AL.com: NCAA concussion defense, Sporting event organizers aren't liable for obvious injury risks
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By Jon Solomon - 2/6/2014
As ex-athletes seek medical help from concussion litigation and lawyers jockey for position and money in the lawsuits, the NCAA's defense is crystallizing. The legal argument emerging is this: The NCAA has no legal duty to protect college athletes.
The NCAA was one of several defendants named in a wrongful death suit brought by the family of Frostburg State football player Derek Sheely, who died in 2011 after suffering a brain injury during preseason practice. The lawsuit in Maryland state court claims Frostburg State coaches kept berating Sheely to continue practicing even though he was bleeding profusely from his forehead after multiple hits to the head over several days of practices.
The NCAA requires schools to provide concussion management plans, but doesn't enforce them. Rep. Linda Sanchez (D-Calif.) wrote NCAA President Mark Emmert in November seeking answers about the NCAA's concussion management policy due to the circumstances involving Sheely's death.
Sheely's parents expressed surprise that the NCAA did not investigate their son's death. The NCAA responded that each school is responsible for the welfare of athletes and that risk can't be completely removed from athletics.
"Plaintiffs are attempting to use the NCAA's commitment to student-athlete safety as the basis for a legal duty requiring it to have prevented Mr. Sheely's death," the NCAA wrote in its motion for summary judgment filed last week. "While the NCAA has compassion for the Plaintiffs' loss and shares their concern about the alleged events at Frostburg State, the law does not recognize this legal duty. Organizers of sporting events are not liable for injuries to voluntary participants when the risk of injury is obvious and foreseeable.
"Otherwise, athletic associations -- including the NCAA and all high school, private and professional athletic associations -- would be subject to litigation any time a participant is injured in any sport anywhere for failure to prevent the injury. The NCAA is not aware of any court in Maryland that has ever held that the NCAA has a duty to prevent injury."
The NCAA wrote that the alleged conduct at Frostburg State resulting in Sheely's injury "would be in violation of NCAA guidelines and rules, best practices from medical experts, and even common sense." But because the NCAA was not at the practice, the association said it does not know whether the allegations are true.
The theory by Sheely's family that the NCAA could have done more to reduce the risk of concussions would create "limitless liability for an athletic association," the NCAA wrote. "... This is simply an untenable position for the NCAA, which has over 1,300 member institutions."
The NCAA's defense also places the onus on players. The Frostburg State players, including Sheely, were aware of the obvious risk of playing football, the NCAA wrote. The NCAA noted that the plaintiffs acknowledged Frostburg State players knew a particular drill was "ridiculously dangerous" and coaches knew the drill increased the risks of concussions.
The NCAA cited a past court case that says a player has "the right -- in fact, the duty -- to ask the coaches questions concerning any matter which [is] not clear." Just as Sheely assumed the risk he would suffer a concussion while playing football, the NCAA wrote, "he assumed the risk that this would happen while participating in a coach-supervised drill." The NCAA said it could not have foreseen such conduct by Frostburg State coaches and athletic trainers.
At least one past court decision has taken the position that the NCAA does have a legal duty to protect athletes. In a 1999 wrongful death suit involving a Wisconsin La-Crosse wrestler who died while losing weight for a match, a Wisconsin circuit court judge ruled against dismissing the case and cited the association's inaction with its policies.
"The NCAA could have done something about the problem through its ability to impose sanctions upon member institutions and the staff of the institutions," Judge Richard Callaway wrote. "Instead, while using toothless guidelines which merely paid lip service to the problem, the NCAA, or at least its wrestling committee, may have actually encouraged the use of dangerous rapid weight loss techniques by acquiescing in host institutions facilitating their use."
Callaway did note, though, that the NCAA was not being charged in the wrestling case with "responsibility for the sometimes dangerous or injurious risks inherent in engaging in hard contact sports."
In the current Adrian Arrington lawsuit against the NCAA over concussions, Robert Cantu, a leading concussion expert, filed a motion in which he claimed "it is clear the NCAA failed to require (much less explain) appropriate concussion management practices."
Internal NCAA e-mails filed in the case showed that a school that failed to follow its concussion management plan would be guilty of a secondary violation. However, NCAA director of health and safety David Klossner testified in 2013 that the NCAA offers no oversight of concussion management plans. When asked if any schools have been disciplined regarding concussion management plans or whether the NCAA has considered punishing any schools, Klossner responded, "Not to my knowledge."