The 2013 Jeffrey S. Moorad Sports Law Journal Symposium—Concussion Conundrum—explores, debates, and informs on the key issues facing players, teams, leagues, doctors, and lawyers regarding head injuries and brain trauma in sports.
Panels include commentary from well-known retired professional athletes about concussion awareness and prevention amongst players; an examination of both sides of the NFL Concussion Injury Litigation—the concussion injury class action suit brought by former NFL players against the league; an exploration of the science and concussion-related liability facing professional and amateur sports; and a look at where we are and where we are going with media personalities commenting on the state of sports and concussions.
Andrew Brandt, Director of the Jeffrey S. Moorad Center for the Study of Sports Law and NFL Business Analyst, has covered the concussion issue for ESPN and moderates all panels.
The Symposium takes place on Friday, March 15, from 9 a.m. to 12 p.m., in the Arthur M. Goldberg Commons at Villanova University School of Law. This program is approved by the Pennsylvania Continuing Legal Education Board for 2 substantive CLE credits. The event is free for non-CLE attendees.
Click here to register.
Panel 1: Framing the Issue
Retired professional athletes discuss concussion awareness, prevention, and treatment from their playing days as well as views of the present awareness and atmosphere surrounding concussions in sports.
- Keith Primeau, former NHL Center (Philadelphia Flyers, Detroit Red Wings) and founder of stopconcussions.com
- Jim Nelson, former NFL linebacker (Green Bay Packers, Minnesota Vikings, Indianapolis Colts, Baltimore Ravens)
- Taylor Twellman, former MLS player and current ESPN analyst and concussions commentator
- Brian Westbrook, former NFL running back (Philadelphia Eagles, San Francisco 49ers) and commentator for CBS Sports’ Fantasy Football Today
Panel 2: Building the Case — A Legal and Medical Background of Concussions
Legal and medical experts explore the liability issues of amateur and professional sports and share their perspective on the diagnosis and treatment of concussions. Panel also features a Villanova Law Student who has written about and experienced the effects of concussions in her and her family’s life.
- Marc Edelman, Associate Professor of Law, Barry University
- Dr. Michael Marino, MD, Attending Physician at Drucker Brain Injury Center
- Cailyn Reilly ’13 VLS
Panel 3: Concussion Injury Litigation v. NFL: Looking at Both Sides
Practicing attorneys, including one representing the plantiffs, engage in a balanced, in-depth discussion of the key arguments in NFL Concussion Injury Litigation—the class action suit brought by former NFL players against the league.
- Paul Anderson, founder of NFLConcussionLitigation.com
- J. Gordon Cooney, Jr. ’84 VLS, Morgan Lewis, expert on the defense of class actions suits
- Sol Weiss ’72 VLS, Anapol Schwartz, Co-lead Counsel in NFL Concussion Injury Litigation
Panel 4: What’s Next?: Parents, Media, Administrators, and Scholars Look Ahead
ESPN personalities examine the state of the sport of football in light of concussions, whether parents should let their kids play, and where the NFL will be in 20 years.
- Roger Cossack, Legal Analyst, ESPN
- Ashley Fox, NFL Columnist, ESPN
- Peter Keating, Senior Writer, ESPN
- Taylor Twellman , ESPN Soccer Analyst
The Jeffrey S. Moorad Center for the Study of Sports Law, created in February 2012 with a $5 million leadership gift from Jeffrey S. Moorad ’81, is one of only a handful of institutes in the U.S. dedicated to the study of sports law. The new Center will prepare students for careers in amateur and professional sports through rigorous academic study, innovative programs, internship opportunities, scholarship, and research. Located near Philadelphia, home to one of professional and amateur sports most dedicated fan bases and largest media markets, Villanova University School of Law is situated along the Northeast corridor in close proximity to several major sports markets including New York City, Baltimore, and Washington, D.C.
The Moorad Center’s Board of Advisors, which provides advice and guidance to the Center’s leadership, includes notables from numerous facets of the sports industry, including Major League Baseball, National Basketball Association, the National Football League, the National Hockey League, player representation agencies, and sports media. Advisory Board members serve as resources for student opportunities in the field and join Moorad Center Director Andrew Brandt for panels, discussions, and symposia.
By Caroline Boger
The first person I think about when I reflect on my childhood is Molly Chenot. Molly and I grew up on the same street and were brought together through our mutual love of soccer. At age 11, soccer became our reason for existence when we were hand chosen by the local high school soccer coach to be on his varsity team by the time we entered high school. Our relationship blossomed as we played together for seven straight years. Every single day of our lives was spent together at either a soccer practice or game.
