Testimony of Robert F. Kanaby

Executive Director

National Federation of State High School Associations

Before the House Judiciary Committee

on

Hearing on HR 3369

The Non-Profit Athletic Association Protection Act

July 20, 2004

The National Federation of State High School Associations

P.O. Box 690

Indianapolis, Indiana 46206

            Thank you Mr. Chairman and members of the Committee for the opportunity to testify in support of HR 3369, the Non-Profit Athletic Association Protection Act. My name is Robert Kanaby and I have served as the Executive Director of the National Federation of State High School Associations for the past 11 years. Prior to that I served 13 years as the Executive Director of the New Jersey State Interscholastic Athletic Association. I have also been a high school teacher, coach, vice principal and principal.

            The High School Federation is the national service organization and administrative organization for high school athletics and fine arts programs in speech, debate, theater and music. Our purpose is to provide leadership and coordination of these activities to enhance the educational experiences of high school students and reduce the risks incident to their participation. We promote inclusiveness and sportsmanship, and our paramount goal is to develop good citizens.

            I am here today to talk about our activities with respect to high school sports. Specifically, I am here to ask you support and pass legislation that will provide some immunity for claims of negligence for us and other non-profit amateur sports rule makers resulting from passing or adopting sports competition rules for sanctioned or approved play.

            The National High School Federation develops and publishes playing rules for 17 sports for boys and girls competition. These rules govern virtually all high school competition in the United States for baseball, basketball, cross country, field hockey, football, boys gymnastics, girls gymnastics, ice hockey, boys lacrosse, soccer, softball, spirit, swimming and diving, track and field, volleyball, water polo and wrestling. To give you an example of our product, I included with my written testimony a copy of the rule book for wrestling.

            We have come to Congress because we have a situation that threatens our ability to pursue our mission. This legislation introduced by Representation Mark Souder would shield these organizations, their directors, officers, employees, representatives, and agents from liability for claims of negligence involving the passage, failure to pass, adoption, or failure to adopt rules concerning athletic competition.

            Before going into the details of our problem it is important to understand what we do and the service we provide to communities throughout this country. The rules writing program, which stresses “grassroots” input, was initiated in order for high schools, coaches, athletic administrators and interscholastic officials to have direct influence in developing rules. NFHS rules are written specifically by and for the high school level of participation and are intended to promote and preserve the sound traditions of the sport and to minimize the risk of injury for participants.

            It is important to understand how these rules are developed. The two primary rules organizations for education-based athletics are the NCAA and NFHS. These two non-profit organizations publish rules for most education-based athletics across the country. They organize rules committees which are comprised of experienced practitioners (i.e., coaches, officials and administrators) who volunteer their time. As rule makers, they are involved in a predictive endeavor, which means that unintended consequences are always a possibility. Committee members observe trends in their sports, seek input from a spectrum of sources, and then measure possible rules changes against three principal standards, all of which are subjective. The three standards include: preservation of each sport's sound traditions; risk minimization; and maintenance of an appropriate balance between offense and defense. Each set of rules is a work in progress as players get bigger and stronger, coaching methods change, and technology advances. Each sport is an ever-moving target for rules makers, and no set of rules can ever make participation in sport, as we know it, completely "safe."

            This is not a new process and this is not a new organization. The High School Federation is over 80 years old. We published our first rules in 1930 for football. On the basis of our track record of service to over 7 million students each year we have done a pretty good job.

            Education based sports are an important and essential part of our society. These activities provide great benefits for participants and spectators alike. It is widely acknowledged that interscholastic sports are a tremendous asset to America’s young people. They help to build character and they promote important social qualities such as leadership, teamwork, discipline, and goal setting.

            A study conducted by the Department of Health and Human Services (Adolescent Time Use, Risky Behavior, and Outcomes: An Analysis of National Data Issued in September of 1995) found that students who spend no time in extra-curricular activities are 57% more likely to have dropped out of school by the time they would have been seniors; 49% more likely to have used drugs; 37% more likely to have become teen parents; 35% more likely to have smoked cigarettes; and 27% more likely to have been arrested than those who spend one to four hours per week in extra-curricular and sporting activities.

