NCAA Faces Class Action over Head Injuries

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Concussions — and the lawsuits that apparently follow — are not just for professional football players. College athletes from a variety of sports are piling on to sue the NCAA over the lasting effects of severe head injuries.

A class action filed in September 2011 by former Eastern Illinois University football player Adrian Arrington has been joined by other injured hockey, lacrosse and soccer players — most recently by Angelica Palacios, a former soccer player for Ouachita Baptist University.

Palacios was injured during her sophomore year at OBU, she says. She was wearing protective headgear when she was hit under it on the eyebrow by another player’s head during a practice. Dizzy and nauseated, she was pulled out by her coach and did not play any more that day. However, she says she was pressured to practice a few days later even though she didn’t feel well.

She joined the class action because she had headaches for a month, and her eyesight and memory are still damaged. The plaintiffs say the NCAA has been negligent in its handling of “concussions and concussion-related maladies sustained by its student athletes, all the while profiting immensely from those same student-athletes,” according to the complaint.

Strength in Numbers

The student-athletes’ suit follows on the heels of other similar suits filed by professional players against the NFL and MLS. The rash of concussion-related lawsuits can be attributed to timing: only now are we seeing the effects of bigger-stronger-faster and money ball.

Daniel B. Fitzgerald

“Medical research has allowed athletes to understand the long-term health risks associated with concussions,” which has “led many to the conclusion that previous means of treatment and prevention were seriously lacking,” says Daniel B. Fitzgerald, a lawyer with Brody Wilkinson PC in Southport, Conn. “Also, it has become obvious that college sports is big business and there is the possibility of large recoveries for lawyers and litigants.”

Another reason for the trend could be that there’s strength in numbers — no one wants to be the one whiner on a sports team. “There is also a critical mass of plaintiffs — whether they are suing the NFL or the NCAA — that removes the potential stigma of being a plaintiff in these types of cases,” notes Michael McCann, director of the Sports Law Institute and professor of law at Vermont Law School.

Michael McCann

The NCAA itself is certainly taking note of the development but seems to be saying there’s no trend to worry about. “Recent information collected by the NCAA’s Injury Surveillance Program indicates that the rate of football related concussions has remained steady over an eight-year period, even as efforts have been made to recognize and record a broader range of head injuries,” the organization announced in a Sept. 21 news release.

Hard Row to Hoe

The plaintiffs face an uphill battle against the NCAA, agree Fitzgerald and McCann. First they must overcome the of assumption of risk doctrine, which holds that if you voluntarily and knowingly take on the risks of an inherently dangerous activity, you can’t sue for your injuries.

“The plaintiffs claim that at best they were never informed of the risk of the long-term effects of concussion and at worst the risk was concealed,” Fitzgerald says.

But the NCAA will likely argue that “the risk of concussions and the long-term consequences of concussions are not something they could conceal, since medical literature has been available on these topics for some time,” points out McCann.

Then the plaintiffs might be suing the wrong people. “Notably, the plaintiffs have sued the NCAA despite the fact that their everyday well-being was in the hand of the coaches and trainers at their schools, not the NCAA,” adds Fitzgerald.

Student athletes who suffer concussions should take them seriously. “At this point, every school should have an established protocol for dealing with concussions,” Fitzgerald says. “A student-athlete should not return to competition unless he or she has been medically cleared.”

And if pressured to play hurt, they should meet with their coach and athletic director, then seek an outside medical opinion. If all else fails, says McCann, “they should ask their parents or guardian to think about getting a lawyer. No student-athlete should play with a serious injury, especially a head injury.”

If you’re concerned that your child has suffered a concussion while playing competitive sports, consider contacting a personal injury lawyer on Lawyers.com.