Tag Archives: NCAA

National Media Challenges Professional and Amateur Sports over Its Ban on Marijuana

“The NFL Should Be Investing In Marijuana Research If It Wants To Survive”

“Football Still Doesn’t Get Marijuana”

Two headlines on the national stage in the span of a few days are calling out the NFL and NCAA over its ban on Marijuana.

The first, written by sports industry executive Jason Belzer for Forbes.com notes that “the greatest existential threat to the NFL – if not to the existence of football itself – still remains Chronic Traumatic Encephalopathy, or CTE.”

Belzer, who is founder of GAME, Inc. and a Professor of Organizational Behavior and Sports Law at Rutgers University, writes: “While it remains to be seen whether Junior Seau’s death was preventable, his suffering from CTE might have been eased by chemicals found in marijuana.

“Last year, Harvard Medical School Professor Dr. Lester Grinspoon called attention to a neuro-protective agent that has the potential to render concussions obsolete – Marijuana. According to Grinspoon, a National Institute of Health study from 1998 revealed the neuro-protective qualities of Marijuana’s two main psycho-active ingredients, Cannabidiol and Delta-9 Tetrahudrocannabidol (THC). In 2008, a similar study in Spain revealed that the THC-receptors in the brain are involved in the healing process upon sustaining brain injury. Most recently, the National Institute of Health showed that THC significantly decreases the death rate of patients with physically sustained brain trauma. In 2013, a team of researchers in Brazil were able to prove that Cannabidiol has the ability to regenerate brain cells in mice. The study specifically showed a capacity to promote the growth of brain cells in the areas of the brain attributed to depression, anxiety, and chronic stress—the symptoms of CTE.

For the full story, go here: http://www.forbes.com/sites/jasonbelzer/2015/10/18/the-nfl-should-be-investing-in-marijuana-if-it-wants-to-survive/

BUT before you do, check out some of the provocative prose of national sports columnist Mike Bianchi of the Orlando Sentinel in the other article:

“Why do sports policymakers and American lawmakers suspend athletes and arrest citizens for a substance that is no more harmful than a Bud Light or a Scotch and soda?” writes Bianchi. “Sadly, we are in the midst of modern-day prohibition in which we are disgracing and criminalizing decent, hard-working people — doctors, lawyers and football players — and stigmatizing them as ‘lawbreakers’ or ‘substance abusers.'”

Bianchi goes on to take the “ultraconservatives who characterize the proliferation of marijuana in sports as an ‘epidemic.’

“Is there anything more laughable than old, white guys getting sauced on vodka martinis and lamenting young, black athletes smoking marijuana?

Bianchi wasn’t done:

“How is it that the NFL can profit from two vices — drinking and gambling — that are responsible for thousands upon thousands of destroyed lives and wrecked families, but then suspends Cleveland Browns star wide receiver Josh Gordon for an entire season because he likes to smoke a little pot?”

For that story, visit: http://www.orlandosentinel.com/sports/football/marijuana/os-football-marijuana-mike-bianchi-1021-20151020-column.html

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The NCAA and Its Insurers Are Fighting Over Coverage for Concussion Lawsuits

(Editor’s Note: What follows is a brief excerpt of an article written by attorney Richard C. Giller of Polsinelli PC that appeared in the August 2015 Concussion Litigation Alert. For the rest of the article and numerous others, please subscribe at https://concussionpolicyandthelaw.com/subscribe/)

On June 10, 2014, Adrian Arrington, the lead plaintiff in a concussion class action lawsuit filed against the National Collegiate Athletic Association, fired his attorney claiming that he never approved a proposed $75 million settlement of the case.  Mr. Arrington has reportedly also asked the judge overseeing the litigation to reject the proposed settlement.  Arrington, a former strong safety and captain of the Eastern Illinois University football team, claims in his September 2011 lawsuit that he was forced to stop playing football because of health issues including “numerous and repeated concussions” he suffered during his college playing days.  Arrington claims that the five concussions set forth in his complaint, as well as other head injuries sustained playing college football, resulted in serious medical issues including memory loss, seizures and headaches, all of which cut short his football career.  The plaintiffs in the NCAA concussion case claim that the organization knew about but disregarded information concerning the long-term effects of concussions and other forms of head trauma on athletes, and that the Association ignored studies involving the link between the frequency and severity of concussions and certain types of sports.[1]

