While it should come as no surprise, a Court has ruled that the NCAA owes a legal duty to fulfill the promise for which it was founded: to protect the health and safety of student athletes. While obvious and inherent risks will always remain a part of sports, the NCAA cannot avoid its obligation to protect against the unnecessary and avoidable dangers that arise as a result of the exploitive nature of intercollegiate athletics.
The NCAA Owes a Legal Duty to Warn of the Non-Inherent Risk Associated with Second-Impact Syndrome
After hearing arguments from counsel for the NCAA and the family of Derek Sheely, a 22-year old, two-time Academic, All-Conference Senior football player who died as result of multiple concussive and sub-concussive impacts, the Circuit Court for Montgomery County, Maryland held that while a sports organization “can’t be liable for the … potential injuries that are known and apparent, or reasonably foreseeable,” the risk of second-impact syndrome is not “an obvious risk inherent in the game” of football. Therefore, according to the Court, the NCAA owes “a legal duty to warn” about second-impact syndrome.
Second-impact syndrome is an often fatal condition that occurs when an athlete suffers a concussion and (s)he is subjected to additional brain trauma before the brain has fully healed. During this time the brain is in a highly vulnerable state and any subsequent impact could trigger uncontrollable brain swelling and death. Second-impact syndrome is preventable, however, and thus it is paramount that those who are responsible for protecting athletes take affirmative steps to ensure an athlete is immediately removed from play if a concussion is suspected.
In this case, the Court found that Plaintiffs established sufficient evidence for a jury to find that the NCAA knew about second-impact syndrome yet it failed to ensure its member institutions, coaches, athletic trainers and athletes were adequately warned about the fatal risks.
A Special Relationship Exists Between the NCAA and Student-Athletes
The Court also held that the NCAA owes a duty on account of a “special relationship” that exists between the NCAA and student-athletes. First, the Court observed that the NCAA is “different” than the more common sports club. Unlike other sports organizations, whose primary function is to schedule competition, the NCAA is “designed to protect the student athlete.” In other words, according to the Court, “a special relationship exists between the NCAA and the member institution, and the student athletes.”
In Light of the Special Relationship Between the NCAA and Student-Athletes, the NCAA Owes a Duty to Protect Student-Athletes
Where there is a special relationship, a duty often arises to protect against foreseeable harm. In this case, the Court held that, in accord with public policy and its own publicly expressed mission, the NCAA “should take an initiative in preventing” second-impact syndrome. Indeed, according to the Court, the public would be outraged if it “knew of the information … not disseminated by the NCAA.” As a result, the Court held that the NCAA owes a duty to warn, a duty to train, a duty to educate and a duty to adopt and enforce rules and legislation to ensure that student-athletes, coaches and athletic trainers are aware of and properly avoid and reduce the risk of second-impact syndrome.
A Jury May Determine that the NCAA has Assumed a Duty to Protect Student-Athletes
In addition to those duties imposed as a matter of law, the Court also held that if a jury determined that “the NCAA undertook to protect athletes,” a legal to duty “would be owed by the NCAA” to fulfill its obligation without negligence. As a result, the Court found that it will be for the jury to decide whether the NCAA, through its actions and repeated affirmations, assumed a duty to protect student-athletes.
A Jury May Award Punitive Damages
In light of the evidence offered against the NCAA, the Court also decided that a jury may consider awarding punitive damages if it finds that the NCAA failed to fulfill the duties it owed to Derek Sheely. According to the Court, Plaintiffs offered evidence sufficient to demonstrate the NCAA’s “knowledge and failure to act in light of known serious risks, and, basically, the attitude of reckless disregard for the safety and the rights of the players[.]” If the evidence is proven true, the Court reasoned that “a jury could find that that was the type of conduct that would be subject to punitive damages.”
In summary, the Court denied the NCAA’s attempt to avoid legal liability for the tragic death of Derek Sheely.
* * * *
Andrew Schermerhorn argued the case on behalf of Derek Sheely’s family. The Sheelys are represented by Paul Anderson and Mr. Schermerhorn of The Klamann Law Firm; Kenneth McClain of Humphrey, Farrington and McClain; Wm. Dirk Vandever of The Popham Law Firm; and the Law Offices of Stephen J. Nolan.
The NCAA is represented by Latham and Watkins.
