NCAA Football Concussion Cases Heat Up

By Steven M. Sellers

All-American Raymond Griffin played football for powerhouse Ohio State University in the 1970s and later for the Cincinnati Bengals.

Griffin had plenty of concussions in college, but it took him decades to understand their effect on his ability to make a living, he told Bloomberg Law.

“My senior year, when I had a concussion, I know now that I was suffering from post-concussion syndrome, and it really affected my life,” Griffin said.

“I had two great job offers I had to give up because I wasn’t in my right mind,” said Griffin, who sought work after his pro career with the Cincinnati Bengals ended in 1984.

Now, 40 years later, Griffin is part of class action litigation that claims the National Collegiate Athletic Association, the Big Ten, and other football conferences fraudulently concealed the dangers of repetitive head impacts from college players.

As the conferences reaped millions in annual profits from student-athletes, including deals with media outlets and corporate promotions, the concealment has deprived the brain-injured players of jobs they should have been able to get with college degrees, the plaintiffs allege.

Four test cases have been proposed in the federal consolidated litigation that is proceeding separately from a $75 million settlement covering medical monitoring and concussion-related medical treatments.

This latest wave of suits, which seek economic loss and other damages not covered by the settlement, won’t face some of the obstacles that could shut down similar claims by professional players.

But the litigation still faces high hurdles related to 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.

Duty of Protection?

The players won’t have to contend with issues raised by pro leagues that collective bargaining agreements and workers’ compensation laws bar the concussion claims, but other challenges await, Paul Haagen, director of Duke University’s Center for Sports Law and Policy in Durham, N.C., told Bloomberg Law.

“What they’re trying to do is hang this on some generalized duty owed by the NCAA, then the conferences, and then the schools,” Haagen said.

The players cite, for example, the NCAA’s stated purpose of “safeguarding the well-being of student-athletes and equipping them with the skills to succeed on the playing field, in the classroom and throughout life.”

But Haagen’s skeptical of the claim that the NCAA, or any of the 19 football conferences, ever held themselves out as broad protectors of student-athletes.

The argument that the 12 colleges and universities named in the litigation are liable for failure to protect—known in the law as parens patriae—becomes stronger the closer the allegations come to the schools, which have a clearer responsibility to keep students safe, Haagen said.

But universities, at least the public ones, often have statutory immunity from suit as an arm of the state, raising questions about whether the duty to protect student-athletes extends to football conferences and the NCAA.

“The allegations made by the plaintiffs in these lawsuits remain very much in dispute and we vehemently deny the allegations and claims,” Stacy Osburn, the NCAA’s public relations director, told Bloomberg Law Oct. 18. “At this point, the only issue before the court is whether the plaintiffs’ cases can go forward as a class-action lawsuit.”

Test Cases

The multidistrict litigation took a significant step forward Sept. 29, when the parties proposed four test cases to determine class certification and other issues for all 96 of the pending concussion cases against the NCAA, football conferences, and universities.

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,” the proposal states.

A court hearing on the proposal hasn’t been scheduled yet, according to court records.

Griffin’s complaint isn’t one of the test cases, but his claims and those of other players may turn on the array of symptoms alleged in the four chosen complaints that include memory loss, depression, and a post-mortem diagnosis of chronic traumatic encephalopathy.

CTE is an incurable, degenerative brain disorder associated with repetitive head traumas like those that occur in football and other contact sports.

One of the proposed cases is that of Eric Weston, a defensive lineman at Weber State University in Ogden, Utah, from 1996 to 1997, who claims he was diagnosed with major depressive order and frontal lobe impairment.

Another was filed on behalf of Zack Langston, who played for Pittsburg State University in Pittsburg, Kan., from 2007 to 2010. Langston committed suicide in 2014 at the age of 26, and was diagnosed with CTE after his death, according to the complaint.

The NCAA and other defendants have proposed a test case brought by Jaime Richardson, who played for the University of Florida from 1994 to 1996. He allegedly suffers from “severe daily headaches, memory loss, dizziness, and other debilitating issues.”

In the other case submitted by the NCAA, Michael Rose and Timothy Stratton allege they suffer from ringing in the ears, memory loss, drastic mood changes, and other cognitive impairments. Both played for Purdue University in West Lafayette, Ind., in the 1990s.

Medical Monitoring Settlement

The litigation is proceeding independently of a tentatively approved $75 million settlement, also pending in the Northern District of Illinois, in which the NCAA agreed to provide medical monitoring and treatment for concussive and sub-concussive injuries for all NCAA current and former athletes.

The agreement contemplates only medical monitoring and safety protocols, not personal injury claims by players of a single sport at a single school like those alleged in the class complaints.

Former NCAA players retained the right under the settlement to bring “individual personal or bodily injury claims” and “class claims that do not relate in any way to medical monitoring or medical treatment of concussions or sub-concussive hits or contact,” the court ruled in 2016.

That language leaves a big opening for this latest set of complaints by college players who seek damages for lost career earnings and other items like medical expenses not included in the settlement.

A hearing on final approval of the settlement is slated to be held in November, according to court records.

Supportive Science

The new would-be class actions have the benefit of rapidly evolving medical research that ties head knocks in football—including subconcussive impacts—to CTE and other brain disorders.

Cognitive impairment and the risk of CTE are prevalent in college football, Ann McKee, Director of Boston University School of Medicine’s CTE Center in Boston, told an Oct. 13 congressional forum on traumatic brain injury in football.

McKee cited a Boston University study of 202 deceased football players that found CTE in 48 of 53 college players studied.

“Ninety-one percent of college players in the study had CTE,” often at severe levels, McKee said at the forum conducted by Democrats on the House Energy & Commerce Committee.

But the players still face causation questions that dog all sports concussion litigation: When, where, and how did a head impact in a sport cause a brain disorder later in life?

Griffin and other players will face a challenge in proving their cognitive impairments stem from college football, as opposed to high school and professional league play.

“Their own data seems to show that high school players have very high levels of damage,” so tying an alleged injury to college play “is a serious causation issue,” Duke University’s Haagen said.

Economic Gap

Lost economic opportunities caused by cognitive impairments, like those alleged by Griffin, are the biggest category of damages sought in these suits.

Brain-injured athletes leave college with a degree but often without the resources to cope with sports-related brain injuries, the plaintiffs say.

At the same time, they point to annual football revenue of the NCAA, athletic conferences and universities.

The Big Ten conference, for example, recently inked a media deal worth $440 million each year, while Ohio State, Griffin’s alma mater, agreed to a 15-year, $252 million apparel agreement with Nike Inc. that begins in 2018, according to a Bloomberg analysis conducted in January.

For Griffin, who has been told by his doctors he has all of the symptoms of CTE, the economic equation is simple.

“You lose your ability to make a living,” Griffin said. “Players should be compensated for that loss, because the symptoms become worse with time.”

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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