A federal judge from the Northern District of Illinois has denied the NCAA’s motion to dismiss a concussion lawsuit brought by a former football player at Weber State University (WSU) and other similarly situated student-athletes at WSU. However, it did grant the Big Sky Conference’s motion to dismiss on jurisdictional grounds.
Lead plaintiff Eric Weston played defensive end for WSU in Utah from 1996 to 1997. In that role, he alleged that he sustained repetitive concussive and subconcussive hits during practices and games. The hits often were so severe that Weston would not be able to remember the games he played in or the injuries he suffered, according to the complaint.
Weston alleged that, during that time, the NCAA and Big Sky “failed to put in place adequate concussion treatment standards, concussion management safety protocols, and return-to-play guidelines,” wrote the court. “As a result, Weston would be put back quickly into games and practices despite his injuries. Moreover, he asserts that Big Sky and the NCAA knew at the time that such treatment, protocols, and guidelines were necessary to monitor, manage, and mitigate the risks associated with traumatic brain injury. As a result, Weston now suffers from severe anxiety, depression, fatigue, headaches, neurological disorders, memory loss, mood swings, and other debilitating health issues.”
The gist of Weston’s complaint is that the “NCAA and Big Sky regulate the WSU football program and owe a duty of care to safeguard the wellbeing of its student-athletes.” Furthermore, the NCAA and Big Sky “are governed by the NCAA Constitution, which states that their primary obligation is to ensure that ‘intercollegiate athletics programs shall be conducted in a manner designed to protect and enhance the physical and educational well-being of student-athletes.’ To accomplish this purpose, the NCAA has promulgated and implemented certain regulations and requirements for its sports, such as Operating Bylaws and Administrative Bylaws, which provide detailed instructions on game and practice rules for player well-being and safety. The NCAA also publishes a Sports Medicine Handbook (Handbook), which it updates every year. The Handbook includes official policies for the treatment and prevention of sport-related injuries, as well as return-to-play guidelines. These policies recognize that ‘student-athletes rightfully assume that those who sponsor intercollegiate athletics have taken reasonable precautions to minimize the risk of injury from athletics participation.’ As an NCAA member conference, Big Sky is required to enforce all applicable NCAA policies to protect the health and safety of WSU football players, such as Weston. In addition, member institutions such as WSU also are required to comply with all applicable NCAA rules and regulations. Moreover, the NCAA Constitution states that the NCAA ‘shall assist [each] institution in its efforts to achieve full compliance with all rules and regulations.’”
Weston contends that “as compared to Weston and other WSU football players, the NCAA and Big Sky were in a superior position to detect and mitigate the risks of concussions. And WSU football players relied on the NCAA and Big Sky to protect their health and safety by preventing and treating head-related injuries.”
Weston went on to site numerous studies, which established that:
“even minor head trauma can lead to neuropathological and neurophysiological alterations, including neuronal damage, reduced cerebral blood flow, altered brainstem evoked potentials, and reduced speed of information processing;
acceleration and rapid deceleration of the head that results in brief loss of consciousness also results in a tearing of the brain tissue;
immediate retrograde memory issues occur following concussions;
repetitive head trauma has potential dangerous long-term effects on brain function, including causing encephalopathy;
a football player who suffers a concussion requires significant rest before being subjected to further contact to avoid risk of further injury; and
there is a relationship between neurologic pathology and length of the athlete’s career in contact sports.”
He also claimed that the defendants were well aware of the studies and what could be done to mitigate the damage.
Thus, Weston asserted state common law claims of negligence (Count I), breach of express contract (Count II), breach of implied contract (Count III), breach of express contract as third-party beneficiaries (Count IV), and unjust enrichment (Count V).
Big Sky moved to dismiss the complaint for lack of personal jurisdiction. The NCAA moved to dismiss all but the negligence claim for failure to state a claim.
In its analysis, the court first considered Big Sky’s motion challenging jurisdiction.
Weston asserted that Big Sky, based in Utah, is subject to specific jurisdiction in Indiana. “His principal argument is that his claims are based on Big Sky’s failure to warn and protect him while he was playing football and that, as a member of the NCAA, Big Sky’s failure ‘resulted directly from NCAA regulations of Division I football conference that emanated from Indiana, and was applied by Big Sky through its membership in the NCAA,’” wrote the court.
“But there is no dispute that the NCAA relocated to Indiana in 1999, and Weston does nothing to explain how anything that could have happened in Indiana after 1999 could have related to his injuries that allegedly occurred at WSU in 1996 and 1997.
