Head Games: Previewing the Upcoming Legal Battles Over Concussions in College Sports

Concussions

Although the thrills of March Madness have provided a brief respite, the NCAA’s ongoing legal crises are difficult to ignore. While the federal investigation into recruiting practices in men’s college basketball[1] may be the center of attention, there is pending litigation on other issues that has the potential to redefine the relationship between college athletes and their schools. These include the In re: National Collegiate Athletic Association Athletic Grant-In-Aid Cap Antitrust Litigation antitrust case—better known as Jenkins v. NCAA[2]—which could rollback the NCAA’s amateurism regulations even further than O’Bannon did[3], and the “single school/single sport” concussion cases filed by hundreds of players against their former schools and athletic conferences.[4] The concussion litigation, which is separate from the NCAA Concussion Settlement[5] that is currently awaiting implementation[6], has the potential to clarify a school’s duty of care to its athletes and provide monetary relief for thousands of former football players.[7]

Previous Litigation and the NCAA Concussion Settlement

Similar to the NFL[8] and NHL[9], the NCAA and its member institutions have been the subject of an increasing wave of concussion-related complaints amid mounting evidence linking contact sports to diminished brain health and other neurocognitive issues.[10] The lawsuit that sparked the recent uptick in concussion litigation in college sports came from former Eastern Illinois football player Adrian Arrington, who in 2011 sued the NCAA for its “negligence and inaction with respect to concussions and concussion-related maladies sustained by its student-athletes.”[11] Other players followed suit[12], and the cases were consolidated in an Illinois federal court and later settled in 2014.[13]

As currently constituted, the NCAA Concussion Settlement provides all former NCAA athletes—not just football players—with medical monitoring for concussion-related injuries (the settlement has not yet been implemented due to procedural delays[14]). The settlement agreement contains two important caveats:

1) It does not provide monetary compensation to athletes concussed while playing in the NCAA[15], but
2) It allows former athletes from a single sport (e.g., football, lacrosse, hockey) to seek financial damages from their school and/or athletic conference in separate lawsuits.[16]

These carve-outs motivated a wave of “single school/single sport” lawsuits, which were consolidated in the same Illinois federal court as the NCAA Concussion Settlement and are being overseen by the same judge. [17]

Single School/Sport Cases

Over 100 “single school/single sport” cases have been filed to date, arguing that schools, athletic conferences, and the NCAA (“Defendants”) had a duty to ensure athletes’ safety given the extensive research on the dangers of concussions, but “failed to educate…[college] football players of the link between TBIs in amateur football and chronic neurological damage, illnesses, and decline.”[18] The players assert breach of contract, negligence, fraudulent concealment, and unjust enrichment claims [19] and seek damages for the past, present, and future effects of their injuries.[20]

Though the cases have been consolidated, the court has not yet decided whether to certify a class against the NCAA or against a particular conference or school. To help resolve that issue, the parties have selected two “sample” cases apiece that can best indicate whether the “single school/single sport” complaints should move forward on a class basis.[21] These test cases will proceed through motions, discovery and, if necessary, trial to determine how best to approach the remainder of the cases. At present, the four sample cases (“Sample Cases”) have been selected and are currently in the motion to dismiss phase.[22]

Arguments, Defenses, and Potential Outcomes

In the Sample Cases, the key allegation of the Player-Plaintiffs is that the Defendants “owe[d] a duty of care to safeguarding the well-being of its student-athletes,”[23] yet only recently implemented concussion management procedures. The players attempt to establish such a duty by recounting how the NCAA was founded in response to player safety concerns in collegiate football[24] and reciting several of the NCAA’s purported core values regarding athlete health.[25] In particular, the players cite the NCAA’s “Principle of Student-Athlete Well-Being,” which states, “each member institution [is responsible for]…protect[ing] the health of, and provid[ing] a safe environment for, each of its participating student athletes.”[26] In their motions to dismiss, the Defendants do not confront these claims directly, but variously argue the Player-Plaintiffs’ claims are time-barred, that no contract exists between the athlete and school/conference/NCAA, and cannot be adjudicated in the jurisdiction in which they were filed.[27]

