New Bellwether Cases Against NCAA Move Forward In Texas
By Jessica Rizzo, J.D. Candidate, Kimberly L. Sachs, Esq., and Dylan F. Henry, Esq.
Back in 2018, all eyes were on Dallas County, Texas, where aggrieved widow Deb Hardin-Ploetz had sued the National College Athletics Association (NCAA) for allegedly ignoring the injuries that led to the death of her husband.[5] When Greg Ploetz, a former University of Texas linebacker, died at the age of 66 after suffering from severe dementia for a decade, an autopsy revealed that he had an advanced stage of chronic traumatic encephalopathy (CTE), the degenerative brain disease allegedly induced by the type of repeated head trauma that football players regularly experience. Hardin-Ploetz believed the NCAA was to blame, and she sought $1 million in damages for negligence and wrongful death.
Hardin-Ploetz’s case was hardly the first of its kind, but it was closely watched by college athletics leaders and legal experts at the time because it was the first such case to go before a jury. A verdict in the widow’s favor would likely have opened the floodgates to a wave of similar negligence actions against the NCAA. All hopes and fears that the case would set a major new precedent, however, were laid to rest on just the third day of trial when the judge announced that the two sides had reached a settlement, the details of which remain undisclosed.[6]
This year, however, the families of two other former college football players—John Davis and Julius Whittier—brought their own $1 million actions against the NCAA in Dallas County, and the stakes are as high as ever.[7] Should either case be tried to verdict, the implications for college athletics and for football itself could be profound.
Family of Former SMU Lineman Alleges NCAA to Blame for Death
John Davis was a lineman at Southern Methodist University (SMU) in the 1950s. He was diagnosed with Alzheimer’s disease in 2001 and was posthumously diagnosed with stage 4 CTE in 2017. According to his family, Davis suffered multiple concussions while playing football, and in the decades following college he suffered headaches, progressive memory loss, confusion, anxiety, and motor impairment. Davis gradually withdrew from society, became increasingly paranoid, and even experienced occasional psychotic episodes, his family says. Davis’s injuries were so severe, they allege, that his wife, Karol, struggled to care for him.
In the complaint, which was filed in March 2020, Davis’s family alleges that the NCAA had a duty to protect Davis from the long-term effects of repeated head trauma when he was a college athlete. In addition, the family contends that the NCAA knew or should have known of the dangers players faced, citing medical literature on head injuries dating back to as early as 1901 that suggested such injuries allegedly caused “insanity.”[8] The complaint also cites a 1928 article in which the term “punch drunk” is first used to describe the often-debilitating condition afflicting many professional boxers after receiving repeated blows to the head.[9]
Davis’s family says that by 1933 the NCAA’s own medical handbook for schools and colleges recommended that players with concussions should abstain from play until they are symptom-free for at least 48 hours. Players experiencing longer-lingering symptoms should not have been permitted to compete for at least 21 days, according to the handbook. In spite of its awareness of the risks to players, Davis’s family contends, the NCAA “failed to exercise its power to impose system-wide return to play guidelines for intercollegiate football players and member institutions,” including SMU.[10] The NCAA’s failure to protect Davis from the long-term effects of repeated head trauma, they say, directly and proximately caused Davis’s injuries and, ultimately, his miserable and preventable death.
In April, the NCAA responded with a general denial and a laundry list of affirmative defenses.[11] Among other things, the NCAA asserted that it was not negligent, that Davis was contributorily negligent, that Davis’s claims are barred by the statute of limitations, that Davis assumed the risk of injury when he voluntarily participated in playing, and that Davis’s injuries were not proximately caused by his participation in football. The NCAA asked the court to dismiss the case.
Texas has since been pummeled by the COVID-19 crisis, with jury trials presently suspended at least through September, but Judge Paula Rosales sided with the plaintiffs at a July 6 dismissal hearing, and the case is now on track to go forward once it is feasible.
First African American UT Football Player’s Family Brings Similar Action
Julius Whittier became the first African American football player at the University of Texas in 1970. After college, he went to law school and became an attorney with the Dallas County district attorney’s office. According to the complaint his surviving sister and three children filed in June 2020, Whitter suffered repeated sub-concussive blows to the head as a student-athlete, and began experiencing memory problems and behavioral changes in 2008 that cut his legal career short.[12] He died in 2018 at the age of 68, having spent the last few years of his life in an assisted care facility.
Like Ploetz and Davis, Whittier was originally diagnosed with Alzheimer’s, but an autopsy revealed that he had CTE. “He continually spoke of how he was trained to block, using his head,” Whittier’s sister recently told the San Antonio Express-News.[13]
The Whittier family also alleges that the NCAA breached its duty to keep athletes safe, and also cites a century’s worth of medical literature as evidence that the NCAA knew or should have known about the long-term effects of repeated head trauma. They, too, have requested a jury trial. The NCAA has not yet responded to the Whittier’s complaint.
Stay Tuned
One of the few conclusions legal commentators were able to draw after the Ploetz case was that the NCAA seems to be willing to settle with individual plaintiffs for reasonable sums. As part of a class action settled in 2014, the association agreed to establish a $70 million fund for testing and diagnosing concussions in current and former college athletes, but it has not yet been ordered to pay damages to an individual plaintiff because of latent brain diseases, such as CTE.
The biggest issue with assessing liability in failure-to-warn cases is the jury and how it would decide liability and damages. Failure-to-warn cases present complex legal and medical issues, mainly on the causation element of a negligence claim. That is, a plaintiff must successfully prove that (1) a defendant knew of the long-term risks associated with repetitive concussive and sub-concussive blows; (2) the defendant had a duty to warn about those risks and failed to do so; (3) the defendant’s failure to warn caused the plaintiff to sustain repetitive concussive and sub-concussive blows; and (4) the repetitive concussive and sub-concussive blows caused a latent brain disease such as CTE. This is a very tenuous tightrope a plaintiff must walk to get from the allegations in the complaint to an actual award from the jury.
If either case proceeds to trial, and more importantly, a jury verdict, it will be the first of its kind and provide a much-needed data point for plaintiffs and defendants to assess liability in the CTE litigation world. Until then, plaintiffs, defendants, and their lawyers are left to wonder how a jury will rule on these complex scientific and legal issues.
[5] See Complaint, Hardin-Ploetz, v. National Collegiate Athletic Association, WL 10604058 (Tex. Dist. 2017).
[6] Jeremy Baur-Wolf, A Verdict That Could Have Changed the Tide, Inside Higher Ed (June 26, 2018), https://www.insidehighered.com/news/2018/06/26/settlement-highly-anticipated-concussion-lawsuit-against-ncaa.
[7] Amended Complaint & Demand for Jury Trial, Davis v. National Collegiate Athletic Association, No. CC-20-01121-D (Tex. Dist. 2020).
[8] Id. at 11.
[9] Id.
[10] Id. at 14.
[11] See Answer and Affirmative Defenses, Davis v. National Collegiate Athletics Association, No. CC-20-01121-D (Tex. Dist. 2020)
[12] See Complaint, Whittier v. National Collegiate Athletic Association (Tex. Dist. 2020).
[13] David Barron, Family of UT football pioneer Julius Whittier sues NCAA over head trauma leading to death, San Antonio Express News (June 30, 2020), https://www.expressnews.com/sports/college_sports/longhorns/article/Julius-Whittier-Texas-football-NCAA-lawsuit-15377616.php.
