Not Child’s Play: The Legality of Restricting Organized Football Participation
By: Cameron Miller | Arizona State University's Sports Law & Business
By all normal accounting measures, the National Football League (NFL) has a healthy, expanding business: The league’s 32 teams split a record $7.8 billion distribution in 2016, up 10 percent from the previous year. Fox Sports just acquired five years worth of rights to Thursday Night Football for $3.3 billion. Franchise values continue to soar, reaching an average of $2.5 billion at the start of the 2017 season.
But below the surface, an existential crisis is mounting against America’s most lucrative sport. Television ratings were down nearly 10 percent in the 2017 season, following an 8 percent decrease in 2016. But the statistic of greatest concern may be the decrease in youth and high school football participation across the country. 41 states have seen drops in high school football participation over the last five years, with numbers declining 10 percent or more in 13 states. Overall numbers are down 3.5 percent since 2011-12, likely due in part to the growing medical literature and media focus on the long-term effects of concussions.
And they may drop even further if legislation restricting young children from playing tackle football goes into effect on the state level, which is currently pending in four states. Earlier this month, the “Dave Duerson Act”, which bars children under the age of 12 from tackle football, passed a committee vote in the Illinois legislature and will now be considered by the state’s house of representatives. This article discusses the legal implications of these new laws.
Restricting the Rights of Children
Prohibiting children from participating in tackle football is not the only instance of government restricting the rights of minors. Smoking tobacco, drinking alcohol, driving, marriage, and even running for public office are all reserved for individuals who have attained a certain age. Age minimums for these activities vary across states, and have been routinely upheld under the rational relation test—meaning they further or assist in achieving a legitimate state interest. The Supreme Court, for instance, in 1989 upheld a local ordinance in Texas barring the admission of 14 to 18 year-olds into certain dancing halls. In finding that the ordinance did not infringe upon the minor’s right of association, the court held that the rule did not restrict the “association” protected by the Constitution and furthered the state interest of limiting minors’ exposure to “alcohol, illegal drugs, and promiscuous sex.” But courts have also ruled in the other direction, invalidating laws that discriminate on the basis of age for no supportable reason. Such was the case in 1996, when the Louisiana Supreme Court invalidated the state’s drinking minimum age of 21 because it failed the rational relation test. Though not deciding an age-related statute, the Southern District of New York addressed similar issues in NYC C.L.A.S.H. v. City of New York. There, the court upheld a ban on outdoor smoking because it was not “a prerequisite to the full exercise of association and speech under the First Amendment.”
State Bans on Youth Football
The aforementioned Duerson Act (HB 4341) prohibits children under 12 from “participat[ing] in tackle football offered by an organized youth sports program” but allows those children to play flag or touch football. A New York law would do the same. Proposed legislation in California would “allow high-contact elements from football programs only at the high school level,” as would a similar bill in Maryland. All four states justify the legislation by citing to the negative, long-term health effects of football. Should these laws go into effect as currently constituted, they would no doubt engender further opposition from youth football leagues across the country. Organizations like Pop Warner have already seen participation declines, and the proposed state legislation could drive them down even further—giving these leagues plenty of financial incentive to challenge their constitutionality.
Plaintiffs in these cases could raise a number of arguments challenging the legality of tackle football bans. They could, as did the plaintiffs in NYC C.L.A.S.H., argue that the law violates children’s right to associate with children. Alternatively, they could challenge the strength of the evidence tying youth tackle football participation to neurological injury. Or, as was done in the Louisiana case cited supra, it could be asserted that the age minimum enacted by the legislature is arbitrary absent a showing that children under the age minimum are more susceptible to brain injury as compared to other age groups (this appears to be the strongest potential argument). Equal protection claims could also be asserted, perhaps on the basis that other forms of football (e.g., flag or touch) are not affected but pose similar dangers, or that other sports with head injury concerns, like soccer or hockey, are left untouched. Close attention should be paid to the language of the state’s bill of rights, which may include prohibitions on age discrimination.