Whether the “duty” alleged by the players in these cases exists is yet unclear. The Third Circuit held in Kleinknecht v. Gettysburg College[28] that a university had a “special relationship”[29] with a player who is “participating as an intercollegiate athlete in a sport for which he was recruited”[30] and owed the player a “duty of reasonable care,”[31] while the Tenth Circuit ruled in Orr v. Brigham Young University that BYU did owe one of its football players a heightened duty of care based on his athlete status.[32] But the duty of care pendulum has swung further in the athletes’ favor, a trend exemplified by a 2017 ruling in a former collegiate lacrosse player’s suit against the NCAA in New York state court.[33] In a novel holding, the New York court determined the NCAA “owed a duty of reasonable care to the plaintiff” due to its “significant control over the rules of play and equipment…”.[34] Since the lacrosse players were not permitted to use protective headgear during competition, the court rejected the NCAA’s argument that the players assumed the of risk of participation.[35] Analogizing this holding to the current concussion litigation could be useful for the Player-Plaintiffs: the alleged failure to educate athletes on the long-term dangers of concussions and implement appropriate safeguards is comparable to the prohibition on protective equipment in lacrosse in that both deprive athletes of tools (be it science or equipment) that could have shielded them from the risks of their sport. A March 2018 ruling by the California Supreme Court—which found that “universities have a special relationship with their students and a duty to protect them from foreseeable violence during curricular activities”[36]—could also work in the athletes’ favor.

The law is more settled on the contract issue—most courts recognize a contractual relationship between students and their universities[37]—but whether it was breached remains a question of fact. Moreover, because there may be substantially greater variation in the contracts between college athletes and their schools or conferences than there is, for example, between NFL players and their league and teams[38], a concern over whether sufficient commonality exists to proceed on a class basis also arises. Further implicating the commonality issue is that the NCAA is a far less centralized organization than a professional sports league, meaning policies on concussions could vary widely between schools and leagues.

***

The “single school/single sport” concussion litigation is far from over— it could take years before trials are reached[39]—but it remains deserving of keen attention because of its potential to fundamentally alter the legal relationship between college athletes and their schools. It could also create significant financial liability for schools if players are permitted to receive monetary damages through settlements. As a result, schools may look to improve their concussion protocols and add specific language regarding concussion management procedures in athletes’ financial aid agreements. Institutions might also introduce arbitration clauses, liability waivers, and other language restricting athletes’ ability to seek legal redress for injuries suffered during their careers.

Author Biography:

Cameron Miller is a graduate of Arizona State University’s Master’s of Sports Law & Business Program. Before attending ASU, Cameron was a college athlete at Stanford University, where he ran track and field/cross county while majoring in History.

[1] Mitch Sherman, Everything you need to know about the college basketball scandal, ESPN.com (February 23, 2018), http://www.espn.com/mens-college-basketball/story/_/id/22555512/explaining-ncaa-college-basketball-scandal-players-coaches-agents.

[2] In re Nat’l Collegiate Athletic Ass’n Athletic Grant-In-Aid Cap Antitrust Litig., 311 F.R.D. 532 (N.D. Cal. 2015).

[3] O’Bannon v. Nat’l Collegiate Athletic Ass’n, 802 F.3d 1049 (9th Cir. 2015).

[4] In re Nat’l Collegiate Athletic Ass’n Student-Athlete Concussion Injury Litig., No. 1:16-cv-08727 (N.D. Ill. Jan. 4, 2018).

[5] In re Nat’l Collegiate Athletic Ass’n Student-Athlete Concussion Injury Litig., 314 F.R.D. 580 (N.D. Ill. 2016).

[6] Diana Novak Jones, NCAA Concussion Deal Delayed 5th Time Over Notice Issues, Law360 (March 8, 2018), https://www.law360.com/articles/1020035/ncaa-concussion-deal-delayed-5th-time-over-notice-issues.

[7] Steven M. Sellers, NCAA Football Concussion Cases Heat Up, Bloomberg News (October 19, 2017), https://www.bna.com/ncaa-football-concussion-n73014471184/.

[8] In re Nat’l Football League Players’ Concussion Injury Litig., No. 2:12-MD-02323-AB, 2015 WL 12827803 (E.D. Pa. May 8, 2015).

[9] In re Nat’l Hockey League Players’ Concussion Injury Litig., No. 0:14-md-02551-SRN-BRT (D. Minn. Mar. 9, 2018).

[10] Mo Costandi, Striking Evidence Linking Football to Brain Disease Sparks Calls for More Research, Scientific American (August 3, 2017), https://www.scientificamerican.com/article/striking-evidence-linking-football-to-brain-disease-sparks-calls-for-more-research/.

[11] Third Amended Class Action Complaint at 1, Arrington v. Nat’l Collegiate Athletic Ass’n et al., No. 1:11-cv-06356 (N.D. Ill. Feb. 27, 2018).

[12] John Solomon, Who’s suing the NCAA? AL.com database of concussion lawsuits by ex-players, AL.COM (February 6, 2014), http://www.al.com/sports/index.ssf/2014/02/whos_suing_the_ncaa_alcom_data.html.

