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Is the NCAA Susceptible to Concussion Litigation?

Noted sports law professor Marc Edelman penned a piece this week that looks at whether the NCAA could be the next target of former football players, who suffered concussions on the playing field.

Edelman points specifically at Arrington v. National Collegiate Athletic Association.

“(M)any of the potentially mitigating factors  that could reduce the NFL’s legal exposure do not seem to avail themselves to the NCAA,” Edelman writes for Forbes Magazine’s online site Forbes.com.

“First, there is the issue of ‘duty of care’ — the standard of legal obligation placed on a given entity to prevent negligent acts. Although the NFL may owe a duty of care to protect its athletes from head injuries, one would surmise this duty to be far greater in the context of the NCAA, which, according to its own website, was founded in 1905 ‘to protect young people from the dangerous and exploitive (sic) athletic practices of the time.’ These practices specifically included risks of head and neck injuries.

“In addition, the NFL defendants might be able to reduce their exposure because during at least part of the relevant period in question the NFL players union served in the direct capacity of protecting professional football players’ interests. However, once again such a defense clearly does not extend itself to the NCAA. Quite to the contrary, the NCAA has not permitted its workforce to form an organized body to negotiate against it.

“Then, there is the temporal factor that may work against the NCAA. While the NFL may attempt to argue in its litigation that many of the players’ head injuries occurred before they entered the NFL, the NCAA cannot so easily try to place blame on earlier injuries.”

Edelman is an incoming Associate Professor of Law at the Zicklin School of Business, and a Summer Adjunct Professor at Fordham Law School. In addition, he serves as a legal consultant on sports law, antitrust, gaming law and intellectual property matters.

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