The NCAA is facing litigation on several fronts, from past (and now current players) suing over the use of their likenesses, to a large suit involving concussions. Attorneys in a lawsuit filed a couple of years ago are seeking class action status for thousands of athletes in a suit filed in the U.S. District Court in Chicago. As part of that suit, over 1,000 pages of documents were filed with the court detailing internal conversations within the NCAA. In an entirely unrelated and altruistic gesture, the NCAA announced earlier in the day on Friday that a $399,999 donation would be made to study the long term impact on concussions.
“Student-athlete safety is one of the NCAA’s foundational principles,” spokeswoman Stacey Osburn also told the Associated Press on Saturday. “The NCAA has been at the forefront of safety issues throughout its existence.”
The documents, though, contain several lowlights for the NCAA that cast such public posturing in doubt. In a survey done in 2010, almost half of the trainers surveyed said they would return an athlete to a game on the same day as suffering a concussion. The NCAA put in requirements that schools put in a concussion plan and have it on file, but this was not enforced or given any teeth. In an October 2010 email, director of enforcement Chris Strobel detailed how it would not be appropriate to suspend or penalize a coach who put an athlete back into a game, in violation of the concussion plan in place. The only punishment would be to have a secondary violation for schools that did not file the plan in the first place.
The NCAA, however, did not even enforce the filing of the concussion plans. From the deposition of Dr. David Klossner in April of this year, we find that the NCAA did not require the filing of concussion plans or monitor them, and that no schools had been disciplined for anything arising out of a concussion management plan. A 2011 e-mail from Klossner confirms that it did not have high priority: “Fyi, it was a “no” result for reviewing concussion plans.”
These are the far more serious details when it comes to the NCAA and whether it had a duty that it failed to uphold. More embarrassing are others, like internal staffers making fun of Dr. Klossner for his attempts to make changes when it came to concussion management.
"“Dave is hot/heavy on the concussion stuff,” wrote Ty Halpin, the director of playing rules administration. “He’s been trying to force our rules committees to put in rules that are not good — I think I’ve finally convinced him to calm down.” “He reminds me of a cartoon character,” responded Nicole Bracken, the associate director of research. “HA! I think you’re right about that!” Halpin wrote."
The NCAA also balked at making changes to its rules, with liability, not player safety driving decisions. This, from CBS Sports, is a quote from Teresa Smith, the assistant director of playing rules administration. “Are the refs more at risk if we don’t provide the educational piece on concussions or if we do provide it?” And, what about the NCAA? Would we be protecting/helping the organization by not providing the information?”
Mike Freeman of CBS raises the question of how this affects the NFL. While they may be interested in it, I also think it as likely that specific plaintiffs in the head injury litigation involving the NFL bring the NCAA in as a party, particularly if the plaintiff had any history of head injuries in college. I detailed the NFL litigation a year ago, and I don’t think this provides any defense for the NFL’s duty or failure to perform that duty. It does have an impact on causation, but that impact could be very specific to each plaintiff and case. Remember that this is multi-district litigation involving a variety of plaintiffs, jurisdictions, and law firms. What it means is that they are combined for discovery on broader issues like the NFL knowledge and duty, but will be separated for trial and for specific factual things like causation and injuries.
Here is what I wrote last year on what looks to be the plaintiffs setting up an argument for the NFL owing a broader duty:
“Another key question in a negligence claim is causation. Even if the NFL failed in a duty to the players to warn, the plaintiffs still must show that failure was the cause of injuries. This is going to be a difficult challenge for the plaintiffs, to show that their symptoms now are due to what happened in the NFL rather than as a result of injuries pre-NFL. Different jurisdictions may have different standards as well. Players who played one year in the league may be in a different position than those that had careers that listed 10+ years.
Of course, you can see that the plaintiffs are trying to circumvent these causation issues by arguing the NFL was an industry leader and owed a duty beyond just the NFL by its influence over colleges and high schools and how they view brain injuries.
"“In part because of its financial power and monopoly status in American football, the NFL has enormous influence over physicians, trainers, coaches, professional players, and amateur players at all levels of the game regarding many issues. . Those issues include research and education regarding diagnosis, treatment, and effects of injuries that arise in both professional and amateur football practices, scrimmages, and games.” (p. 32, Alex Karras et al. v. NFL)"
I expect this to be a key legal battle in this case–just how far the NFL’s duty extends. It has broad implications.”
The NFL will in turn want to argue that the NCAA is big enough to make its own policies, and in fact, after the NFL started to change its policies, the NCAA continued to fumble and bumble its way in the handling (or ignoring) of concussions.
[photo via USA Today Sports Images]