The Big Hit: NCAA Concussions Policy a Nightmare for Student

The Big Hit: NCAA Concussions Policy a Nightmare for Student-Athletes

Angel Gustavo Rivera, J.D., LL.M.

agrivera@central.uh.edu

The dream of every student-athlete who plays a sport at the collegiate level is to excel in

their careers, win individual awards, win national championships, sign a professional contract, or

even represent their country at the Olympics. All these goals and accomplishments can be

overshadowed in a question of months, days, hours, minutes or seconds by concussions and their

unpredictable impact on students-athletes. Typically, an athlete will play through concussion

symptoms or return to play as soon as he or she feels better. Yet, days and months later, that

same athlete could be plagued by headaches, difficulty concentrating and mood swings.

It is no secret in sports that concussions are having a huge effect, especially on student-

athletes. Concussion, also known as mild traumatic brain injury (mTBI), has been defined as “a

complex pathophysiological process affecting the brain, induced by traumatic biomechanical

forces.”

Although a concussion most commonly occurs after a direct blow to the head, it can

occur after a blow elsewhere that is transmitted to the head.

Sport-related concussions are not

limited to specific age ranges, level of athletics, or gender.

Concussions and head injuries can

Concussion: Determining when the brain has recovered, MAYO CLINIC,

http://www.mayoclinic.org/medicalprofs/concussion-nu0805.html

Paul McCrory, et al., Consensus statement on concussion in sport – The 3rd International Conference on

concussion in sport, held in Zurich, November 2008, 16(6) J.

CLIN. NEUROSCIENCE 755, 756 (2009), available at

http://www.sportconcussions.com/html/Zurich%20Statement.pdf

2012-13 NCAA Sports Medicine Handbook, NAT’L COLLEGIATE ATHLETIC ASS’N, 54 (Aug. 2012),

http://www.ncaapublications.com/productdownloads/MD12.pdf

Don Brady & Flo Brady, Sport-Related Concussions, 39(8) COMMUNIQUÉ 38, 38 (2011),

http://www.nasponline.org/publications/cq/39/8/sport-related-concussions.aspx

take place in any type of athletic activity, but are more frequent in contact sports like football,

hockey and soccer.

In 2011, former National Collegiate Athletic Association (NCAA) student-athletes filed a

class action complaint against the NCAA in the United States District Court in the Northern

District of Illinois. This article will provide a brief summary of the case, and an analysis of the

main conflict on the NCAA Concussion Management Plan Guidelines. Finally, it will discuss the

possible consequences of a resolution of the class action case as well how it will impact the 2010

concussion management plan guidelines required for institutions.

Adrian Arrrington, Derek Owens, Mark Turner, and Angela Palacios v. NCAA.

This high profile class action complaint combines lawsuits filed by dozens of former

NCAA student-athletes who claim the league was negligent in its handling of brain trauma. The

issue has moved from science labs to Congress and now to courtrooms, where the financial

exposure of the sports’ governing bodies may be tested.

On November 21

, 2011, the suit was

amended and filed in the United States District Court in the Northern District of Illinois, listing

as plaintiffs for the putative class: Adrian Arrington, who played for Eastern Illinois University;

Derek Owens, who played in the University of Central Arkansas, Mark Turner, formerly with

Fordham University; and Angela Palacios, who played women’s soccer for Ouachita Baptist

University in Arkansas. The listed defendant is the NCAA; the universities were not included as

some of the plaintiffs were still enrolled. The class is not limited to football players, as Palacio

George Vecsey, College Athletes Move Concussions Into the Courtroom, N.Y. TIMES (Nov. 29, 2011),

http://www.nytimes.com/2011/11/30/sports/ncaafootball/college-players-move-concussions-issue-into-the-

courtroom.html.

joining the suit against the NCAA expanded the group of plaintiffs to include collegiate athletes

in just about any sport – hockey, lacrosse and soccer players are among those included.

The NCAA Constitution states that: “It is the responsibility of each member institution to

protect the health of and provide a safe environment for each of its participating student-

athletes.”

The complaint alleges that the NCAA has engaged in a long-established pattern of

negligence and inaction with respect to concussions and concussion-related maladies sustained

by its student-athletes, all the while profiting immensely from those same student athletes.

The

Plaintiffs’ complaint stresses four distinctive allegations: fraudulent concealment, medical

monitoring, unjust enrichment, and negligence. According to the lawsuit, the NCAA has failed

to: 1) address and/or correct the coaching of tackling, checking or other playing methodologies

that cause head injuries; 2) educate coaches, trainer and student-athletes as to the symptoms

indicating possible concussions; 3) implement system-wide “return to play” guidelines for

student-athletes who have sustained concussions; 4) implement system-wide guidelines for the

screening and detection of head injuries 5) implement regulations addressing the treatment and

eligibility of student-athletes who have sustained multiple concussion in the course of play; and

6) implement a support system for student-athletes who, after sustaining concussions, are left

unable to either play their sport or even lead a normal life.”