But many of these theories face long odds of success. With respect to the right of association, it could plausibly be argued that tackle football participation, like smoking or dancing, is not the type of “intimate association” protectable under the First Amendment. Nor can it be argued that tackle football involves the other activities protected by the Constitution, such as “speech, assembly, petition for the redress of grievances, and the exercise of religion.” Here, state defendants could also point out that not all forms of youth football are banned, giving children other football playing options. Importantly, the states would be required only to make a rational, reasonable connection between the legislation and a legitimate state purpose, like public health. The substantial research connecting football, concussions, and long-term brain injury may be more than enough to clear that low bar.
Football is the most lucrative sport in America, and will likely remain so for the years to come. But its future generations of players and consumers could be substantially impacted by state bans on youth tackle football—and there do not seem to be any particularly strong legal rebuttals to this legislation.
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 Richard Obert, Numbers game: Arizona high school football participation increased despite growing concerns, AZ Central (October 5, 2017), https://www.azcentral.com/story/sports/high-school/2017/10/05/arizona-high-school-football-participation-numbers-increased-despite-growing-concerns/733254001/.
 John Keilman, Youth football participation declines as worries mount about concussions, CTE, The Chicago Tribune (September 5, 2017), http://www.chicagotribune.com/news/local/breaking/ct-football-youth-decline-met-20170904-story.html.
 Michele Steele, Illinois House to debate, vote on organized tackle football ban for kids under 12, ESPN.com (March 1, 2018), http://www.espn.com/moresports/story/_/id/22616192/dave-duerson-act-passes-committee-advances-illinois-house-vote.
 San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 44, 93 S.Ct. 1278, 1302, 36 L.Ed.2d 16 (1973).
 City of Dallas v. Stanglin, 490 U.S. 19, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989).
 Stanglin, 490 U.S. at 27.
 Manuel v. State, 692 So.2d 320 (S. Ct. La. 1996).
 315 F.Supp.2d 461 (S.D. N.Y. 2004).
 Id. at 473.
 HB4341, 100th Gen. Assembly, State of Illinois (2018) (available at http://www.ilga.gov/legislation/fulltext.asp?DocName=&SessionId=91&GA=100&DocTypeId=HB&DocNum=4341&GAID=14&LegID=109000&SpecSess=&Session=).
 Ken Belson, New York Legislator Renews Effort to Bar Tackle Football for Children, The New York Times (January 24, 2018), https://www.nytimes.com/2018/01/24/sports/youth-tackle-football-ban.html.
 Assembly Members McCarty and Gonzalez Fletcher Announce “Safe Youth Football Act” to Protect Children from Brain Injury, Office of Assemblywoman Lorena Gonzalez Fletcher (February 8, 2018), https://a80.asmdc.org/press-releases/assemblymembers-mccarty-and-gonzalez-fletcher-announce-safe-youth-football-act.
 Noah Frank, Maryland to introduce bill to ban tackle football under age 14, WTOP.com (February 5, 2018), https://wtop.com/maryland/2018/02/maryland-to-introduce-bill-to-ban-tackle-football-under-age-14/.
 Michael Smolens, Tackle ban: Is it protecting kids vs. the football 'way of life'?, The San Diego Union-Tribune (February 16, 2018), http://www.sandiegouniontribune.com/news/columnists/michael-smolens/sd-me-smolens-football-ban-20180213-story.html (California assemblywoman who introduced California’s Safe Youth Football Act: “The science is clear: head injuries sustained at a young age can harm kids for the rest of their lives.”).
 Taryn Luna, Save California football? Proposal to ban tackling before high school creates uproar, The Sacramento Bee (February 15, 2018), http://www.sacbee.com/news/politics-government/capitol-alert/article200187369.html.
 Steve Fainaru and Mark Fainaru-Wada, Youth football participation drops, ESPN.com (November 14, 2013), http://www.espn.com/espn/otl/story/_/page/popwarner/pop-warner-youth-football-participation-drops-nfl-concussion-crisis-seen-causal-factor.
 315 F.Supp.2d at 472-73.
 692 So.2d at 325-26.
 Louisiana’s state constitution provides that “No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations.” La. Const. Art. I, Sec. 3.
 490 U.S. at 24.
 Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 104 S.Ct. 3244, 3249, 82 L.Ed.2d 462 (1984).
 411 U.S. at 44.