A federal judge from the Northern District of Illinois has granted in part and denied in part a motion to dismiss filed by the NCAA and Big Ten Conference, which were named as defendants in a concussion lawsuit.
Former Purdue University football players Michael Rose and Timothy Stratton allege, among other things, that the NCAA and conference were negligent in their recognition and treatment of the repetitive brain trauma.
The court granted the defendants’ motions to dismiss the breach-of implied-contract and unjust-enrichment claims (Counts 4 and 6) as well as the NCAA’s motion to dismiss the breach-of-express-contract-as-third-party-beneficiaries claim (Count 5), but allowed the remaining three counts in the complaint to continue.
Plaintiffs Michael Rose and Timothy Stratton played football for Purdue University, a member of the Big Ten Conference, from 1996 to 2001.
Over the course of their college football careers at Purdue, Rose and Stratton experienced thousands of repetitive concussive and sub-concussive impacts to their head, according to their complaint. They claim they are now dealing with debilitating neurodegenerative disorders and cognitive impairments due to repetitive brain trauma. As a result, Rose and Stratton, individually and on behalf of all others similarly situated, have sued for negligence, fraud, breach of express and implied contract, and unjust enrichment, alleging that the NCAA and the Big Ten were uniquely aware of the risks of repetitive brain trauma and, yet, exposed players to those risks with no regard for players’ health and safety.
The NCAA and Big Ten moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In addition, the Big Ten moved for a more definitive statement under Rule 12(e).
At the heart of their complaint, Rose and Stratton allege that the Big Ten and the NCAA knew that repetitive sub-concussive and concussive impacts to football players’ heads created “a serious risk of neurodegenerative disorders and diseases,” but did nothing about it, leaving their concussion treatment protocols unchanged until 2010, “several years too late for the plaintiffs.” In support of its argument, the plaintiffs cited, as many other suing the association have, the NCAA’s Sports Medicine Handbook, which states that “student-athletes rightfully assume that those who sponsor intercollegiate athletics have taken reasonable precautions to minimize the risk of injury from athletics participation.”
The plaintiffs “assert that, despite the scientific evidence throughout the years regarding concussions, the NCAA did not conduct its own concussion-related studies until 2003,” wrote the court. “One of these studies concluded that football players who had previously sustained a concussion were more likely to have future concussion-related injuries. Another NCAA study concluded that collegiate football players ‘may require several days for recovery of symptoms, cognitive dysfunction, and postural instability after [a] concussion,’ and that concussions are ‘followed by a complex cascade of ionic, metabolic, and physiological events that can adversely affect cerebral function for several days to weeks.’ Nevertheless, the NCAA and the Big Ten did not change their concussion treatment protocols until 2010.”
The plaintiffs filed a six-count complaint, asserting state common law claims of negligence (Count 1), fraudulent concealment (Count 2), breach of express contract (Count 3), breach of implied contract (Count 4), breach of express contract as third-party beneficiaries (Count 5), and unjust enrichment (Count 6). The Big Ten moved to dismiss the complaint based on the statute of limitations and raises additional arguments as to the fraudulent-concealment, breach-of implied-contract, and unjust-enrichment claims. The NCAA moved to dismiss all but the negligence claim.
The court first considered whether the plaintiffs’ claims are time- barred. In this instance, it found that it was premature to rule on this argument since “discovery may reveal that the nature and circumstances surrounding the incidents were sufficient to place a reasonable person on notice that actionable conduct may have been involved. Discovery will also shed light on whether neurodegenerative disorders and diseases are latent conditions caused by the occurrence of injuries of which a reasonable person should have been aware, as the Big Ten asserts.”
Among the other arguments, the Big Ten argued for the dismissal of the fraudulent concealment claim.
“Here, according to Plaintiffs, the NCAA was originally founded in 1906 to protect college football players from head injuries, which were occurring at an alarming rate,” wrote the court. “Furthermore, the NCAA is specifically charged with safeguarding the health and well-being of student-athletes. To this end, from time to time, the NCAA has conducted concussion studies to determine the risks and effects of concussions and, over time, has implemented guidelines and rules to try to mitigate those risks. And, like the NCAA, the Big Ten is also responsible for protecting the health and safety of student-athletes. Moreover, as compared to Plaintiffs, the Big Ten and the NCAA were in a superior position to know, and to mitigate, the risks of concussions and other traumatic brain injuries. What is more, given the Big Ten’s and the NCAA’s superior and unique vantage point on health and safety issues, Plaintiffs depended upon them for treatment of, and guidance on, head injuries and concussions. When these allegations are construed as a whole in a light most favorable to Plaintiffs, they sufficiently assert the type of relationship that gives rise to a duty on the part of the NCAA and the Big Ten to disclose facts regarding the risks and effects of traumatic brain injury to their student-athletes. Accordingly, the Big Ten’s motion to dismiss Plaintiffs’ fraudulent concealment claim is denied.”
