Category Archives: College

Attorney Tim Epstein Assesses Arrington Litigation

Timothy Liam Epstein, a partner and chair of the Sports Law Practice Group at SmithAmundsen LLC, recently offered the following brief assessment of the concussion lawsuit Arrington et al. v. NCAA, which is set to go to mediation next month, to Concussion Litigation Reporter.

“The NCAA will be eager to dispose of this case at mediation, though largely from a cost perspective.  At the outset, it should be noted that it is not entirely clear who is paying for the NCAA’s defense, and who will pay in the event of a settlement or judgment, inclusive of insurance monies.

“Using the NFL Concussion MDL in Philadelphia for comparison, the NCAA is in a better position than that NFL for defeating class certification in light of the fact the NCAA class is much more broad (across all NCAA-regulated sports for men and women as opposed to professional, tackle football players who played in the NFL), but that is likely where the positives end for the NCAA.tim epstein

“While the NCAA has a good argument in defeating class certification, the court could still rule in favor of the plaintiffs. Further, the NCAA has the potential NFL settlement looming as pressure to pay out to the athletes under its own governance (the NFL and lead counsel for retired NFL players have agreed to a settlement of $765 million).  Moreover, in the NFL concussion litigation, the NFL unsuccessfully moved to dismiss the lawsuit on the basis of the negotiated CBA’s term requiring arbitration. The NFL CBA specifically addressed treatment protocol surrounding concussions/suspected concussions.

“In Arrington’s case, or any collegiate player’s case, the NCAA cannot similarly argue that the litigation is unwarranted or precluded since student-athletes in the NCAA system have no bargaining power. The best that the NCAA could argue is that student-athletes sign an acknowledgement of the risk of concussion, and this would probably serve as a defense/mitigating factor, but not as a basis for dismissal. The student-athlete plaintiff also presents as much more sympathetic than the professional football players who were paid to play in the NFL.”

For more on this case and other concussion litigation, visit:



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Comment by McKee in ‘League of Denial’ Takes a Hit

The shocking comment was featured in the trailer for “League of Denial” and at the beginning of the 2-hour special, which aired on Frontline Tuesday night.

“I’m really wondering if at some level every single football player has this,” said Boston University neuropathologist Ann McKee, in speaking about chronic traumatic encephalopathy (CTE).

The opinion of McKee isn’t to be taken lightly, given that she has studied the brains of 46 ex-NFL players, and found CTE in 45 of them. At the same time, the comment seems to brush past the notion that people are affected differently by concussions and subconcussive hits.

Brian Hainline, a neurologist who became the NCAA’s Chief Medical Officer in January, told the Birmingham News in a story that ran Wednesday that there is no data to prove that athletes who suffer concussions are more susceptible to long-term brain injuries.

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“The overwhelming majority of athletes who have a concussion, they recover from a concussion,” he told the paper. “I think there’s a subgroup of athletes who either have a genetic susceptibility or they have repeated concussions or subconcussions and the brain has not gone into recovery mode and they become susceptible to long-term brain issues.”

Hainline noted that many people, who suffer from Alzheimer’s, Parkinson’s and Lou Gehrig’s diseases, have never experienced head trauma. The paper paraphrased Hainline as saying CTE has features of those diseases, but the science is evolving. “Theories such as genetics, drug use, stimulants and psychiatric disease are ‘very possible reasons’ some players absorb subconcussive impacts worse than others,” the article continued.

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Canadian Football Player Sues University over Concussion

(Editor’s Note: Jon Heshka, Associate Dean of Law at Thompson Rivers University, recently provided his expert analysis on a recent lawsuit brought by a student athlete in Canada against Bishop’s University)

A victim of bad timing following the NFL’s $765 million settlement with ex-football players in which the league admitted no wrongdoing in relation to brain injuries sustained on the playing field, a Canadian football player has sued his former university for brain injuries sustained during a 2011 game.John_Heshka24982

Former defensive end Kevin Kwasny has sued Bishop’s University – based in Sherbrooke, Quebec – in a Manitoba court for $7.5 million alleging he was forced to play despite having symptoms of a concussion during a September 10, 2011 game.

Kwasny alleges he took a blow to his head during the game and told multiple members of the coaching staff that he felt dizzy, had blurred vision and felt like he had “his bell rung.” He further alleges that he was ordered to play despite having these concussion symptoms.

Shortly after returning to the field, Kwasny was hit again and suffered a subdural hematoma (bleeding on the brain). Emergency surgery was performed and he was put in a medically-induced coma. Kwasny now has permanent brain damage and has lost use of the right side of his body. The statement of claim says he will never be able to work again.

Kwasny alleges that coaches and trainers failed to assess him for signs and/or symptoms of a concussion or head injury as required or at all.

Bishop’s University Principal and Vice-Chancellor denies the university did anything wrong saying, “Our football program, our coaches, our medical staff would not allow an athlete to go back on the field if there was any indication of head trauma.” At the time, coaches reviewed game film and were unable to pinpoint any hit or play that caused an injury.

Though they had yet to receive a copy of the statement of claim and were unable to comment specifically, Bishop’s University released a statement saying that a thorough review had been undertaken which showed that from the moment the sports medicine team and coaching staff became aware of a potential injury they took all necessary precautions to ensure Kwasny received immediate medical care.

Bishop’s University has yet to file a statement of defense. None of these allegations have been proven in court.

(Heshka went on to write about case law that is relevant to the instant lawsuit as well as strategies that may be employed. To read the full story, visit

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