By Barbara Osborne, J.D.
University of North Carolina at Chapel Hill
As of this writing, the NCAA Concussion Litigation settlement has still not been approved. U.S. District Court Judge Lee rejected first settlement, expressing uncertainty whether the $70 million testing fund was enough and lack of clarity in the way that the NCAA would enforce its concussion management policy. The new offer, filed April 15, 2015, does not specify a limit on the amount of funding to provide testing for student-athletes and former student-athletes who have suffered brain injuries.
While NCAA-bashing has become a popular sport of its own, the plaintiffs in the various lawsuits are misguided in directly their claims at the NCAA. The NCAA is a voluntary membership association; schools are not required to join an association. If a school chooses the join, they assume the responsibility of following the rules. However, the concept of institutional autonomy is a bedrock principle of NCAA membership. Schools independently determine how to manage their athletics programs and are only subject to NCAA interference if they violate an NCAA rule.
Article 3 of the NCAA Constitution delineates expectations for members. All active members are required to have a Concussion Management Plan (3.2.4.17) since August 2010. In January 2015, requirements for a Concussion Safety Protocol (3.2.4.17.1) and to provide that information to a Concussion Safety Protocol Committee (3.2.4.17.1.1) were added. The addition of these requirements to the organizational constitution begs the question: do these rules establish a duty by the NCAA to student-athletes relative to head injury? If so, should the NCAA be liable for student-athletes who suffer head injury as a result of athletics participation?
The basic elements of a negligence claim are duty, breach, causation and damage. Duty is established by a special relationship between the parties or by statute. Historically, the NCAA does not have a duty to protect student-athletes, as they are not members of the NCAA. Student-athletes are third party beneficiaries of the relationship between the NCAA and the member school. As such, the duty to provide a safe program for student-athletes lies within each member institution. However, if one were to equate the constitution and bylaws of the organization with that of our governing Constitution and statutes, it is possible to make a straight-faced argument that the NCAA voluntarily assumed a duty through these membership requirements.
Assuming that duty was established by the membership requirements, an injured student-athlete would still have to prove breach and causation in order to succeed in a negligence claim. Breach could be established if NCAA members did not have a Concussion Management Plan, were not following the Safety Protocol, and/or were not providing that information to the Concussion Safety Protocol Committee. The causation element is problematic, as head injury is caused by contact to the head, and lack of NCAA enforcement or punishment for members that don’t follow the concussion protocols is not causally related to the student-athlete’s head injury. Furthermore, assumption of risk (the participant assumes the risks inherent in the activity) is a complete defense to a negligence claim.
Some of the plaintiffs are really seeking to establish a strict liability standard — they want the NCAA to pay because they were injured. The NCAA has never been, nor should be, the equivalent of worker’s compensation for student-athletes. Sports are games, no one forces anyone to become a student-athlete, and those who choose to play assume the risks of playing. If coaches, athletic trainers, and or team physicians mismanage student-athletes with head injury, liability rightfully runs to the institution, not the NCAA.
The pending settlement offer for testing of current and former student-athletes for brain injury and strengthening the NCAA concussion protocols will improve the health and safety of student-athletes. The already implemented Concussion Management Plan and Concussion Safety Protocol requirements establish a new threshold for institutional liability which in itself can motivate institutions to comply. In my opinion, the NCAA has no liability here and is making a generous offer to fund research that will benefit countless people. The court should approve the settlement without delay.