Udall, Klobuchar, Blumenthal Welcome Committee Passage of Bill to Protect Young Athletes from Concussions, Tackle False Safety Claims for Sports Gear
Congress continues to take aim at manufacturers for making false safety claims about concussions. Today, they moved one step closer to eliminating such claims and ensuring all athletes and parents are not mislead by junk science. Here’s the full press release from the Senators’ offices:
WASHINGTON – Today, U.S. Senators Tom Udall (D-N.M.), Amy Klobuchar (D-Minn.) and Richard Blumenthal (D-Conn.) welcomed passage of their bill in the Senate Commerce Committee aimed at protecting young athletes from the dangers of sports-related traumatic brain injuries. The senators, all members of the committee, introduced the Youth Sports Concussion Act earlier this year to help ensure that safety standards for sports equipment, including football helmets, are based on the latest science and curb false advertising claims made by manufacturers to increase protective sports gear sales.
“Today’s Commerce Committee passage of our Youth Sports Concussion Act marks an important step toward cracking down on misleading claims and ensuring New Mexico kids can have fun and play sports safely,” Udall said. “Sports are an important part of staying active and learning the value of teamwork for many kids. Parents and coaches want to do everything they can to keep their kids safe on the field or the court, and they deserve to have the facts needed to make knowledgable safety decisions. Our bill would help stop companies that take advantage of parents and athletes’ concerns about concussions and falsely market products as ‘safety’ equipment, despite little evidence that the products protect players.”
“One thing’s certain about Minnesotans – we love our sports. But whether it’s football, hockey, or the many other sports we play and love, parents, coaches, and young athletes must be equipped with the facts and informed of the risks when making safety decisions,” Klobuchar said. “Today’s Commerce Committee passage of our bill will protect our athletes and help make sure they can continue to compete on and off the field safely.”
“I am proud that the Senate Commerce Committee voted to advance the Youth Sports Concussions Act,” Blumenthal said. “We know all too well that the dangers of head injuries are real. As the science around prevention develops, this important bill will ensure our federal agencies can crack down on athletic equipment manufacturers that peddle quackery. No company should be able to use deceptive claims to exploit parents’ natural instincts to protect their children. Our youngest athletes — our future sports heroes — deserve accurate information to make informed decisions so that the sports they play today can be sports they play for a lifetime.”
Udall, Klobuchar and Blumenthal introduced the Youth Sports Concussion Act ahead of Super Bowl 50, amid discussion among doctors, players, researchers and others about the need to protect players — especially young athletes — from experiencing debilitating head injuries. Athletes suffer up to 3.8 million concussions every year, and sports are the second-leading cause of traumatic brain injuries among youth ages 15-24.
An extensive National Academy of Sciences report previously found a lack of scientific evidence that helmets and other protective devices designed for young athletes reduce concussion risk — yet some manufacturers continue to use false advertising claims that prevent athletes, parents and coaches from making informed safety decisions.
In 2012, the Federal Trade Commission (FTC) warned nearly 20 sports equipment manufacturers that they might be making deceptive concussion prevention claims, but the FTC’s actions thus far have not deterred companies from making these claims. The Youth Sports Concussion Act would empower the FTC to seek civil penalties in such cases.
Udall has led efforts in Congress to improve equipment safety standards and curb false advertising claims, focusing on ensuring parents, coaches and players have the information they need to make important decisions about how to prevent head injuries. A previous version of the Youth Sports Concussion Act passed the Senate Commerce Committee in April 2014. Last year, Udall and Sen. Bill Nelson (D-Fla.) called on the FTC to investigate potentially misleading safety claims used to sell soccer headgear. Udall also worked to include several concussion prevention provisions in December’s appropriations bill.
Many sports, medical and consumer organizations have supported the Youth Sports Concussion Act, including:
American Academy of Neurology
American Academy of Pediatrics
Brain Injury Association of America
Brain Trauma Foundation
Consumer Federation of America
Major League Baseball
Major League Baseball Players Association
Major League Soccer
Major League Soccer Players Union
National Association of State Head Injury Administrators
National Athletic Trainers’ Association
National Basketball Association
National Collegiate Athletic Association
National Consumers League
National Federation of State High School Associations
National Football League
National Football League Players Association
National Hockey League
National Hockey League Players’ Association
National Interscholastic Athletic Administrators Association
National Operating Committee on Standards for Athletic Equipment
Safe Kids Worldwide
United States Brain Injury Alliance
US Soccer Federation
Contacts: Jennifer Talhelm (Udall) 202.228.6870 / Colin Milligan (Klobuchar) 202.228.6317 / Kayla Johnson (Blumenthal) 202.224.0335
The Third Circuit upheld Judge Brody’s Order approving the NFL Concussion Settlement. The Third Circuit’s Opinion can be found here: In re NFL Concussion Litigation Opinion
Perhaps the most notable quote from the Third Circuit’s decision is the following,
Before concluding, we address developments during the pendency of this appeal. In a March 2016 roundtable discussion on concussions organized by the House Energy & Commerce Subcommittee on Oversight & Investigations, the NFL’s Executive Vice President cited the research of Dr. McKee and agreed that there was a link between football and degenerative brain disorders like CTE. The NFL’s statement is an important development because it is the first time, as far as we can tell, that the NFL has publicly acknowledged a connection between football and CTE. On the other hand, the NFL is now conceding something already known. The sheer number of deceased players with a post-mortem diagnosis of CTE supports the unavoidable conclusion that there is a relationship, if not a causal connection, between a life in football and CTE.
