Monthly Archives: May 2017
Pennsylvania Court rules, ‘The NCAA is the Supreme Regulatory Body in College Athletics’ and that It Must Face a Trial
(Editor’s Note: What follows is an excerpt from the recent issue of Concussion Litigation Reporter. To read the full article, please subscribe at https://concussionpolicyandthelaw.com/subscribe/)
By Paul Anderson, of The Klamann Law Firm
As the NCAA tries to fend off a tidal wave of litigation, its legal defense is quickly eroding. In the latest blow to the NCAA, a trial court in Pennsylvania ruled that the NCAA must face a trial over its alleged failure to protect the health and safety of student athletes.
The case arises from a lawsuit filed by former college football player, Matt Onyshko, who played at the California University of Pennsylvania between 1999 and 2003. He was diagnosed with amyotrophic lateral sclerosis (“ALS”) in 2008. In 2013, he filed a claim against NCAA asserting that the NCAA failed to “adequately supervise, regulate, and minimize the risk of long-term brain injury.”
The NCAA, as it has done repeatedly in litigation, claimed that it did not “owe a legal duty” to protect the health and safety of student athletes. Instead, the NCAA claimed, this duty resides with the member schools. The NCAA doubled down on this assertion and even stated that it “lacks the enforcement mechanisms to implement legislation over its member institutions.”
Flatly rejecting this, the Court stated:
This argument also lacks merit because the NCAA is the supreme regulatory body in college athletics with the stated purpose of ‘hav[ing] a clear moral obligation to make sure we do everything we can to protect and support student-athletes.’
Notably, this “stated purpose” was a quote directly from the NCAA’s President, Mark Emmert, during a congressional hearing where he was grilled by Senator Jay Rockefeller for the NCAA’s tone-deaf response to the Derek Sheely lawsuit. The landmark Sheely lawsuit against the NCAA and other defendants was subsequently settled for $1.2 million.
The Court also rejected the NCAA’s no-duty argument based on “inherent risks” in football. The NCAA often relies on this argument to assert that it has no duty to protect against inherent risks in sports. And since a concussion is an “inherent risk” in football, so the argument goes, the NCAA owes no duty to protect against this risk.
But the Court found that “this argument lacks merit because it oversimplifies and conflates the risk of injury with the negligent treatment, management and prevention of such injuries. While suffering a head injury in the course of playing football is likely a danger inherent to the sport, the negligent treatment and management of such injuries, leading to severe long term damage is beyond the scope of the inherent risk assumed by players.”
This reasoning is consistent with Judge David Boynton’s ruling in the Sheely lawsuit, where that court also denied the NCAA’s motion for summary judgment.
Finally, the Court rejected …
The Marshall University Joan C. Edwards School of Medicine will host concussion expert Julian E. Bailes, M.D., for a community event at 7 p.m. Friday, June 9, in the Don Morris Room in the Memorial Student Center on Marshall’s Huntington campus.
“An Evening with Dr. Julian Bailes,” presented by the Marshall Sports Medicine Institute, will feature a presentation on understanding and preventing brain injury in sports by Bailes, a nationally recognized neurosurgeon who was portrayed by actor Alec Baldwin in the 2015 movie “Concussion.”
According to the Centers for Disease Control, about 1.6 to 3.8 million sports and recreation-related concussions occur in the United States each year. Concussions occur more often in organized high school sports than in competitive sports, with football accounting for more than 60% of concussions.
Bailes is an expert in neurovascular disease and a recognized leader in the field of neurosurgery and the impact of brain injury on brain function. He is a founding member of the Brain Injury Research Institute (BIRI), which focuses on the study of traumatic brain injuries and their prevention. A former chairman of the department of neurosurgery at the West Virginia University School of Medicine, he is currently co-director and chairman of the department of neurosurgery at NorthShore Neurological Institute in Chicago.
Attendees will also hear from local physician Andy Gilliland, M.D., an assistant professor of orthopaedic surgery at the Joan C. Edwards School of Medicine, on how programs throughout the Tri-State region are implementing cultural changes to better prevent, identify and treat concussions. Gilliland practices primary care sports medicine at King’s Daughters Medical Center and the Marshall Sports Medicine Institute.
Tickets are $50 per person or $400 for a reserved table of eight. Sponsorships are available. All proceeds go to support research scholarships for students at the School of Medicine. To make a reservation, contact Tami Fletcher by phone at 304-691-1701 or by e-mail at firstname.lastname@example.org.
