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A federal appellate court decided last week that USA Water Polo, Inc. has a duty to take steps designed to prevent follow-up concussions in athletes. Alice Mayall filed the suit against USA Water Polo on behalf of her daughter, who suffered a hit to the head during a water polo tournament that left her dazed and with concussion symptoms.  Her coach, who Mayall alleged received no training from USA Water Polo about how to handle head injuries, sent her back into play after a brief evaluation.  She was permitted to play for the rest of the multi-day tournament managed by USA Water Polo, sustaining additional hits to the head as a result. The athlete was diagnosed with post-concussion syndrome about three weeks after the tournament, and alleged substantial, continuing cognitive deficits, chronic headaches and limited physical stamina. The Court found that her allegation that USA Water Polo failed to implement appropriate procedures despite being aware of the risk of follow-up concussions was sufficient to allow claims of negligence and gross negligence to survive dismissal.  In its ruling, the Court drew a critical distinction between the initial hit to the head, a risk that athletes voluntarily undertake, and the follow-up concussions, which the governing body of the sport has a duty to take steps designed to prevent. The Ninth Circuit’s decision in Mayall v. USA Water Polo, Inc. was filed on Wednesday, November 28, 2018.

The Court’s ruling that sports organizations may be liable for athletes’ follow-up injuries highlights the importance of having state-of-the-art concussion management and return-to-play protocols in place. Governing bodies and collegiate athletic departments may be exposed to potential liability if they do not establish reasonable procedures to evaluate athletes for signs and symptoms of a concussion and to remove athletes found to exhibit signs and symptoms of a concussion from play until they have received appropriate treatment.

Bryan Cave Leighton Paisner conducts comprehensive compliance audits of sports management programs, including the all-important  "Concussion Protocols." We have guided our clients through comprehensive reviews designed to identify areas for potential improvement in their concussion protocols and practices. The objective of our compliance audits is to maximize the health and safety of athletes, minimize reputational and litigation risk from sports concussion events, and position clients as national leaders in effectively managing the concussion risks inherent in many sports.