NCAA Concussion Cases – In the News...Again

by The Rothenberg Law Firm LLP
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Brain Disease Probable Factor in Former NCAA Football Player’s Death

The discussion surrounding sport-related concussions in the National Collegiate Athletic Association (NCAA) is once again making headlines as a result of the former Grand Valley State University football star, Cullen Finnerty’s updated autopsy results. Finnerty went missing while on a Michigan fishing trip in May of this year.  Tragically, he was found dead in the woods close to where he was last seen boarding a pontoon boat. The outcome of his autopsy, as reported by ESPN, revealed that as a result of inhaling his own vomit – he died of pneumonia.  The autopsy results also suggest that Finnerty became disoriented and confused because of pain medication, coupled with the fact he had a brain disease known as chronic traumatic encephalopathy (CTE).

What is CTE?

According to Boston University’s Center for the Study of Traumatic Encephalopathy (CSTE) the definition of CTE is, in part:

(A) progressive degenerative disease of the brain found in athletes (and others) with a history of repetitive brain trauma, including symptomatic concussions as well as asymptomatic subconcussive hits to the head. … This trauma triggers progressive degeneration of the brain tissue, including the build-up of an abnormal protein called tau.”

It may take several months, years or even decades before a person’s brain begins to show any changes as a result of a head injury. Therefore, even if an athlete brings their athletic career to a halt – the damage may already be done. Boston University’s CSTE identified issues those suffering CTE often incur over the course of time such as:

·      Memory Loss

·      Confusion

·      Impaired Judgment

·      Impulse Control Problems

·      Aggression

·      Depression

·      Progressive Dementia

CTE can positively be diagnosed only after a person afflicted with the disease dies.  Cullen Finnerty’s brain was studied by Boston University’s CSTE.  While CTE was not the root cause of Finnerty’s death – it may have been a contributing factor to the former NCAA football player’s demise.

NCAA Head Injuries and the Legal Arena

Last month, in an article written by Sports Illustrated, it was noted that the lawyers currently representing several head injury athletes from the NCAA asked the federal court in Chicago to grant a request for class-action status.  The initial lawsuit, Arrington v. NCAA, was filed approximately two years ago in Chicago’s U.S. District Court.

The plaintiffs in the original case include four former NCAA athletes:  two football players, one women’s soccer athlete and a men’s hockey competitor.  The plaintiffs maintain that the NCAA has not adequately protected its student athletes and did not clearly establish guidelines for handling concussions.  As stated in the initial complaint filed by the plaintiffs, “The NCAA has engaged in a long-established pattern of negligence and inaction with respect to concussions and concussion-related maladies sustained by its student-athletes, all the while profiting immensely from those same student athletes.”

What is the class-action lawsuit against the NCAA?

If granted, a class action lawsuit would increase the number of plaintiffs.  A class-action case would likely include thousands of NCAA athletes from across the United States.  The four original plaintiffs are now asking the court to basically increase the number of plaintiffs involved and ultimately approve two classes in the lawsuit.  The two proposed classes include:

1.     Medical Monitoring Class – This group would include NCAA athletes, current and former, from 18 specified states that participated from 2004 on in the following sports:

·      Basketball

·      Football

·      Hockey (both Field and Ice)

·      Lacrosse

·      Soccer

·      Wrestling

This class is limited to 18 states because those states permit physically uninjured plaintiffs to ask for medical monitoring damages for negligence.

2.     Core Issues Class – This group includes the same team sport participants and time frame referenced in the medical monitoring group above. However, in this class, there is no geographical limitation – NCAA athletes from all 50 states and our nation’s capital may be included.

What is the NCAA’s response?

The NCAA does not believe the claims against it are warranted.  A spokesperson for the NCAA, Stacey Osburn, stated that, “The NCAA has been at the forefront of safety issues throughout its existence.”  The NCAA asserts that it recently made new strides to recognize and treat head injuries through legislative efforts, outreach programs and updated rules in NCAA sports.  Moreover, the NCAA recently funded a $399,999 grant to examine the enduring consequences of head injuries in college athletics.

Heading into the future…

Concussions and other head injuries in sports and the resulting legal reparations are issues forecasted to remain with us in the near future.  College sports, the NFL and NHL are reacting.  Progress is being made in the way of player safety and stricter rules on hits to the head.  But the toll of the past has left many former players seeking remediation for health issues that they link to their career acquired head injuries.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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