By Scott White[1] and Noah Kalter[2]
On December 24th, 2024, a three-judge panel for the California Court of Appeals upheld the dismissal of a wrongful death claim against the National Collegiate Athletic Association (NCAA) filed on behalf of Matthew Gee, a former linebacker at the University of Southern California (USC).[3] Gee was one of twelve linebackers on the depth chart for USC in the fall of 1989—he became the fifth member of that group to die before the age of fifty. Junior Seau, another member of that group, committed suicide in 2012, and the National Institutes of Health (NIH) later confirmed that Seau had Chronic Traumatic Encephalopathy (CTE).
Matthew Gee’s widow, Alana, filed a wrongful death action against the NCAA, contending that the NCAA negligently “failed to take reasonable steps which would have reduced [Gee’s] risk of contracting CTE” (p. 3). A jury found for the NCAA at trial, and Gee appealed that judgment contending the trial court erred in applying the assumption of risk doctrine.
The appeals panel began by reviewing the circumstances related to Gee’s death. Gee passed away in 2018 at age 49. The coroner attributed Gee’s death to the “combined toxic effects of alcohol and cocaine, as well as hypertensive and atherosclerotic cardiovascular disease, anomalous small coronary arteries, complications hepatic of cirrhosis, obstructive sleep apnea and obesity” (pp. 2-3). In a footnote, the court mentioned “it is undisputed that the immediate cause of [Gee’s] death was an alcohol and cocaine overdose” (p.7). Gee’s widow donated Gee’s brain to Boston University’s CTE Center, and their doctors determined Gee had Stage II CTE, which is commonly known as “low level” CTE. Gee’s attorneys alleged CTE caused mood changes and behavioral disorders in Gee, which in turn were a substantial factor contributing to the substance abuse that led to Gee’s death.
Gee’s estate claimed there is a clear link between repeated head trauma and CTE, citing studies from the Centers for Disease Control and NIH. Gee argued that the NCAA could have prevented Gee’s death by implementing the following measures:
- Share medical literature about repetitive head injuries and neurodegenerative disease when they knew it;
- Educate players about the true nature of Grade 1 concussions;
- Educate coaches and players about the dangers of leading with their head;
- Make playing rules that would have reduced head impact;
- Enforce the existing rules;
- Implement return-to-play guidelines; and
- Limit the number of full contact practices. (pp. 8-9).
The NCAA denied that it had any ability to reduce the risks surrounding repeated head hits in football. Furthermore, the NCAA denied the existence of CTE and suggested that the protein levels used to identify CTE are the result of other factors, such as age, genetics, sleep apnea, or drug use.
At trial, the jury heard these arguments, and said “no” to the following questions:
1. Did the NCAA do something or fail to do something that unreasonably increased the risks to Matthew Gee over and above those inherent in college football?
2. Did the NCAA unreasonably fail to take a measure that would have [minimized] the risks to Matthew Gee without altering the essential nature of college football?
As a result, the trial court dismissed the claims against the NCAA. Gee appealed, contending that the lower court misapplied the assumption of risk doctrine.
Assumption of Risk and Sports – California Law
The Court of Appeals began their analysis by discussing the doctrine of assumption of risk under California case law. In Knight v. Jewett, the California Supreme Court addressed the duty of care owed by participants in sport and held that “defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport” (p. 12). In Kahn v. East Side Union High, the court addressed the duty owed by coaches, holding that coaches owe a duty to avoid instructing athletes to engage in conduct “outside the range of ordinary activity” for the sport (p. 12). In both cases, the assumption of risk doctrine narrowed the types of duties owed by participants and instructors. The court summarized the assumption of risk doctrine in sports by saying: “Applied in the sporting context, [the doctrine] precludes liability for injuries arising from those risks deemed inherent in a sport; as a matter of law, others have no legal duty to eliminate those risks or otherwise protect a sports participant from them” (pp. 16-17).