(Editor’s note: the following was written by Iseult Cody and initially published in www.nflconcussionlitigation.com)
A wet October morning. A field outside Roscrea, an unremarkable town in the midlands of Ireland, a rugby heartland, where men are men and pride in a jersey comes before all else. Thirty men on a field chasing an oval ball with maybe the same number again on the side-lines watching.
Supporters of a certain size and gender dare not get too close to the team manager for fear that if a substitute is needed they could be drafted in. There is no stand, no television cameras, no TV match official just the players, the officials and the supporters, maybe 60 sets of eyes follow the ball as it slips from muddy hand to hand weaving through the players. The jerseys are faded, the lines on the field are smudged but the passion is evident with every run, every tackle, and every kick.
Everything will be left on the field, they will give it everything they have and for no reward, there is no cup, they won’t be paid, they won’t get recognition save for from the small assembled crowd or a by-line in a local newspaper or tweet from a supporter. This is a religion in itself and this scene is repeated across the country every weekend throughout the season.
Suddenly a shoulder collides with a head, a man drops to the ground, he touches his hand to his head, and the team doctor who incidentally doubles up as the kit man runs on, glancing over his shoulder to see who is on the side-line potentially ready to enter the field of play if needed. He asks the right questions but is reassured by the player that he is fine. The doctor scurries back to relative warmth of the side-line the game continues on.
This is amateur rugby. This is the heartbeat of the game. This is the reality.
A different picture unfolds before our eyes. The scene is set, it is the 6 July 2013 at the ANZ stadium in Sydney. Eighty-three-thousand-seven-hundred-and-four sets of eyes will watch every movement, will feel every hit from their seats, will discuss every blow, will follow every movement as fifteen Lions take to the field with the intention of mauling, both literally and figuratively, the Australian Wallabies. Millions of eyes across the world will follow the ball on their TV screens, watching not only the live action but the replays.
Four minutes in and pulses are already racing, Wallabies legend George Smith (who incidentally returned from retirement for the game) has the ball in hand and collides with 250 pounds of Welshman in the form of Richard Hibbard. The initial hit almost has the effect of bringing time to a standstill, every viewer almost feels the reverberation as Smith’s head bounces of Hibbard’s shoulder before landing to the ground with a thud unable to prevent his own fall.
The medics race on, the spectators hold their collective breath, on the side-line Michael Hooper throws off his training top and races onto the field as the replacement.
The supporters are still discussing how sad an end to his career it is for Smith and hoping his injuries are minor when he emerges from the tunnel before running back onto the field.
One could be forgiven for questioning whether the team doctor had himself suffered a blow to the head in allowing Smith back on. This is professional rugby. This is the elite. The is with the eyes of the rugby supporting world watching.
In the wake of the game Smith himself acknowledged the severity of his injury, World Rugby, in its former guise the IRB, stood up and took notice. The rules changed, safeguarding player welfare became the headline issue, excuse the pun.
The “6 Rs” – recognise, remove, refer, rest, recover, return – should be the mantra when we witnessed a potential concussion, it should be instilled in our memories and in every participant, every coach, every official, every parent. Rugby would not fall into the pitfalls of NFL in seeking to distance themselves from concussion or shirk their responsibility.
In the wake, Rugby would protect its players from themselves. In a sport where physicality is inevitable, and indeed a requirement of the playing of the game, to protect players you have to take an almost parental approach and make the decisions for the players as to what is in their best interest. Rugby would change, rugby would adapt and rugby would protect their biggest asset, their players.
Fast forward three years and despite the rule changes, the negative publicity, the experiences of litigation in other jurisdictions and other codes and the awareness of the potential long term effects of successive repeated blow to the head, on 3rd December 2016, Northampton’s George North flies through the air as he collides with Leicester’s Adam Thompstone before landing directly on his head, apparently knocked clean out.
North, who has suffered a number of concussions throughout his career, departs the field of play only to return within minutes having undergone the HIA (Head Injury Assessment) protocols.
The sense of déjà vu was frightening to the scene witnessed in the ANZ stadium and indeed to the countless other instances in the intervening years of players receiving blows to the head and yet remaining on the field of play or leaving only to return.
The sceptic amongst the rugby fraternity may suggest nothing has changed but we (the rugby supporters and players) are now more educated, more aware, more sensitised so there is an immediate investigation into the conduct of the club in allowing Smith’s return to the field undertaken by Premiership Rugby and the RFU, and they issue guidelines but no sanctions are taken.
The complaints at the lack of action reverberate throughout the rugby community like North’s head against the turf, so World Rugby takes action and a strongly worded statement issues emphasising how seriously head injuries must be taken, that the protocols must be adhered to but yet again there is no sanction.