“What is more, Weston has not even attempted to explain how any possible contact that the Big Sky might have had with Indiana relates to the claims that he has asserted in this case. As to his contract, quasi-contract, and negligence causes of action, Weston does not argue that Big Sky did anything in Indiana that gave rise to these claims or that his alleged injuries arose out of Big Sky’s forum-related activities.
“Accordingly, Weston has failed to establish that a federal court in Indiana could exercise general jurisdiction or specific jurisdiction over Big Sky, and its motion to dismiss for lack of personal jurisdiction is granted.”
Turning to the NCAA’s motion, which was made pursuant to Federal Rule of Civil Procedure 12(b)(6), the court considered the NCAA’s first argument that Weston has failed to adequately allege that it breached an express or implied contract.
At the outset, the court wrote that “implied contracts are different from express contracts. An implied contract is ‘not created or evidenced by the explicit agreement of the parties.’ Wayt v. Town of Crothersville, 866 F. Supp. 2d 1008, 1018-19 (S.D. Ind. 2012). Rather, an implied contract is ‘inferred by the law, as a matter of reason and justice from [the parties’] acts or conduct, [with] the circumstances surrounding the transaction making it a reasonable, or even a necessary, assumption that a contract existed between them by tacit understanding.’ Id. To state a claim of breach of implied contract under Indiana law, a plaintiff cannot merely allege that ‘he had a contract with the defendant, gave the defendant consideration, and the defendant breached the contract.’ Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 603 (7th Cir. 2009). Instead, to withstand a motion to dismiss, ‘a claim of breach of implied contract requires facts concerning the promises allegedly made by the parties to the contract, how those promises were communicated and how the exchange of obligations created an implied contract.’ Robinson v. Leonard-Dent, No. 3:12CV417-PPS, 2013 U.S. Dist. LEXIS 150068, 2013 WL 5701067, at *13 n.5 (N.D. Ind. Oct. 18, 2013); see Bissessur, 581 F.3d at 603.
“In the NCAA’s view, Weston offers only legal conclusions and scant factual allegations to support his express and implied contract claims. But a review of the complaint refutes this argument.
In the complaint, Weston alleges that, in order to play football for WSU, he was required to enter into a written agreement with the NCAA that he would comply with the NCAA’s Constitution, bylaws, and regulations. In exchange, he states, the NCAA promised to conduct football in a manner designed to protect players’ physical wellbeing and to require WSU to protect their health and safety as well. Id. Weston alternatively asserts that, in the absence of an express contract, the NCAA’s conduct, as well as the many statements in its Constitution, bylaws, rules and regulations, evinced its assent to enter into an implied agreement with Weston to safeguard his health if he agreed to play football at WSU and follow the NCAA’s guidelines. According to Weston, he fulfilled his obligations under either the express or implied agreement, while the NCAA breached its promises to him, causing him great suffering and pain.
“Assuming the truth of these allegations and construing all reasonable inferences in Weston’s favor, the court concludes that Weston has pleaded claims for breach of express and implied contract sufficiently to defeat a motion to dismiss under Rule 12(b)(6).”
The court then considered the NCAA’s challenge of Weston’s assertion that he was a third-party beneficiary to a written contract between the NCAA and WSU, and that the NCAA has breached that contract, thereby damaging him.
“A third-party beneficiary may enforce a contract by establishing:
(1) a clear intent by the actual parties to the contract to benefit the third party; (2) a duty imposed on one of the contracting parties in favor of the third party; and (3) performance of the contract terms is necessary to render the third party a direct benefit intended by the parties to the contract. Alexander v. Linkmeyer Dev. II, LLC, 119 N.E.3d 603, 613 (Ind. Ct. App. 2019)
“Among these three factors, the intent of the contracting parties to benefit the third-party is controlling.” Flaherty & Collins, Inc. v. BBR-Vision I, L.P., 990 N.E.2d 958, 971 (Ind. Ct. App. 2013). “However, it is not necessary that the intent to benefit a third party be demonstrated any more clearly than the parties’ intent regarding any other terms of the contract.” OEC-Diasonics, Inc. v. Major, 674 N.E.2d 1312, 1315 (Ind. 1996). Such intent is “established from the manifestations of the parties as exhibited by the terms of the written [contract] and testimony related thereto.'” Wecker v. Kilmer, 260 Ind. 198, 294 N.E.2d 132, 135 (Ind. 1973). Intent may be shown by naming a specific person or class of persons or “by other evidence demonstrating the intent or understanding of the parties.” Mogensen v. Martz, 441 N.E.2d 34, 35 (Ind. Ct. App. 1982).”
