By Brian C. Mahoney, of Harris Beach
A Maryland judge has ruled that a case against the NCAA involving the death of a former Division III football player from Frostburg State University will proceed to trial.
The NCAA previously moved to have the case thrown out of court, but the court decided in favor of sending the case to a jury. The trial is currently scheduled for the end of June.
The case centers around the death of Kevin Sheely, who, having suffered multiple concussions in a short period of time, collapsed during football practice in August of 2011 and later died. In reviewing the case, the judge ruled that “the type of head injury that allegedly killed Derek Sheely—second impact syndrome from multiple concussions—is not a known inherent risk of playing football” and that as a result the NCAA had a legal duty to warn football players of this risk.
The NCAA’s primary argument in the case was that as a “sports organization” it had no legal duty to warn athletes of, mitigate, or eliminate the obvious risks associated with playing sports. Although the judge agreed that most sports organizations have no legal obligation to protect athletes, he determined that the NCAA’s relationship with athletes is different because part of the NCAA’s mission statement is to protect college athletes. In a statement, NCAA chief legal officer Donald Remy said that “[t]he NCAA respectfully disagrees with the [court’s] ruling” and that “the court’s findings are not consistent with laws concerning athletic organizations in Maryland or throughout the country.”
The outcome of this case could have far reaching impacts. At the end of January, a federal judge preliminarily approved a settlement between the NCAA and college athletes who sued over the administration’s handling of concussions (In re Nat’l Collegiate Athletic Ass’n Student-Athlete Concussion Injury Litig., No. 13 C 9116, 2016 WL 305380 [N.D. Ill. Jan. 26, 2016]). The proposed settlement, which has yet to be finalized, creates a $70 million fund to provide current and former college athletes with free testing and medical monitoring for concussion-related injuries. However, the settlement would still permit athletes to sue the NCAA and individual universities for personal injuries. If a jury votes against the NCAA in this case, further litigation is likely to follow.
(Editor’s note: What follows is the story that appeared in Sports Litigation Alert in 2013, which addressed the litigation after it was filed)
The family of college football player Derek Sheely, who died after suffering multiple concussions during the summer of 2011, has sued the NCAA and Frostburg State University, as well as the school’s coaches and the athletic trainer, for negligence.
Specifically, the plaintiffs claim that the NCAA failed to be more proactive about the danger of concussions to its student athletes as well as ignored what few guidelines it had in place in the wake of Sheely’s death.
Also named in the lawsuit filed in Montgomery County Circuit Court were Frostburg running backs coach Jamie Schumacher, assistant athletic trainer Michael Sweitzer Jr. and helmet manufacturer Schutt Sports. The plaintiffs claim the individual defendants, among other things, ignored the warning signs that Sheely was experiencing severe head trauma, while the helmet manufacturer was alleged to make false promises about its product.
The family issued the following statement about the lawsuit: “It is inconceivable to us how, with all the attention on concussions, there is still no unified enforcement to prevent dangerous drills, stop false safety claims or ensure proper medical attention to concussed athletes. We are haunted by the knowledge that Derek’s death was preventable and we feel an obligation to share lessons that could prevent other children from suffering Derek’s fate.”
The concussions allegedly occurred over a three-day span that August, when Sheely, a senior fullback and team captain, sustained hits in full-contact drills.
The plaintiffs, in their complaint elaborated on the drills, focusing on one in particular — a drill in which the fullback collides repeatedly with a linebacker.
The drill “has been criticized by certain National Football League teams and other leagues as extremely dangerous, intolerable and meaningless. The drill is similar to the so-called ‘Oklahoma Drill’ – but even more dangerous. The fullback and tailback line up behind the quarterback. A linebacker stands approximately 16 yards away from the fullback. The linebacker is not allowed to defend himself; instead he is required to stand upright and ‘act like a dummy.’ The quarterback hands the ball off to the tailback, and the fullback and the linebacker are required to smash into each other at full speed. If the linebacker attempts to defend himself, or the fullback does not run full speed into the linebacker, Defendant Schumacher would require the players to repeat the drill. The Drill continues for approximately fifteen minutes with very little, and at times, no rest. During the course of the Drill, each player takes approximately 30-40 sub-concussive, or concussive, blows to the head.”