[13] Rachel Axon, NCAA has settlement agreement in concussion lawsuit, USA TODAY (July 29, 2014), https://www.usatoday.com/story/sports/college/2014/07/29/ncaa-concussion-lawsuit-settlement-75-million/13309191/.

[14] Novak Jones, supra Note 6.

[15] Axon, supra Note 13.

[16] Id.

[17] Sellers, supra Note 7.

[18] Plaintiff’s Complaint and Demand for Jury Trial at 14, Burns v. Stanford University, et al., 4:16-cv-03805-KAW (N.D. Cal. Sept. 1, 2016).

[19] Id. at 20-29.

[20] Id. at 29.

[21] See Sellers, supra Note 7.

[22] The test cases are: Weston v. Big Sky Conference, Inc. et al., No. 1:17-cv-04975 (N.D. Ill. Mar. 12, 2018); Richardson v. Southeastern Conference et al., No. 1:16-cv-09980 (N.D. Ill. Mar. 12, 2018); Langston et al. v. Mid-America Intercollegiate Athletics Ass’n et al., No. 1:17-cv-04978 (N.D. Ill. Mar. 13, 2018); Rose et al. v. Nat’l Collegiate Athletic Ass’n et al., No. 1:17-cv-01402 (N.D. Ill. Mar. 13, 2018).

[23] Plaintiff’s Class Action Complaint and Demand for Jury Trial at 5, Weston v. Big Sky Conference, Inc. et al., No. 1:17-cv-04975 (N.D. Ill. June 8, 2017).

[24] Id. at 5.

[25] Id. at 6-7.

[26] Id.

[27] Defendant’s Reply in Support of Motion to Dismiss for Lack of Personal Jurisdiction at 2, Weston v. Big Sky Conference, Inc. et al., No. 1:17-cv-04975 (N.D. Ill. Dec. 14, 2017).

[28] 989 F.2d 1360 (3rd Cir. 1993).

[29] Id. at 1367.

[30] Id. at 1368.

[31] Id. at 1367.

[32] 108 F.3d 1388 (10th Cir. 1997).

[33] Peter Keating, Legal ruling adds intrigue to NCAA concussion settlement, ESPN.com (Nov. 23, 2017), http://www.espn.com/espn/otl/story/_/id/21518800/legal-ruling-involving-women-lacrosse-adds-intrigue-ncaa-concussion-settlement.

[34] Greiber v. Nat’l Coll. Athletic Ass’n., 600400/17 (Sup. Ct., Nassau Co. Sept. 5, 2017).

[35] Id. at 8.

[36] Regents of Univ. of California v. Superior Court, No. S230568, 2018 WL 1415703 (Cal. Mar. 22, 2018).

[37] Adam Epstein and Paul M. Anderson, The Relationship Between a Collegiate Student-Athlete and the University: An Historical and Legal Perspective, 26 Marq. Sports L. Rev. 287 (2016) (finding “the contractual relationship (between athlete and school) has been well established for decades, as courts have consistently found that when a student-athlete enters into a contractual relationship with the university that they attend, they are provided with an athletic scholarship in the form of a grant-in-aid that supports tuition, room and board, and books, in exchange for the athlete’s promise to remain eligible to participate in athletics.”).

[38] Compare Fairfield University Athletic Financial Aid Agreement, General Assembly of the State of Connecticut, https://s3.amazonaws.com/sidearm.sites/fairfielduni.sidearmsports.com/documents/2017/5/22/Student_Athlete_Right_To_Know.pdf (last visited April 2, 2018) with University of Missouri Financial Aid Agreement: Sport, University of Missouri Athletics, http://sports.cbsimg.net/images/collegefootball/ScholarshipsMissouri1.pdf (last visited April 2, 2018).

[39] In re Nat’l Collegiate Athletic Ass’n Student-Athlete Concussion Injury Litigation, No. 1:16-cv-08727, ECF No. 259 (N.D. Ill. Jan. 4, 2018).

The Right of Publicity and College Sports Broadcasting

Napier

College Athletes Living in Poverty

In a study conducted by the National College Players Association, based on a comparison between the 2011 national poverty line and Football Bowl Subdivision Series (FBS) room and board portions of full athletic scholarships, at least 85% percent of FBS players live below the poverty line.[1] Similarly, Shabazz Napier, now playing for the Portland Trail Blazers, said during his time at the University of Connecticut that there were nights in college where he was hungry and did not have the money for food.[2]

Why College Athletes Are Not Being Paid

There are not many businesses more lucrative than college sports, so why is this happening? One issue is a legality preventing college players from benefitting financially from their participation in college athletics—the inability to receive compensation for the televised broadcast portrayals of their likenesses.[3] The right of publicity, which varies depending on the state and whether the claim is statutory or common law-based in nature, protects a person from the unconsented use of his or her likeness, for commercial purposes.[4] The idea is simple: you cannot use someone else’s name or image, without their permission, to make money. So why can this idea not be applied to television broadcast?

