By Marlon R. McPhatter and Ryan M. Rodenberg
In an October 2011 cover story in The Atlantic, venerable writer Taylor Branch penned “The Shame of College Sports,” a provocatively-titled piece highlighting “[a] litany of scandals [that] have made the corruption of college sports constant front page news.” In one part of his article, Branch details “a spate of lawsuits working their way through the courts [that] could destroy the NCAA.”
Another such case just got added to the docket.
Filed September 12, 2011 in U.S. District Court for the Northern District of Illinois, Arrington v. NCAA is a class action complaint against the NCAA and NCAA Football (collectively), on behalf of himself and all others similarly situated, alleging that the “NCAA has engaged in a long-established pattern of negligence and inaction with respect to concussions and concussion-related maladies sustained by its student-athletes.” Arrington is a 25 year-old student at Eastern Illinois University (“EIU”) where he formerly competed on the EIU football team. During his time on the team, Arrington allegedly suffered numerous and repeated concussions during games. After his first three concussions, the EIU team doctor told Arrington he could return to play the very next day. After the third concussion, Arrington apparently experienced memory loss and seizures. According to the complaint, Arrington was not taught how to make safe tackles and was sent to a neurologist for further testing. Once cleared to play again, Arrington sustained two more concussions and made the decision to leave football and focus on finishing his degree at EIU. Arrington allegedly finds it difficult to complete his studies at EIU due to his constant memory loss, depression, and almost-daily migraines.
Pointedly, the complaint posits that “the NCAA …failed to address and/or correct the coaching of tackling methodologies that cause head injuries; failed to implement system-wide ‘return to play’ guidelines for student-athletes who sustained concussions; failed to implement system-wide guidelines for the screening and detection of head injuries; failed to implement legislation addressing the treatment and eligibility of student-athletes who sustained multiple concussions in the course of play; and failed to implement a support system for student-athletes who, after sustaining concussions, are left unable to either play football (or their sport) and lead a normal life.” The class action seeks medical monitoring and financial recovery for student-athletes who have sustained long-term injuries and damages related to sustained concussions.
The plaintiff contests that, even though the NCAA ‘publicly’ condemned coaching techniques to use all portions of helmets to block, tackle, butt, spear, ram and/or injure opposing players, coaches continued to promote helmet-based tackles. The plaintiff also makes note that there were only minimal sanctions or penalties placed on teams, coaches, and players from the NCAA for this dangerous and prohibitive contact during games. Interestingly, the plaintiff’s complaint points out that, in August 2010, the NCAA passed legislation requiring its member schools to have a concussion management plan (“CMP”) in place, whereas in the past the decision of whether to address concussion management with staff or athletes was the prerogative of individual schools. The plaintiffs also contend that the NCAA has ignored and actively concealed repeated warnings and patterns of injury of which the NCAA has actual knowledge. A jury trial is demanded even though the precise number of parties injured and entitled to equitable relief is currently unknown to the plaintiff, but may possibly be ascertained from the NCAA’s books and records.
Have the NCAA and other collegiate organizations taken care of participating athletes’ health as vigorously as they have secured television and licensing deals? Is the NCAA negligent in failing to require the teaching of proper techniques that could have reduced or eliminated concussions for their athletes? Or did the NCAA operate through highly trained medical professionals working under the best guidelines available at the time on serious head injuries and continue to update their knowledge of such injuries responsibly? All are potentially relevant questions if the case were to go to trial, with the understanding that any such trial is years away given the pace of discovery, pre-trial motions, and possible settlement negotiations. In the event that Arrington and his class members were to win, colleges, working in concert with the NCAA, would almost certainly exercise more caution to ensure athletes against concussion-type injuries. In fact, the implications of a win for the plaintiff would likely transmit to every tier of competitive football as well as other sports that sometimes involve head trauma such as baseball, rugby, and lacrosse.
Marlon R. McPhatter is a doctoral student at Florida State University. He earned his undergraduate degree from Georgetown University and his MBA from the University of North Carolina-Pembroke. Ryan M. Rodenberg is an assistant professor at Florida State University where he teaches sports law analytics. © Marlon R. McPhatter and Ryan M. Rodenberg 2011.