The situation posed a new question, if the procedures were followed and North was still deemed fit to return to the field of play then perhaps the question is are the protocols fit for purpose? What is to prevent a player dismissing the team doctor’s queries, he is the professional, the valuable commodity to the team, what if the team is losing and this is the “star” player; who is to say the doctor doesn’t look the other way or doesn’t see the signs that another doctor may?
Doctors differ and patients die but at the end of the day it is accepted that the HIA isn’t the only assessment of potential concussion, a player may satisfy a doctor conducting the HIA but still have suffered a concussion. The time may be approaching where a clear injury sustained to the head should have the effect of removing a player from the field for the remainder of the game with the HIA conducted to determine what further period of exclusion a player should have prior to their return to play.
Rugby related litigation to date has been largely focused on injuries sustained in scrums whereby players have suffered serious injuries as a result of collapsed scrums including players rendered tetraplegic however matters seem to be, pardon the pun, coming to a head now particularly with three sets of proceedings which look to shake rugby to its very core.
The first set of proceedings were instigated in Manchester by former Sale Shark Cillian Willis. Willis’ proceedings claim that his premature retirement from the game resulted from his taking two separate blows to the head during the course of a game. After the first blow the medics deemed Willis fit to continue but the second blow would see him crossing the side-line for the last time as a player.
The second case is being taken by Jamie Cudmore against his former club Clermont Auvergne. Cudmore’s case which cites his former employer’s negligence in exposing him to potential further injury in allowing him to play on, is particularly remarkable given that after this incident he went on to continue his career and indeed is still playing with French side Oyonnax. Cudmore may face an uphill battle in showing the injury or damage caused if his case were to go before the courts, but many commentators would expect this matter to be settled prior to that possibility. Cudmore himself is quite frank in his comments on contact sport and his comments on the matter illustrate a player’s perspective of the matter.
The third case which may prove to be the catalyst for the biggest change to head injury protocols or indeed for underage sports in general is the tragic death of Benjamin Robinson.
Benjamin holds a unique accolade, one that no one would want and one that has broken the hearts of his family, friends and teammate’s alike: he is the first person in the United Kingdom to die as a result of Second Impact Syndrome playing rugby, as determined by the coroner.
At 14 years of age Benjamin took not one, not two but three blows to the head during the course of a schoolboy’s rugby game. Benjamin collapsed and was treated on the field as his helpless parents looked on. Benjamin would later die in hospital with the coroner noting three separate brain injuries which in all likelihood represent the three blows sustained in that fateful game.
In the wake of his death his parents became aware that one of the opposition had recorded the match and suddenly they were faced with the harrowing prospect of reliving their son’s death on camera but also having the opportunity to dispel any notion of his death being a tragic freakish accident.
His death had to bring a positive legacy, it had to be the catalyst for change and could not be allowed to be in vain. Benjamin’s parents have now launched proceedings against various defendants including the school, the IRFU (governing national body for rugby in Ireland) and World Rugby. The case is one which they acknowledge won’t bring back their son but it may protect another family from suffering the loss they have had to endure.
For those of us who love the game of rugby, Benjamin’s smiling face pictured in his jersey is a poignant reminder of why rugby has to change, Rugby has to protect the future of the game, the participants who can’t be expected to protect themselves. Benjamin’s face should remind us of what is at stake.
The reality is players are getting bigger, hits are getting harder but the brain doesn’t and can’t protect itself any more now than it could yesterday. Two opponents collide, they both are stronger than their counterparts 10 years ago but their brain hasn’t changed, that strength doesn’t afford it any more protection or safeguard it from injury.
In our first tort class we learn the “eggshell skull” rule whereby the defendant will be responsible for the consequence of their actions no matter how remote or unforeseeable they may be; it is hardly that unforeseeable to picture the result of repeated blows to the head incurred during the course of rugby being chronic traumatic encephalopathy (“CTE”), as seen in the NFL.
The game has changed from so many perspectives, the physicality, the professionalism, the regulations but the biggest change needs to now be how World Rugby deals with head injuries or instances of suspected head injuries, not just to protect itself but to protect every participant and to ensure no family has to endure what the Robinsons have had to. Rugby for many is not just a sport, it is a way of life but no life should be lost in the pursuit of sport.
Iseult Cody is a practising lawyer in Dublin, Ireland with Eoghan P Clear Solicitors where she specialises in Property and Probate Law. As an avid sports enthusiast she has recently completed the first Sports Law Diploma course through the Law Society of Ireland and hopes to further expand her practice into Sports Law related matters.