An important court decision that lends some guidance came down in August 2016 at the hands of the Sixth Circuit Court of Appeals.[5] Javon Marshall, a former football player at Vanderbilt University, along with several other former college athletes, filed a lawsuit against ESPN, CBS, NBC, ABC, Fox, and eight NCAA athletic conferences.[6] Marshall and the other athletes alleged violations of their Tennessee statutory and common law rights of publicity.[7] All claims were denied.[8]

A big reason for the denial of the statutory claims was the choice of venue. Tennessee, whose law applied because the original suit was brought in Tennessee federal district court, clearly states that no right of publicity violation can arise from the use of an individual’s name, photograph, or likeness in connection with a sports broadcast.[9]

With respect to the common law claims, the plaintiffs relied on the only common law right of publicity claim heard by the Supreme Court, which held that a performer’s right was violated where he was secretly filmed doing a “human cannonball” routine and that footage was broadcast on Ohio television.[10] The District Court rejected similarities between the cases, and noted that Zacchini does not stand for the existence of a right of publicity whenever anyone performs in an event produced by someone else.[11] The Court, did, however, acknowledge that the First Amendment’s protection against right of publicity claims is not unlimited.[12]

Upon appeal, the Sixth Circuit Court of Appeals affirmed the District Court’s decision as to the statutory and common law rights of publicity claims.[13] The decision was largely based on Tennessee’s law, as applied to not only the statutory claim, but the common law claim as well: “the plaintiffs’ common-law claim is meritless, as the district court rather patiently explained, because the Tennessee courts have never recognized any such right and because, in the meantime, the Tennessee legislature has spoken to the issue directly.”[14]

Future Options for College Athletes

It seems that the choice of venue played a huge role in the denial of these claims. Were these claims brought in a different jurisdiction, say, California, which applies the right of publicity more broadly, perhaps the result would have been different.[15] Rulings from these jurisdictions may be college athletes’ last hope at being compensated for the portrayal of their likenesses in television broadcast, as the Supreme Court seems unwilling to weigh in on the issue.

Author Biography:

Jason Rozbruch is a first-year student at Fordham University School of Law. Prior to attending Fordham Law, Jason attended the University of Michigan, where he graduated with a major in History and a minor in the Afroamerican & African Studies Honors Program.

[1] Huma, Ramogi, and Ellen J. Staurowsky, E.d.D. “The Big Price of Poverty in Big Time College Sport.” Ncpanow.org. Accessed March 26, 2017. http://www.ncpanow.org/research/body/The-Price-of-Poverty-in-Big-Time-College-Sport.pdf.

[2] Sherman, Rodger. “Shabazz Napier: ‘We Have Hungry Nights’.” SBNation.com. April 07, 2014. http://www.sbnation.com/college-basketball/2014/4/7/5591774/shabazz-napier-uconn-basketball-hungry-nights.

[3] See Marshall v. ESPN, No. 15-5753, 2016 U.S. App. LEXIS 15292 (6th Cir. Aug. 17, 2016).

[4] See e.g., N.Y. Civ. Rights Law §§ 50, 51 (LexisNexis2017) (stating that a person’s right of publicity is violated, when, without his or her consent, that person’s name, portrait, picture, or voice is used in trade or advertising).

[5] See Marshall v. ESPN, No. 15-5753, 2016 U.S. App. LEXIS 15292.

[6] See id.

[7] See id.

[8] See id.

[9] Tenn. Code Ann. § 47-25-1107 (LexisNexis 2017).

[10] Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 573 (1977).

[11] See Marshall v. ESPN Inc., 111 F. Supp. 3d 815, 828-29 (M.D. Tenn. 2015).

[12] See id. at 828.

[13] See Marshall v. ESPN, No. 15-5753, 2016 U.S. App. LEXIS 15292.

[14] Id. at *5.

[15] See generally White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1399 (9th Cir. 1992) (holding Samsung liable for violating Vanna White’s right of publicity where they produced a commercial with a robot wearing clothing similar to her and spinning the Wheel of Fortune).

