By Saleel V. Sabnis, of Goldberg Segalla
Reports of sports related concussions and their long term effects on the brain have gained considerable traction in recent years. The injured plaintiffs in these suits, who in many cases reemerge years after their playing days are over appearing as shells of themselves compared to their youth, have helped galvanize the public response over curtailing the dangers of seemingly “high-risk” sports. Lawsuits in both professional and college sports generally allege some form of institutional negligence (or cover-up) where former athletes allege they were never told of the inherent risks of playing their respective sports.
In these type of lawsuits, the NCAA has generally raised its “rough sport” shield i.e. football is an exercise in getting hit and players know that. In late May, a federal court magistrate judge in Pennsylvania denied this argument and the NCAA’s conjoined contention that it did not owe a duty of care to its collegiate football players to prevent risks inherent in football. The NCAA had moved to dismiss a lawsuit by lead plaintiff Matthew Onyshko, a former linebacker at the California University of Pennsylvania who played from 1999-2013, by asserting it owed no duty of care to players who claimed that they suffer from progressive brain injuries due to playing college football. But in a report and recommendation opinion issued on May 28, Magistrate Judge Cynthia Reed Eddy denied the NCAA’s motion to dismiss Onyshkos’ suit, finding that he had sufficiently pled that the NCAA had more knowledge than players did about the long-term health consequences of traumatic blows to the head and that Plaintiffs, if the assertions were assumed to be true, had pled a proper cause of action by claiming the NCAA increased the risk of injury by failing to disclose crucial information about the severity of head injuries.
This was not a decision on the merits of the case. No jury convened to make these conclusions; rather, this was the Magistrate’s analysis on the sufficiency of the allegations within the four corners of Plaintiffs’ Complaint. Yet, the decision should have marked round one a highly scrutinized debate about what is the true “risk” of playing football. But then abruptly, on June 27, Mr. Onyshko voluntarily dismissed his lawsuit which was likely related to the NCAA’s settlement the following month of a “head injury” class action lawsuit. But the ramifications of the arguments in the motion papers is worth reiteration here for the message implicit in the Magistrate’s opinion: the NCAA and similar may need to reboot the “inherent risk” argument.
Plaintiffs’ Claims
The lawsuit was filed in the United States District Court for the Western District of Pennsylvania in December 2013 by Matthew Onyshko and his wife Jessica. Mr. Onyshko alleged that during his football career, he experienced repeated blows to the head and lost consciousness on numerous occasions. After his collegiate career ended, he claimed that he progressively experienced frequent severe headaches, muscle atrophy, slurred speech, difficulty swallowing, and other neurological symptoms. He was diagnosed with a progressive brain and spinal cord injury associated with ALS-like symptoms which he claimed were caused by repeated head trauma during his college football career.
Plaintiffs alleged that the NCAA assumed a duty to Mr. Onyshko in its role as governing body of collegiate sports, in part, by 1) providing in its Constitution that athletic programs were to be conducted in a manner designed to protect and/or enhance the physical well-being of student athletes; 2) by enforcing its own bylaws and other regulations which address all matters related to player safety; and 3) conducting injury surveillance for more than two decades in an effort to promote athlete health and safety.
The Onyshkos contended that the NCAA had an overwhelming amount of knowledge regarding the long term, life altering risks of head injuries that can result in playing football and that the it knew or should have known for many years the signs and risks associated with Mild Trauma Brain Injury (MTBI), including depression, CTE and other cognitive deficiencies. It was this “superior knowledge” of the risks that in the Onyshkos’ opinion should have compelled the NCAA to protect its student athletes. Instead, the Onyshkos claimed that the NCAA failed to inform its student football players of the true risks associated with head injuries and failed to otherwise establish protocols to prevent, monitor and diagnose/treat neurological disorders stemming from football related trauma.