The Third Circuit then concluded,
It is the nature of a settlement that some will be dissatisfied with the ultimate result. Our case is no different, and we do not doubt that objectors are well-intentioned in making thoughtful arguments against certification of the class and approval of this settlement. They aim to ensure that the claims of retired players are not given up in exchange for anything less than a generous settlement agreement negotiated by very able representatives. But they risk making the perfect the enemy of the good. This settlement will provide nearly $1 billion in value to the class of retired players. It is a testament to the players, researchers, and advocates who have worked to expose the true human costs of a sport so many love. Though not perfect, it is fair.
In sum, we affirm because we are satisfied that the District Court ably exercised its discretion in certifying the class and approving the settlement.
At a roundtable yesterday on Capitol Hill, the NFL’s top brass on player safety, Jeff Miller, acknowledged that “certainly…there’s a link” between football and CTE. But the admission did not come without equivocation.
Rather, it followed the industry’s playbook of perpetuating doubt: “But there are also a number of questions that come with that,” Miller went on to say.
Ergo you can expect that despite this admission, the NFL will continue to cast doubt upon the unequivocal link between repetitive brain trauma and CTE. Worse still, the NFL will continue to employ and associate itself with adamant CTE deniers–such as Dr. Pellman–and the NFL will also continue to pedal false hope to parents that playing youth tackle football is “safe.”
Indeed, shortly after the hearing concluded, the NFL went on the offensive and sought to reconcile Miller’s admission with the NFL’s playbook of doubt:
He was discussing Dr. Mckee’s findings and made the additional point that a lot more questions need to be answered,” NFL spokesman Brian McCarthy said in a statement. “He said that the experts should speak to the state of the science…[and he] made the additional point that a lot more questions need to be answered.
Far from being a watershed moment, this “admission” will likely be another chapter in the NFL’s obfuscation of the truth. History can be an important lesson.
The New York Times and Boston University reported this morning that Ken Stabler had Stage 3 CTE.
Dr. McKee described Stabler’s brain as showing severe neurodegeneration caused from years of repetitive brain trauma,
“He had moderately severe disease,” said Dr. Ann McKee, chief of neuropathology at the V.A. Boston Healthcare System and a professor of neurology and pathology at Boston University School of Medicine, who conducted the examination. “Pretty classic. It may be surprising since he was a quarterback, but certainly the lesions were widespread, and they were quite severe, affecting many regions of the brain.”
His changes were extremely severe in parts of the brain like the hippocampus and amygdala, and those are the big learning and memory centers,” McKee said. “And when you see that kind of damage in those areas, usually people are demented. So if he was still functioning reasonably well, he was compensating, but I don’t think that compensation would have lasted much longer.”
According to his family, Stabler spent the last few years of his life suffering.
“On some days, when he wasn’t feeling extremely bad, things were kind of normal,” Bush said. “But on other days it was intense. I think Kenny’s head rattled for about 10 years.”There were days when I walked in the door and looked at his face, and I could tell,” Bush said.
“He was sitting in his chair, because he was always waiting for me, and the news was on and whatnot, and he had his head laid back, and his eyes just scrunched up so tight that I used to think that would give you a headache in itself, just the pure pressure of squinting like that.”
Shamefully, as noted nearly 7 months ago when Stabler’s death was disclosed, his family will receive nothing under the NFL Concussion Settlement. Instead, the NFL and owners will get to sit back and continue to print money off the backs of the thousands of players who have sacrificed their lives and brains to make the NFL a cash-cow juggernaut.
All the while, the NFL can revel in the fait accompli knowing they have effectively eliminated any future liability for CTE. In other words, they will never have to pay a dime to another family who has been inflicted by the so-called industrial disease of football because of the sweetheart deal they were able to broker under the NFL Concussion Settlement.
Stabler’s daughter likewise noted the injustice perpetrated by the Settlement’s terms:
“He played 15 seasons in the N.F.L., gave up his body and, apparently, now his mind,” Alexa Stabler said as she fought back tears. “And to see the state that he was in physically and mentally when he died, and to learn that despite all the energy and time and resources he gave to football — and not that he played the game for free, he made money, too — without the knowledge that this is where he would end up, physically and cognitively, and for the settlement to say you get nothing? It’s hard not to be angry.”