Throughout the years of dedication to soccer Molly became the victim of several concussions. Her most serious one occurred during our senior year of high school in the state championship when we were second in the nation and undefeated after 19 games. When we were tied in the second half, both Molly and a girl on the opposing team went up for a header, which resulted in them colliding. The day ended with our first and only loss of the season as well as Molly’s last soccer game. Due to Molly’s extensive head injuries, she was unable to ever play soccer again.
Contrary to popular belief, a concussion is not a bruise to the brain caused by hitting a hard surface. A concussion is caused by “the shaking of the brain inside the skull that changes the alertness of the injured person” (Cantu & Hyman, 2012, p. 2). The level of “changes” fluctuate depending on each instance and can be anywhere from mild to profound. These kinds of changes are symptoms such as confusion, blurred vision, headaches, fatigue, memory loss, nausea and, sometimes, unconsciousness. “According to the Centers for Disease Control and Prevention almost four million sports- and recreation-related concussions are recognized every year, with many times that number occurring but going unrecognized” (Cantu & Hyman, 2012, p. 2).
Now more complications are arising and becoming more prevalent after the original concussion occurs. Problems such as post-concussion syndrome, second impact syndrome and chronic traumatic encephalopathy (CTE) occur after the initial blow to the head and can cause serious damage if not enough time is taken off before returning to their sport of choice. Sometimes injuries result in being unable to participate in any form of physical activity, mental problems, or even death. Luckily sports-related head injuries have received significantly more attention over the past few years, especially when is comes to cases involving young athletes.
In “Concussions and Our Kids” authors Dr. Robert Cantu and Mark Hyman dedicate themselves to the subject of head injuries that occur in youth sports. Throughout his lifetime, Cantu has become a concussion expert. He has treated numerous patients who have experienced brain trauma, many of them athletes. Through research and the participation of medical and athletic committees, Cantu believes that sporting rules and equipment need to be modified in order to prevent concussions from occurring. Cantu mainly focuses on sports and injuries that occur at a youth level but he also makes suggestions for athletes that are playing at a collegiate and professional status. Two of the main reforms that relate specifically towards children are that tackling during football and heading the ball during soccer should be banned until the age of fourteen.
A red flag should appear when professional football players and their families are informing the media that they would not allow their own children to play tackle football at a young age. When asked about concussions in football, Carolina Panthers fullback Brad Hoover stated, “If you’re worried about concussions, you’re in the wrong business (The Associated Press, 2009).” Jeff Saturday, Indianapolis Colts center, even stated that he would never let his son play youth football because it is too dangerous (Cantu & Hyman, 2012, p. 145). Football is one of the roughest sports out there. That is one of the reasons football is so appealing to young people, but to have tackling before the age of fourteen is unsafe. Kids who are not fourteen are more vulnerable to injury because they are not yet physically mature; they have weak necks, immature musculature, and brains that are still developing (Cantu & Hyman, 2012, p. 29).
Some would argue that children who are not exposed to tackling at a young age would be at a disadvantage when moving on to higher levels of play. If all football programs enforce this rule, then every football participant would be at the same stage, at an identical age and learn how to tackle at similar rates. Most importantly, by the age of fourteen most kids would have developed neck and body strength as well as a more matured brain (Cantu & Hyman, 2012, p.145).
If implementing the “no tackling before fourteen” rule is not an option, then it is imperative that coaches teach their players the correct form to use when tackling from the beginning. This way, players can practice these exercises so that the safest method of tackling is being performed. Not only is that crucial, but also when coaches are able to control the physicality used in practice environments, they need to try to avoid situations where head trauma could be an end result. Contact is inevitable during actual games against opponents so coaches should think of other ways to use their practice time. This way coaches can prevent any more head injuries from occurring but still teach their players how to be successful during game time.
Another argument is that tackling is not the problem but it is the equipment that needs to be revised. Football players, who play when tackling is allowed during the game, are required to wear a set of pads as well as a helmet. Recently there has been research to improve the football helmet in hopes to avoid concussion during play. Regrettably the researchers have been unsuccessful. For example Cantu (2012) talks about an incident when T.J. Cooney who played football for Catholic University went out and bought the most expensive and exclusive helmet available to him. During his first practice, Cooney wore the helmet and got a concussion. He later stated, “Ironically, the worst concussion of my life happened when I was wearing the best helmet out there” (Cantu, 2012, p. 148).
The second recommendation that Cantu makes is that heading the ball during soccer should also be banned until the age of fourteen. Being a soccer player myself, I know that heading is a vital part to a soccer player’s career. A great soccer player needs to know and be proficient in tracking the ball in the air and understand what part of the head to use when directing its location. I also know that the only way to get good at that is by practicing. At very young ages soccer players are required during practice to hit the ball with their heads countless times during every session. Obviously hitting your head repetitively at such a high rate cannot be healthy for brain development. Cantu discusses that in a few programs they have not yet banned heading all together but instead have simply “discouraged” it in ages under ten (Cantu, 2012, p. 41).
