INTRODUCTION 56 PART II: HISTORY OF ACCIDENTAL INJURY INSURANCE COVERAGE UNDER NCAA POLICIES AND PRACTICES 58 A. Where We Are and How We Found Ourselves Here 58 B. Playing by the Rulebook, a Quick Discussion of NCAA Bylaws 60 C. What the Revenue Stream of a (Billion Dollar) Non-profit Entity Actually Looks Like 62 PART III: THE ACTUAL IMPACT OF COVERAGE GAPS 64 A. Getting to the Specifics, What the NCAA Bylaws actually stipulate 64 B. Significance of Such Policies in Light of Current Brain and Spinal Injury Research and Long Term Health Effects 67 C. Assessing the Outcomes of Ambiguity in Primary Coverage Responsibility 69 PART IV: POLICY CHANGES THAT IF ADOPTED COULD BRIDGE THE GAPS IN STUDENT-ATHLETE ACCIDENTAL INJURY COVERAGE 72 A. Recommendation One: A Comprehensive Regulatory Scheme for Student Athletes Primary Accidental Injury Insurance Mandated and Enforced by the NCAA 72 B. Individual State Legislation Outlining Guaranteed Rights of Student Athletes Attending "Qualifying" Member Universities 76 PART V. CONCLUSION 83 APPENDIX A 85 Exhibit 1 85 Exhibit 2 86 PART I: INTRODUCTION
What if in the terms of an employment agreement, the healthcare provision was not guaranteed? What if financial burdens associated with a major accident and health crisis could be excluded if not considered a "covered accident?" What if, not only the healthcare provision, but the entirety of the agreement could be revoked "at will" because of an accidental injury? Yes, you read that correctly, whether or not your employer was going to provide you with healthcare benefits is discretionary, and benefits provided are tiered based on performance amongst your colleagues. In this scenario, your underperformance could lead to your healthcare benefits being denied outright. To further complicate matters, you may not be able to afford healthcare coverage to alleviate these concerns, because you are not being compensated for services rendered. The schedule you are required to adhere to does not allow for spare time to generate income necessary to pay for independent healthcare coverage. Can this legally be happening to you? Yes, in fact it is more common than you may think. You are simply upholding your end of a scholarship contract at a major university in the United States where you have been assured time and time again that, "everything is taken care of." Given this scenario, would you sign on the dotted line?
Sadly, despite being under fire in recent years, these are the realities of the accidental injury insurance program required of National Collegiate Athletic Association (NCAA) student-athletes. The NCAA uses the narrow definition of the term "covered accident," in its comprehensive accidental injury policy as a means to exclude a large portion of collegiate athletes from coverage who risk severe injury participating in their respective sports. (1) This definition limits the injuries it is willing to cover to those with short term and immediately assessable effects, without granting any opportunity for coverage of long-term delayed onset effects. (2) Additionally, the NCAA refuses to regulate whether a university is required to provide accident injury coverage to its student-athletes, adding a level of ambiguity to injury coverage expectation. (3)
The problem is not that benefits are not offered to qualifying student-athletes by the NCAA. In truth, the NCAA has been conducting research with member institutions and making improvements to the overall "catastrophic coverage policy" since it was put in place in 1992. (4) There are two major issues that plague the current system. The first being gaps in coverage for student athletes who are forced to shop for their own policies, not realizing that certain necessary medical tests and procedures may not be covered. (5) The second is the definition of "covered accident," and the injury reporting requirements set out by the NCAA. "Covered accident," as currently defined is problematic because it greatly limits the window student-athletes have for injury reporting and assessment. (6) These injury and reporting time frames may ultimately deprive those who may need the long-term benefits most from qualifying for coverage. Unlike a typical employer-employee relationship, where an injury may result in a worker's compensation claim or some form of post-career medical care, these student-athletes have no employment contract to rely on nor post-career benefits packages like we have seen awarded in professional sports. (7)
This article analyzes the flaws in the NCAA's current accidental injury health coverage policies for student-athletes and suggests ways to remedy the issues that plague student-athletes incurring serious injuries that may not be covered under current policies. Part I of this article outlines the history of the NCAA, and the policies relevant to the issues with accidental injury coverage currently in place. Part II looks at the significance of these coverage gaps in today's world of modern medicine and technology as well as the impact they have on the everyday life of college athletes. Part III suggests solutions to bridge the gaps in accidental injury coverage for the physical and financial futures of these student-athletes.
