Pop Warner Settlement: Seismic Shift In Legal Landscape Or Just A Warning Shot?
In January 2016, Pop Warner reached a confidential settlement with Donnovan Hill, a Los Angeles-area football player who was rendered a quadriplegic at age 13 as a result of a helmet-to-helmet collision with an opposing player which snapped his neck.
Hill’s mother alleged in her lawsuit that his coaches encouraged head-first tackling, that her son was punished when he objected to using the technique in practice, and that he used it in games without repercussions.
One of his coaches defended head-first tackling to ESPN’s Outside the Lines in 2013; the other claimed he warned Hill against the practice.
Both coaches admitted in deposition that they did not take Pop Warner’s mandatory training for head coaches. Pop Warner’s Executive Director conceded that the organization does not check whether coaches actually take the course.
The settlement came after a California Superior Court judge denied the motions of Pop Warner and Hill’s coaches to end the case at the pre-trial stage in which he rejected the arguments of Pop Warner and the coaches that their conduct did not rise to the level of gross negligence, the standard that must be established to hold volunteer coaches liable for damages in a civil case, and refused to let Pop Warner – which advertises itself as a safety-first organization in which children play for coaches trained in proper tackling technique – out of the case based on its admitted failure to enforce its rules at the local level.
Commenting on that ruling, the plaintiff’s attorney, Rob Carey, said that, “Any governing body in the youth sports industry, especially those in contact sports, should be paying attention. They need to know that if they make representations about safety or training, it better be true. And if you know of risks of playing a game, take all reasonable precautions to make sure those risks are mitigat[ed]. In a football context, that means training coaches in tackling at a minimum.”
Because some commentators, on social media and elsewhere, viewed the Pop Warner settlement as potentially game-changing, MomsTEAM decided to ask three attorney members of its Board of Advisors (a law professor, Doug Abrams; a high school interscholastic sports commissioner, Don Collins; and a sports law specialist, Alan Goldberger) what they thought the impact of the decision would have, if any.
Here’s what they told us:
1. What do you see as the significance of the settlement, since it is not a court decision with any precedential value? (In other words, does it have, even as a settlement, an in terrorum effect?)
In the federal and state courts each year, more than 90% of civil cases are resolved by settlement or similar arrangement without trial. A settlement is a private agreement – a private contract — between or among the parties. The plaintiff agrees to dismiss the lawsuit, and the defendant agrees to pay damages or make some other accommodation sought by the plaintiff. As a private agreement, a settlement creates no precedent. Indeed, settlement agreements usually recite that the parties must keep the agreement’s terms confidential, and that the defendant admits no liability.
Particularly in a well publicized case such as Donnovan Hill’s, however, settlement can affect the defendant’s future conduct, even in the absence of a formally binding precedent. And the judge’s written summary judgment decision is a public document.
A defendant’s payout in this case – the amount of which was not disclosed – may affect its ability to obtain future liability insurance, and may also affect the cost of insurance obtained. Once lawyers and others know that the defendant paid to settle a personal injury suit, the settlement may encourage families of future injured youngsters to sue that defendant on similar claims. Settlement here should lead Pop Warner (and other youth sports governing bodies) to closely reexamine local safety practices and protocols.
Every lawsuit has dynamics of its own – one or more future plaintiffs may reject Pop Warner’s settlement offers and may opt to go to trial, perhaps recovering damages in amounts that Pop Warner said in the Hill suit would have been large enough to bankrupt the organization. If the case proceeds to trial, some juries may be sympathetic to seriously injured youth leaguers, and some juries might not be.
As Professor Abrams correctly notes, a settlement is not a legal precedent. But Donovan Hill’s case is significant in that it is likely to invite more suits against schools, leagues, and teams, and even youth and perhaps even high school sports governing bodies for not taking adequate steps to ensure that football coaches are trained in ensuring that their players know safety techniques. These types of suits will be different than the highly publicized suits against the IHSA and FIFA (about which I have written for MomsTEAM), which could best be described as bringing a lawsuit in order to either complain about a governing body’s existing regulations or to compel the governing body to enact new regulations. Those lawsuits were intended to shape social policy by compelling large governing bodies to take large scale rules based action.
The Hill case rests on classic negligence law: somebody has a duty, breached the duty, somebody got hurt, I’m going to sue you, and if you’re sued enough you’re going to change your ways because your insurance rates will go up, and everybody in your industry will know that if they don’t meet some “standard” they’re going to get sued.
Hill’s case presents a classic problem for administrators. You know you have some broad duty to make the game safer, but nobody ever tells you what the duty means. The only way to find out the parameters of the duty is to either get sued, have government define the parameters of the duty, or have some huge private entity establish generally accepted principles. Of course, nobody wants to get sued, and people don’t really like government telling them how to run their business. So, the only way to get to a standard is to have groups like Heads Up Football tell you what contact is, and what thud is, and what control is, and ultimately these groups have to come up with generally accepted standards on how much contact, thud and control one can have.
Hill may not be a legal precedent, but if there are enough suits like Hill people will change their organizational behavior.
I think the significance of the settlement is to demonstrate that a catastrophic injury will often result in litigation against a spectrum of defendants, often with umbrella or national organizations joined as well as the persons and entities who actually organized and/or supervised or participated in the administration of the game or practice. This litigation has to be defended at significant cost – regardless of the ultimate outcome.
Some may take notice that the case was not dismissed — giving the plaintiffs a chance to go to trial; and that the defendants elected to make it go away by settling. This, of course, is not an admission of liability but rather a demonstration of the economics of litigation.
Still, I don’t believe that one settlement of a catastrophic injury claim in this setting will have a long-term significant effect on anyone other than the defendants involved.