Many times heading is unavoidable when a soccer ball is coming directly toward you, so I believe that it is important to teach young kids how to react in these types of situations as another way to avoid injury. Coaches could potentially ease their players into the right tactics to head the ball so that soccer players can familiarize how to head the ball properly over a longer period of time. In order to do that, soccer clubs and organizations need to ensure that the coaches that they are providing for kids are taught themselves how to properly teach heading to younger generations.
Unfortunately, I have seen what can happen as a result of getting one too many concussions due to collisions in the air. There is headgear available to soccer players who wish to wear it but just like T.J. Cooney’s story, Molly Chenot was wearing that headgear when she played in the game that ended her athletic career forever. Cantu truly believes that if heading were banned from soccer all together far less head injuries would actually occur (Cantu & Hyman, 2012, p. 40). “In 2010 female soccer players suffered 25,953 concussions, and male players, 20,247 concussions (Cantu & Hyman, 2012, p. 40).” With that statistic in mind, I agree with Cantu in the fact that heading should be banned from a safety standpoint but without heading in soccer the game would change too drastically. Heading is such a fundamental part to the game of soccer that I do not see the rules changing in that direction any time soon.
There should be a balance when deciding what to change and what traditions should stand when it comes to sports. Dr. Robert Cantu and Mark Hyman provide exceptional ideas in their book for improvements in many popular sports that guarantee a higher rate of safety when it comes to head injuries, while relatively keeping the original rules in tact. More importantly the authors provide coaches, athletes and parents a resource to refer to when a concussion does take place. The increase of recreational sports activities has made the incidents of sports related head and brain injuries rise continuously.
The subject of concussions will continue to surface as long as athletes at the high school, college, and professional levels continue to die while showing signs of CTE during scans due to the experiences of too many concussions. It is beneficial for coaches, athletes and parents of all sports to understand the symptoms, causes and consequences of concussions to avoid serious brain damage. As more research is conducted hopefully concussions will be better understood and more efficient preventative measures will be produced. With the help of new technology, proper education about risk factors and symptoms, prevention, the options for safety and security athletes will utilize every outlet available to them in order to make sure that when a concussion does take place, they will effectively know how to handle the situation.
Caroline Boger is a senior Communication Studies major at Clemson University. She has held multiple internships with a variety of different organizations such as The North Carolina Arboretum, Crawford Strategy, Oconee County Chamber of Commerce and Seneca City Hall. She is graduating in May 2013 and is seeking to find a job in the public relations, marketing or branding realm. Caroline is somehow still a fan of the Dallas Cowboys, would die without coffee and is an avid believer that everyone should live every week like its shark week. Follow her on Twitter @carolineboger!
The following article first appeared in the Concussion Litigation Reporter. To learn how to subscribe, click here.
Since the concussion era began our focus has primarily been on football — mainly because of the litigation against the NFL, and the inherent violence of the sport.
An activity that is often forgotten, however, is cheerleading. In a not-so-distant past, we thought of cheerleading as girls shaking pompoms, and, at best, jumping a few feet off the ground doing the splits. Perhaps when we visualize cheerleading this is still an image that appears. But, modern cheerleading has evolved into a sport that is more akin to mixed martial arts, where legs and arms are constantly flailing and at any moment a participant is risking a violent shot to the head. Even more dangerous are the various stunts—pyramids, basket tosses—that are now a constant part of cheerleading.
The term “cheerleading” is clearly a misnomer. It marginalizes the true nature of the sport, which in turn, creates a false sense of security that the sport is risk-free. Modern cheerleading involves high-flying acrobatics and gymnastics, where participants are tossed several feet in the air, and their only safety net is a fellow participant. If the safety net fails, the cheerleader slams down on a hard-wood floor (or occasionally a mat). Even more concerning, only 29 state’s high school athletic associations consider cheerleading a sport — for Title IX purposes, cheerleading also is not a sport. This creates a lesser incentive to have safety protocols in place since non-athletic activities are not required to have experts on the sidelines or certified instructors. Other than industry standards, such as the American Association of Cheerleading Coaches and Administrators guidelines, cheerleading, generally, is an unregulated ticking-time bomb.
The statistics for catastrophic injuries—brain and spinal—in cheerleading are staggering. According to Mueller and Cantu’s Catastrophic Sports Injury Research, from 1982 to 2011, cheerleading accounted for 64.8% of all direct catastrophic injuries to girl athletes at the high school level and 70.6% at the college level. Stated differently, cheerleading accounts for approximately two-thirds of all catastrophic injuries to female athletes. Of the 128 high school injuries, 83 were from cheerleading and the second highest occurred in gymnastics and track with 9. Similarly, of the 51 college injuries, 36 occurred in cheerleading with the next closest occurring in gymnastics and field hockey with 3.
