By P. Kyle Sandulescu – Thompson Rivers University 2L JD Student
In the wake of the NFL concussion lawsuit settlement that came down in April, the National College Athletic Association (NCAA) is facing a similar class-action lawsuit launched by former college football, hockey, and soccer players who sustained concussions during their college sports careers. While the NCAA technically operates as a non-profit association, it makes profits that eclipse many major professional sports leagues. Therefore, if the plaintiffs can prove that the NCAA knew of the long term effects of concussions and failed to protect their student-athletes from head injuries, a judge will likely be persuaded to awarded compensation to former players, similar to the NFL settlement agreement.
In the class-action concussion lawsuit brought against the NCAA, Walker, et al. v. National College Athletic Association, former college athletes alleged that the NCAA breached its duty to educate players on the dangers of concussions, and breached its contractual obligation to ensure that member institutions complied with NCAA Regulations on enhancing the physical and mental wellbeing of student-athletes. The plaintiffs also claimed that the NCAA fraudulently concealed information on the long term effects of concussions. The plaintiffs initially sought a $70 million NCAA-funded monitoring program to provide early diagnosis and treatment of head injuries over a 50 year period. In June however, Adrian Arrington, the face behind the class-action lawsuit, fired his attorney and rejected the proposed settlement. One can expect that the plaintiffs will seek a considerably larger settlement perhaps approaching the one awarded to former NFL players.
There are important distinctions, though, between the NCAA and the NFL which make the NCAA lawsuit more complicated than the lawsuit against the NFL. First, in the NFL the players are in a contractual relationship with the league which is governed by the standard player’s contract, which directly imposes a duty on the NFL, whereas in the NCAA regulations govern the relationship between the NCAA and the universities that are members in the Association. However, a duty to protect players might be established by looking into the NCAA Sports Medicine Handbook which explicitly states that student athletes can assume that the NCAA’s member institutions have taken reasonable precautions to minimize the risk of injury from athletics participation. The plaintiffs would hence make the case that the NCAA owes a duty to the players who participate in sporting events on behalf of their universities.
With nearly $1 billion in annual revenue, the NCAA resembles less a non-profit association than it does a professional sports organization. The sheer volume of cash flow into the NCAA’s coffers has proven sufficient to attract interest in a class action lawsuit similar to the NFL suit. A key distinction between the two lawsuits is that the claim against the NCAA involves athletes from different sports and not just football, and does not preclude athletes from non-contact sports from bringing an action against the NCAA.
Simply put, there is a need to protect the majority of student athletes who do not go on to have professional careers. Adrian Arrington and countless others who did not have professional sports careers sustained head injuries while playing college sports under the NCAA. Many of them were left unable to work or utilize their degrees. The vast majority of student-athletes have to use their college sports careers as a means of getting an education and obtaining a degree. Therefore, former players should be compensated if they sustain an injury that prevents them from functioning in the work force when their college careers are over if the damage could have been prevented through proper monitoring and testing by the NCAA. With the resources and funding available to the NCAA, there is no reason to treat them differently from a professional sports league that fails to take action in minimize the risks faced by their athletes.