I Remember When…
How college football’s past will determine its future.
Natives of Raleigh and avid Wolfpack fans may be familiar with the name Dan Ahern, but for those who are unfamiliar, Dan Ahern is a former N.C. State football player. He played for the Wolfpack from 1972-1976 and was an offensive guard, a position that does not shy away from contact.
It appears Dan is once again on the offensive. On September 3, 2013, Dan and two former University of Tennessee football players, Chris Walker and Ben Martin, filed a complaint against the National Collegiate Athletic Association (“NCAA”). The complaint (pdf), filed in Chattanooga, Tennessee, is a putative class action lawsuit that alleges “[t]he NCAA has breached its duty to protect college football players in the face of long-standing and overwhelming evidence regarding the need to [protect players from traumatic head injuries].”
Although Walker is no longer playing football, the effects of the game remain.
The parties to the lawsuit include the NCAA and the aforementioned football players as putative class representatives. Within the complaint, the NCAA is described “as the governing body of college sports” whose “annual revenues . . . in fiscal year 2007-2008 were $614 million.”
Plaintiff Chris Walker played college football for the University of Tennessee from 2007-2011. He contends that during his time playing as a defensive end for the Tennessee Volunteers, “he experienced repeated traumatic head impacts.” In a game against the University of Mississippi, Walker was sidelined after sustaining a “hit that left him lightheaded and dizzy.” Although Walker is no longer playing football, the effects of the game remain. He experiences “frequent severe headaches that have not been amenable to treatment by over-the-counter medication.”
Plaintiff Ben Martin played alongside Chris Walker; he shares a similar story. Specifically, he recalls being blindsided while playing in a game against the University of Georgia. Although Martin has a difficult time remembering specific incidences, he contends he suffered repeated impacts to the head over the course of his collegiate career at the University of Tennessee.
The oldest of the three plaintiffs, Dan Ahern, recalls suffering a concussion each year he played at N.C. State. As a freshman, Ahern “suffered a concussion in a spring scrimmage which required a two-night stay in the infirmary for observation.” As a senior, “he suffered a concussion during a game against [Penn State] and he was flown to Raleigh . . . and hospitalized for observation.” Ahern currently experiences “an inability to concentrate, poor memory, a ringing in his ears, and sleeping problems.” These physical ailments, among others presumably linked to his college injury, forced him into retirement at age fifty. Because of the repeated traumatic head impacts, all three plaintiffs have an increased risk of latent brain injuries.
“Programs shall be conducted in a manner designed to protect . . . the physical and educational well-being of student athletes.”
A class action lawsuit requires representatives for an injured class, as defined by the Federal Rules of Civil Procedure in section 23(b)(2). Here, the injured class is identified as the “Medical Monitoring Class,” which is defined as “[a]ll former NCAA football players residing in the United States who did not go on to play professional football in the National Football League.” It is worth noting that the lawsuit leaves out any players that went on to play in the NFL. It is an interesting distinction, but one that makes sense considering the NFL and more than 4,500 former players recently agreed to a settlement worth approximately $765 million.
The current NCAA concussion lawsuit is being steered and guided by nine different law firms. This group includes Michael Hausfeld, described as “a renowned class-action attorney” and “the lead attorney in the 4-year-old Ed O’Bannon suit against the NCAA over the use of athletes’ names, images, and likenesses.”
To establish a duty on the part of the NCAA, Hausfeld and company draw attention to the origins of the NCAA saying “the very existence of the NCAA evolved from the actions of Teddy Roosevelt.” During Roosevelt’s presidency, there were strong calls to put an end to the game after “eighteen youths had died playing football.” In response, Roosevelt helped create “momentum for health and safety reform of college football that lead to the formation of the Intercollegiate Athletic Association.” This association later became known as the NCAA.
In order to further emphasize the NCAA’s duty to the student-athletes, the complaint cites the NCAA constitution. The constitution (pdf) states “programs shall be conducted in a manner designed to protect . . . the physical and educational well-being of student athletes.” Further, “[i]t is the responsibility of each member institution to protect the health of . . . each of its participating student-athletes.”
The NCAA “failed to establish known protocols to prevent, mitigate, monitor, diagnose, and treat brain injuries.”