It is indeed a sad state of corporate greed when the NFL and owners can objectively see the damage they have caused, yet shirk all financial responsibility.
Unfortunately, there will be—and already has been—many more families who will receive a stiff arm by the NFL and the Settlement.
If it weren’t for the Settlement’s terms excluding any future compensation for CTE after April 22, 2015, Stabler’s family would have received approximately $980,000. The conclusion that Stabler’s family will receive nothing under the settlement assumes he was never diagnosed with another compensable disease (i.e., dementia, ALS, Alzheimer’s or Parkinson’s). Finally, this also assumes that the Settlement survives appellate scrutiny.
On January 26, 2016, Judge John Z. Lee granted preliminary approval to a proposed class action settlement that has been pending for nearly two years.
After initially rejecting the proposed settlement on December 17, 2014, Judge Lee ordered the parties to brief and attempt to re-work the settlement to remove some of the objectionable terms and to expand the class.
Most problematic, according to the objectors, was the fact that the proposed settlement forever barred any class member from pursuing personal injury claims against the NCAA on a class-wide basis. This, according to the objectors, is a valuable right that was released in exchange for essentially nothing.
The Court took note of this objection and, in its January 26 Order, this concern has been somewhat remedied.
Notably, however, the Preliminary Order is “subject to a number of modifications.” These modifications include the following:
- The class-wide release is limited. A class member still waives its right to pursue a personal injury claim on a class-wide basis; however, it will carve out the right to purse a “narrowly limited” personal injury class action directly against a member school and/or the NCAA as it relates to a specific sport and during a specific time period.
- The provision that essentially allowed the Medical Monitoring Program to seek a reimbursement from a class member’s private insurance is stricken. This is a substantial improvement.
- A few additional provisions were modified, including the NCAA’s $5 million “contribution to concussion research….” The Court confirmed that, as it stands presently, this is an “illusory benefit” to the Class; thus, the Court ordered the NCAA to strike this provision such that the $5 million contribution “must constitute additional funding for research that otherwise would not have occurred absent this settlement.” In other words, the NCAA cannot credit its previous concussion research monetary contributions as satisfaction for the $5 million requirement; it must be a new allocation.
Since these modifications are “subject to” the settling parties’ acceptance, the NCAA could, in theory, reject the modifications and seek that the deal be re-worked again. The Court Ordered the parties to report on the status of these modifications at the next scheduled hearing on
February 4, 2016 (rescheduled for) March 3, 2016.
Assuming the modifications are adopted and the settlement is preliminarily approved as modified, the notice process will begin. That is, all class members will be notified about the settlement and their rights to remain a class member, object or opt out.
The Benefits to the Class
The Class consists of “All persons who played an NCAA-sanctioned sport at an NCAA member institution on or prior to the Preliminary Approval Date.”
This potential Class is massive—and it includes all sports, not just contact sports. It is estimated that the Class consists of “4.4 million athletes in forty-three different men’s and women’s sports.” The settlement provides that $70 million will be allocated to create a Medical Monitoring Program. The Medical Monitoring Program will last for a period of 50 years.
If the settlement receives final approval, class members will receive medical monitoring for neurodegenerative diseases. The Medical Monitoring Program consists of two phases. First, all class members will be eligible to complete a written questionnaire which seeks information about the class members cognitive, mood and behavioral state. It essentially seeks to determine whether the class member is symptomatic. Once the questionnaire is submitted, a group of experts will analyze whether the class member qualifies for the second phase.
The second phase will include a personal evaluation by a medical professional to determine whether a diagnosis can be made. This evaluation will include a “neurological examination, neuropsychological examination, mood and behavioral evaluation, and any necessary ancillary tests that comply with the then-current American Academy of Neurology clinical practice guidelines for the diagnosis and treatment of neurological disease.” Conversely, if the class member is deemed asymptomatic pursuant to the questionnaire, then (s)he will not be personally evaluated and thus will remain in the first phase. The asymptomatic individuals will be allowed to re-submit a questionnaire every “five years until age fifty and then not more than once every two years after the age of fifty.”
As a best-case (or rather, worst-case) example, a class member completes a questionnaire and discloses that he is having mood and behavioral issues, headaches, feelings of hopelessness, depression, explosivity and suicidal ideations. The individual would likely qualify for the second phase: medical evaluation. Let’s assume, for the sake of this hypothetical, that an in-vivo diagnosis of CTE can be made that complies with the ANA clinical practice guidelines. The individual is then tested for CTE. Consequently, the individual tests positive for CTE and is therefore provided with a diagnosis of CTE to a reasonable degree of medical certainty.