While doing the drill, Sheely began bleeding “profusely” from his forehead, according to the complaint. The plaintiffs painted a picture of a coaching staff that didn’t care about Sheely’s injuries. The trainer, they alleged, would merely bandage Sheely up so he could execute the drill again.
That happened for the last time on Aug. 22, 2011. After colliding with a player, Sheely told the assistant coach he “didn’t feel right” and had a “headache.”
“Stop your bitching and moaning and quit acting like a pussy and get back out there, Sheely!” Schumacher allegedly replied. Sheely resumed the drill. After another collision, he collapsed on the sideline. His final collision caused brain herniation, an acute subdural hematoma, and massive vascular engorgement. He was airlifted to the hospital, where the doctors performed an emergency craniectomy. He died six days later.
Plaintiffs: Program’s Culture Led to Second-Impact Syndrome
The plaintiff maintained that the medical cause of death was second-impact syndrome, “a rare, but often-times fatal consequence that occurs when an individual sustains an initial concussion and then suffers a second head injury before the symptoms associated with the first impact have cleared.”
The reason this syndrome may have been ignored may stem from the culture at Frostburg State, where, according to the plaintiffs, “the coaches marginalized injuries, punished players for disclosing them and challenged players to play through pain.”
Plaintiffs Assail NCAA
“The NCAA has neglected the central purpose for which it was established-to protect student-athletes-and now its primary purpose is to generate revenue for its conferences and members,” wrote the plaintiffs
“Moreover, in January 2010, David Klossner, the Director of Health and Safety for the NCAA, testified to Congress that the ‘core purpose of the Association is a commitment to govern athletics in a manner designed to protect the health and safety of all student-athletes.’”
Turning to the concussion issue, Klossner told Congress that the Committee on Competitive Safeguards and Medical Aspect of Sports “determined that a common player rule is necessary to provide an emphasis on the significance of head injuries … .” Klossner went on to say that the “proposed playing rule … would mandate removing from competition and practice a student-athlete ‘who exhibits signs, symptoms or behaviors consistent with a concussion.’” Lastly, the plaintiffs noted that Klossner said the NCAA would “explore emerging trends in medical management of concussions” such as “possible limitations on head contact during practice.”
In reinforcing “its legal duty owed to Derek and all student-athletes, the NCAA affirmatively acted, in part, by passing a rule that has, according to the NCAA’s Director of Health and Safety, never been enforced despite systematic and blatant violations. The NCAA also delivered an empty promise and failed to mandate a limit on ‘head contact during practice.’
“In response to a foreseeable scenario posed by Klossner regarding what the penalty would be if a school-just like Frostburg did here—failed to follow the (Concussion Management Plan that the NCAA mandated in 2010), the Director of Enforcement Chris Strobel, replied:
“Isolated incidents of the concussion policy will be dealt with as secondary violations. The enforcement staff will treat violations as secondary unless the institution has a pattern of not following the policy and/or blatant disregard for the policy.
“Penalties will depend on the circumstances of the violation. For example, if a coach requires a student-athlete to compete after being informed the student-athlete has been diagnosed with a concussion, we would require a significant penalty (e.g., that the coach be suspended from coaching activities for one or two contests).”
The plaintiffs maintained that “just two hours later, the NCAA fatally backtracked and ripped the teeth from its enforcement. The Director of Enforcement changed his position and said that the NCAA would only require schools to have the Plan in place, but would ‘not suspend or otherwise penalize a coach pursuant to the current legislation even if the student-athlete was required to participate after having been diagnosed with a concussion:’
“I have been corrected. I apologize, but my previous e-mail to you was premature in how enforcement would handle 3.2.4.16 issues. Enforcement will only process violations involving (1) an institution not having the concussion management plan in place (secondary violation), and (2) systematic or blatant disregard for the plan that would indicate a lack of institutional control (most likely major violation.)”
The plaintiffs claimed that “distilled to its essence, the Plan rejects any measure of responsibility for the NCAA, its member schools, and the coaching staff. Instead, the burden falls squarely on the head of student-athletes — the same student-athletes who have just sustained significant cognitive impairment — to seek out medical attention.”