Sports concussion lawsuits trigger a number of important cultural, medical and legal issues.  However, the focus of this article will be on one of the more pedestrian topics; i.e., whether insurance coverage is available to the NCAA to help offset the tens or hundreds of millions of dollars in defense and indemnity payments arising out of these types of claims.  It has been reported that that the NCAA and several of its insurers have reached settlement agreements concerning coverage for concussion lawsuits and that the NCAA is engaged in negotiations with other insurers on a defense cost sharing agreement for the concussion cases.[2]  Despite this progress, several insurance companies are contesting coverage based upon a number of issues and this article will analyze the merits of the coverage positions staked out by some insurance carriers.

The NCAA Concussion Litigation and Proposed Settlement

Underlying Concussion Litigation

Arrington’s lawsuit against the NCAA was filed in federal court in Chicago and became the first of a number of concussion lawsuits filed against the Association.[3]  In fact, over the last few years there have been over a dozen additional proposed class action concussion cases filed across the country naming the NCAA as a defendant.[4]  In December 2013, the actions pending at the time were consolidated into a single multi-district litigation (MDL), which is currently pending in the United States District Court for the Northern District of Illinois.[5]

The NCAA MDL includes claims for negligence, fraudulent concealment, unjust enrichment and medical monitoring, and alleges that the Association breached certain duties purportedly owed to college athletes by not taking steps to prevent head injuries despite purportedly knowing how severe the repercussions might be for an athlete who suffers a concussion.[6] In addition to allegations that the NCAA withheld information from athletes regarding the long-term effects of concussions, the MDL plaintiffs also allege that the NCAA failed to properly train coaches and athletic trainers in how to identify concussion symptoms or to implement proper coaching methods for determining whether an athlete has suffered a concussion or when and for how long a player should refrain from athletic activities after suffering a concussion.

The MDL plaintiffs further allege that the NCAA failed to implement regulations to minimize or reduce activities which were likely to lead to concussions and head trauma, such as failing to implement proper tackling techniques in football, for example, or reducing the number of headers a soccer player is involved with during practice, among other claims.  Finally, the concussion MDL alleges that the NCAA failed to implement standard “return-to-play” guidelines in each of the sanctioned sports with respect to athletes who sustained head trauma.

Proposed Settlement in the Underlying Concussion Litigation

In 2014, the parties to the NCAA MDL reached a preliminary $75 million settlement of the medical monitoring portion of the litigation.  Pursuant to the proposed settlement, a $70 million common fund would be established for the creation of a medical monitoring program and the NCAA would contribute an additional $5 million over the next ten years to fund research regarding the prevention, treatment, and effects of concussions.  The proposed settlement class includes “all persons who played an NCAA-sanctioned sport at an NCAA member institution at any time through the date of Preliminary Approval.”  To characterize that class as being “broad” would be an understatement.  The settlement class is not limited to any particular sport or any level of competition and is estimated to encompass over four million current and former college athletes.  Instead, it apparently includes any athlete who played any sanctioned sport for any length of time at any NCAA member institution.

According to the Association’s website, “The NCAA and its insurance carriers will pay $70M to fund a medical monitoring program that will provide medical evaluations to qualifying class members over a period of 50 years. The medical monitoring program will be overseen by a medical science committee composed of four leading experts in the management and treatment of concussions, including NCAA Chief Medical Officer, Brian Hainline.”[7]  The Association’s website also notes that “the medical monitoring program will in some measure be funded through the NCAA’s insurance carriers.”  The website explains that under the terms of the proposed settlement, “certain of the NCAA’s insurers have agreed to pay a portion of the Settlement Amount.  If those insurers …

(For the rest of the summary with more details about the parties and claims, please subscribe to Concussion Litigation Reporter.)

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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 https://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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