Gee argued the assumption of risk doctrine does not apply to deaths resulting from CTE in football because CTE was not recognized as a risk inherent in the sport of football at the time of Gee’s injury. The Court of Appeals countered this argument by stating participants assume the risk of certain conduct rather than certain injuries. The court provided the following example to help with this distinction:
“Knowing that a skier suffered a broken leg from a fall while skiing is not sufficient to determine whether the [assumption of risk] doctrine applies. If the skier broke his or her leg in a fall while skiing moguls, the injury was caused by a risk inherent in the sport and the doctrine applies; if the skier broke his or her leg due to a poorly maintained towrope, the doctrine does not apply. Thus, it is not the specific injury which is determinative, it is the nature of the conduct or condition which caused it” (p. 17).
Under this precedent, the Gee panel found it necessary to separate the underlying conduct (i.e. what led to the CTE) from the injury itself. In Gee’s case, the panel noted “it is undisputed that the conduct which causes CTE is repeated head hits, and head hits are an inherent risk of college football” (p.20). Gee’s argument failed under California law because the head injuries were the risk inherent in the activity, and the NCAA could not prevent those without changing the nature of the sport. Accordingly, the panel found the trial court did not err in instructing the jury of the assumption of risk doctrine.
Reasonable Care and Head Injuries
The question then became whether the NCAA breached its duty to protect Gee by increasing the risk of repeated head hits in college football. The NCAA pointed to a few measures it took regarding head injuries in football: they provided information on head injuries to team medical personnel, and they warned players and coaches of the dangers of leading with the head. The NCAA also implemented playing rules that prohibited “spearing” and other actions where a player would use the crown or top of their helmet to strike a runner. Similarly, NCAA members implemented rules that limited contact practices during the first three days of the preseason practice period. In addition to these measures, the NCAA argued that the standard of care in the medical community before 2005 did not encompass warning players about CTE.
Holding and Implications
The Court of Appeals panel agreed with the NCAA and upheld the lower court’s dismissal of Gee’s claim, finding “the assumption of risk doctrine does apply, and any instructional error relating to the NCAA’s responsibility for the action or inaction of its members was harmless” (p. 3).
For practitioners, there are several takeaways from this case. First, the court highlighted the factual dispute at the lower court surrounding the existence of CTE and the link between CTE and concussions in football. In cases where a plaintiff alleges harm due to CTE, one defense strategy may be to deny the existence of CTE as a cause of injury. Second, the lower court did not reach the issue of causality, but the Court of Appeals panel suggested that causality may not be present in this case, as the NCAA argued that Gee’s substance abuse predated his CTE (p. 7). Moving forward, causality will be an element that may be difficult to prove for certain plaintiffs, as it can be difficult to disentangle the impact that CTE has on mental health, which in turn can contribute to substance abuse.
The Gee decision also shows how the standard of care for head injuries continues to evolve. Potentially negligent actions should be considered in the context of the time they occur rather than the time they are litigated. However, once information becomes available that changes the standard of care, organizations have a responsibility to conform to those standards. In this case, the NCAA pointed out that CTE research did not begin until 2002, and there were no studies on CTE in college football players until 2005. The NCAA used this to argue CTE education was not a duty owed to players when Gee was competing in the early 1990s, and the trial court agreed, finding CTE was not acknowledged by the medical community at that time.
Ultimately, litigation relating to CTE and concussions in football have increased as knowledge surrounding the lasting impacts and severity of head injuries has grown. The stakes associated with these cases are high, and there are often implications for medical treatment that arise from these cases. In this case, the numbers surrounding Gee’s linebacker cohort at USC are shocking. Five of the twelve linebackers on the 1989 USC roster died before the age of fifty. If these types of outcomes are attributable to a risk inherent in the sport, then football players assume an immense amount of risk when they step onto the field.
[1] JD, PhD Candidate, Florida State University
[2] MBA, Florida State University
[3] Gee v. National Collegiate Athletic Association, No. B327691, Slip Op. (Cal. Ct. App, 2024). All references contained in this article refer to this slip opinion.
