Guest Post by Bill M. Hours – A Concussive Blow To Contact Sports Coming to a Family Court Near You?

[Boozy:  Today we welcome back Bill M. Hours, our erstwhile contributor, with another guest post to keep my goddamn queue from overflowing.  Bill is an insurance defense attorney, a peon, a pleb, and an all around nice guy despite his work for the evil empire of Defense Attorneys.  You can find him on Twitter at @billmhours.]

If someone you cared about asked for your opinion on whether they should play football; full contact, pads and helmets, grass-in-mouth football, what would you say?

Many of us today probably would caution against it. I know that when I run this scenario through my mind, my hypothetical self goes through various derivations of “fuck no” before deciding that phrases which aren’t broke don’t require fixing. I’d imagine that if one of my children ever asked me to let them play football, I’d most likely ask for a paternity test, but then also immediately lodge my opposition. In my case, this probably wouldn’t be too difficult to enforce because my spouse, while very interested in cooking, probably isn’t looking to be dealing with scrambled brains any time soon.

Perhaps I’ve tipped my hat too soon, in terms of expressing my opinion on the effects of football, but I don’t wish to make it sound like I hate ‘sportsball.’ In fact, where I come from, football in all its forms is a celebrated pastime. I even partook in the bashing of heads myself as a younger fellow (it was “Billy” back then), and I know from secondary experience that playing football can help young men in having an outlet to express hormonal emotions, and by helping them to develop discipline which can transfer into everyday life.

Now one thing I have been lucky with in life is not having had too many doubts about who I was as a person. I had a clear, albeit traditional, set of life-goals and made it my mission from a young age to achieve those in quick succession. When I lined up on the defensive line at a middle school football game between two lily-white upper-middle class schools, the offensive lineman across from me began to make overtures regarding what sort of obscene things he planned to do with my body after most assuredly steamrolling me into the ground. The down was a pretty standard run play, and you know what? Me and my ‘destructor’ spent the whole 5 second down holding each other’s shoulders like nervous dates at the type of formal dance where the participants have been told to leave room for Jesus.

I realized during the ensuing snaps, which were all preceded by the same overtures of assured destruction, that I was more interested in dissecting the mentality of the not-hugged-enough-as-a-baby guy opposite of me than I was in just playing the game I was in at that moment. I didn’t play football the next year, or again after that, but I do still watch it quasi religiously when my favorite teams are on TV. Overall, I’m not saying that football can’t do good things for young men, but you know what else can do that? Activities that don’t involve running directly into 350 lb. defensive ends to gain half of a yard.

The Facts

Which brings us to today, where a story is gaining widespread attention of an ex-husband and ex-wife who are planning to see each other in proverbial (and literal) court over a disagreement of whether their 17-year-old son should play a sport that has been shown to have pretty strong links to potential brain damage. An already contentious divorce has been made even moreso by the back and forth resulting from the various court filings of John Orsini, of Pittsburgh, PA, who is seeking to block his son’s ability to play his last year of high school football.

There are several wrinkles to this story of note, and I want to address them in turn. First, the Mr. Orsini is noted to be a “former attorney” and I will let you guess what that means, but it’s safe to say he didn’t voluntarily retire from the profession. It does appear from various news sources that Mr. Orsini is being represented by an attorney in this matter, so at least he’s not dumb, he’s just also not a lawyer. Second, junior here is 17 years old, is approaching his senior year of high school, and will turn 18 in November, making this whole case somewhat of an exercise in futility unless the father’s former experience as an attorney has allowed him to access some secretive alternate dimension docket that moves faster than those we mere mortals are able to use.

Finally, as noted in all the reports surrounding this case, the athlete in question has suffered three previous concussions. The first one having been suffered after he was struck in the head with a metal bat while not wearing a batting helmet. Yeah, needless to say, “ouch” and “oof.” And that was just the first concussion, the son has subsequently suffered two other football-related concussions. I gotta hand it to this kid, I probably would have stopped going outside after the first one. 

The mother’s attorneys, while less interested in the growing media interest in this case than Mr. Orsini has been, have responded to media inquiries by pointing out that the son has been cleared to return to play by his physicians, and that they are placing their trust in the medical professionals and concussions protocols made available to the son.

As of the writing of this piece, the court has kept the status quo so far by allowing the son to play football while this case progresses, and it seems that the parties are so fundamentally at odds on this issue as to be unable to reach a settlement on terms. Mr. Orsini has stated in interviews that his sons have ceased talking to him because of his efforts in bringing this case. The unfortunate reality seems to be that the family in this case will reach an unhappy conclusion regardless of the result.

The Law, or “What Will I Remember From the Bar Exam?”

In most states, child custody is broken up into two pieces. Physical and legal custody. A parent in divorce may have both completely or partially, one completely or partially, or neither of these types of custody. Parents with physical custody typically get to make decisions about where the child will live, what they eat each day, and other day-to-day decisions that typically make sense as being with the parent who the child is living with. Parents with legal custody get to have a say in more broadly applicable decisions regarding the child’s health, welfare, etc. In this case, the father is appealing to his rights as a legal custodian to block his son’s participation in football.

The court here will have to assess, as many courts all throughout the country do, what outcome is in the best interests of the child. Many of you may read that and think that this case is a slam dunk. Less concussions are better than more concussions, BAM, case closed, good job everyone, let’s take an early lunch. Also it’s “fewer,” not “less” Bill, come on, we thought you were smart. However, it’s not that simple, but this is the law, it’s never that simple, and also screw you imaginary/unnecessarily combative reader, that’s not how humans talk and you know it.

The Analysis (this part will be done by an underpaid law grad)

While physical best interest may seem to lean in favor of prohibiting the son from playing football, what about economic best interest? One of the son’s older brothers plays football for his college, and is most certainly receiving some sort of financial aid for that. Would the decision to pull son from football potentially leave him less able to afford a college education? Socially, if the son’s friend groups and social connections are through football, would removing him from that situation harm him emotionally by disconnecting him from his friends?

Pennsylvania, the state where this case being contested, has a sixteen-factor analysis that judges are supposed to go through when making custody determinations, but little guidance is given to the relative weight of factors. It would make sense that physical safety would be the ultimate guide star, but when son and mom say that they know the risks and choose football anyway, and his treating physicians seem to back them up, what does a judge have other than medical literature dealing with CTE tests in NFL players to back up a ruling for father? In short, this is far from an easy case, with sympathetic arguments on both sides.

Also important to note is that judges in Pennsylvania are elected. It stands to reason that a judge ruling from the Steeler’s home city wouldn’t want to be branded as the “anti-football” judge. At the same time, if the court rules to let the son play and something bad does happen to the son, the judge stands to have the blame placed on his or her shoulders. Truly, the judge in this case is stuck between a rock and a linebacker.

The Concussion…I mean Conclusion.  I’m going to go lie down.

I’m just a poor little insurance defense drone, so I am happy to admit that I am out of my league when it comes to family law and the nitty gritty of divorce and custody battles. But, my guess is that this case, and the national attention it has garnered, will end up being viewed as representative of a larger societal struggle to reconcile our deep love for football with the new science regarding the associated physical dangers, and will therefore become a significant part of the national conversation on football’s deleterious effects moving forward. I’m just glad that making ground on these issues won’t have to involve running headlong into any 300-pound linemen.

-Bill M. Hours