Yet Another Former Student-Athlete Seeks Millions from the NCAA (and Affiliated Officials and Institutions) for Major Concussion-Management Fumbles
By Margaret Kelly
With settlements from its concussion-related lawsuits topping $70 million by July, this was not a great summer for the NCAA’s bottom-line, not to mention its public image. And the fall may be no better. Former Portland State University (PSU) linebacker, Zach Walen, recently filed suit against PSU, the NCAA, and a host of other co-defendants for their allegedly egregious mismanagement of a serious concussion Walen suffered on the field at the start of his freshman season. His lawsuit prays for a judgment totaling $5 million in damages.
The initial injury around which the lawsuit revolves occurred on opening day in September, 2012, during Walen’s first game as a Viking. It is uncontested that in the fourth quarter of that game, Walen suffered a concussion after a direct blow to the head. Though coaches and staff failed to identify the concussion in the aftermath of the hit, Walen’s parents brought him to the hospital shortly after the game, where he was diagnosed.
In the main, the lawsuit alleges that following his injury, Walen did not receive the post-concussion testing and care mandated by international best practices, the NCAA, or even Portland State University’s own policies and procedures. In short, the lawsuit alleges that Walen was cleared to return to the field long before his concussion had resolved.[3] He played eight more games, as linebacker, that season. As an allegedly direct and foreseeable result of this premature return to play, Walen suffered additional concussive/sub-concussive hits while his brain was still healing, causing persistent and now permanent brain injury.
The 38-page Complaint sets out the alleged consequences of Walen’s injuries in painstaking detail. According to his lawsuit, Walen has been deeply affected physically, cognitively and emotionally. He suffers from balance trouble, crippling headaches, persistent numbness in his body and chronic difficulties sleeping; he has trouble focusing and struggles with impaired memory; he experienced and continues to experience unexplained anger, along with acute bouts of depression and anxiety. Not surprisingly, Walen was forced to quit college football and in 2013, withdrew from PSU altogether. No doctor has supported hope for recovery.
Hearing his story, one may feel great sympathy for Zach Walen, yet wonder nonetheless how PSU—much less the NCAA—is at fault, here. Football is a notoriously high-impact, if not downright brutal sport. Any player seasoned enough to survive the cut for a college team no doubt knows the risks involved when he takes the field. Classic assumption-of-the-risk doctrine, not to mention common-sense, would seem to dictate that whatever injuries a player suffers on the field are the plain result of a fully-informed and knowing decision on the player’s part to run that gauntlet.
As is doggedly spelled-out in Walen’s lawsuit, however, the question whether a football player voluntarily assumes the risk-of-concussion by taking the field is entirely independent, legally and perhaps ethically, from the question whether a university has fulfilled its duties to provide reasonably safe and conscientious care to its student-athletes on and off the gridiron. In other words, Walen may very well have freely accepted the risks that inhere to the game; presumably, however, he did not sign-up for any negligent disregard for his health or safety. And it is precisely this breed of negligence—allegedly perpetrated in the aftermath of Walen’s initial injury by duty-bound officials and institutions alike—for which Walen seeks redress.
First and foremost, the NCAA Constitution requires that concussed athletes receive a medical clearance from a physician before they can return to play. Walen never received that medical release. Instead, his coaches allegedly decided unilaterally and without any medical clearance that Walen was fit to return to the field.
More specifically, the Complaint alleges that PSU’s failure to follow a concussion management plan that was consistent with existing NCAA guidelines (or even PSU’s self-mandated policies and procedures) was a foreseeable and significant breach in the institution’s duty to provide a safe environment for its student-athletes. Likewise, the suit alleges, the NCAA has consistently violated its assumed duty to ensure a safe playing environment for student-athletes nationwide by failing in its duties to monitor and enforce its safety regulations against member institutions. Walen’s lawsuit also targets Oregon Health and Science University (OHSU), where Walen was treated, for failures and deficiencies in its post-concussion monitoring, rehabilitation and record-keeping. Finally, the lawsuit alleges related negligence on the parts of two PSU coaches, as well as Walen’s chief physician, individually.
Walen’s attendant prayer for judgment includes $3.25 million in economic damages (medical expenses, loss of personal and professional capacities, loss of earning power) and $1.75 million for the alleged pain, anxiety and general suffering he has endured and likely will continue to endure for a lifetime.
The lawsuit, Zachary H. Walen v. Portland State University et. al., was filed on August 28th in the Circuit Court of Oregon in the County of Multnomah. The firm handling Walen’s case, Hagens, Berman, Sobol and Shapiro, has been involved in additional and ongoing concussion litigation against the National Football League (NFL), as well as prior concussion litigation against the NCAA, which ended in the aforementioned $70 million settlement in July of this year. Indeed, this is not the beginning, nor likely the end of the NCAA’s troubles regarding questionable concussion-management. If past is any prelude, it could be shelling out millions more before the season’s close.
Margaret Kelly is a rising 3L at Virginia Law, where she has developed a strong interest in sports law as well as US regulatory law and policy. She graduated from Princeton University in 2010, with a major in Political Theory. She spent the summer of 2013 as a Summer Associate in Washington, DC at Venable, LLP.
[3] It is worth noting, here, that the Complaint is silent on whether Walen himself supported the decision that he return to the field. Relevance aside, given inherent power imbalances—and the fact that scholarships, like Walen’s, are often contingent on timely returns to play—it remains unclear whether a student-athlete in Walen’s position would be even capable of providing meaningfully voluntary consent.
