NCAA Concussion Lawsuits a Plea for Strict Liability

(Editor’s Note: What follows is a brief excerpt from a contributed article in the June 2015 Concussion Litigation Alert. For the rest of the article and numerous others, please subscribe at http://concussionpolicyandthelaw.com/subscribe/)

By Barbara Osborne, J.D.

University of North Carolina at Chapel Hill

As of this writing, the NCAA Concussion Litigation settlement has still not been approved.  U.S. District Court Judge Lee rejected first settlement, expressing uncertainty whether the $70 million testing fund was enough and lack of clarity in the way that the NCAA would enforce its concussion management policy.  The new offer, filed April 15, 2015, does not specify a limit on the amount of funding to provide testing for student-athletes and former student-athletes who have suffered brain injuries.

While NCAA-bashing has become a popular sport of its own, the plaintiffs in the various lawsuits are misguided in directly their claims at the NCAA.  The NCAA is a voluntary membership association; schools are not required to join an association.  If a school chooses the join, they assume the responsibility of following the rules.  However, the concept of institutional autonomy is a bedrock principle of NCAA membership.  Schools independently determine how to manage their athletics programs and are only subject to NCAA interference if they violate an NCAA rule.

Article 3 of the NCAA Constitution delineates expectations for members.  All active members are required to have a Concussion Management Plan (3.2.4.17) since August 2010.  In January 2015, requirements for a Concussion Safety Protocol (3.2.4.17.1) and to provide that information to a Concussion Safety Protocol Committee (3.2.4.17.1.1) were added.  The addition of these requirements to the organizational constitution begs the question:  do these rules establish a duty by the NCAA to student-athletes relative to head injury?   If so, should the NCAA be liable for student-athletes who suffer head injury as a result of athletics participation?

The basic elements of a negligence claim are duty, breach, causation and damage.  Duty is established by a special relationship between the parties or by statute.  Historically, the NCAA does not have a duty to protect student-athletes, as they are not members of the NCAA.  Student-athletes are third party beneficiaries of the relationship between the NCAA and the member school.  As such, the duty to provide a safe program for student-athletes lies within each member institution.  However, if one were to equate the constitution and bylaws of the organization with that of our governing Constitution and statutes, it is possible to make a straight-faced argument that the NCAA voluntarily assumed a duty through these membership requirements.

Assuming that duty was established by the membership requirements, an injured student-athlete would still have to prove breach and causation in order to succeed in a negligence claim.  Breach could be established if … (to read more, please subscribe at the link above.)

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