US Sports Law Year in Review (2017/18) – Part 11: Personal injury, health and safety

Friday, 29 June 2018

This article originates from the paper entitled Sports Law Year in Review 1, which gives a high level overview of key sports law developments in the United States between 15 May 2017 – 30 April 2018.

For ease, we’ve broken down the paper into its respective chapters, which will be published in turn as follows:

Agents and agent regulation
Leagues – labor matters
Leagues – non-labor matters
Contracts
Torts
Individual sports
College, high school and youth sports
International and Olympic sports
Title IX/Gender equity and civil rights;
Intellectual property and broadcasting
Personal injury, health and safety
Stadiums and venues
Sports Betting/Daily Fantasy Sports;

It was drafted under the supervision on Professor Mattew Mitten and Professor Gabriel Feldman, and was presented at the Sports Lawyers Association Conference in Washington DC. The SLA, a non-profit, international, professional organization whose common goal is the understanding, advancement and ethical practice of sports law. Each year in May the SLA hosts an Annual Conference at which the above topics are presented and debated.

LawInSport would like to thank the SLA and in particular Professor Mitten and Professor Feldman for permitting the republication of this work.

Concussion-Related Litigation

NFL’s disability plan

The Fourth Circuit ruled that the NFL’s disability plan administrator abused its discretion in denying “Football Degenerative” benefits to a retired player for total and permanent disability as a result of playing NFL football, which occurred within 15 years after his NFL retirement. The court noted that he sustained more than 69,000 full-speed contact hits while playing football causing him to experience symptoms associated with CTE and requiring him to stop working as a high school teacher and football coach and that an independent neurologist opined that his brain injury was NFL football-related. and worsened “over a period of 5-10 years.” It determined that “expert opinions concerning [his] CTE-injuries established at least a presumption that [he] was entitled to Football Degenerative benefits, and the [plan administrator] did not rely on substantial evidence to contradict them. Solomon v. NFL Player Retirement Plan, 860 F.3d 259 (4th Cir. 2017).

NFL’s billion-dollar concussion settlement

The first two claims have been paid as part of the NFL’s billion-dollar concussion settlement; $5 million for a qualifying diagnosis of ALS (May 26, 2017), and $4 million for a qualifying diagnosis of CTE (June 5, 2017). The names of the former players in question have not been disclosed, but the amounts indicate that both parties would have played a minimum of five seasons for the NFL and were diagnosed before the age of 45.

Around 180 former NFL players applying for assistance under the league's $1 billion concussion settlement have seen those requests "denied." Ronnie Lippett’s attorney said the NFL and "court-approved administrator processing the claims are unfairly denying benefits to brain-injured players or are trying to reduce or reverse monetary awards through appeals, audits, and other tactics." Through March 13, 2018, 1,703 former players had submitted claims for monetary awards since the process began nearly a year ago, but only 156 players (less than 10%) have received payments of a combined $150 million. The league has funded an additional $56 million for forty-five other players, but the payments “had yet to be made for various reasons." Meanwhile, only six of 1,108 players who had filed monetary claims for diagnoses of dementia had been paid through March 13. Another forty-nine claims had "received initial approval for payment, but most are pending appeals or other delays."

Class suits for concussion-related economic losses against NCAA

Class suits for concussion-related economic losses are proceeding against NCAA apart from $75 million settlement. The Class Action, with the class consisting of former college players, alleges the NCAA, the Big Ten, and other football conferences fraudulently concealed the dangers of repetitive head impacts from college players. The biggest legal issues facing the athletes will be proving causation: what hit caused what concussion and when; and also over what duty of care the conferences and colleges owed to the athletes who played for them. Four test cases were agreed upon to decide these legal issues for nearly 100 pending suits. The test cases “maximize representation” of all cases in the MDL and are “the result of an extensive process and considerable cooperation between the parties.” Lost economic opportunities caused by cognitive impairments are the biggest category of damages sought in these suits. At the same time, they point to annual football revenue of the NCAA, athletic conferences and universities.

