is because legislatures don't stand up and seize the policy-making reigns.

Sadly, legislatures sometimes get distracted from addressing broad policy issues. Too often, local and state legislatures address provincial questions, such as whether an eligibility policy is too lax or too strict, whether the local team should have made the playoffs, whether private schools are winning a disproportionate share of championships, or whether a state athletic association's Executive Director is making too much money. This opens the door for Siprut, members of the plaintiffs' bar, and insurance companies to fill the policymaking void. But, at the end of the day, serious sports safety issues should be decided by the administrative bodies that regulate and the legislatures that set policy. Siprut should be able to sue for damages on behalf of athletes who can show by a preponderance of the credible evidence that the negligence of a defendant has proximately caused injury, but he is only getting to set policy because a whole lot of other people fell down in their responsibilities and left a vacuum he was only too happy to fill.

Opening Pandora's Box

Here, in my view, are the questions that we, as a society, ultimately needs to answer, not questions that Siprut should answer for us:

First, we need to decide whether to limit the number of football practices or have no limits but require substantial medical monitoring. Do we want to limit all hits or simply get better at limiting, detecting and providing follow-up treatment for athletes who suffer the big hits, the one most likely to cause concussions, and/or focus on the athletes who sustain a high number of less forceful hits? We know that the hits that result in concussion and the cumulative effect of repetitive head trauma can increase the risk of permanent brain injury, and neurodegenerative diseases such as chronic traumatic encephalopathy (CTE), leading to the type of lasting long-term damage that we've seen in a number of NFL players. However, researchers have yet to discover a magic number of hits above which the risk of such brain damage significantly increases, and, without such a threshold, those who propose a so-called "hit count" in football, or who call for a ban on heading before a certain age in youth soccer, are ahead of the science.

Second, we need to decide whether we should focus on regulating football or whether we need to regulate all sports that have a high number and/or risk of concussions. If we're addressing all sports with a high concussion risk, then we need to determine how to address situations where teams in two different sports with high concussion risk are playing or practicing at the same time.   A single certified athletic trainer cannot be in two places at once.  Requiring that schools have two or more ATs on staff would be cost prohibitive for many high schools. IHSA Executive Director Marty Hickman is absolutely right to point out that we cannot ignore the cost of the safety measures we either choose to implement safety measures voluntarily, or which we are forced to take, as a result of litigation or legislation.  Hickman argues that requiring ATs at high school football games will end up killing the sport in some places, but it's possible that what will really be killed is some less popular sport which will be sacrificed so we can continue to fund expensive sports such as football. The policy question, though, is who gets to make that call, and what that call will ultimately be. Again, we should make a collective social decision on how to strike the right balance between safety and providing as many high school students as possible with the chance to play interscholastic sports.

Third, we need to address the effect of Title IX.  Requiring athletic trainers to be present at football games, but providing no comparable coverage for a girls' sport such as soccer, which also has a high concussion rate, could be viewed as gender discrimination under Title IX. Girls deserve the same access to athletic trainers as boys.