The plaintiffs argue that the NCAA breached its duty by failing to “educate its football-playing athletes of the long term, life-altering risks and consequences of head impact in football.” The complaint argues that the NCAA “failed to establish known protocols to prevent, mitigate, monitor, diagnose, and treat brain injuries.”
Two classifications of brain injuries are discussed in the complaint, concussions and traumatic brain injuries (“TBI”). Concussions are defined by the American Association of Neurological Surgeons (the “AANS”) as “a clinical syndrome characterized by an immediate and transient alteration in brain function . . . resulting from mechanical force or trauma.” TBI, however, “disrupts the normal function of the brain. TBI can result when the head suddenly and violently hits an object, or when an object pierces the skull.” TBI can be mild, moderate, or severe. Mild cases are classified as mild traumatic brain injury (“MTBI”) and are the primary concern of the NCAA.
The plaintiffs contend that the NCAA knew or should have known about studies regarding brain injuries, and its failure to act in “the face of their overwhelming and superior knowledge of these risks . . . constitutes negligence and reckless endangerment.”
To prove that “the NCAA has known for decades that MTBI experienced in football can and does lead to long-term brain injury in football players,” plaintiffs diagram the history of brain injury studies surrounding football and other violent sports. This list starts by harkening back to 1928 when one pathologist’s study displayed a correlation between “sub-concussive blows and ‘mild concussions’ to degenerative brain disease” in boxers.
Even mild repetitive TBI leads to an accumulation of abnormal protein aggregates, which tends to cause certain forms of dementia and even parkinsonism.
Drawing from a study once every five years, the complaint’s somewhat exhaustive list of references concludes by citing a 2010 article entitled Traumatic Brain Injury—Football, Warfare, and Long-Term Effects (pdf). As dramatic as the title appears, the article addresses this issue in frightening detail. It draws the connection between TBI and TBI’s long term effects. For example, the article points out that even mild repetitive TBI leads to an accumulation of abnormal protein aggregates, which tends to cause certain forms of dementia and even parkinsonism. Worse yet, “[s]evere single incident injuries, with or without skull fracture, may lead to permanent brain damage” creating an increased risk of Alzheimer’s disease.
By displaying a century’s worth of knowledge and studies, plaintiffs promote their contention that the NCAA was aware of the dangers of TBI and MTBI. That awareness ultimately was manifested in 2010 when the NCAA adopted “a concussion management policy that delegated the concussion problem to its member schools.” The legislation by the NCAA requires “each member institution to have a concussion management plan.” In what plaintiffs dub a “public relations maneuver,” the concussion management policy may be too little too late for the NCAA.
“You can’t engage in any athletic activity without risk of some injury.”
The putative class action lawsuit, if played out in the courtroom, could face serious setbacks. First, the plaintiffs must get certification as a class action. Assuming that the lawsuit becomes certified, holding the NCAA liable for not protecting the players relies on the assumption that the NCAA was “overwhelmingly” more informed than the participants. But perhaps damaging their case, the studies referenced by plaintiffs were available to the players as well as the NCAA officials. Because the players were afforded the same information as the NCAA, plaintiffs will have a tough time displaying that they were unaware of the risks
Further, the “dichotomy” between current and former players in the context of the NFL concussion litigation is prevalent in college football as well. The underlying issue with respect to this dichotomy is perspective. Former players, once they have removed themselves from the game, understand the consequences of playing such a brutal sport, while current players refuse to acknowledge or treat their injuries because they know the next man in can take their spot.
Even more so, where is the duty on the part of the NCAA? As lead counsel, Hausfeld admits, “you can’t engage in any athletic activity without risk of some injury.” He contends that “you can minimize injury, and respond to treating and monitoring the injury. That’s where the NCAA has failed.”
Has the NCAA not responded? Implementing concussion protocol is certainly a step in the right direction. Without knowing or seeing the impact that MTBI has on a player, the NCAA would not have been aware of the correlation between repeated head trauma and the risk of latent brain injuries. This awareness has occurred, and the NCAA likely should not be held liable for any inaction prior to its realization.
Putting the classification difficulties aside, this lawsuit will likely follow the same path as the NFL concussion lawsuit. The NCAA will ultimately pay a certain amount to regain credibility with the players and fans; the money will be disbursed to the players according to current lifestyle difficulties with a set cap in place; and football will alter its rules but continue to be a sport where toughness is personified.