By Derek Helling
Months after the NCAA settled the medical monitoring claims of a class of former athletes at disparate member institutions, two of the class members are pursuing negligence claims against the NCAA in separate actions.
Derek Owens and Kyle Solomon are awaiting the scheduling of their trials. Despite the plaintiffs being part of the consolidated complaint in Arrington v. NCAA and having all of their complaints lumped into that action, these negligence claims will proceed separately and how they unfold will have some bearing upon the future of courts’ perception of liability on the NCAA’s part as far as athlete healthcare goes.
Owens played football for the University of Central Arkansas while Solomon played ice hockey for the University of Maine. The first count of the complaint against the NCAA alleged negligence on the defendant’s behalf. The complaint states that the NCAA “acted carelessly and negligently in its position as the regulatory body for college teams and its student-athletes” and that the NCAA “knew or should have known that its actions or inaction in light of the rate and extent of concussions reported and made known to the NCAA would cause harm to players in both the short- and long-term.”
Count III of the original complaint addresses medical monitoring. That charge states that the plaintiffs will need special medical monitoring because of their unique condition and symptoms resulting from concussions suffered in the employ as athletes for their disparate NCAA-member institutions. The plaintiffs in this count sought relief for costs associated with that need.
That was the count that was the subject of a 2019 settlement between the class and the NCAA. In exchange for the class dropping its claims in that part of the complaint, the NCAA agreed to fund an account upon which class members could make reimbursement claims. The settlement amount was originally $70 million and over 4.2 million former athletes became eligible. The settlement term is a 50-year period and the plaintiffs have courses of action they can take if approved charges deplete the fund prior to the term’s expiration. The important thing to note going forward is that the settlement only covered the plaintiffs’ petition for relief of the medical monitoring expenses. It did not address the other counts in the original complaint or any of the amended complaints filed since.
To this point, Owens and Solomon are the only members of the class to pursue other claims further. While there’s a strong possibility that the NCAA will try to settle these claims before or during any scheduled trials, that isn’t necessarily a foregone conclusion.
The NCAA has recently decided to litigate a similar trial to its end and, unfortunately for the plaintiff in that case, won. Matthew Onyshko played football for the Cal U. Vulcans football team and developed ALS, which forced him to retire from his career as a firefighter. He alleged that he suffered 20 concussions while playing the sport at the collegiate level and sued the NCAA, stating that it was negligent in its duty as the governing body of the sport. In May 2019, a jury decided for the defendant.
There are cases of the NCAA deciding that the cost and risk of further litigation of similar cases made a settlement more attractive, however. The most famous such example is Ploetz v. NCAA, in which the widow of former football player Greg Ploetz settled her complaints with the NCAA, for an undisclosed sum, that its negligence led to her late husband’s cognitive difficulties prior to his death.
There are other outstanding cases along similar lines. Melissa Martin has a complaint against Cal Berkeley outstanding and even for current athletes, the risk of having to bear costs associated with recovery from injury in their sport is an ongoing concern.
NCAA by-laws on the topic of healthcare for athletes are essentially non-existent. For example, there is no rule that requires member institutions to carry any level of coverage for any athletes. Some institutions do so voluntarily, however, and the NCAA does require athletes to have their own health insurance. There are gaps in that situation, however. That gap was recently brought to light by Oregon women’s basketball player Sedona Prince.
Prince says she recently received a bill for $22,000 for medical care as a result of a leg injury she sustained playing basketball for Team USA. She incurred the charges while playing for the University of Texas, which refused to cover the costs. NCAA rules prevent her current team, Oregon, from covering the charges because that could compromise her “amateur” status.
This demonstrates the huge gap in health coverage for college athletes. Because Prince’s injury is not “catastrophic” (think paralyzation), the NCAA policy does not cover it. Even if that was the case, the plan has a deductible of $90,000 which Prince’s own health insurance would be responsible for. Because Prince originally sustained the injury playing for Team USA instead of Texas, the university was not held responsible, even though the bills are for care she received in her second surgery, determined necessary to get her on the court for the Longhorns. Furthermore, despite the noblest of intentions, Oregon is handcuffed because if it wrote a check to Prince’s creditors on her behalf, that would not only compromise Prince’s eligibility but make Oregon and everyone involved in the program subject to NCAA sanctions.
The ironic thing about this situation is that if Prince quit the Oregon women’s basketball team, the university could pay her bills without any fear of retaliation. If that were the case, however, the university’s interest in having her healthy would be nullified. Yet the NCAA’s reasons for maintaining the status quo and letting athletes like Owens, Prince, and Solomon bear the cost are not only clear but underhanded.
If the NCAA enacts any by-laws mandating health coverage for athletes at the expense of its individual member institutions, that puts those institutions in a position as stewards of medical care for those athletes. That, in turn, moves athletes a step toward employee classification. As evidenced by the NCAA’s stance on the notion of athletes and their publicity rights, the NCAA wants to avoid any perception of an employee-employer relationship between athletes and its members.
As the Owens and Solomon trials play out, interested parties will see whether the NCAA wants to settle those cases. That may be in the NCAA’s best interest because the legal question of to what extent the NCAA and its members are responsible for athlete well-being is still unclear. Then again, the victory in Onyshko may embolden the NCAA. The ability of these cases to set some favorable precedent for athletes like Martin and Prince depends on litigation and victory for the plaintiffs. For former athletes who need cash to cover current medical expenses now, however, turning down cash may not be feasible. The true solution to this problem should involve preventing these situations from arising in the first place.
Just because there’s no NCAA regulation that requires its members to provide full, lifetime coverage for their athletes regarding medical costs sustained while representing those institutions doesn’t mean they can’t or shouldn’t provide such coverage. There’s simultaneously no by-law that prohibits these “schools” from doing so. It’s very telling about the current state of college athletics that Oregon risks more by paying for medical costs it had nothing to do with than Texas risked by hanging Sedona Prince out to dry.
Update: On Jan. 23, Judge Lee set the weeks of 1/11/21 and 1/18/21 for Kyle Solomon’s trial.
Derek Helling is a journalist from Kansas City, Mo., who covers the intersections of entertainment and sports with business, law, media and technology. He publishes a newsletter, “The Ninth Circle of Helling,” that focuses on the intersection of business, culture, politics, and the law with sports.
This article is reprinted with permission of Advocacy of Fairness in Sports (https://advocacyforfairnessinsports.org/)