            High School sports provides an important outlet for celebrating human achievement. Sport is an activity where competitors and spectators alike can come together to applaud athletic achievement without regard to politics, race, gender or ethnic origin. Next month the 2004 Summer Olympic games will take place in Athens, Greece. This event brings spectators and athletes together from over 100 countries to witness the performance of the world’s best. For 17 days, political and social barriers will fall to the side as the world celebrates the achievement of these athletes. Similar examples take place in high schools every day.

            There is no question that interscholastic sports contributes to the health and social well being of all of the participants and helps to lift the spirits of spectators who watch these events. Preserving amateur and interscholastic sports is essential in our society, particularly with respect to the development of our children. However a situation exists that is a threat to the continuation of our ability to facilitate this important part of our culture.

            Sport is not without an element of danger. The nature of aggressive, competitive, contact-permissive physical activity entails a small risk of serious harm. For a few, the risk becomes a

reality. It is only in the last decade or so that this has become a threat to the larger good afforded by amateur sports. As I mentioned at the beginning of my testimony, rule makers have increasingly become the target of liability claims alleging negligence due to the passage or adoption of rules. These allegations have resulted in an increase in the number of liability claims against our organization and are beginning to have a detrimental financial impact on the organization and will eventually affect our ability to continue to provide rule making services to our nation’s high schools. Therefore we are seeking legislative relief through immunity for claims of negligence resulting from the rule making process.

            While these claims are believed to be without merit, the cost of defending claims and the uncertainty of judicial proceedings have caused us significant financial harm and have forced us to reconsider whether we should continue to provide rules.

            The progression of the problem for us is fairly simple. With an increase in liability claims, comes and increase in insurance premiums and with an increase in risk we find fewer companies willing to offer this type of coverage.

            Our position is quite simple. Catastrophic injuries while tragic, are not the fault of the rule maker. Sports involve a certain element of risk. Rule making is anticipatory and even if rule makers successfully anticipate problems during competition, injuries will occur. In deciding to partake in competition, athletes assume risk, and allowing suits based merely on the good faith development of the rules is wrong and unfair.

            Over the last three years, the annual liability insurance premiums for the National High School Federation have increased three-fold to about $1,000,000. We have been advised by experts that given our claims experience and the reluctance of insurers to offer such coverage to an organization "serving 7,000,000 potential claimants," the premiums will likely increase significantly in years to come. Since we operate on a total budget of about $9,000,000, such an increase would be, to put it mildly, problematical.

            The proponents of this legislation do not seek protection for rule-makers and administrators who act with malice or gross negligence. Such people should answer for their actions. However, we believe that ordinary negligence is a liability standard that simply doesn’t work for non-profit amateur sport rule-makers. Given the inherent nature of sport and the massive numbers of participants, some injuries and deaths inevitably ensue from rule-makers decisions. To subject them to litigation is distracting, expensive, unfair and counterproductive. Rule-makers are not insurers, and the Congress should act to protect them and to promote the larger societal benefits they provide.

            Everyone who plays or watches high school sports or sports, at any level, understands that the possibility of injury is inherent in all sports. Any activity that involves speed, collisions, objects and humans to travel through the air has risks. Nor are sports stagnant. They are subject to ongoing redefinition as rule makers act to minimize risk factors and to deal with new coaching methods and technology. Because rule making is an anticipatory function, the consequences of any change takes time to play out. Even if a new rule works as intended, there will be adverse consequences for some athletes. As a nation, we recognize that such individual costs are outweighed by the social, educational and public health benefits that sports provide.

            For these sports to continue to grow and prosper, the development and enforcement of rules is essential. However, the increased expense of defending litigation is endangering the future of these socially beneficial activities. Without rules specifically written for this level of play, the risks will be come greater as programs throughout the country adopt rules written for others.               

            Amateur athletics are integral to the health and well being of society. While non-profit organizations put their best efforts forward by passing rules in the best interest of the athletes and competition, injuries will occur as a result of the inherent risk involved in sport. This risk, however, should not be work to the detriment of amateur athletics generally. Legislation is necessary to protect rule makers so funds may be allocated to expanding competition, not legal fees.

            Thank you again for the opportunity to be here today and I look forward to answering any questions.