NCAA’s Contention
The NCAA argued in its motion to dismiss the complaint that it owed no legal duty to Mr. Onyshko because “sustaining hits is inherent to the game of football.” The basis for this contention was that pursuant to Pennsylvania law, a defendant owes no duty to a plaintiff who suffers injuries as a result of “ risks inherent during the activity in question.” The NCAA therefore argued that it did not owe any duty to warn Mr. Onyshko from obvious, inherent risks that he voluntarily assumed by playing football. Notably, the NCAA conceded that football is a dangerous activity; however, the inherent risk is the mechanism of injury (i.e. the means by which Mr. Onyshko was injured) which it deemed “common, frequent and expected.” The NCAA contended that Mr. Onyshko, as a college level player, knew that head injuries fit squarely into the obvious risks of the game. This no duty/assumption of the risk argument helped buoy the NCAA’s further contentions that the only risk at issue was the “the risk of sustaining hits on the field” and not the risk of subsequent injury.
Magistrate’s Ruling
The Magistrate ruled that the Complaint had properly alleged that the NCAA had superior knowledge (compared to Mr. Onyshko) of the long-term risks of repeated blows to the head as well as the dangers of sustaining head injuries while playing football. While the court acknowledged that getting hit in the heard is an inherent risk of football, the Complaint had properly asserted that the NCAA increased Mr. Onyshkos’ risk of long-term injury by failing to disclose crucial information as well as failing to have procedures in place with respect to student athletes playing after being diagnosed with a serious head injury. Assuming these contentions were true, the court was not rule at the early motion phase that Mr. Onyshko had voluntarily exposed himself to any risk of which he was fully aware.
Challenging the “inherent risks” of football
Like other concussions suits before it, one of the interesting issues in the Onyshoko matter was evolving analysis of the “inherent” risk associated with playing football. The dangerousness of football is not a new phenomenon. What one can extract from the Magistrate’s opinion is that a nascent movement may be emerging which categorically redefines what are the “obvious” dangers of playing football.
The NCAA’s “assumption of the risk” argument, now seen in various incarnations over several suits, is outdated. At its core, assumption of the risk presupposes that a plaintiff provides consent for the activity in question after being fully aware of the risks involved in a certain activity. But the scope of that consent and awareness of risk is questionable in a typical head injury lawsuit involving playing football. Fatigue and acute physical injury are inherent in football. A degenerative/chronic neurological condition may not be. Thus, the notion that a student-athlete has given his “consent” or “assumed the risk” to play football is a layered analysis even if Mr. Onyshko chose to play and even if he chose to return to the field after suffering his alleged head injuries. In short, ALS-like symptoms was not a risk Mr. Onyshko agreed to assume. The NCAA’s attempt to tease the “risk” from the “result” of playing football seems a meritless distinction.
And then there is the transparent position of power the NCAA represents which is undoubtedly not lost on courts. An assurance of safety by the NCAA-either express or tacit-could arguably supplant any risk Mr. Onyshko assumed. By submitting to the authority of the NCAA, Mr. Onyshko implicitly subordinated his evaluation of the risks of playing to the considerations of “safe play” as measured by the NCAA. The NCAA conveniently ignored in its motion papers that it had assumed some duty to its players by undertaking in providing a healthy and safe environment for student athletes. In essence, the NCAA fostered reliance by student-athletes in its role as an endorser of the safety of its sports. Certainly, application of the “inherent” risk of football defense contravenes the rule learned by student athletes which is to prioritize their own egos below the grander principles of team and sport. Arguably, this is what players like Mr. Onyshko chose to do.
Even the NCAA would have to turn intro that its “inherently dangerous” defense appears somewhat hypocritical because the “risk” of playing football is ever shifting. Consider that among the terms in the NCAA’s July 2014 settlement of a class action head injury lawsuit is a provision all athletes will take baseline neurological tests to start each year to help doctors determine the severity of any concussion during the season, concussion education will be mandated for coaches and athletes, and a new, independent medical science committee will oversee the medical testing. What this demonstrates is that the NCAA can no longer solidify its defense that the lone inherent risk in football is merely sustaining hits. Not when the results of those hits are still subject to much research which the NCAA is rigorously pursuing.
What is an “inherent risk” is generational, malleable and dynamic. What we know today is not what we knew a decade ago. What we know now may pale in comparison to what we learn in the next ten years. What was inherent to a young Mr. Onyshko as a college player may have been obvious between 1999-2003 but the stakes are higher now. What his and other lawsuits in the future will resonate is that no governing institution which regulates football can expect to hide behind a “rough sport” defense when the jury is out (maybe one day literally) on just what is on the line for football players when they take the field.