The plaintiffs seek to represent two nationwide classes: The first class consists of NCAA

students-athletes who sustained concussions or suffered from concussion-like symptoms as result

Mary Pilon, Former Soccer Player Joins Lawsuit Against N.C.A.A., N.Y. TIMES THE QUAD BLOG (Sept. 24, 2012, 12:08

PM), http://thequad.blogs.nytimes.com/2012/09/24/former-soccer-player-joins-lawsuit-against-the-n-c-a-a/

NCAA Constitution, Article 2, at 2.23 (Adopted: 1/10/95), available at

http://www.ncaapublications.com/productdownloads/D112.pdf

Adrian Arrington, Derek Owns, Mark Turner, and Angela Palacios, et al. v. NCAA. No. 1:2011cv06356, Northern

Illinois District (Chicago), available at http://www.scribd.com/doc/78428992/NCAA-Complaint

Id. at 1.

of playing sports and are still experiencing the effects of those head injuries. The second class

participating in the suit is a nationwide medical monitoring class, consisting of former NCAA

students who sustained concussions or suffered concussion-like symptoms while playing sports,

but who do not at least yet appear to be still experiencing symptoms or have not have their lives

fundamentally disrupted by the head injuries.

According to their website, the NCAA oversees 89 championships in 23 sports each year.

There are more than 400,000 student-athletes competing in three divisions at over 1,000 colleges

and universities within the NCAA.

The NCAA establishes a leading role in ensuring that

athletes are properly protected from and treated for concussions. Moreover, the NCAA passed

regulations’ in 2010 that became effective on August 16, 2010, requiring that “An active member

institution shall have a concussion management plan for its student-athletes.

With regard to the

NCAA regulation, plaintiffs argue that the reporting responsibility for concussion is placed

entirely on the students. For its part, the NCAA is fighting class certification by asserting that a

fact-intensive analysis of all named players would need to take place in order to certify that

student athletes belong to one plaintiff class or the other. The fact-intensive analysis would

require determination about each alleged injury, the knowledge each student athlete holds with

regard to concussion risks, and – importantly – would depend on each plaintiff’s assertion that he

or she relied on alleged fraudulently concealed information while playing NCAA sports.

NCAA Concussion Management Plan Legislation

Id. at 29.

Who We Are, NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,

http://www.ncaa.org/wps/wcm/connect/public/ncaa/about+the+ncaa/who+we+are+landing+page

2012-13 NCAA Sports Medicine Handbook, NAT’L COLLEGIATE ATHLETIC ASS’N, 56 (Aug. 2012),

http://www.ncaapublications.com/productdownloads/MD12.pdf

In April, 2010 the NCAA adopted stricter concussion-reduction guidelines. The adoption

of new guidelines was an act that acknowledges the NCAA’S role in the prevention,

identification, evaluation, and management of concussions. Furthermore, it now advises colleges

not to let athletes with head injuries return to play until cleared by a physician, and requires

every athletics department to have a written protocol for handling concussions.

Finally the

student-athletes must sign a statement in which they accept the responsibility for reporting their

injuries and illnesses to the institutional medical staff, including signs and symptoms of

concussions. During the review and signing process, student-athletes should be presented with

educational material on concussions.

The guideline reject any measure of responsibility for the NCAA, its member schools,

and the coaching staff or individual teams and, instead puts the burden on the shoulders of

student-athletes who have just sustained fresh head trauma to not just seek out medical attention,

but decide whether to seek it in the first place. Researchers have noted that concussion diagnosis

is largely based on athletes reported symptoms, which can vary greatly and may not be the best

way to determine who is at risk for future concussion related neurological and psychiatric

problems. Special worry goes for the student athlete struggling with symptoms of concussion

reporting their conditions the next day of she or he did not report problems when the hit

occurred.

This model should focus on appropriate access to healthcare providers with the

Libby Sander, Colleges Struggle to Protect Athletes From Concussion and Its Aftermath, CHRON.HIGHER EDU. (Sept.

22, 2012), http://chronicle.com/article/Colleges-Struggle-to-Protect/124576/

2012-13 NCAA Sports Medicine Handbook, NAT’L COLLEGIATE ATHLETIC ASS’N, 56 (Aug. 2012),

http://www.ncaapublications.com/productdownloads/MD12.pdf

Id. supra note 1.

unchallengeable authority to determine management and return to play following a concussion.

The plan shall include, but is not limited to, the following:

(a) An annual process that ensures student-athletes are educated about the

signs and symptoms of concussions. Student-athletes must acknowledge that

they have received information about the signs and symptoms of

concussions and that they have a responsibility to report concussion-related

injuries and illnesses to a medical staff member;

It is unrealistic to expect athletes to monitor their own injuries particularly involving

concussions.

For athletes, quitting is not an option, and without institutional oversight this

stubborn mentality could be fatal. Concussions can be difficult to identify at the onset and may

go unrecognized, which places individuals at risk for future and more complicated injury. Most

of student-athletes evade and hide their head related symptoms generating a lack of report of

previous injuries that may lead to an unknown number of concussions for individuals and adds to

the complexity of the return-to-play decision.