Concussions are also becoming a major concern. Although concussion rates are relatively low compared to other female sports, the rates from 1998-2008 have increased by 26% each year. In other words, concussions are becoming an increasingly dangerous problem, and in all likelihood have been unreported and undiagnosed until recently.
Kimberly Archie is the Director of the National Cheer Safety Foundation and one of the foremost experts and advocates for creating a safer environment for cheerleading. She believes the 2nd Circuit’s decision in Biediger v. Quinnipiac, affirming U.S. District Judge Stefan Underhill’s decision that cheerleading is not a sport, was an opportunity to make cheerleading safer, but the litigants punted this opportunity and effectively foreclosed the ability to bring necessary and uniform safety measures to cheerleading. She argues that the decision barely addressed safety concerns or even considered the catastrophic injuries involved in cheerleading. Instead the court relied on the historical role of cheerleading — that of generating publicity and acting as a support group for genuine sports (e.g. football and basketball).
Archie believes that the only way change will occur is through personal-injury litigation. She says that the accidents occurring in cheerleading is not mere negligence, but rather a case of “child athlete abuse syndrome.” Archie coined this term to describe the phenomenon of coaches, parents and school districts’ win-at-all-costs mentality that unnecessarily places children at a risk that is not an inherent part of the activity.
Since the so-called concussion crisis began, we’ve seen a flood of concussion lawsuits in football, whether it is at the professional or high school level. Similarly, a wave of cheerleading concussion litigation has also started. The fact that cheerleading is, for the most part, unregulated, parents of injured children are alleging that the high schools could have done more to prevent their child’s injuries.
Two lawsuits in particular were filed within the last five months. In September, Olivia Doyer (19) and her parents are suing Poland Regional High School in Maine and her coach for injuries she sustained during a failed “basket toss” stunt. The lawsuit alleges that Olivia’s injuries were caused by her coach’s failure to supervise, observe her injuries, and implement and follow “industry rules, codes and standards.” Olivia, according to her lawsuit, has suffered from post-concussion syndrome, a cervical sprain and disc impingement.
Likewise, Mikaila Manjarrez (15) and her mother are suing Hillsboro School District in Oregon and her coaches for allegedly failing to adequately supervise, instruct, and refer her for evaluation after sustaining “multiple blows” to her head while cheerleading. The lawsuit also alleges that the School District failed to implement and violated Oregon’s concussion law.
Cheerleading lawsuits, historically, like many other sports-related lawsuits have failed under the doctrine of primary assumption of the risk. Under this doctrine, a participant assumes inherent risks involved in the activity, and a defendant owes a duty not to increase these risks, but it owes no duty to decrease the risks. In the seminal case of Aaris v. Las Virgenes Unified School Dist., involving similar facts as the two cases above, the court affirmed this doctrine and granted summary judgment in favor of the School District, stating in dicta, if we were to “hold that respondent has liability for appellant’s injury, it would fundamentally alter the nature of high school cheerleading, perhaps heralding the return of that docile row of cheerleaders…this would either chill, or perhaps even kill, high school cheerleading.”
The court also stated that the law of physics creates an obvious risk inherent in cheerleading. “What goes up, must come down…Whenever gravity is at play with the human body, the risk of injury is inherent.”
Although this case’s reasoning provides persuasive authority, which many other courts have followed, each case must be decided on its individual facts. As the facts of Doyer and Manjarrez’s case is more fully developed in discovery, their cases may be able to allege conduct that involves the coach or school district increasing the inherent risks in the sport and thereby getting past the doctrine of assumption of the risk.
In either event, these cases teach us that serious injuries happen in cheerleading. In order to prevent future liability, schools must have adequate safety protocols in place and they must ensure they are following their state’s concussion laws.
Archie argues, “if a school does not have a rehearsed catastrophic injury plan in place, they will have a serious problem.”
By: Dr. Jimmy Sanderson
If you have not read Concussions and Our Kids: America’s Leading Expert on How to Protect Youth Young Athletes and Keep Sports Safe by Dr. Robert Cantu and Mark Hyman, you absolutely need to.
I assigned this book to my Advanced Sports Communication students at Clemson University and as we discussed this book in class, I was struck by the role that communication plays in the concussion issue, and the need for academics, in particular communication researchers to get more involved. Clearly, the medical research community is leading the way, but I hope to advance some areas that I feel warrant attention and discussion in the concussion conversations that are currently getting little, if any attention.
