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19 Va. Sports & Ent. L.J. 1 (2019-2020)
Swimming against the Current: Mayall v. USA Water Polo and Its Potential Impact on Overseeing Athletic Organizations

handle is hein.journals/virspelj19 and id is 3 raw text is: FALL 2019 SWIMMING AGAINST THE CURRENT VOL.19:1 Article Swimming Against the Current: Mayall v. USA Water Polo and Its Potential Impact on Overseeing Athletic Organizations Sam C. Ehrlich' Introdu ction ...........................................................................................................1 I. The Events Leading Up to the Ninth Circuit's Ruling ................................4 A . The Tw o D istrict Court Rulings.............................................................7 II. A t the N inth C ircuit...................................................................................10 A. Briefing Mayall........................................10 B . The N inth Circuit D ecision ..................................................................12 i. Duty of Care and Primary Assumption of Risk...............................13 ii. Promulgation of Safety Rules as a Voluntary Undertaking.............14 iii. Gross Negligence ............................................................................16 C. M oving for En Banc Review ................................................................16 III. The Potential Impacts of Mayall..........................................................18 A. Secondary Injuries and Assumption of Risk ........................................18 B. Voluntarily Undertaking Responsibility through Promulgation of ......... Policy ...................................................................................................20 C. Inaction by Overseeing Athletic Organization as Gross Negligence....25 Conclusion ..........................................................................................................27 Introduction The concussion epidemic has been a major source of discussion among commentators in a variety of different subject areas, as many attempt to determine how to solve this crisis and curb the threat it poses to sport participation. While much of the discussion is centered around professional and intercollegiate sports, amateur youth sports have been affected as well. According to medical researchers, around 600,000 sport- and recreation-related concussions by youth sport participants are treated each year; between 22.5 percent and 52.7 percent of high school students' concussions are not reported to medical providers for treatment.2 It may be impossible to entirely remove concussions from sport. Even still, significant efforts have been made by state legislatures and overseeing athletic organizations, including promulgation of effective concussion management policies, education of coaches about the threat of concussions and Sam C. Ehrlich, J.D./Ph.D., Assistant Professor of Legal Studies, Boise State University College of Business and Economics. 2 Mersine A. Bryan et al., Sports- and Recreation-Related Concussions in US Youth, 138 Pediatrics 1, 4-5 (2016).

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