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Collegiate concussion cases with implications for the sports industry

Player-as-plaintiff litigation is on the rise across sports, and concussion litigation in collegiate athletics has led the trend. Importantly, against the backdrop of evolving medical research and increasing demands for player safety, individual collegiate concussion cases are progressing faster than large class actions against the NCAA that have been lingering for years.

Individual collegiate concussion cases have not been bogged down in years of class proceedings. As a result, they are tackling cutting-edge substantive issues — such as what duties were or are owed to players — with potentially far-reaching implications for college sports and beyond.

Three of the most impactful of these individual cases involve Notre Dame, the University of Texas and American University:

Schmitz v. NCAA & Notre Dame: Steve Schmitz, a Notre Dame running back in the 1970s who died in 2015, and his wife have contended that the NCAA and Notre Dame had, among other things, breached their alleged duties to (1) educate him about concussion symptoms and the risks of exposure to repeated hits to the head, and (2) implement health and safety protocols. Schmitz alleged that this caused him to develop chronic traumatic encephalopathy, symptoms of which were not diagnosed until 2012 — 35 years after he last played college football. He claimed it was not until his diagnosis that he understood he should seek legal relief.

The Schmitz case weaved its way through the Ohio state court system and became the first collegiate concussion case to reach a state’s highest court. The Ohio Supreme Court is now deciding a potential landmark issue: Does the “discovery rule” allow former players to file suit based on traumatic brain injury symptoms that do not manifest until decades after the alleged head trauma occurred? The answer makes the forthcoming decision one to watch, as it will affect existing cases and potentially spur new ones beyond just college football.

Deb Ploetz, shown here with Greg Ploetz in 2014, reached a settlement at trial.getty images

Ploetz v. NCAA: The widow of Greg Ploetz, a Texas linebacker who played in 1968, 1969 and 1971, sued the NCAA in Texas after doctors posthumously examined Ploetz’s brain and concluded he had stage 4 CTE — the final and most severe stage of the disease. Deb Ploetz alleged college football caused her husband’s CTE and premature death. The NCAA argued, among other things, that it could not be liable for Ploetz’s injuries and death because he knew that playing football carried an inherent risk of suffering hits to the head.

Recently, Ploetz was the first collegiate concussion case to make it to trial. However, the NCAA entered into a confidential settlement with Ploetz’s widow midway through trial. Although the settlement left the legal issues in the case unresolved, the fact of the settlement may embolden player-plaintiffs to file more lawsuits and make more aggressive settlement demands.

Bradley v. NCAA et al.: Jennifer Bradley, a former American University field hockey player, brought a variety of contract and tort claims in federal court in Washington, D.C., against the NCAA, AU and others, stemming from alleged failures to provide proper medical care after a head injury during a game in 2011. The court has allowed the case to proceed to discovery, finding that the plaintiff adequately alleged that the NCAA and AU may have acted negligently based on the plaintiff’s allegations that they failed to ensure coaches and trainers were adequately educated on concussions and to implement a concussion-management plan. The court did, however, dismiss the plaintiff’s breach of contract claims, finding no contract existed between the plaintiff and any of the defendants.

Bradley is a case to watch. It is now in discovery, where the parties are gathering facts. Then, the parties and the court will have the opportunity to shape the contours of what, if any, concussion-related duties athletic conferences and institutions owe to players.

Long-term, these three bellwether cases show that the future legal relationship between student athletes and their schools, their conferences, and the NCAA is uncertain and evolving. Near-term, they indicate that concussion litigation won’t soon go away.

Michael Nelson and Brienne Letourneau are partners in the Chicago office of the law firm of Jenner & Block LLP. Maria C. Liu is an associate in the firm’s Washington, D.C., office.

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