Concussion Management and the NCAA
Litigation Case — Concussion Management
The case of Adrian Arrington, Derek Owens, Mark Turner and Angela Palacios v. National Collegiate Athletic Association arose from the consolidation of a On September 12, 2011, a class action filed against the National Collegiate Athletic Association (NCAA), Adrian Arrington v. NCAA, on September 12, 2011, and a second lawsuit, Derek Owens et al. v. NCAA. The complaints allege that the NCAA was negligent with regard to protecting student athletes from the risk posed by their game play and practices for concussions. The complaints extend to four distinct types of negligence as follows: fraudulent concealment, medical monitoring, unjust enrichment, and negligence. Specifically, the plaintiffs allege the following: The NCAA did not ensure that coaches received adequate education about proper tackling techniques. The NCAA did not provide education on concussion-like symptoms to student athletes, trainers, or coaches. The NCAA did not implement system-wide guidelines for return to play. The NCAA did not implement guidelines for screening and detecting injuries to the heads of student athletes. The NCAA did not implement legislation to address the treatment follow-up and eligibility for student athletes who sustained multiple concussions. And, the NCAA did not put in place support systems for student athletes who were considered “unable to play or even lead a normal life.”
The plaintiffs seek to represent two nationwide classes: One inclusive class consists of NCAA student athletes who sustained concussion or suffer from concussion-like symptoms as a result of playing sports and are still experiencing the effects of those head injuries. The second class is also of NCAA student athletes who sustained concussions or did suffer concussion-like symptoms while playing sports, but who do not appear to be still experiencing the symptoms or have not have their lives fundamentally disrupted by the head injuries. In both classes, student athletes are not defined by gender or by type of sport played (read: football) as the case addresses all NCAA sponsored sports and NCAA student-athletes.
The NCAA asserts that it has consistently followed the rules and implemented the guidelines designed to protect student athletes and educate them about concussion. Moreover, the NCAA passed legislation in 2010 that required all schools that are members of the NCAA to adopt a Concussion Management Plan. With regard to the NCAA legislation, plaintiffs argue that the reporting responsibility for concussions in student athletes is borne by the athletes, as per NCAA Rule 3.2.4.17. For its part, the NCAA asserts that a fact-intensive analysis of all named players would need to take place in order to certify that student athletes belong to one class or the other. The fact-intensive analysis would require determinations about each alleged injury, the knowledge each student athlete holds with regard to concussion risks, and — importantly — would depend on each plaintiff’s assertion that he or she relied on alleged fraudulent concealment while playing NCAA sports.
Critique of NCAA Concussion Management Plan Legislation
According to the NCAA Concussion Management Plan Guidelines, a number of people are charged with shared responsibility for protecting players from head injuries. With this pass-the-buck foundation, it is too easy for an individual to not assume responsibility, thinking someone else will take charge. Moreover, the risks are borne solely by the athletes to the degree that the sports teams do not experience repercussions, nor do the schools get punished when a trainer or coach behaves in an irresponsible or reckless manner with regard to the safety of the student athletes. There are just basically no established procedures for addressing negligence in concussion management. Not all concussions are alike and symptomology is not always neatly linear with severity of a head injury. Problems arise when a head injury does not show up in a customary or expected manner on a CT brain scan or an MRI. The NCAA or the conferences may put pressure on schools, coaches, trainers, or students — that heightens the risk to the student athletes — when these less conventional concussions occur.
One very glaring inadequacy in the rules is that when players lose consciousness, they are only removed from the play or practice for the duration of the day of the injury. This is completely unsatisfactory and misaligned with concussion management best practices. The NFL has instituted a reasonably sounding preventive measure in which a trainer is required to observe and monitor — from the press box — any and all players who might have sustained a concussion. By focusing attention on injured players in this way, coaches and trainers who are busily engaged in the active play will not be distracted from the injured players, nor is it easy under this conditions for a player who is injured to convince a coach or trainer otherwise.
Despite the increased regulations and requirements of NCAA member schools for Concussion Management Plans, the rate of concussions sustained — as recorded by the NCAA’s Injury Surveillance Program — has not diminished. In fact, over an eight-year period, it has sustained approximately the same rate. One variable is that greater effort has gone into recognizing, reporting, and recording a wider range of head injuries. Nevertheless, the number of concussion reported for every 1,000 game-related exposure (which means the times when injuries can occur to athletes) was 2.5 during the 2011 football season. There has been a small decline in the concussion rate since 2004, however, the year-to-year differences are not statistically significant. These numbers illustrate the need for addition proactive steps to be taken to protect student-athletes from injury, such as the NCAA rule change in football that moved touchbacks to the 25-yard line and instituted new helmet rules.
References
Anderson, P. (2012, September 19). Concussion litigation against the NCAA is gathering momentum. Concussion Litigation Reporter. Retrieved http://nflconcussionlitigation.com/?p=1137
Anderson, S. (2012, August). NCAA Institutions and a Duty to Warn Football Student-Athletes: A Look into the Arrington v. NCAA case. Retrieved http://nflconcussionlitigation.com/wp-content/uploads/2012/08/NCAA-Institutions-and-a-Duty-to-Warn-copy1.pdf
Corrected Consolidated Complaint. United States District Court Northern District of Illinois Eastern Division. Retrieved http://www.scribd.com/doc/
78428992/NCAA-Complaint
Hendrickson, B. ( 2012, September 21). Concussion rate remains steady. National Collegiate Athletic Association. Retrieved http://www.ncaa.org/wps/wcm/connect/public / ncaa/resources/latest+news/2012/september/concussion+rate+remains+steady
Schmidt, L.I. (2002, October 23). Head games. Fear the Hat. [Blog]. Retrieved
http://fearthehat.wordpress.com/
2012-2013 NCAA Sports Medicine Handbook Retrieved ncaa-sports-medicine-handbook
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