Negligence claim against American University

A District of Columbia federal district court ruled that an intercollegiate athlete who suffered a concussion during a field hockey game and was permitted to continue playing despite continuing to experience concussion symptoms alleged facts sufficient to support a negligence claim against American University: “as one of its student athletes, the Court agrees that it was reasonably foreseeable that ‘[o]nce [the p]laintiff reported her concerns and symptoms to [the University] and its agents, servants, and employees, [it] owed a special duty to [her to] act reasonably to take precautions and to minimize the risk of injury.” The court dismissed the plaintiff’s medical malpractice claim against the NCAA because “the NCAA, through the Sports Medicine Handbook and its policies, only provides guidance for the consideration of its member institutions and does not establish a standard of care, instead deferring to the member institutions the responsibility of developing sports medicine policies for [t]he care and treatment of their student-athletes.” On the other hand, it ruled that plaintiff’s allegations that the “NCAA undertook and assumed a duty to protect the physical and mental well-being of all student-athletes participating in intercollegiate sports, including [her,] ... [and] a duty to protect studentathletes from brain injuries stated a negligence claim.” Its ruling suggests the NCAA has a legal duty to exercise appropriate oversight over its member institutions’ Concussion Management Plans. The court dismissed the plaintiff’s negligence claim against the Patriot League alleging it “assumed the same duties and responsibilities as the NCAA . . . because [its] Policies and Procedures provides that ‘Patriot League institutions are expected to abide by all rules and procedures set forth in both the NCAA and Patriot League Materials’” because “public policy considerations provide support for shielding athletic conferences from litigation involving an injury to an athlete based on an athlete’s participation in a sporting event sanctioned by the athletic conference, without a showing that the athletic conference took affirmative steps to establish a requisite duty of care.” Bradley v. NCAA, 2017 WL 1364853 (D. D.C.).

Head injury and concussion protocols

In 2009, the Washington state legislature enacted legislation requiring schools to develop head injury and concussion protocols (“the Lystedt Law”), which creates a private right of action according to the Washington Supreme Court. A high school athlete died as a result of complications following a hard hit to the head by another player during a football game. The boy’s parents alleged that the coach’s grossly negligent or reckless actions subsequent to the hit contributed to their son’s death. In regard to the parents’ common law negligence claim, the court ruled that an implied right of action arose from the Lystedt Law, which encompasses three duties: 1) school districts are required to create and distribute to coaches, youth athletes and parents, a head injury and concussion sheet that must be signed by athletes and their parents; 2) a youth athlete suspected of having suffered a concussion must be immediately removed from play; and, 3) a youth athlete who sustains a concussion may not return to play without written clearance by a medical provider. The court also ruled that the Lystadt Law requires coaches to monitor athletes for signs of concussions and remove athletes from player when those signs are present. Finally, the court found that while a volunteer coach was entitled to limited immunity for negligent conduct, such immunity did not extend to the coach’s alleged gross or reckless conduct. Swank v. Valley Christian School, 398 P.3d 1108, 1113 (Wash. 2017)

No constitutional right

The Third Circuit ruled that a Pennsylvania public high school football head coach is immune from §1983 civil rights liability for a player's aggravated brain injury because there was no clearly established constitutional right "to be free from deliberate exposure to a traumatic brain injury after exhibiting signs of a concussion in the context of a violent contact sport" in November 2011 when he was permitted by the coach to return to play despite showing signs of a concussion. However, this right apparently now exists because the court found evidence that a jury could find the injury was foreseeable, that the coach showed “deliberate indifference” to the risk of aggravated injury when he returned the player to practice before medical evaluation, and that the coach “took an affirmative act” that him more vulnerable to a dangerous health risk. Mann v. Palmerton Area School Dist., 872 F.3d 165 (3d Cir. 2017).

Claim against Pennsylvania Interscholastic Athletic Association dismissed

In October 2017, a three-judge panel of the Commonwealth Court of Pennsylvania affirmed the trial court’s refusal to dismiss a negligence suit by three high school athletes against the Pennsylvania Interscholastic Athletic Association (PIAA) seeking damages for concussion-related injuries suffered during participation in PIAA-regulated sports. In an unreported opinion, the court ruled that athletes’ assumption of the inherent risks of playing contact sports does not preclude their recovery for “harm as a result of the PIAA’s alleged pre- and post-concussion negligent conduct.” It concluded that the plaintiffs’ allegations stated a claim for negligence: “the PIAA failed to: adequately implement and interpret accurate pre-season and regular season baseline testing for detecting and managing concussions; track and report concussions (and require such reporting from member schools); require qualified medical personnel at all PIAA sporting practices and events with specific expertise in concussion diagnosis, treatment, and management; mandate the removal of athletes who have appeared to suffer concussions in practice as well as in games; take measures for educating teachers and other school personnel on how to implement medical recommendations of concussed athletes and make appropriate accommodations; and provide resources to student athletes in seeking professional medical attention at the time of an injury, during the course of treatment for such injury, and for necessary medical monitoring post-injury.” Hites v. Pennsylvania Interscholastic Athletic Association, No. 8 C.D. 2017 (Comm. Ct. of Pa., October 10, 2017).

