If you are involved in a private youth sports program which plays on publicly-owned fields, diamonds, rinks, or courts, or are in local government, you have probably been hearing a lot lately about what is being dubbed the "power of the permit": the authority municipalities and towns around the country are using to condition use of their athletic facilities by private programs on compliance with state concussion safety laws from which they would otherwise be exempt, or, in an increasing number of instances, to fill gaps in their state's law.
Contrary to what you may have been reading, however, the exercise by municipalities of the power of the permit to require private sports programs to comply with state-mandated concussion safety laws, or impose additional conditions beyond those required by state law, isn't an isolated or new phenomenon: it's been a growing trend for years.
I first recognized the power that a municipality has to control the use of its fields two decades ago when I started a new travel soccer program in my hometown and went looking for fields on which the teams could play. I soon learned that permits to the town's fields were given out by the director of the recreation department, whose practice had always been to simply hand over permits for all the town's fields en masse to the established travel soccer program, whose policy of exclusivity and lack of concern for player safety were the very reasons that led me to form my new program.
While my efforts to persuade the Board of Selectmen, the town manager, and the Rec Department director to allocate permits in a more equitable fashion, and to use their power to make sure that the programs using town-owned facilities met minimum standards for inclusiveness and safety, fell on deaf ears (we ended up being forced to use for our home games a dusty field the high school had essentially abandoned), I returned to a discussion of the "power of the venue permit" 10 years later in my 2006 book, Home Team Advantage: The Critical Role of Mothers in Youth Sports, where I suggested that one of the best ways for youth sports parents to improve the safety of privately-run sports programs in their communities was to lobby their elected officials to utilize that power to "reform youth sports by exercising public oversight over the use of taxpayer-funded fields, diamonds, tracks, pools, and courts, [and] deny permits to programs that fail to abide by a [youth sports] charter" covering such topics as background checks, and codes of conduct for coaches, players, and parents.
When I presented the next year in Atlantic City to recreational department directors gathered for the annual meeting of the New Jersey Parks and Recreation Directors' Association, I spoke to the critical role they could play in improving sports safety by proactively exercising the power of the permit to require youth sport coaches to receive more training in first aid, CPR, and the signs and symptoms of a concussion. It wasn't long after the speech that a rec director contacted me about using the Power of the Permit in his town.
All politics is local
Since then, a growing number of communities across the nation have utilized the power of the permit, not just to extend the reach of state concussion laws to private programs utilizing municipally-owned athletic facilities otherwise exempt from coverage (many of the concussion safety laws enacted by the states do not cover non-scholastic sports programs), but to impose additional requirements not mandated by state law. Here are just a few examples:
• In May 2011, the Recreation Department in Franklin Lakes, New Jersey became the first municipal recreation department in the area to mandate baseline neurocognitive testing for all athletes 11 and older playing rec football, and announced its intention to eventually extend the requirement to all 3,000 children participating in the borough's sports programs.
• In March 2012, the Town of Ashland, Massachusetts enacted one of the most comprehensive concussion bylaws I have seen covering programs utilizing town-owned athletic facilities, imposing requirements going well beyond those required under Massachusetts law.
• In May 2012, the Brookline (MA) Park and Recreation Commission enacted a policy settng standards for the prevention and management of sports-related head injuries for all organized youth sports programs offered by Brookline Recreation and those groups permitted to use its facilities, which, the director of parks and recreation, Lisa Paradis, told me in an interview, did not need the approval of the Board of Selectmen because she closely modeled it on Ashland's policy. The Brookline policy goes further than the Commonwealth's concussion safety law by requiring baseline neurocognitive tests at least once a year, and by requiring that concussed athletes be advised to get rest while symptomatic. A permit holder's failure to comply with the policy could subject the user to permit revocation.
• In July 2012, two years before Virginia's concussion safety law was amended to cover non-interscholastic sports programs utilizing public school athletic facilities, the Town of Christianburg (VA) Parks and Recreation Department enacted its own Youth Sports Concussion Policy. Notably, unlike Virginia's law, the policy expressly empowers game officials to remove athletes from play if they are suspected of having suffered a concussion (a power that I have been advocating for many years game officials be given, and a power conferred on game officials by laws at the state level in only Arizona, Iowa, and Ohio), and requires that coaches who disregard the safety and well being of a youth sports participant as it related to concussions be subject to indefinite suspension (only Pennsylvania and Connecticut have laws which penalize coaches for violating their statutes)
• Most recently, in May 2015, the City of Norwalk, Connecticut enacted an ordinance requiring private sports programs using municipal facilities to comply with a comprehensive concussion risk management program, including a requirement that all coaches take a concussion education course, a requirement absent from Connecticut's concussion safety law, more concussion education of parents and athletes, including an oral presentation (I have been advocating for such concussion education meetings to be held before each sport season for the past fifteen years), and requiring that a concussed athlete complete the six-step exercise protocol recommended by most concussion experts before receiving written clearance to play (only a handful of state laws, including California's, expressly make this a requirement).
As these local ordinances illustrate, even if private sports programs are covered by the state's concussion safety law, such laws often do not go far enough. For instance, many do not require that coaches receive training in recognizing the signs and symptoms of concussion, or require that parents be notified when their child is suspected of having suffered a concussion, and few penalize those who violate their provisions.
Especially at the youth level, where trained medical personnel such as certified athletic trainers are much less likely to be at games, and even less likely to be at practices, it is coaches and game officials who will most often have to make the initial remove-from-play decision in cases of suspected concussion. If no concussion education of coaches is required by state law, and if game officials are not empowered to remove athletes, I believe it is up to the municipality to use the power of the permit to mandate such training and confer such authority.
Even if a state's concussion safety law does cover community-based, private sports programs, very few states have enacted laws that cover all aspects of youth sports safety, such as requiring more broad-based safety training for coaches in first-aid, CPR, and the use of an AED, and the development and implementation of an emergency action plan (EAP) to be triggered in case of medical emergencies (such as a cardiac event, asthma attack, allergic reaction to a bee sting, or heat stroke) and environmental emergencies (lighting, tornado, or an excessively high heat index).
As a result, even if a private sports program that uses town fields, rinks, diamonds, or courts is required to comply with state mandates regarding concussion safety, I believe that there is a huge sports safety gap which, absent voluntary implementation by a private sports program of youth sports health and safety best practices, such as those we are pilot testing in Grand Prairie, Texas this fall as part of our SmartTeams™ program, can and should be filled by a municipality by exercising its power of the permit.
"Safety Champions" Needed
As with legislation at every level of government, successful utilization of the power of the permit depends not so much on concerned citizens committed to making youth sports in their local community safer (although they are, of course, important) as on the willingness of governmental officials themselves to sponsor bylaw changes and push for enactment, in other words, to serve as "safety champions."
In the case of Norwalk, Connecticut, for instance, it was Diane Beltz-Jacobson, Assistant Corporation Counsel for the City, who, once a concerned mother brought the issue to the attention of governmental officials, spearheaded the effort which led to adoption of a concussion safety ordinance by the city. "Since my own son had just sustained a concussion and I was aware that there is a gap in the state laws that protect our youth athletes, I was motivated to draft the bylaw," Beltz-Jacobson told me in an interview, a bylaw which she modeled on the Brookline bylaw with her own enhancements. "Once I finished it and presented it to the common council, they took a number of passes to strengthen before they ultimately approved it."
For more on the Power of the Permit, including a video of a presentation by Professor Doug Abrams of the University of Missouri School of Law at a youth sports safety summit I convened at Harvard Medical School in September 2014, click here.