By Tim Epstein
Concussions are, without a doubt, a hot button issue in the sporting world these days. Just recently it was confirmed that Junior Seau, who died last year from a self-inflicted gunshot wound to the chest, had CTE. Almost all the concussion conversation, however, has been aimed at the NFL, and the number of plaintiffs suing the League now numbers in the thousands. Yet, it is well known that concussions can happen in most any sport, and in the context of tackle football, are just as likely, if not more likely, to occur at the collegiate level. This begs the question: why have so few plaintiffs joined the suit against the NCAA versus the thousands who have joined the NFL suit?
The NCAA lags behind the NFL with regard to medical services and insurance coverage awarded to former student-athletes. Further, student-athletes, for the most part, are not entitled to workers’ compensation benefits. See Waldrep v. Texas Employees Ins. Ass’n, 21 S.W. 3d 692 (Tx Ct. App. 2000). Finally, and perhaps most obviously, most former college athletes never earn a professional sports salary. Intuitively, it would seem obvious that those injured while collegians would have more to gain (from the little to no monetary benefit received for their athletic abilities) from concussion lawsuits. So, why not?
The answer is less than clear. Perhaps it is because the NCAA has near endless resources to fight the suit (not to mention the backing of all of its member institutions; conferences and schools). It could also be the fact that the NCAA delegates concussion protocol to those member institutions, and therefore, difficult to judge concussion policies across the various member institutions across the country. See NCAA Bylaw 3.2.4.17. Two reasons, however, stand out: (1) players are either unaware of the pending litigation or their ability to join the suit; or (2) if the players know about the suit, they are hesitant to join a class action lawsuit that faces a steep, up-hill battle to obtain class certification.
The former is perhaps best attributed to the deficiency in publicity associated with the matter due to sports enthusiasts’ rampant fascination with the current NFL litigation. It is also the easiest to foresee: less press equals less awareness. Spend any of fifteen minutes watching the 24-hour news cycle, and it’s clear that the NFL has become “America’s pastime.” The lack of awareness also interplays substantially with the NCAA’s lagging policy on concussions in so far as many former athletes may not realize that they currently have, or have ever had concussion symptoms. Procedurally, however, the roadblock seems to be class certification.
The case, Arrington v. NCAA, pending in the Northern District of Illinois, seeks certification of two distinct classes: (1) all former NCAA student-athletes who sustained concussions and have since developed symptoms, and (2) all former and current NCAA student-athletes who have suffered a concussion or concussion-like symptoms. 11-cv-06356 U.S. Dist. Ct. N.D. Ill. Class certification requires a commonality of legal or factual claims, which, on its face, seems to be present within the class description. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2545 (2011) (holding Rule 23(a)(2) of the Federal Rules of Civil Procedure requires a plaintiff seeking class certification to show that there are common questions of law or fact by demonstrating that the class has suffered the same injury). However, since the class contains all former student-athletes, without regard to sport or level of competition, the certification may fail.
The assumption of risk, as well as level of injury sustained in each sport can, and does differ tremendously. In fact, the three named Plaintiffs are two former football players and one former women’s soccer player. Not to downplay the risk of participation in other contact sports such as soccer, basketball, and the like, (there are significant risks, to be sure), but the sheer force and amount of impact involved with football, particularly at the Division I level, is a risk unlike most any other sport. Consider: is a Division I lineman from Alabama with first-round NFL potential more likely to inflict serious injury than a 115 pound Division III women’s soccer player? Ultimately, the same injury may result, but a court would likely rule that it did not arise from the same set of facts or occurrence.
The claims asserted also make it less likely that the class will be certified. The class action lawsuit further asserts a claim for unjust enrichment, creating murky waters for student-athletes not involved in football and basketball. It is no secret that these two revenue-producing sports fund other athletic teams and are often a tremendous asset for the University. As an example, look at the lengths that Pennsylvania Governor Tom Corbett is going by suing the NCAA to protect the PSU Football program. Contrarily, former soccer and tennis players, for example, cannot assert such a claim if they cannot point to the same significant monetary benefits obtained by the defendants. It seems that class certification; therefore, may fall short from a factual standpoint because all plaintiffs cannot assert the same allegations.
Another reason could simply be that plaintiffs’ attorneys are advising against joining the suit. We may see more individual suits as a strategic ploy to coerce the NCAA into settlement agreements or as a means of avoiding a potential dismissal of all claims where class certification is denied.
Finally, many former student-athletes simply view their collegiate athletic experience in a different way than NFL players/employees view their professional careers, resulting in a more sympathetic view towards a school than towards a professional team, producing reluctance to litigate. Student-athletes certainly get in their fair share of disagreements with coaches, going so far as to result in quitting or dismissal from the team or transfer to a different institution. However, for many student-athletes, participation in athletics provides a means to obtain an education through scholarship funds. Further, student-athletes are members of a larger student body, as opposed to professional football players simply performing on a field, but not sharing in the daily grind of the fans, as opposed to the shared journey through academia and the larger social experience that is college for the student and student-athlete.
Tim Epstein, partner and Chair of SmithAmundsen’s Sports Law Group, teaches Sports Law at Loyola Chicago Law. Tim is an advisor to the Sports Law Institute, and a member of the Fetzer Institute’s Sports Council and the SFIA Legal Task Force.