Reshaping the NCAA Market Power Discussion Post-O’Bannon

Ed O’Bannon was a member of the 1995 UCLA Championship Basketball Team, and the Tournament’s Most Outstanding Player. O’Bannon, now a car salesman, noticed something one day while watching a child play “NCAA Basketball” produced by Electronic Arts. What he noticed was a player, wearing the same number as he did, same height, and near identical attributes as himself, playing for UCLA. While his name wasn’t used, Ed wondered why he isn’t, or hasn’t been, compensated for someone else using his image and likeness in the video game.

O’Bannon, along with 20 other plaintiffs (including Hall of Famers Oscar Robinson and Bill Russell), brought suit in Northern District of California alleging the NCAA violated antitrust law by fixing player compensation, for usage of their image and likeness rights (“ILR”), at $0. At the time of the suit, players were barred from receiving any money generated from their ILR. This includes endorsements, merchandise sales, video games, or television exposure. The NCAA argued that in order to maintain a model of amateurism, these “student-athletes” are barred from profiting of their ILR.

Judge Claudia Wilken delivered a favorable holding for the players in early August. She ruled that the NCAA regulations prohibiting players from profiteering off of their ILR’s is an unreasonable restraint on trade violating Section 1 of the Sherman Act. Judge Wilken did not extend the holding to allow players from collecting their share of profits during their tenure as a player or in school. However, Wilken found delayed payment, held in trust, for the players and disbursed upon graduation or withdrawal, to be a reasonable restraint on trade, due to the a pro-competitive justification by the NCAA.

The NCAA has been characterized as a classic “cartel.” A cartel, in the eyes of antitrust law, is defined as a combination of producers of any product joined together to control its production, sale, and price, as to obtain a monopoly and restrict competition in any particular industry or commodity. The NCAA itself functions as a trade association that prescribes rules for its membership, comprised of over 1000 schools.

In bringing a Section 1 claim, the claimant must hurdle the threshold issues of 1) showing an agreement between two or more parties; and 2) that the alleged restraint affects interstate commerce. Both threshold issues are easily satisfied when analyzing rules prescribed by the NCAA. It has been clearly established, by the Supreme Court, due to the nature of sporting leagues, that the appropriate rule for viewing restraints of trade is the Rule of Reason, and not the Per Se rule. In a very basic explanation, the Rule of Reason, first looks to “Market Power” (Geographic and Product), and affords the ability to justify the restraint as a “reasonable” restraint because it is pro-competitive and is as least restrictive as possible.

Most significantly, in these instances, the NCAA holds complete market power in the services for Division 1 Basketball and FBS group licensing ILR. This is so simply because there is no reasonable alternative available. All member schools must assent to NCAA rules or face sanctions, and even expulsion from membership. Both measures demonstrate classic cartel behavior.

The NCAA has very recently dropped the rules prohibiting compensation beyond the stipends offered by teams. To counter the impending ramifications of being enjoined from enforcing these restraints, the “Big Five” Conferences, comprised of the ACC, Big 12, Big Ten, Pacific-12, and the Southeast Conference (SEC) have been given the autonomy to make their own rules regarding ILR compensation. While a loosening of the rules by the NCAA may seem on its face a big win for the players, it isn’t exactly the “no-strings attached” kind of a gift by the NCAA.

Going back to the Rule of Reason, the claimant must show that the alleged competitors have market power. Courts have generally held that in order to fall within the scope of Section 1, market power must near or above a 33% market share. Again, established in the NCAA O’Bannon case, the NCAA as 100% market power. However, by delegating the rulemaking to the Big Five, without further analysis, would appear that when each conference enacts a rule that it’s member schools agree on, they will fall below the a 33% market power share because each conference will, absent further analysis, account for only 20% market power.

What is most interesting is that not all conferences are created equal. Merely allowing 5 separate actors to make rules autonomously doesn’t necessitate equal market shares. Firstly, Conferences don’t all have the same amount of teams (ACC, Big Ten, and SEC each have fourteen; Pac-12 has twelve teams; Big 12 has ten teams). On its face, based solely on the amount of teams in each conference, the ACC, Big Ten, SEC would each have approximately 21.8%. The Pac-12, and Big 12 would have 18.7% and 15.6%, respectively. Further, the past 8 FBS Championship games have all featured teams from the SEC, with the SEC team winning all those contests except 2013. This seems to show more than just mere coincidence; it tends to show that in the market for elite player services, the SEC may control more of the market. A more detailed inquiry into the allocation of top recruiting classes may shed even more light onto actual market power, as opposed to the assumption of 20% per conference.

The market power determination will play an integral role in the rulemaking of the Conferences. In the past, some courts have tended to struggle with the economic analysis of antirust cases. It will be interesting to see how courts may come to grapple with this determination and also what new rules the Big Five will enact.