New Lineup To the NCAA Concussion Litigation

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.