By Tyler S. Woods, J.D. Candidate, Sandra Day O’Connor College of Law.
Chronic traumatic encephalopathy (“CTE”) is a neurodegenerative disease caused by repeated head injuries and is accompanied by delayed symptoms such as memory loss, confusion, impaired judgment, impulse control problems, aggression, depression, and eventually, progressive dementia. Studies have found former professional, collegiate, and high school football players suffer from exponentially higher rates of CTE than the average individual.
Former collegiate athletes diagnosed with CTE and their estates have taken consistent legal action against the NCAA over the past decade, claiming the NCAA failed to adequately educate and protect the student athletes from the risks of CTE. The first legal battle by former players against the NCAA ended in 2014 with a $70M settlement agreement. The settlement’s benefits: the NCAA created new guidelines for handling concussions and established a fund to diagnose current and former college athletes to evaluate brain trauma from playing sports. The settlement’s detriments: the individual class action plaintiffs received little to no money to compensate their trauma. The settlement’s legacy: athletes filing personal injury or wrongful death lawsuits seeking damages from the NCAA must sue individually, or on a per school basis, to receive personal compensation.
Following the 2014 settlement, Ploetz v. NCAA was the first CTE-based wrongful death lawsuit against the NCAA to reach a jury trial. After Greg Ploetz, a former defensive tackle for the University of Texas and the Texas Longhorns, was posthumously diagnosed with CTE, his estate sued the NCAA seeking over $1M in damages. Although Ploetz had potential to be a landmark case setting legal precedent guiding future CTE litigation, Ploetz resulted in an undisclosed settlement three days into trial. As part of the undisclosed settlement, the NCAA admitted no liability for the CTE-based injuries. Since Ploetz was settled in 2018,more than three-hundred additional concussion-based lawsuits have been filed.
Davis v. NCAA
Most recently, the estate of John Thomas Davis filed a complaint against the NCAA on March 3rd, 2020. The complaint provides John Davis was an SMU lineman from 1955—1959 who later became a teacher and coach. The complaint then states that in the decades following his college football career, Davis suffered headaches, memory loss, anxiety, paranoia, motor impairment, and psychotic episodes. The complaint further alleges Davis developed permanent brain damage as a result of suffering numerous concussions playing collegiate football, and that after Davis’ death, an autopsy at Boston University revealed Davis died of Alzheimer’s disease and Stage IV CTE.
The complaint claims a single count against the NCAA: negligence. To support the negligence claim, the complaint first asserts the NCAA had a duty to protect the health and well-being of Davis based on the NCAA’s own statements and official policy guidelines regarding student athletes. Second, because the NCAA knew or should have known of the risks related to concussions due to the NCAA’s medical handbook and medical reports on CTE at the time, the complaint asserts the NCAA breached their duty of care owed to Davis. Specifically, the NCAA breached their duty of care by failing to: (a) educate Davis on the symptoms and harms related to concussions, (b) promulgate risk-mitigating rules relating to concussions, and (c) require pre-season baseline neurological testing. Third, the complaint asserts the NCAA’s actions were the proximate and direct cause of Davis’ Alzheimer’s disease and CTE. As a result of the negligence, Davis’ estate seeks monetary relief of over $1M based on Davis’ medical costs, pain and suffering, loss of earnings, loss of consortium for his family, and funeral expenses.
Looking Forward
A primary difficulty in prevailing on a negligence claim for wrongful death resulting from CTE is proving the causation element. To prevail in the lawsuit, the former athlete or their estate must prove by a preponderance of evidence that the CTE resulted from the NCAA’s actions, and not from an alternate source. Considering how CTE symptoms may not be discovered for over thirty years after the initial brain trauma, and how many CTE diagnoses are posthumous, the plaintiff’s task of proving the CTE was caused by collegiate sports, and not by an alternate event during the athlete’s lifetime, is challenging.
Nonetheless, Ploetz not only revealed that the NCAA is willing to settle CTE cases, but also that CTE cases can survive motions for summary judgment and reach a jury trial. As more cases like Davis emerge, the more likely a case will be decided at trial, establishing lasting precedent guiding future CTE litigation, and potentially providing more relief for former collegiate athletes afflicted with brain trauma.
