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2016 May 27

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.

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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.

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