One of the arguments Cantu and Hyman make in their book is that we, as a society, need to engage in honest dialogue about sports and how to make them safer. It seems to me this is not happening, so why not? My experiences with classroom discussions suggest that we are reluctant to give up the cherished traditions we associate with sports, in particular, football. Why is this so? Is it because our fan identity becomes so important that we rationalize safety issues with statements like “that’s what they signed up for?” We need to ask why we are so resistant to have these discussions? Understanding that will help move much needed dialogue further.
For example, the Sports Legacy Institute issued a press release during the Super Bowl calling for high schools to end full-contact drills during the off-season. This is likely to be a difficult discussion for high school principals and athletic directors to have with parents and coaches, particularly as the chief criticism of this move is that it would skew competitive balance. What kinds of persuasive messages could be constructed to achieve parent support?
The role of the media in the concussion discussion cannot be discounted. There has certainly been an increase in the attention and coverage being given to concussions. However, one of the more notable comments about concussions came from former player Deion Sanders when he asserted during the Super Bowl pre-game that many players involved in the concussion litigation against the NFL are in it for the money and not for health issues. There is debate about how persuasive the media is in changing people’s opinions, but they clearly play a role in what people think about – known as agenda-setting, based on the frequency and positioning of news stories. We need to be paying close attention to how concussions are being talked about in the media, especially, how those who are suing the NFL are framed. Are they portrayed as greedy, as Deion suggests? Or is health and safety being featured?
Parent identity is another very relevant issue here. Many parents are heavily invested in their children’s sporting experiences. There is nothing wrong with this, but it can become detrimental. Dr. Lindsey Mean and Dr. Jeffrey Kassing conducted a research study of parent behavior at sporting events and found that a prominent message enacted by parents was to downplay injuries (e.g., “shake it off”) or my personal favorite, “you still have four fingers.” Certainly there are parents who put their children’s safety first, but clearly there are those who do not. Understanding how parent identity supersedes the health and welfare of their children when playing sports absolutely needs more attention.
Whereas there are parents who do value health and safety, these parents may face difficulty in communicating these issues to coaches, particularly if the coaches are confrontational. Clearly there are parents who have no issues with this, but what about those that do not? What kinds of strategies and messages can be used to help parents feel more confident in approaching coaches and league officials to discuss safety issues? Do tools like the Heads Up app from USA Football help parents feel more confident in both identifying concussions but also addressing them with coaches? These questions need answers!
At the end of the day, people need to realize the concussion issue is not going away. While much of the attention is focused on the collegiate and professional levels, there is a great need to examine what is happening at the youth level. Do parents consider flag football as an alternative? Why or Why Not? Do sports leagues offer any education about concussions and head trauma? Why or Why Not?
The research agenda is lengthy to be sure, but making this research a priority will ensure that scholars are acting in the public interest. Time to get to work!
Dr. Jimmy Sanderson is an Assistant Professor in the Department of Communication Studies at Clemson University. His research centers on the influence of social media and sports with particular emphases on sports media, sports organizations, and communicate between athletes and fans and he is beginning research on concussion and health issues in sports. His work has appeared in multiple academic journals and he also is the author of It’s a Whole New Ballgame: How Social Media is Changing Sports published by Hampton Press. Connect with him on Twitter @Jimmy_Sanderson
Earlier this week, a new face was added to the NCAA Concussion Litigation: Kyle Solomon, a former hockey player for the University of Maine. As you may recall, the class action is not limited to football players. It also includes a female soccer player and now a hockey player.
Solomon’s career was cut short after suffering multiple concussions. According to this piece from The Maine Campus, Dr. Cantu told Solomon that he had to retire because “another concussion could kill him.”
Apparently, Solomon played at a school that had a competent athletic trainer, Paul Culina. Culina recently told The Maine Campus,
“One of the things that scare me right now is the overall lack of knowledge amongst coaches, parents and even some medical professionals in terms of how to properly deal with a concussion,” he said. “Sometimes a kid will go to the emergency room or see a doctor, and he or she will say to sit out a week and that’s it. Anybody who has ever given that advice — it’s scary.”
However, the allegations in the Amended Complaint do not shine a very favorable light on the University of Maine’s trainer — it is unclear if the Complaint is referring to Culina or a former “trainer.”
According to the Complaint, after suffering a concussion, the “trainer told Solomon that his eyes were dilated, Solomon was given seven stiches and returned to the game during the third period despite exhibiting concussive symptoms.” Moreover, after Dr. Cantu told Solomon “another concussion could kill him” the trainers allegedly cleared Solomon to play.
In addition to adding Solomon, the plaintiffs also amended their Complaint by adding a touch of political persuasion.
The 104-page Complaint now begins by quoting President Obama’s recent statement about football and concussions, “…You read some of these stories about college players who undergo some of these same problems with concussions and so forth and then have nothing to fall back on. That’s something that I’d like to see the NCAA think about.”
Portions of the Complaint, unfortunately, were filed under seal because the NCAA apparently does not want its dirty laundry put on blast.