Similarly, the court denied the NCAA’s motion to dismiss the fraudulent concealment claim, noting that “an imbalance of information (about concussions between the plaintiffs and defendants) serves to relax Rule 9(b)’s particularity requirement, especially given Plaintiffs’ allegations that the NCAA and the Big Ten not only had this information, but kept it from them.”
Regarding the NCAA’s argument that the plaintiffs have failed to state a claim for breach of an express contract, the court found that “while sparse, (the plaintiffs have done) enough to plead a plausible claim for breach of an express contract.”
Both the NCAA and the Big Ten also sought to dismiss the plaintiffs’ breach-of-implied-contract claim. “Implied contracts are decidedly different from express contracts,” wrote the court. “An implied contract is ‘not created or evidenced by the explicit agreement of the parties.’ Wayt v. Town of Crothersville, 866 F. Supp. 2d 1008, 1018-19 (S.D. Ind. 2012). Rather, an implied contract is ‘inferred by the law, as a matter of reason and justice from the parties’ acts or conduct, with the circumstances surrounding the transaction making it a reasonable, or even a necessary, assumption that a contract existed between them by tacit understanding.’” Id.
To state a claim of breach of implied contract under Indiana law, a plaintiff must allege “facts concerning the promises allegedly made by the parties to the contract, how those promises were communicated and how the exchange of obligations created an implied contract.” Robinson v. Leonard-Dent, No. 3:12CV417-PPS, 2013 U.S. Dist. LEXIS 150068, 2013 WL 5701067, at *13 n.5 (N.D. Ind. Oct. 18, 2013); see Bissessur, 581 F.3d at 603.
“Defendants correctly point out that Plaintiffs have not alleged any acts or conduct on the part of either the NCAA or the Big Ten that would constitute a communication to Plaintiffs of a promise to undertake a contractual obligation. And the mere existence of the NCAA’s constitution and bylaws is insufficient to constitute the NCAA’s communication of a promise to Plaintiffs. (alleging that the NCAA’s promises were set forth in the NCAA’s constitution and bylaws). Similarly, the Big Ten’s agreement with the NCAA to adhere to the NCAA’s constitution and bylaws falls short of evidencing a communication of a promise to Plaintiffs. See id.” Thus, the court granted the defendants’ motion to dismiss count 4.
Additionally, the court ruled for the NCAA on the matter of whether it breached a contract to the plaintiffs, who alleged that they were third-party beneficiaries. “Although Plaintiffs assert in a conclusory manner that ‘Plaintiffs and the Class are the intended third-party beneficiaries of the contract between the NCAA and Purdue University,’ nowhere do they allege that the contract itself includes any provision that evidences the intention of the NCAA and Purdue to benefit them. Rather, Plaintiffs claim that the parties’ intent appears elsewhere in the NCAA’s rules, regulations, purpose, and principles. Id. Under Illinois law, this is not enough,” wrote the court in grating the NCAA’s motion to dismiss.
Finally, both the NCAA and the Big Ten moved to dismiss the plaintiffs’ unjust-enrichment claim.
“According to Plaintiffs, the NCAA and the Big Ten received significant broadcasting, merchandising, and ticket revenues from their football games,” wrote the court. “Plaintiffs assert that, because Defendants have refused to reimburse Plaintiffs for the injuries that they suffered while playing football, Defendants’ retention of those revenues would be unjust.
“But, as Defendants note, Plaintiffs have not alleged that either the Big Ten or the NCAA requested that Plaintiffs play football for Purdue. Nor have Plaintiffs alleged that they expected Defendants to pay their medical expenses while at Purdue. At most, the allegations indicate that Rose and Stratton expected Defendants to provide a safe playing environment that protected their health and safety. But that is not equivalent to an expectation of payment or similar pecuniary benefit. Because Plaintiffs have failed to allege the elements of an unjust enrichment claim, the Court grants Defendants’ motions to dismiss and dismisses Count 6 without prejudice.”
Michael Rose, and Timothy Stratton, individually and on behalf of all others similarly situated v. National Collegiate Athletic Association and Big Ten Conference; N.D. Ill.; MDL No. 2492, Master Docket No. 16 C 8727,Original N.D. Ill. Docket No. 17 C 1402, 2018 U.S. Dist. LEXIS 167478; 9/28/18