So, what’s next?
Under the settlement, nothing. The individual receives a diagnosis under phase 2 and that is basically all he is entitled to—he may be provided with some direction on a “treatment plan” but the cost of any such plan would not be covered under the settlement. However, this leads to the next very important component of the settlement.
The settlement preserves an individual’s right to pursue a personal injury action against the NCAA and/or the college he attended. Thus, after receiving a diagnosis of CTE, the individual can pursue a personal-injury claim directly against the NCAA and a member institution. The potential personal-injury damages could amount to thousands or millions of dollars, or nothing. Future litigation will dictate this result.
As you can see, far from “buying peace” this settlement appears to breed additional CTE litigation. This chapter has yet to be written, but CTE litigation against the NCAA and its member institutions is potentially an emerging tidal wave that could have ripple effects for the next half century, or not.
Disclaimer – nothing herein should be interpreted as legal advice; rather, this is purely informational in nature. You should seek legal assistance if you have questions about your potential rights under the settlement.
A man that contributed so much to the game provided one last contribution upon his death: The reality that football can cause brain disease.
Gifford’s family announced that the Hall of Famer was diagnosed with CTE. In a statement released on Wednesday, the family disclosed the news:
While Frank passed away from natural causes this past August at the age of 84, our suspicions that he was suffering from the debilitating effects of head trauma were confirmed when a team of pathologists recently diagnosed his condition[.]
The family said the reason why they made the donation was to contribute to “the advancement of medical research concerning the link between football and traumatic brain injury.”
We miss him every day, now more than ever, but find comfort in knowing that by disclosing his condition we might contribute positively to the ongoing conversation that needs to be had; that he might be an inspiration for others suffering with this disease that needs to be addressed in the present; and that we might be a small part of the solution to an urgent problem concerning anyone involved with football, at any level.
This is a remarkable act for a family whose lives have been tied to football for decades. Hopefully this will encourage more families to step forward and donate their loved one’s brain.
This diagnosis also raises another unfortunate reminder about the deficiencies of the NFL Concussion Settlement. Since Gifford died after April 22, 2015 (the date of final approval), he will receive zilch under the settlement despite “suffering from the debilitating effects” of CTE.
The Third Circuit has published the oral arguments from Thursday’s hearing. You can find them here.
The audio recording from this morning’s oral arguments are not posted yet. However, the AP has reported on a few quotes from the arguments. Most notably is the quote from the NFL’s lawyer, Paul Clement:
The science could determine that all that matters for CTE is the concussive hits you took before your 18th birthday.
OMG. Heads will roll at 345 Park Ave. Because USA Football and the thousands of moms who will hear that remark.
Twitter is also having a frenzy with the quote.
NFL cringes at this hypo: “science could determine that… CTE is the concussive hits you took before you[‘re] 18” https://t.co/SOnp41k652
— Paul D. Anderson (@PaulD_Anderson) November 19, 2015
— Chris Nowinski (@ChrisNowinski1) November 19, 2015
— NFLCSFacts (@NFLObjectors) November 19, 2015
To be fair, it was just a hypothetical.
Earlier this week, I noted the likely lineup for the oral arguments on Thursday. Since the parties have a limited time yet wide-ranging arguments, the Third Circuit ordered the parties vying for an opportunity to speak to split up their time accordingly. The Objectors are allotted thirty minutes and the proponents of the settlement are allotted thirty minutes. Since the Objectors are appealing the settlement, they will go first. The NFL and the Class will follow, and then the Objectors will get a rebuttal.
The following lineup has been solidified, subject to a division for rebuttal time and any last minute changes:
- Steven Molo on behalf of the Faneca Objectors (13 mins including rebuttal) – description of arguments: “substantive unfairness of settlement’s disparate treatment of CTE”
- Deepak Gupta on behalf of Armstrong Objectors (13 mins including rebuttal) – description of arguments: “inadequate representation of future-injury claimants”
- Howard Bashman on behalf of Heimburger Objectors (2 mins) – description of arguments: “inappropriateness of class certification”
- Jared Beck on behalf of Gilchrist Objectors (1 min) – description of arguments: “Daubert“
- Chip Becker on behalf of Alexander Objectors (1 min) – description of arguments: “Girsh factors”
- Samuel Issacharoff on behalf of the Class (17 mins)
- Paul Clement on behalf of the NFL and NFL Properties (13 mins)
- Steven Molo
- Deepak Gupta
Third Circuit Panel