It appears that the plaintiffs’ lawyers are attempting to address some of the pitfalls that I have noted about this litigation — specifically, the argument that the NCAA might not owe a legal duty to the student athletes.
The plaintiffs’ lawyers attempt to cure this defect by borrowing multiple paragraphs from the NFL Concussion Litigation Master Complaint.
As an example of one such addition, “The NCAA has held itself out as the guardian and authority on the issue of player safety and has unilaterally shouldered for itself a common law duty to provide players with rules, information and best practices that protect them as much as possible from.”
The plaintiffs’ lawyers also cite to the NCAA’s founding purpose of protecting student athletes, and then lift a few more paragraphs from the NFL Concussion Litigation Master Complaint. I don’t blame them – a lot of time and money went into the Master Complaint.
The voluminous number of documents produced to the plaintiffs is also apparent in the Amended Complaint. Although the sentence is redacted, there is a footnote referencing “NCAA 10091830.” This is called a Bates Number, which identifies a document that was produced by the NCAA. In other words, this was Bates No. 10,091,830, meaning more than 10 million documents were produced.
The Amended Complaint, next, provides multiple examples of former student athletes suffering from career-ending concussions. It also cites to several representations made by the NCAA that purports to show the NCAA had a legal duty to protect the well being of student athletes.
The Complaint also spends a significant amount of time bashing the NCAA for failing to adopt the 2002 Vienna Protocol, the consensus statement from the 2004 Prague Conference and the guidelines created at the 2008 Zurich Conference.
The most intriguing thing about the fresh Complaint is the addition of three new counts: (1) breach of an express contract (2) breach of an implied contract and (3) breach of an express contract, where the plaintiffs are third-party beneficiaries.
In essence, the plaintiffs allege that a contract was created when the student athletes signed a form that incorporated by reference all the NCAA regulations, the NCAA Division Manual, the NCAA Constitution, Operating Bylaws and Administrative Bylaws.
The plaintiffs point to multiple provisions within these manuals which purport to be “promises to perform” a multitude of services. According to the plaintiffs, the NCAA failed to perform these services, and, as such, it constituted a breach.
I see several deficiencies here, including but not limited to, the fundamentals of a contract are wholly lacking 1) the “terms” appear to be too indefinite; 2) there was no real offer by the NCAA; 3) as such, there can be no acceptance and 4) there is not any legal consideration, whatsoever. Simply put, there was no meeting of the minds, aka mutual intent to enter in a contract.
Moreover, these Counts will create individualized issues that will be fatal to class certification. Finally, there is probably a clause, somewhere in the relied upon documents, that clearly states, this is not to be construed as a contract.
Perhaps I need a few days to wrap my head around this, but on its face, these theories seem like losers. Here’s a copy of the Amended Complaint, let me know your thoughts: NCAA Complaint.
Updated
After further research, I know see where the players’ third-party beneficiary claims arise from. In an ingenious move by the lawyers, they are following the holding in Jeremy Bloom v. NCAA, where the court found that Bloom had standing to “contest the meaning or applicability of NCAA eligibility requirements.” 93 P.3d 621, 624 (Colo. Ct. App. 2004).
Here, the players are alleging that the constitution and bylaws create obligations between the NCAA and member institutions to provide, among other things, a safe environment for student athletes. By failing to enforce concussion guidelines and implement rules that have teeth, the NCAA allegedly breached their duties — duties which were intended to benefit student athletes.
Overall, the Amended Complaint has improved the plaintiffs’ claims by addressing (1) how the NCAA may have “shouldered” a legal duty and (2) how the NCAA allegedly breached this duty by failing to adopt changes, despite multiple studies that may have placed the NCAA on notice of the severity of concussions.
Nonetheless, the rhetoric-filled Complaint may not be sufficient to survive judicial scrutiny.
Are you ready for some football? Some courtroom-concussion football, that is. Now that the season is over, things are going to start heating up in court.
The lawyers have spent the last several months arguing whether the players’ claims are barred by the collective bargaining agreements (CBAs). The parties have submitted their respective briefs to the court, and the ball is now in Judge Brody’s hands.
In order to further flesh out the issues, Judge Brody ordered oral arguments to take place on Tuesday, April 9 at 10:00 am in Philadelphia.
Get your popcorn ready because it is going to be a star-studded event, at this Supreme-Court-like showdown. Hall of famers will be there; prominent lawyers will flex their legal brilliance, and Roger Goodell, well, he probably won’t be there – he’ll be out kissing babies and trying to save football.
The NFL knows that this could be a make or break moment — for football, as we know it. Billions of dollars are at stake.
