Fourth, we need to make sure that whatever enhanced safety measures are implemented don't end up discriminating against poor people. The IHSA talked about medical expenses killing football, but there's a bigger question. We hear more and more about new products, such as impact sensors, and tests, such as baseline neurocognitive testing, which are being used most often by schools which can afford to pay the rather substantial cost of acquiring them.  In responding to Siprut's demands that every high school in Illinois be required to shoulder the cost of baseline neurocognitive testing and of having a certified athletic trainer at every football game by saying that such measures could harm schools and people who can't pay, the IHSA is actually making an equity argument dressed up as a public relations statement against a lawsuit, essentially conceding that its poorer schools have trouble implementing some of the most progressive, advanced sports safety initatives. That's not right.  Safeguarding high school athletes should not be reserved just for those who are fortunate enough to live in rich school districts.  Sports safety should not be an unfunded mandate.

Fifth, we need to know what exactly Siprut means in demanding that athletic trainers or other health care professionals with concussion expertise should be "available" for football practices.  Is he suggesting that impact sensors be used to record the number and force of impacts an athlete has sustained to his head in practice for off-site review by such a concussion expert?  Again, if establishing such a concussion management infrastructure is an unfunded mandate, it may be beyond the reach of poorer school districts, which also may not have available in their communities the kind of health care professional needed to be "on call" for its football practices. 

Sixth, we need to make a collective social decision as to whether to subject athletes to genetic testing. Scientists are beginning to understand that there may be genetic markers which make some athletes more susceptible to concussions and the cumulative effect of repetitive head trauma than others. The same number and type of hits that lead one athlete to develop CTE may not lead another athlete to develop the disease. The question for us is whether our societal obligation to protect young athletes from head injuries means that we have an obligation to conduct intrusive medical tests that will allow us to determine who needs protection the most (or should be advised not to play a contact or collision sport) and how much protection they need if they do play. I don't believe that we've reached the point where we have full knowledge or full testing capacity in this area, but, when we do, we'll have some difficult decisions to make.

Seventh, and finally, we as a society need to decide whether we should be mandating the use of other expensive diagnostic testing as part of an athlete's pre-participation physical exam (PPE).  For example, we know that a certain number of athletes die every year from undetected heart conditions such as hypertrophic cardiomyopathy (HCM). Such congenital conditions can generally be detected with an EKG. However, we as a society have opted to incur a certain number of "statistical deaths" each year because the price of giving every athlete an EKG is simply too great.

In that sense, the HCM problem is no different than the concussion problem. The price of testing is considered too high; so society has accepted a certain number of "statistical deaths." We know the deaths will happen; we just don't know where. The only difference between the HCM "statistical deaths" and the football concussion "statistical deaths" is that the prominence of NFL football players has helped us to see the real people behind the statistical deaths, and led us to personalize the battle against concussions. This personalization makes the football concussion issue different from the HCM heart ailment issue. People directly impacted by an athlete who suffers an unexpected sudden heart death clearly personalize the death, but such deaths have not impacted a large group of people known by vast segments of society. Suffice to say that we're not likely to see a class action of HCM victims and their families asking for EKGs any time soon, but don't they have the exact same legal case for increased testing as the concussion victims?

At the end of the day, the questions we need to address are too big for Joe Siprut to answer. However, until the people who need to answer them step up, they will be resolved by the first lawyer up or the last insurer to be fed up instead of via a coordinated legislative and administrative series of actions that address all the issues arising from concussions and other aspects of athlete safety.

Donald Collins, J.D. is an attorney, and long-time Commissioner of Athletics for the California Interscholastic Federation, San Francisco Section.  The views expressed in this article are his own and do not necessarily reflect the views of the editors of MomsTEAM or MomsTEAM Institute.