Earlier this year, the NFL paid $765 million to settle a multitude a lawsuits by former players and their families alleging that the league failed to disclose its knowledge that multiple blows to the head led to what is known as “CTE”, chronic traumatic encephalopathy, a degenerative brain disease that causes loss of memory, disturbance of mental functioning, depression, headaches, vision difficulties, and a host of other permanent injuries. The National Collegiate Athletic Association (NCAA) has been hit with a slew of lawsuits in federal courts around the U.S. this year, and in my opinion, the Association faces a much bigger problem than the NFL—here’s why.
When the NCAA was formed in 1906, it was in response to the deaths of 19 young men who had died a year previously, whose deaths were attributed to playing collegiate football. That year, 107 years ago, the mission statement of the Association was: “To protect young people from the dangerous and exploitative athletics practices of the time.” The NCAA’s handbook published in 1933 noted that concussions were dangerous, stating that: “the seriousness of these injuries is often overlooked.” The handbook actually contained references to treating concussions, directing that there should be “Infirmary or hospital treatment until symptom free 48 hours.” Further, there was the following directive: “If symptoms of headache, dizziness, blurred vision, vomiting continue over 48 hours, individuals should not be permitted to compete for 21 days or longer, if at all.”
Sounds very advanced in 1933, doesn’t it? Unfortunately, if we fast forward to the present, somehow the prescience of those Association officials and advisors 80 years ago got derailed by the massive popularity and profits of the sport. Consider these facts. According to the NCAA’s own injury surveillance system, there were more than 29,000 concussions reported in college athletics between 2004 and 2009, over 50% of these injuries in football. The investigation revealed that concussions are increasing by 7% annually. In the last 50 years, more than 500,000 young men have played college football, one of almost 25 varsity sports played in NCAA institutions.
It wasn’t until 2010, a full 104 years after the NCAA came into existence, that a formal concussion policy came into being, despite the knowledge as far back as 1933 that concussions were a distinct possibility from playing football. And what is the NCAA’s present concussion policy? In August of 2010, the NCAA determined that each member school should adopt its own plan for responding to head injuries suffered on the field. The plans had the following four requirements: require that training be provided to the athletes on the signs and symptoms of concussions; require that athletes who demonstrate signs and symptoms of a concussion be evaluated by a member of the school’s medical staff; mandate that athletes who are diagnosed with concussions be kept out of play for the remainder of the day; and require that all players who are diagnosed with a concussion be cleared by a physician before returning to competition.
Without question, the NCAA policy leaves too much discretion and inconsistency in the treatment of these potentially life altering injuries to that of the schools themselves. For example, an athletic trainer is often the school official who determines whether the player has suffered a concussion, rather than a physician. NFL players have the collective bargaining agreement, and agents, looking out for their best interests. College athletes have no agreement, no agents and no one truly looking out for them. It is also harder for NCAA officials to argue, as the NFL attempted to do in fending off litigation by former players, that long term effects of concussions were caused by injuries suffered in high school and college.
The NCAA is now confronted with federal litigation commenced in at least five states, with more to come, no doubt. In a lawsuit filed in the Northern District of Illinois, the allegations by the plaintiffs are that the NCAA was negligent in failing to adopt any formal concussion policy until 2010, and did not include minimum standards in that dilatory policy. One of the Illinois plaintiffs, Adrian Arrington, who played for Eastern Illinois from 2006 through 2009, reports that he lost consciousness several times during his playing days and began suffering seizures while still in school. Presently, Arrington continues to be afflicted with seizures and is afraid to be alone with his three young kids. Former Kansas fullback Christopher Powell, who filed suit in U.S. District Court in Western Missouri last week, alleges that he suffered 4 documented concussions during his collegiate career, including one which resulted in 48 hours of memory loss. In a lawsuit filed in the Eastern District of Tennessee on September 3, 2013, by former Tennessee football players Chris Walker and Ben Martin, along with former N.C. State player Dan Ahern, they seek damages for concussions and medical monitoring.
Some of the recent cases filed are being submitted for mediation with retired Judge Layn Phillips, who brokered the NFL settlement involving 4,500 former players in September of this year.
I can guarantee one thing: NCAA president Mark Emmert and other leaders of the Association will never allow one of these lawsuits to be reach a jury—the NCAA makes too much money for too many people, and they will never allow that gravy train to be jeopardized by a substantial jury verdict, with a definitive potential for punitive damages.