Onyshko v. National Collegiate Athletic Association: A Re-examination of the ‘Inherent Risk’ of Playing Football

(Editor’s Note: What follows is an excerpt from a summary written by Saleel V. Sabnis of Goldberg Segalla. To see the full summary, please visit Concussion Litigation Reporter)

Reports of sports related concussions and their long term effects on the brain have gained considerable traction in recent years.  The injured plaintiffs in these suits, who in many cases reemerge years after their playing days are over appearing as shells of themselves compared to their youth, have helped galvanize the public response over curtailing the dangers of seemingly “high-risk” sports. Lawsuits in both professional and college sports generally allege some form of institutional negligence (or cover-up) where former athletes allege they were never told of the inherent risks of playing their respective sports.

In these type of lawsuits, the NCAA has generally raised its “rough sport” shield i.e. football is an exercise in getting hit and players know that. In late May, a federal court magistrate judge in Pennsylvania denied this argument and the NCAA’s conjoined contention that it did not owe a duty of care to its collegiate football players to prevent risks inherent in football.  The NCAA had moved to dismiss a lawsuit by lead plaintiff Matthew Onyshko, a former linebacker at the California University of Pennsylvania who played from 1999-2013, by asserting it owed no duty of care to players who claimed that they suffer from progressive brain injuries due to playing college football.

But in a report and recommendation opinion issued on May 28, Magistrate Judge Cynthia Reed Eddy denied the NCAA’s motion to dismiss Onyshkos’ suit, finding that he had sufficiently pled that the NCAA had more knowledge than players did about the long-term health consequences of traumatic blows to the head and that Plaintiffs, if the assertions were assumed to be true, had pled a proper cause of action by claiming the NCAA increased the risk of injury by failing to disclose crucial information about the severity of head injuries.

This was not a decision on the merits of the case.  No jury convened to make these conclusions; rather, this was the Magistrate’s analysis …

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