For this reason, subsection (a) needs to ensure

that student-athletes, coaches, team physicians, trainers, athletic directors and officials are

included in the education of concussions before a season starts.

The NCAA should look to Texas Natasha’s Law as a model, it requires mandatory

training courses for student athletes as well coaches of an interscholastic athletic activity, a

licensed health care professional who serves as a member of a concussion oversight team and is

an employee representative, and a health care professional who serve on a volunteer basis as a

member of a concussion oversight team, at least once every two years for not less than two hours

Memoramdum from Kathleen Brasfield, Chair, Division II Management Council to NCAA Division II Directos of

Athletics (Aug. 13, 2010),

http://fs.ncaa.org/Docs/DII_MC_PC/Miscellaneous/Concussion%20Management%20Memorandum.pdf

George Vecsey, College Athletes Move Concussions Into the Courtroom, N.Y. TIMES (Nov. 29, 2011),

http://www.nytimes.com/2011/11/30/sports/ncaafootball/college-players-move-concussions-issue-into-the-

courtroom.html.

Robert C. Cantu & Johna K. Register-Mihalik, , Considerations for return-to-play and retirement decisions after

concussion, 3(10) PM&R S440 (2011), http://dx.doi.org/10.1016/j.pmrj.2011.07.013

by an authorized training provider authorized by the league to provide training in the subject

matter of concussions, including evaluation, prevention, symptoms, risks, and long-term

effects.

CONCLUSION

There are basically no established procedures for addressing negligence in concussion

management. Among college athletes, the NCAA estimates that concussions represent 5 to 18

percent of injuries, depending on the sport. The NCAA concussion management plan was issued

after La Salle University settled a negligence lawsuit dealing with the return to play of a former

football player severely debilitated after suffering repeated concussion for approximately $7.5

million. This class action lawsuit serves as a sharp reminder that colleges or universities with

athletic programs, whether NCAA or not should maintain and implement a clear concussion

management plan to help ensure the safety of athletes and minimize exposure to the

organization. Even if a concussion management plan is in place it is important to monitor

whether or not the plan is effective and if your organization is following the plan as drafted.

The actual high profile class action case against the NCAA outcome will determine the

path and will create precedent on the need of safety and awareness on student-athletes. In the

event that Arrington and his class members were to win, colleges working in concert with the

NCAA would almost certainly exercise more caution to ensure athletes against concussion types

injuries.

Several states have recently passed laws that require minimum standards for

concussion safety in elementary and secondary schools. Out of 50 states, 42 have legislation

Natasha’s Law, H.B. 2038, Tex. H.R. 82(R) (Tex. 2011) (enacted),

http://www.legis.state.tx.us/tlodocs/82R/billtext/html/HB02038F.htm

Nikki Wilson Cary, NCAA Hit with Class Action Concussion Lawsuit, COLLEGIATE & PROF’L SPORTS L. BLOG (Sept. 15,

2011), http://www.collegeprosportslaw.com/collegiate-sports/ncaa-hit-with-class-action-concussion-lawsuit/

Marlon R. McPhatter & Ryan M. Rodenberg, Arrington v. NCAA: Overview and Potential Implications, SPORTS LITIG.

ALERT NEWSLETTER (2011), http://www.sportslitigationalert.com/sample.html#a2.

regarding child concussions and three other states are pending legislation.

Federal lawmakers

have introduced similar measures.

The court may push both sides to try to set a settlement

requiring the NCAA to adopt a minimum standards for concussion policy that supports student-

athletes in all NCAA Divisions (I, II, III) and conferences building a foundation for institutions.

The plan itself isn’t going to be the thin that fixes all the concussion scenarios, because really the

only way you can solve it and decrease the numbers is to stop playing contact sports.

Health Law Perspectives (March 2013)

Health Law & Policy Institute

University of Houston Law Center

http://www.law.uh.edu/healthlaw/perspectives/homepage.asp

The opinions, beliefs and viewpoints expressed by the various Health Law Perspectives authors on this

web site do not necessarily reflect the opinions, beliefs, viewpoints, or official policies of the Health Law &

Policy Institute and do not constitute legal advice. The Health Law & Policy Institute is part of the

University of Houston Law Center. It is guided by an advisory board consisting of leading academicians,

health law practitioners, representatives of area institutions, and public officials. A primary mission of the

Institute is to provide policy analysis for members of the Texas Legislature and health and human service

agencies in state government.

State-by-state concussion legislation stance, TENNESSEAN (Oct. 21, 2012),

http://www.tennessean.com/interactive/article/99999999/PROMO/121008025/State-by-state-concussion-

legislation-stance.

Marlon R. McPhatter & Ryan M. Rodenberg, Arrington v. NCAA: Overview and Potential Implications, SPORTS LITIG.

ALERT NEWSLETTER (2011), http://www.sportslitigationalert.com/sample.html#a2.

Allie Grasgreen, One Step at a Time, INSIDE HIGHER ED (Oct. 15, 2012),

http://www.insidehighered.com/news/2012/10/15/action-concussions-comes-all-sides-lack-uniformity