Head Injury Litigation: Why No NCAA? (1 Viewer)

RJ in Lafayette

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This is meant as a serious question. I was just reading a nola.com article about John Fourcade and his physical complaints that he attributes to playing football. After reading the article, I wondered how many times Fourcade was hit playing in the NFL and how many times he was hit playing in college. I suspect the latter number is greater.

I am curious as to why the NCAA and the colleges are not being sued in a class action. A procedural defense of the NFL to the lawsuit in Philadelphia is apparently preemption under collective bargaining agreements. The NCAA and colleges don't have that defense.

Has anyone heard any talk of the NCAA being sued?
 

60minutes

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I asked the same question in another thread a week or so ago. Players have been taking hits since Pop Warner; so why target only the NFL?
 

jimrip

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The players maintain and have evidence that the NFL did studies and had prior knowledge of the dangers of concussions, yet did nothing to inform the players.. that is the basis of the lawsuit.

There is no evidence that the colleges or the NCAA did studies and sat on the results.
 

atceagle

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As guido said, the players aren't organized on the NCAA level. But give it time, it will happen. The NCAA is trying to deflect their liability to each member institution by leaving it up to each school to have a concussion protocal. The NCAA has no written concussion protocal.

Jimrip-most of the studies are performed on college campuses or university hospitals who have the needed equipment. The NCAA is simply trying to turn a blind eye to the issue because their potential liability is far more reaching than a few thousand former NFL guys.
 

superchuck500

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Off the top of my head - you may eventually see suits against the NCAA, but it's not nearly the same dynamics happening there as with the NFL.

In the pros, the players are employees of their teams which in turn participate in the league. The football field is the workplace. This is important under the law, which has developed concepts and rules that define the employer/employee relationship and the employer's duty to provide a reasonably safe workplace. When you add to this the league's history of denying the long-term implications of concussions, and the very deep pockets - you can see why the plaintiffs have pursued litigation.

I don't think it's quite the same situation in the NCAA. Though the NCAA may govern college football, I don't know if a player would as easily have a direct claim against the NCAA rather than the university at which he played. Though, yes, the universities likely have what are ultimately similar duties to the players regarding reasonable safety that, I don't think the dots are easily connected there. Plus, public institutions may have immunities or heightened standards for liability that private organizations (like an NFL team) don't have. There are also far foggier issues of damages for college players (much easier for an NFL player to demonstrate real financial damages than a college player who is likely limited only to medicals and some disability compensation). Plus, I think the NCAA has a far better record on its acknowledgement of the concussion issue (it began changing rules in the 1970s).

Not sure if this is the full story, just postulating on the likely differences between pursuing the teams/league for a pro player's concussion case versus pursuing the schools/NCAA for that of a college player.
 

superchuck500

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no union/players association
As guido said, the players aren't organized on the NCAA level. But give it time, it will happen. The NCAA is trying to deflect their liability to each member institution by leaving it up to each school to have a concussion protocal. The NCAA has no written concussion protocal.

Jimrip-most of the studies are performed on college campuses or university hospitals who have the needed equipment. The NCAA is simply trying to turn a blind eye to the issue because their potential liability is far more reaching than a few thousand former NFL guys.
I don't really see how that has anything to do with it. What would be the theory that you need a collective bargaining situation to pursue a defendant with a legal obligation to provide a reasonably safe environment for the particular activity?

I suppose having a CBA with the league solidifies that direct relationship to the league itself rather than the team-employers, but I don't think that's a threshold requirement in this situation.
 

Saintaholic

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I ask the same question everytime this issue gets brought up.

Ultimately, I think it's the reason why this case will eventually get thrown out. You can't solely blame the NFL for your brain issues if you've been playing football your entire life.

I also hate to say it, but I get the feeling that 90% of the people joining in on this suit are in it simply as a money-grab. These guys are all human, and you can't tell me that a majority of them aren't, quite frankly, jealous of the salaries of today.
 
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RJ in Lafayette

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Excellent points. Thanks for responding.

And the other issue is that the NFL is a much deeper pocket. As a practical matter, it is much easier to bring a single class or mass tort action against the NFL, which has centralized decision-making for settlement purposes, rather than suits against a hundred different colleges in different lawsuits with, as Chuck pointed out, different immunity or limitation of liability statutes in each state.

But at the very least, this would seem to be a causation or affirmative defense of the NFL--we didn't cause the problem or other entities with equal fault caused part of the problem. My question raises a hundred different issues (with many in turn raising the issue of which state's substantive law might apply).

But it seems just a matter of time before some players try to sue the NCAA and the colleges.
 

guidomerkinsrules

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In the pros, the players are employees of their teams which in turn participate in the league. The football field is the workplace. .
quick legal question born from pure ignorance - woudl this hold true for say a chemical explosion at Dow chemicals vs a chem explosion at MIT?

to your next point - i think simply for organizing the "class"
the players assoc has all the names/contacts at the touch of a finger (presumably) whereas the university would have that info for college players and i doubt they're too keen on putting those names together
 

atceagle

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Off the top of my head - you may eventually see suits against the NCAA, but it's not nearly the same dynamics happening there as with the NFL.

In the pros, the players are employees of their teams which in turn participate in the league. The football field is the workplace. This is important under the law, which has developed concepts and rules that define the employer/employee relationship and the employer's duty to provide a reasonably safe workplace. When you add to this the league's history of denying the long-term implications of concussions, and the very deep pockets - you can see why the plaintiffs have pursued litigation.

