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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 …

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Concussion Lawsuits May Soon Blanket College Football

Listen carefully. You can hear the noise.

It may be just a matter time before a flood of lawsuits are brought by former college football players, who experienced one too many dings in the head while representing their school on the gridiron.

FoxSports Kansas City ran a story yesterday — http://www.foxsportskansascity.com/05/23/12/Macho-culture-at-forefront-of-concussion/landing_kstate.html?blockID=734776&feedID=5089 — that quoted Johnno Lazetich, a former Kansas State University football player as saying:

“It’s beautiful that the NFL alumni association are lobbying as hard as they are. There needs to be something at the college level for all of us who blew out their knees, blew out our shoulders, in addition to concussions. There needs to be help for us.”

A few days earlier, another story ran in the Phoenix Business Journal, where sports lawyer Travis Leach of Jennings, Strous & Salmon noted that there has already been lawsuits filed against the NCAA, college football teams and their medical personnel.

Leach added: “Depending on what the outcome of these pending cases are, complaints could extend to individual universities and medical professionals who worked for teams and/or universities.”

And as we have seen with the NFL, where one concussion lawsuit is filed, many, many more will follow.

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