In a surprise to no one, the NCAA is becoming a ripe target for student athletes, who suffer today from the concussions they experienced years ago as a college athlete.
Specifically, plaintiffs’ attorneys representing a handful of student athletes have asked a federal judge to let them expand a lawsuit to include thousands more players.
At the heart of the motion is the attorneys’ contention that the NCAA knew that its membership was mistreating the concussions of their student athletes. They pointed specifically to a report created by concussion expert Robert Cantu, which cites an internal NCAA survey from 2010 in which “the NCAA found that nearly half of the college trainers who responded to the survey indicated they put athletes showing signs of a concussion back into the same game.”
They further alleged that the NCAA was “lax in establishing a clear policy about dealing with concussions, leaving key decisions to individual schools or leagues.”
Cantu is a central figure in the plaintiffs’ case, filing a supporting motion of more than 200 pages on behalf of the plaintiffs. “Across all aspects of this standard protocol, it is clear the NCAA failed to require (much less explain) appropriate concussion management practices,” he wrote Cantu further wrote that the NCAA “did not exercise, nor require its member institutions to exercise the ordinary reasonable care that would be expected in the care of student-athletes that suffer concussions.”
The plaintiffs also focus on several email exchanges between members of the Playing Rules Administration and the Playing Rules Oversight Panel, which allegedly minimized and marginalized the NCAA’s efforts on the concussion front.
“It was clear the Playing Rules Administration and the Playing Rules Oversight Panel were more concerned with liability for the NCAA and its own members than the safety and welfare of the student-athletes,” wrote the plaintiffs’ attorneys.
The NCAA’s Defense?
In an article that appeared in the Chronicle of Higher Education, the NCAA’s Chief Medical Officer Brian Hainline gave a hint as to how the NCAA might defend itself in the litigation.
“Dr. Hainline said that, until the end of 2012, there was not a widely accepted consensus among medical experts about the need to keep players out of action on the same day of a concussion,” according to the article. “Before that, one closely watched set of guidelines suggested that players should not be returned on the same day — but left open a window for adult or elite athletes under special circumstances.
“Dr. Hainline argued that the decision to return is complicated by the players themselves, who often report that they are ready to go even when they shouldn’t. He pointed to a forthcoming study showing that 50 percent of players in one Division I conference were underreporting injuries, including concussion.”
Hainline went on to say that the NCAA “cannot mandate change. We can say, ‘This is how we believe medical care should be delivered.’ That said, the NCAA is not the NFL. We can’t just shift and say, ‘Now everyone’s going to do this.’”
The Concussion Management Plan
What Hainline may be alluding to is the NCAA’s requirement in 2010 that all NCAA member institutions enact a Concussion Management Plan for the 2010-11 school year.
In an article that appeared in Sports Litigation Alert, attorneys Nikki Wilson and Robert L. Clayton, then of Jackson Lewis described the new policy as “a culmination of the NCAA’s efforts to determine the appropriate care and treatment for its student-athletes’ injuries. It began in December when the Executive Committee encouraged each member-institution to develop protocols for handling concussions under the direction of a physician. Thereafter, on April 9, 2009 the NCAA held a ‘Concussion in Sport Collegiate Medical Summit’ and invited subject experts in neurology, neuropsychology, sports medicine, as well as team physicians and athletic trainers.”
They continued: “Although the NCAA has issued the policy across all three Divisions, it is unclear how it intends to enforce the new policy. Clearly, the policy requires each institution to work hand in hand with its athletic training staff and medical providers who can make the best decision for the student-athletes’ health. Moreover, the policy removes the decision making responsibility from the coach to undermine any potential bias to return the athlete to competition to the detriment of the athletes’ health. The policy also requires the student-athletes to accept responsibility for reporting injuries to avoid athletes who fail to report problems in order to remain in competition.
“On April 29, 2010, Debra Runkle, Chair of the NCAA’s Committee on Competitive Safeguards and Medical Aspects of Sports (CSMAS), issued a memorandum to all NCAA Head Athletic Trainers outlining the new policy. Specifically, the policy reads as follows:
“‘Institutions shall have a concussion management plan on file such that a student-athlete who exhibits signs, symptoms or behaviors consistent with a concussion shall be removed from practice or competition and evaluated by an athletics healthcare provider with experience in the evaluation and management of concussion. Student-athletes diagnosed with a concussion shall not return to activity for the remainder of that day. Medical clearance shall be determined by the team physician or their designee according to the concussion management plan.’”
Wilson and Clayton went on to highlight “best practices” recommended by the CSMAS.
“While these ‘Best Practices’ are couched as ‘recommendations,’ it is clear the NCAA intends them to be a strict guideline in developing a Concussion Management Plan.”
Among them were:
When a student-athlete shows any signs, symptoms or behaviors consistent with a concussion, the athlete shall be removed from practice or competition and evaluated by an athletics healthcare provider with experience in the evaluation and management of concussion.
A student-athlete diagnosed with a concussion shall be withheld from the competition or practice and not return to activity for the remainder of that day.
The held its ground after the lawsuit was filed, issuing the following statement:
“Student-athlete safety is one of the NCAA’s foundational principles. The NCAA has been at the forefront of safety issues throughout its existence, and the Association has specifically addressed the issue of head injuries through a combination of playing rules, equipment requirements and medical best practices. Despite this new filing, we continue to believe our policies and rules address student-athlete safety.”
