Putting Public Law into 'Private' Sport

Abstract

Across all levels of sport — professional, Olympic, intercollegiate, interscholastic, and youth recreational — the prevailing view is that the government should not take an active role in regulating athletics. As a result, there are relatively few federal or state statutes directed at regulating sports, and those that are aimed at sports primarily serve to support the professional sports industry. Moreover, courts show great deference to sports leagues and administrators, most often applying law in a way that insulates and empowers them. This creates a climate where leagues and administrators are permitted wide latitude to structure and conduct their respective sports as they see fit, especially with regard to athlete regulation. With this environment in mind, this Article examines what I define as the “legal and policy response to concussions in sports,” which includes state statutes, proposed federal legislation, “bully pulpit” initiatives such as a White House summit and Congressional hearings, and substantial tort litigation. This Article explains the ways that the legal and policy response to sports concussions is consistent with the current sports law landscape and it highlights how the legal and policy response to sports concussions charts the course for a new approach to law and sports. In doing so, this Article makes two main points. First, the legal and policy response to sports concussions provides a useful vehicle for considering the underlying values that affect law and policy related to sports. These values include minimal government involvement, playing despite injury, and the view that aspects of sport are essential or fundamental. Second, the legal and policy response to concussions in sports provides an important pathway for future sports regulation, particularly of youth and amateur sports programs.

Keywords: Sports, Regulation, Concussions

JEL Classification: K13, L83