The NFL is trying to slam the courtroom door shut, and prevent the plaintiffs’ lawyers from digging deep into the NFL’s dirty laundry. The discovery of 81 documents in the tobacco litigation cost Big Tobacco 365 billion dollars. The same could be true here.
Both sides have invested hundreds of thousands of dollars (probably closer to millions) on the litigation already. Neither the NFL nor the plaintiffs’ lawyers are working on the cheap when it comes to tackling the preemption issue.
In the NFL’s corner, Paul Clement will likely present the NFL’s argument for why the players’ claims should be dismissed.
In the players’ corner, David Frederick will attempt to persuade Judge Brody that this case is much more than a mere “labor dispute.” As I noted previously, Frederick was a Supreme Court Clerk to Justice Byron “Whizzer” White – who also played in the NFL for three very successful seasons.
This may be the most dramatic litigation battle in sports history, and the legal hits are just starting. If Judge Brody rules in the players’ favor, it could be the beginning of a long and dark story of how the NFL allegedly profited from the destruction of the brains of thousands of players. On the other hand, if Judge Brody rules in the NFL’s favor, we may never learn what, if at all, the NFL knew about the long-term damage of repetitive hits to the head.
After the April arguments, Judge Brody will be tasked with writing a well-reasoned decision on whether the players’ lawsuits can move forward. Simply put, the health of former players and the NFL’s pocketbook are in Judge Brody’s hands. Of course, there will be appeals, but Judge Brody’s decision will steer the direction of the NFL Players’ Concussion Injury Litigation – perhaps into settlement.
The NFL is not the only organization trying to fend off concussion lawsuits.
In a courtroom in Chicago, arguments are set to begin to determine if the plaintiffs can certify a nationwide class of all former student athletes that suffered a concussion while playing sports at an NCAA school. Although the plaintiffs have several legal hurdles ahead, this litigation could determine whether student athletes should be monitored for the warning signs of CTE.
The gridiron of courtroom-concussion football is set to take some hits.
In another not-so-surprising fashion, the family of the late Junior Seau filed a wrongful death lawsuit against the NFL and Riddell Helmets.
This will certainly provide a boost to the litigation. Seau is arguably the most prominent player, living or deceased, to join the litigation. (Sorry, Eric Dickerson) Whether this will force the NFL’s hand to start talking settlement is highly doubtful, but it may cause other prominent players to join the NFL Concussion Litigation Club.
Two weeks ago, it was announced that Seau’s brain showed signs of the debilitating neurodegenerative disease, Chronic Traumatic Encephalopathy (CTE). Shortly after the announcement was made, the NFL issued a statement – effectively thanking the Seau family for deciding to sue it: “We appreciate the Seau family’s cooperation with the National Institutes of Health.”
These results may have been the turning point in the Seau’s family’s decision to sue the NFL.
Seau’s lawsuit is not unique, however. There are a dozen wrongful death lawsuits pending against the NFL – the most notable are Dave Duerson and Andre Waters, both of whom were diagnosed with CTE.
Seau, however, is the youngest, and he played during an era where the alleged fraud of the Mild Traumatic Brain Injury Committee (1994 – 2009) was likely at its peak.
Similar to the other lawsuits filed outside of Philadelphia (E.D. of PA), Seau’s lawsuit will soon be removed to federal court and then transferred and consolidated with the other 198 concussion lawsuits.
Assuming the players survive all the pre-trial hurdles – which is a BIG assumption – there is a chance that Seau’s lawsuit may be chosen as the first bellwether case. In other words, the plaintiffs’ lawyers may choose to try Seau’s case because it arguably has the best facts.
Bellwether cases are common in mass tort litigation; the purpose is to give an indication to both sides (i.e. plaintiff sand defendants) as to the value, among other things, of the case.
In theory, if the plaintiffs were to try Seau’s case and receive a huge verdict, the NFL would likely want to talk a global settlement to avoid multiple verdicts throughout the country. On the other hand, if Seau’s lawsuit fell on deaf ears and the jury provided a defense verdict, the NFL would – puff out its chest – tell the plaintiffs’ lawyers to bring on more cases – that will, perhaps, be defeated.
All of this talk about jury trials is YEARS away, however. The discovery process alone could take 2-15 years, add all the motion practice, and I don’t think a case would be tried, IF at all, until 2018 at the earliest.
Only time will tell whether Seau’s lawsuit was the one that broke the NFL’s back.
By Holt Hackney, Publisher of Concussion Litigation Reporter (http://concussionpolicyandthelaw.com/concussion-litigation-reporter/)
Lomas Brown is a friend of mine.
Lomas and I hung out a bit at the University of Florida when the NFL Hall of Famer used to come over to the rented apartment I shared with a roommate, who was buds with one of the guys on the football team. Lomas was “Lo” and I was “Hack.” He was one of the most genuine and approachable people you would ever want to meet.