I don't think it's quite the same situation in the NCAA. Though the NCAA may govern college football, I don't know if a player would as easily have a direct claim against the NCAA rather than the university at which he played. Though, yes, the universities likely have what are ultimately similar duties to the players regarding reasonable safety that, I don't think the dots are easily connected there. Plus, public institutions may have immunities or heightened standards for liability that private organizations (like an NFL team) don't have. There are also far foggier issues of damages for college players (much easier for an NFL player to demonstrate real financial damages than a college player who is likely limited only to medicals and some disability compensation). Plus, I think the NCAA has a far better record on its acknowledgement of the concussion issue (it began changing rules in the 1970s).

Not sure if this is the full story, just postulating on the likely differences between pursuing the teams/league for a pro player's concussion case versus pursuing the schools/NCAA for that of a college player.

Here is the NCAA's stance on concussions.
Behind the Blue Disk - NCAA.org

What I find lacking is this statement:
What is the NCAA doing to prevent concussions? In August 2010, the NCAA adopted legislation requiring each member institution to have a concussion management plan. It also funds studies and informs student-athletes, athletic staffs and sport officials on current prevention and return-to-play measures. It can also recommend changes to Association playing rules to make competitions safer.

The issue I have is I've seen more concussed college players return to the same game than NFL guys. How can the NCAA enforce every recuiting violation known to man but leave it up to the schools to determine how they manage concussions?
 

superchuck500

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quick legal question born from pure ignorance - woudl this hold true for say a chemical explosion at Dow chemicals vs a chem explosion at MIT?

to your next point - i think simply for organizing the "class"
the players assoc has all the names/contacts at the touch of a finger (presumably) whereas the university would have that info for college players and i doubt they're too keen on putting those names together
A class exists based on certain legal characteristics, not whether you have names or contact info. For instance, an individual can file a class action against Verizon for alleged over-billing and that class will exist (or not) based on the nature of the class and the case . . . the original plaintiff doesn't need to have the names and contact info for all relevant Verizon customers.

On the chemical explosion question, there's way too many facts that would need to be known to really analyze that, but yes, there could likely be different issues and analysis for workers harmed by a chemical explosion at a chemical plant versus students harmed by a chemical explosion at a university. But as a starting point, you're always dealing with whether there's a basic obligation to provide a reasonably safe environment for the particular activity involved - and for that initial inquiry, I don't think there's much of a difference. Clearly, both the plant and the university have that obligation to the workers or students. But beyond that, how and why the accident occurred could impact liability and some obligations may attach to the plant owner as employer that don't attach to the university.

EDIT - And of course, as RJ mentions, you've got the worker's comp issue that would bar actual tort suits . . . but I was more referring to liability theory rather than recovery mechanisms.
 
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RJ in Lafayette

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Guido, without giving any legal advice, with the Dow explosion, employees of Dow would receive benefits under worker's compensation but could not sue Dow in tort unless there was an intentional act (which is very hard to show), and third persons injured could sue Dow in tort.

With the college explosion, I would think that all persons injured could sue the private university in tort if the university's fault caused the explosion.

This is a very general explanation.
 

superchuck500

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Here is the NCAA's stance on concussions.
Behind the Blue Disk - NCAA.org

What I find lacking is this statement:
What is the NCAA doing to prevent concussions? In August 2010, the NCAA adopted legislation requiring each member institution to have a concussion management plan. It also funds studies and informs student-athletes, athletic staffs and sport officials on current prevention and return-to-play measures. It can also recommend changes to Association playing rules to make competitions safer.

The issue I have is I've seen more concussed college players return to the same game than NFL guys. How can the NCAA enforce every recuiting violation known to man but leave it up to the schools to determine how they manage concussions?
For precisely the point of liability and lawsuits. If the NCAA has recommendations and guidance for the schools but doesn't actually require the schools to do anything - it's then on the school if concussions are mismanaged. If the NCAA instead requires the schools to do certain things and those things may be shown to be harmful or at least less effective than other measures that should have reasonably been required, the NCAA is far easier target because it was the one that mandated how concussions were managed.
 

atceagle

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For precisely the point of liability and lawsuits. If the NCAA has recommendations and guidance for the schools but doesn't actually require the schools to do anything - it's then on the school if concussions are mismanaged. If the NCAA instead requires the schools to do certain things and those things may be shown to be harmful or at least less effective than other measures that should have reasonably been required, the NCAA is far easier target because it was the one that mandated how concussions were managed.
So isn't there some negligence in that way of thinking? Would the NFL be less liable if they left concussion management up to each team?
 

superchuck500

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So isn't there some negligence in that way of thinking? Would the NFL be less liable if they left concussion management up to each team?
It gets back to what I was initially saying about the direct relationship. In the NFL, the league isn't simply a sanctioning body - but a private enterprise comprised of 32 private organizations. The league has direct control in the relationship between the teams and the players. (For instance, the league approves contracts - which are league-controlled standard agreements. The league sets and controls many aspects of the employer/employee relationship and not simply the rules of game and how the competition is conducted).

These things are never black and white. It's all about points and counterpoints that make up a particular theory or result. But I think there are many aspects of the relationship between an NFL player and the league as an enterprise that are not analogous to the relationship between the college athlete and the NCAA.

When you have some legal distance, you want to maintain it. So I think that's likely behind the NCAA's decision not to mandate specific concussion protocols. Could someone try to make the case that the relationship was already sufficiently direct that the NCAA had an obligation to mandate reasonable protocols rather than leaving them to the schools? Sure, someone could argue that.
 

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