The Annual Conference of the Sports & Recreation Law Association was held recently in Greensboro, North Carolina.
The professors evidently spoke provocatively, noting that the “plaintiffs’ likelihood of success will be enhanced by showing the NCAA’s explicit knowledge of the medical seriousness of concussions" but had actively concealed additionally failing to act on the contemporary knowledge. They added:"It will be difficult for the NCAA to claim ignorance given its partial funding of a 2003 study and its own 2010 legislative plan for concussions.”
They also explored the themes of unjust enrichment and medical monitoring.
The presentations at the Conference (www.srlaweb.org) were examining short and long-term effects of concussions on football players as well as pending “concussion” lawsuits against the NFL and the NCAA and what their potential outcome might be.Sharp, Baker, and Ciccolella noted that the first study was completed on the cumulative effects of concussions in American football players in 2002. “Historically, the athletic community has downplayed and overlooked the severity of the effects of concussions,” they wrote in a summary of their presentation.
Pending litigation against the NFL from 21 separate actions in six different states was addressed ( for background read SPACE report on ex-players sue NFL over concussion) : “Allegedly, all of these retired (300 plus) players suffered numerous concussions which were improperly diagnosed and treated throughout their careers leading to current symptoms related to traumatic brain injuries,” they wrote. “Further, the complaint alleges that the players were not warned by the defendants of the risk of long-term injury due to concussions and that the league-mandated equipment did not protect the players from injury. The causes of action stated in the complaint include negligence, fraud, strict liability, and failure to warn. The plaintiffs’ chances of success are enhanced by comparing the NFL’s actions to the lawsuits against the tobacco industry alleging that the NFL engaged in a pervasive, fraudulent cover-up of the data showing links between concussions and cognitive decline (Culhane, 2011).”
The two concussion lawsuits filed against the NCAA last Autumn in federal court (N.D. Ill) were also examined, scrutinising the action taken by former football players who claimed that they suffered repeated concussions. “They alleged numerous failures of the NCAA to protect players from medical risks associated with repeated concussions,” they wrote. “Causes of action in these suits include negligence, fraudulent concealment, and unjust enrichment.”Links to SPACE coverage of the Concussion issue from last year including an explanation of what actually occurs in the brain are here: SPACE links to concussion blog titles
A recent youth concussion bill had been proposed in Wisconsin aiming to establish and develop guidelines & provide information to educate coaches, student-athletes and their parents about the risk of concussion and head injury in youth athletic activities. It has, however, been stalled in the state's senate. (read SPACE report on how concussions can affect children & younger athletes)
Rules for removing individuals who are suspected to have sustained a concussion or head injury from play were to have been created, and the bill would also require that these same individuals be evaluated by and receive written clearance from a trained health-care provider before returning to play.
The bill is supported by the NFL, the Green Bay Packers and a variety of medical groups who plan to hold a news conference later this month in order to bolster support for the bills final passage.
Watch this SPACE for developments in this currently 'hot' topic area in sports law as well as the medical profession.
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