I lost contact with Lomas after he was drafted by the Detroit Lions and went on to a stellar NFL career. I reached out to him a couple years ago when he was selected to the Hall of Fame. Never heard back. But I still felt then and feel now that he is one of the good guys. Listening to him on ESPN as he has blossomed into a candid and entertaining analyst has only confirmed that.
That openness got him in trouble last month when he admitted that he once let a Green Bay Packer defensive end through to have a straight shot at his quarterback to get his quarterback knocked out of the game.
“We were playing Green Bay in Milwaukee,” Brown told ESPN Radio. “We were getting beat [24-0] at the time and Mitchell just stunk up the place. He’s throwing interceptions, just everything. So I looked at Kevin Glover, our all-pro center, and I said, ‘Glove, that is it.’
“I said, ‘I’m getting him out the game.’ So I got the gator arms on the guy at the last minute, he got around me, he hit Scott Mitchell, he did something to his finger … and he came out of the game. Dave Krieg came in the game.”
Many of his former teammates and media types piled on. Some took a more objective approach, such as Dan Wetzel of Yahoo! Sports, who theorized that the admission of Lomas Brown, who is one of thousands of plaintiffs in the NFL concussion litigation, would undermine the plaintiffs’ case.
“How does a player who admits he blatantly attempted to put his own teammate’s health at risk continue to sue the NFL for putting its players’ health at risk?,” wondered Wetzel.
I asked our editor, Paul Anderson, what he thought of Wetzel’s position.
“It’s doubtful Lomas’ statements will have an impact on the merits of his lawsuit against the NFL for its alleged fraudulent misrepresentations about the dangers of concussions,” Anderson said. “However, it will certainly be something the NFL will wave in front of a jury to solidify the inherent risks of football, and moreover, the fact that Lomas purposefully sought to injure his fellow teammates may be frowned upon by the jury. The jury may consider Lomas’ admission and when it comes down to calculating damages, it may determine that Lomas deserves much less than say, Kevin Turner.”
Anderson went on to suggest another potential impact from Brown’s admission.
“Quarterback Scott Mitchell, the alleged victim of Lomas’ intentional missed block, could in theory sue Lomas for battery. The assumption of the risk doctrine generally bars claims involving injuries inherent in the sport. A participant owes a duty to refrain from increasing inherent risks. A participant assumes the risk that he’ll be injured by his opponent, but a participant arguably does not assume the risk that he will be intentionally injured by a teammate. Lomas arguably breached this duty when he intentionally missed a block so Mitchell would be injured and taken out of the game.”
He added that Lomas’ situation “highlights the importance of attorneys counseling their clients to keep their mouth shut–any statement can be used against a plaintiff as an admission. Hopefully for Lomas, his regrettable statement will not harm his case against the NFL, and he will be able to mend his relationship with Mitchell.”
As for my friend Lo, his path got thornier last week when he went on the air to offer a mea culpa that was somewhat clumsy. His twitter account then got high-jacked as someone made him look like an insensitive jerk. He is neither. This may be the reason that ESPN has not pulled the plug on Lomas. He can still be seen and heard on the network, though a bit more chastened than he was before.
In a not-so-surprising fashion, the National Institutes of Health and ESPN have reported that the late Junior Seau’s brain showed signs of the neurodegenerative disease, chronic traumatic encephalopathy (CTE).
Seau’s brain was examined at the National Institutes of Health. The official diagnosis was a “multi-focal tauopathy consistent with a diagnosis of chronic traumatic encephalopathy.”
In a statement released by the NIH, several neuropathologists were invited to examine Seau’s brain. The pathologists found “abnormal, small clusters called neurofibrillary tangles of protein known as tau within multiple regions of Seau’s brain.”
Seau’s family told ESPN that they “found solace in the CTE diagnosis because it helped explain some of Seau’s uncharacteristic behavior.”
When asked whether the NFL was slow to embrace the link between football and later-life cognitive decline, Seau’s ex-wife said: “Too slow for us, yeah.”
Seau’s son said the diagnosis “makes me realize he is not invincible.” He then asked rhetorically, “Is it worth it? I’m not sure. It is not worth it to me to not have a dad.”
According to Mark Fainaru-Wada, the family is evaluating whether to join the concussion lawsuits.
This long-awaited report puts to bed some of the misconceived notions that Seau did not suffer from CTE. Earlier this summer, a misleading report was made by the Los Angeles Times that sloppily implied Seau did not have CTE. The report even led one executive from the NFLPA to exclaim, “This is why we don’t jump to conclusions.”
In any event, the world now knows that Seau — like so many other former players that have engaged in years of battle on the gridiron — was suffering from CTE.
We can only hope that this discovery will bring the medical community one step closer to diagnosing CTE in living players before it is too late.