The court noted that the NCAA “argues that Weston has failed to allege the existence of a contract between it and WSU and that he merely points to evidence outside of the contract to establish intent. The Court disagrees.
“Weston alleges that the NCAA and WSU entered into a written agreement by which the NCAA agreed to promulgate rules and regulations, including those set forth in the NCAA’s Division Manuals, Constitution, and Bylaws, to protect the safety and physical well-being of each student-athlete. In exchange, WSU agreed to abide by and enforce those rules in order to protect the health of each student-athlete. The terms of this agreement, as alleged in the complaint, expressed specific commitments by the NCAA and WSU in the regulation of WSU’s football program to safeguard the mental and physical well-being of its football players like Weston. Accordingly, the NCAA’s motion to dismiss Weston’s third-party beneficiary contract claim is denied.”
Finally, the court considered the NCAA motion to dismiss Weston’s unjust enrichment claim (which he pleads in the alternative to his breach-of-contract claims).
“To survive, Weston is required to have alleged: ‘(1) a benefit conferred on one person by another; (2) an appreciation or knowledge by the conferee of the benefit; and (3) the acceptance or retention by the conferee of the benefit under such circumstances as to make it inequitable for the conferee to retain the benefit without payment of its value.’ See Berrett, 690 P.2d at 557.
“The NCAA solely attacks the first element, arguing that Utah law will recognize an unjust enrichment claim only if the plaintiff ‘received a direct benefit from the plaintiff.’ Jones v. Mackey Price Thompson & Ostler, 2015 UT 60, 355 P.3d 1000, 1018 (Utah 2015). In support, it relies on Jones, 355 P.3d at 1018-19, and Simons v. Park City RV Resort, LLC, 2015 UT App 168, 354 P.3d 215, 222 (Utah Ct. App. 2015).”
While “the case law is not that straightforward,” the court found solid ground.
“Weston alleges that the NCAA benefited from his play by receiving revenues from broadcasting rights, merchandising agreements, and tickets sales,” wrote the court. “In turn, the NCAA argues that any benefit that it received from Weston’s play was too attenuated to satisfy the direct benefit requirement espoused in Jones. But, at this early stage in the litigation when all allegations and reasonable inferences drawn therefrom are construed in Weston’s favor, the Court is not prepared to hold, as a matter of law, that the NCAA’s merchandising, broadcasting, and ticket revenues were too far removed from Weston’s actions to require dismissal of this claim. Accordingly, Weston will be allowed to pursue discovery regarding the nature of the revenue structure and the transactions and links between the interrelated entities that connect his football play and any benefits the NCAA may have received from it. See Rawlings v. Rawlings, 2010 UT 52, 240 P.3d 754, 766 (Utah 2010) (holding that ‘determining whether circumstances surrounding the parties’ interactions [a]re inequitable is a fact-intensive process’).”
Eric Weston, individually and on behalf of all others similarly situated v. Big Sky Conference, a Utah non-profit Corporation, and National Collegiate Athletic Association; N.D. Ill.; 2020 U.S. Dist. LEXIS 103080; 6/12/20
Attorneys of Record: (for plaintiff) Daniel Joshua Schneider, Jay Edelson, Edelson PC, Chicago, IL; Jeffrey Lewis Raizner, Raizner Slania, LLP, Houston, TX. (for Big Sky Conference, Inc., Defendant) Paul Rafferty, LEAD ATTORNEY, Jones Day, Irvine, CA; Kristina Katz Cercone, Jones Day, Chicago, IL. (for National Collegiate Athletic Association, Defendant) Mark Steven Mester, Caitlin E Dahl, Johanna Margaret Spellman, Kathleen Patricia Lally, Lauren K Sharkey, Marc Brian Klein, Mark Steven Mester, LEAD ATTORNEYS, Latham & Watkins LLP, Chicago, IL; Allyson Elena Riemma, LEAD ATTORNEY, McDermott Will & Emery, Chicago, IL; Amy D. Fitts, LEAD ATTORNEY, Polsinelli PC, Kansas City, MO; Andrew T Bayman, LEAD ATTORNEY, King & Spalding, Atlanta, GA; Andrew S. Rosenman, Daniel Leslie Ring, Michael Allen Olsen, LEAD ATTORNEYS, Mayer Brown LLP, Chicago, IL
