Risk Management and Concussions

By Ben DeCelle

            Perhaps the most difficult challenge, legal or otherwise, faced by the NCAA and its member institutions today is how to manage the risks associated with concussions in sports. Particularly within the last decade, these organizations have focused on risk management—“the process of evaluating the chance of loss or harm and then taking steps to combat the potential risk”1—as a way to minimize harm to individual athletes and decrease the likelihood that they will be subject to massive lawsuits. However, as the NCAA and member institutions have now discovered, risk management as a strategy is much more effective in other aspects of their business than with the risks associated with concussions. For example, many universities have begun to hire outside law firms or other specialists to conduct internal investigations and risk assessments in an effort to minimize the chance that they would bring in a coach or player with a risky past (and perhaps to minimize liability if a situation were to occur in the future).2 Risks associated with concussions, on the other hand, are much more difficult to manage because their occurrence is inherent in almost every existing sport. In other words, how can schools and the NCAA effectively manage a risk that is absolutely certain to occur no matter how much money or effort is diverted to it?

In January 2016, a federal judge granted initial approval of a settlement between the NCAA and a group of plaintiffs in a class-action lawsuit involving concussions.3 However, the settlement did not grant the NCAA blanket immunity and contained a significant exception that still allows student-athletes to sue their specific colleges and the NCAA on a class-wide basis.4 After learning of the exception, prominent plaintiffs’ lawyer Jay Edelson said he planned on filing new class-action lawsuits against the NCAA and individual universities in accordance with the exception to the initial settlement.5 He, along with several other law firms, has done just that. As of Oct. 5, 2016, there were 43 separate class-action lawsuits pending against the NCAA regarding its handling of concussions, though that number is likely higher as of today.6 Although plaintiffs tend to make a variety of claims in concussion lawsuits, the most common allegations include negligence and breach of contract. Just one example of these lawsuits is Mason v. NCAA et al., which was filed on Oct. 6, 2016. The class-action complaint—filed on behalf of a former University of Pittsburgh football player—contains negligence, fraudulent concealment, breach of express and implied contract, and unjust enrichment claims against the NCAA, The American Athletic Conference, The Atlantic Coast Conference, and The University of Pittsburgh.7

As a result of this wave of litigation and in an effort to better protect its student-athletes, both the NCAA and its member institutions have imposed strict guidelines for recognizing and treating concussions. For example, the NCAA mandates that its institutions implement the following four procedures:

1)  An annual process that ensures student-athletes are educated about the signs and symptoms of concussion;

2) A process that ensures a student-athlete who exhibits signs, symptoms or behaviors consistent with a concussion shall be removed from athletics activities and evaluated by a medical staff member with experience in the evaluation and management of concussion;

3) A policy that precludes a student-athlete diagnosed with a concussion from returning to athletic activity for at least the remainder of that calendar day; and

4) A policy that requires medical clearance for a student-athlete diagnosed with a concussion to return to athletics activity as determined by a physician or the physician’s designee.8

Institutions have also developed their own strict guidelines to follow. For example, the University of North Carolina’s Concussion Policy requires all student-athletes, coaches, administrators, and medical staff (i.e. – physicians, athletic trainers, etc.) to sign forms acknowledging that they have read and understand various concussion fact sheets and protocols.9 The Concussion Policy goes on further to outline protocols that must be followed such as preseason baseline testing for athletes as well as listing specific criteria that must be satisfied before athletes may return to play.10 One tool used by schools (and specifically mentioned by the NCAA) is known as the Sport Concussion Assessment Tool – 3rd Edition (“SCAT3”).11 SCAT3 is a standardized tool that allows medical professionals to diagnose concussions by evaluating an athlete’s symptoms as well as comparing their preseason baseline test scores with their post-injury scores.12

Risk management techniques such as developing specific protocols and guidelines for concussions as well as effectively implementing tools such as SCAT3 allow the NCAA and its member institutions to not only better protect student-athletes, but also to leave an extensive paper trail that can be used defensively in future concussion litigation. Because virtually every concussion lawsuit that has proceeded past summary judgment has been settled thus far, it remains to be seen whether the policies and procedures that have been refined by universities and the NCAA over the past decade will provide a defense in this upcoming batch of lawsuits.

Ben DeCelle is in his third year at the University of North Carolina School of Law.

[1] Your Dictionary: Risk Management, http://www.yourdictionary.com/risk-management#EG8x43uOdKEGUox1.99 (last visited Nov. 27, 2016).

[2] See, e.g., Dennis Dodd, Don’t be the next Baylor: Risk management pays off, CBS Sports (Sep.16, 2016), http://www.cbssports.com/college-football/news/dont-be-the-next-baylor-risk-management-pays-off/ (describing the lack of an investigation by Baylor into Sam Ukwuachu and how an effective risk management system within the University may have easily avoided the situation altogether).

[3] Ben Strauss, Judge Approves Settlement in Head Injuries Suit Against N.C.A.A., NY Times (Jan. 26, 2016) http://www.nytimes.com/2016/01/27/sports/ncaafootball/judge-approves-settlement-in-head-injuries-suit-against-ncaa.html?_r=0. The initial named plaintiff, Adrian Arrington, opposed the terms of the settlement because it only provided funds for medical care and research and did not compensate individual athletes.

[4] In re National Collegiate Athletic Association Student-Athlete Concussion Litigation, 314 F.R.D. 580, 584 (N.D. Ill. 2016).

[5] Strauss, supra note 3.

[6] Associated Press, NCAA facing 43 concussion lawsuits after latest filings, ESPN (Oct. 5, 2016), http://www.espn.com/college-football/story/_/id/17722844/ncaa-facing-43-concussion-lawsuits-latest-filings.

[7] Mason v. National Collegiate Athletic Association et al., No. 16-cv-1536, 2016 WL 6245613 (W.D. Pa. Oct. 6, 2016).

[8] Concussion Management and Diagnosis Best Practices: Diagnosis and Management of Sport-Related Concussion Guidelines, http://www.ncaa.org/sport-science-institute/concussion-management-and-diagnosis-best-practices.

[9] The University of North Carolina at Chapel Hill Sport Concussion Policy, Last Updated July 15, 2015, https://www.ncaa.org/sites/default/files/concussionpolicyNorth_Carolina2015.pdf.

[10] Id.

[11] Sport Concussion Assessment Tool – 3rd Edition, http://bjsm.bmj.com/content/47/5/259.full.pdf.

[12] Id.