By the Drake Group
On November 22, 2022, a jury found the NCAA not guilty for the death of Matthew Gee, a former University of Southern California linebacker who died in 2018 and was diagnosed with CTE after his death.
Following the verdict, the NCAA stated: “The NCAA bore no responsibility for Mr. Gee’s tragic death, and furthermore, the case was not supported by medical science linking Mr. Gee’s death to his college football career.” The jury rejected the claims of Gee’s wife, Alana, who claimed that the NCAA was aware of the potential long-term effects of repeated head injuries and was negligent in warning and protecting players. The NCAA has repeatedly maintained that it is not legally responsible for the health and safety of players and that responsibility rests with schools rather than the national governance association.
Dr. Andrew Zimbalist, President of The Drake Group, issued a call for Congress to act to protect the health and safety of college athletes by enacting the S.4724, the College Athletes Bill of Rights that would establish a Commission on College Athletics. He stated:
“Verdicts in lawsuits like Gee v. NCAA make bad policy because their result is in many ways dependent on the unlimited financial resources the NCAA can bring to bear in settling cases it is in danger of losing and defending cases it is likely to win. The Drake Group believes Gee v. NCAA represents the latter and is a prime example why such outcomes lead to poor policies or no policies that actually protect college athletes from injury.
Further, The Drake Group believes that NCAA statements denying any responsibility for establishing rules that protect athletes demonstrates that it is incapable of governing the conduct of intercollegiate athletics in the critical area of protection of athlete health and well-being. The NCAA is an entity created by its member institutions. The NCAA Board of Governors consists of presidents of institutions of higher education and legislation is adopted by vote of its member institutions, presumably approved by the leaders of these institutions. They have refused to adopt the most basic standards of care which would (1) prevent or reduce the occurrence of athletic injury through the adoption of game and practice rules that reduce injury risk, (2) prohibit physical, sexual, verbal, or emotional abuse of athletes by coaches, other athletes and others, (3) permit athletes to have adequate time to sleep, recover from training, and complete academic responsibilities, and (4) require athletics personnel to meet education, certification, licensure, or other qualification standards.
We believe it is critically important for Congress to establish a federally chartered corporation governed by an independent board of directors, specifically the Commission on College Athletics proposed in the College Athletes Bill of Rights. The Commission would act to protect the “academic, health, and economic interests” of all college athletes, not just NCAA athletes and not just athletes who are recipients of athletics financial aid.
Unlike the presidents who sit on the NCAA’s Board of Governors who have a conflict of interest with regard to governing themselves, the Board members of the Commission proposed by the College Athletes Bill of rights would be independent former college athletes, experts and members of the general public who have achieved distinction in their respective professional fields. The Commission would be responsible for establishing standards with respect to the health, wellness, and safety of college athletes consistent with the standards established by the Secretary of Health and Human Services.
The Act specifically requires that the Secretary acting through “the Director of the Centers for Disease Control and Prevention, and in consultation with the Assistant Secretary of Labor for Occupational Safety and Health, shall establish health, wellness, and safety standards for intercollegiate athletic programs.” The Act specifies that such standards address:
- cardiac health
- concussion and traumatic brain injury
- illegal performance enhancers and substance abuse;
- mental health;
- nutrition, sleep, and performance;
- overuse injuries, periodization, and heat-related illnesses;
- sexual assault and interpersonal violence;
- athletics health care administration;
- weight and pain management’
- rhabdomyolysis;
- sickle cell trait;
- asthma;
- best practices to prevent serious harm in sports medicine physical therapy, athletic training, and athletic strength and conditioning;
- coaching principles prioritizing college athlete well-being; and
- any other topic the Secretary considers appropriate.
Further, the Act specifies that “athletic trainers and physicians have the autonomous, unchallengeable authority to determine medical management and return-to-play decisions with respect to college athletes, and coaches or other non-medical personnel of an institution of higher education may not attempt to influence or disregard such decisions.”
Dr. Zimbalist further commented, “Such an independent agency with jurisdiction over college athlete health and well being is long overdue. The Drake Group is particularly impressed with the enforcement provisions of the bill which give the Commission the power to subject any individual to a lifetime ban on involvement in intercollegiate athletics. Such a penalty may be imposed on any individual found to cause serious harm to a college athlete due to noncompliance with Commission standards, threaten or retaliate against any individual or entity that reports non-compliance, knowingly provide false information, or attempt to obstruct a Commission investigation of a possible violation of its standards. We believe this bill is a necessary complement to S.3943 and H.R. 5817, the NCAA Accountability Act of 2022, which would require the NCAA to give college athletes and institutions due process in any investigation regarding violation of its rules. College athletes deserve a competent and effective governance system to protect their health and interests. Currently they are ill-served by the NCAA and its member institutions.”