PART II: HISTORY OF ACCIDENTAL INJURY INSURANCE COVERAGE UNDER NCAA POLICIES AND PRACTICES
Where We Are and How We Found Ourselves Here
The NCAA originated as a means to protect the well-being of college football players in 1906, when the sport was responsible for claiming the lives of between fifteen and twenty players a year. (8) At the time, President Theodore Roosevelt mandated that safety regulations be implemented or the sport would be banned. (9) The prominent university presidents came together to promulgate safety measures and formed the NCAA. (10) The group ("commissioners") made clear that a directive of its function was to create and maintain a clear difference between athletes at the collegiate and professional levels. (11) This was the birth of the terms of art "student-athlete" and "amateurism," which officially defined the difference between compensated professionals and students receiving the benefits of education in exchange for their athletic endeavors. (12) To this day the NCAA claims that, "student-athlete success on the field, in the classroom and in life is at the heart of [their] mission," which they uphold by awarding over $2.7 billion in athletic scholarships annually to young adults across the country and across the world. (13) Looking out for the best interests of student-athletes seems simple enough, but it does leave a question for contemplation; how do ambiguities in healthcare coverage and no guarantee of long term care fit within this mission?
What was not made clear during the founding of the NCAA was the intent behind maintaining the difference between compensated professionals and student athletes; universities self-interests and overarching NCAA indemnification. (14) The commissioners were proactively eliminating student-athletes' right to unionize, and in doing so, protecting university and NCAA budgets from footing the expensive costs; specifically, the commissioners were creating a buffer between the NCAA and the costs associated with the athletic injuries and deaths they were simultaneously charged with preventing. (15)
The NCAA has countless examples throughout its history that solidify the protective shield from financial liability that these terms of art have become for them in the U.S. court system. (16) One narrative that sheds light on the power of these terms of art and applies directly to issues with accidental injury insurance coverage gaps is the experience of Kent Waldrep. Waldrep was a 1974 Texas Christian University ("TCU") student and football player, who incurred a debilitating spinal injury during an athletic contest, a "covered event," at the hands of the University of Alabama's defensive line. (17) The injury left Waldrep and his family members unsure if he would ever regain use of his extremities, let alone walk or play football. (18) TCU continued to pay for Waldrep's hefty medical expenses for a mere nine months post injury, before refusing any further coverage. (19) Waldrep's physical state left him unable to finish school and achieve a college degree, and his family struggled to finance his care through charity while challenging TCU's actions and pursuing a worker's compensation claim in court. (20) The court ultimately held that there was no employer-employee relationship between Waldrep and TCU, or any student-athlete and university as history would show, that would entitle him to a worker's compensation claim. (21) The court reasoned that, "for the purpose of worker's compensation law, the employer-employee relationship may be created only by a contract," (22) and that the national letter of intent and other scholarship obligations that Waldrep signed prior to his attendance at TCU did not clearly constitute such contract. (23)
There are numerous examples outside of medical coverage and injuries where the U.S. court system has repeatedly found that student-athletes cannot be compensated for their participation in collegiate sports as they are not employees of the school. (24) In turn, these decisions rendered student athletes ineligible for the benefits like rights to a worker's compensation claim or similar reimbursement for long-term medical costs like post-career or quasi-retirement coverage. (25) Early in the organization's life, the NCAA transformed from a means to protect student athletes from harm, into the driving limiting the expansion of student-athletes rights to fair and accessible accidental injury coverage benefits through the creation of the unique class "student-athlete".
Playing by the Rulebook, a Quick Discussion of NCAA Bylaws.
It is important to clarify specifically how the NCAA Bylaws read before diving into the issues that arise out of their...