Other Pending Litigation

Madison Brengle v ITF

In April 2018, professional tennis player Madison Brengle sued the Women's Tennis Association (WTA) and the International Tennis Federation (ITF) in Florida state court, seeking damages for injuries allegedly caused by repeated needle injections during anti-doping tests to monitor her blood drug tests despite having a rare medical condition triggered by injections. Her complaint asserts "[she] has been so severely harmed by the defendants' abusive conduct and medically inappropriate testing that she no longer is able to serve a tennis ball with her right arm at or near the same velocity that she has served throughout her ten-year professional career . . . and her overall game has suffered enormously from the physical and emotional consequences endured."

Kolby Listenbee suit

In February 2018 former Texas Christian University football player Kolby Listenbee sued the university, its head football coach, former athletic director, and various university officials, and the Big 12 Conference for being forced to play with an injured and unstable pelvis allegedly rendering him unable to play NFL football because of pelvic instability for which he seeks $1 million in compensatory damages. His complaint accuses TCU and its football program of “systemic abuse,” including coaches’ verbal abuse and pressuring athletes to play with injuries along with "keep[ing] the diagnosing and treating of their players 'in house' with the TCU team physicians.” It asserts: "The systematic scheme allows injured players to receive subpar treatment for their serious injuries, gives the coaches premature return-to-play decision when serious injury or harm could be caused, and creates an inherent conflict of interest." He alleges the Big 12 is liable because of its "lack of policies, procedures and protocols" to safeguard against coaches pressuring college athletes to play with injuries. Five other former TCU football players subsequently joined Listenbee’s suit as plaintiffs.

Rawleigh Williams III

In May 2018, former University of Arkansas running back Rawleigh Williams III, who stopped playing football after suffering a neck injury during the football team’s April 2017 Red-White spring practice, filed a breach of contract suit against Lloyd’s of London for failing to honor a $1 million disability insurance policy.

Douglas Randolph

In a September 2017 lawsuit filed in Indiana state court, former Notre Dame football player Douglas Randolph is seeking damages for potentially permanent nerve damage in his neck allegedly caused by Notre Dame’s concealment of his medical condition. Randolph claims that an MRI result, which showed spinal stenosis and should have resulted in his medical disqualification, was not disclosed so that he would play football during the 2015 season. Randolph v. Notre Dame, Cause No. 71C01-1709-CT000404, St. Joseph Cir. Ct (2017).

Hazing cases

Five Wheaton College students were accused of abducting Charles Nagy, putting a pillowcase over his head, tying him with duct tape, repeatedly punching and kicking him, and then leaving him partially nude on a baseball field near Hawthorne Elementary School in Wheaton. He filed suit in DuPage County court against the school and head coach Mike Swider. Nagy had to undergo two shoulder surgeries that prematurely ended his football career. The suit alleges that hazing was a common practice in the football program that coaches and other officials ignored. Nagy is seeking damages in excess of $50,000.

A hazing incident in which a 14-year-old Davidson High School (Ala.) football player sustained a broken arm in a vicious beating by 20 teammates in the school's locker room has precipitated the future filing of a $12 million lawsuit, in which the boy’s family will request that Davidson forfeit all of its 2018 season football games, all of the school's football coaches be fired, all 20 football players involved in the beating be criminally charged, and for hazing to be banned in all high schools throughout the country.

Settlements

Simon Cvijanovic

Former University of Illinois football player Simon Cvijanovic received $250,000 from the university to settle his lawsuit alleging former head football coach Tim Beckman forced him to continue playing with shoulder and knee injuries during the 2013 and 2014 seasons. After his allegations, other players also alleged mistreatment by Beckman, who was dismissed prior to the 2015 football season after the university’s investigation found extensive evidence supporting these allegations. Cvijanovic tweeted “This agreement marks the first time in history a college athlete has been rightfully compensated for his sports-related injuries.”

Cooper Doucette

Cooper Doucette received $1.3 million to settle his lawsuit against the Nashua School District in New Hampshire for paralysis suffered while tackling another player with his head down during a practice drill when he has a 15-year old junior varsity high school player. He alleged the two coaches supervising the drill negligently failed to warn about the risk of serious injury if tackling were done without keeping your head up.

Korey Stringer Institute Study

A 2017 study conducted by the Korey Stringer Institute, a sports safety research and advocacy organization at the University of Connecticut, found that several states are not fully implementing safety guidelines to protect more than 7.8 million high school student-athletes from potentially life-threatening conditions such cardiac arrest, traumatic head injuries, exertional heat stroke and exertional sickling. Individual state scores were determined based on whether a state satisfies best practice guidelines regarding these four major causes of sudden death for high school athletes. Having the most comprehensive health and safety policies, North Carolina has the highest score (79%), followed by Kentucky (71%); Colorado (23%) and California (26%) have the lowest scores.