"Football isn't a contact sport--it's a collision sport. Dancing is a contact sport."--Duffy Daugherty, head football coach at Michigan State University, 1954-1972 (1)
On August 22, 2011 Derek Sheely, a starting fullback on the football team at Frostburg State University, a 4755-student National Collegiate Athletic Association (NCAA) Division III school, (2) collapsed on the practice field after sustaining a blow to the head during full contact preseason drills. (3) Despite the best efforts of doctors to relieve the swelling in his brain, Sheely remained in a coma for six days before passing away. (4) Sheely's head injury occurred while participating in what is known as an "Oklahoma drill," where the fullback and linebacker are aligned on opposite sides of the ball and collide at full speed. (5) A common exercise in the first few weeks of practice at the high school and college levels, the Oklahoma drill is often used by coaches to determine which players are not afraid to hit. (6) "What the [Oklahoma] drill... showed was something simpler than technique or leverage.... It showed who had a hard nose for contact and, more importantly, who didn't." (7) However, the Oklahoma drill is now rarely used at the professional level, and many commentators have been sharply critical of what such drills actually accomplish, as in many situations, "[i]t's not even about winning a one-on-one. It's just about slamming into each other." (8)
According to a wrongful death complaint filed by Sheely's family against the university, as well the NCAA and the team trainer, Sheely's head had begun bleeding profusely at least four separate times over three days of preseason practice. (9) The team trainer treated Sheely's injuries by applying a bandage to his forehead and returning him to practice, allegedly without examining Sheely to determine if he might have a concussion. (10) During practice, Frostburg State running backs coach Jamie Schumacher purportedly encouraged his players to "lead with your head" and to hit "hat first," reprimanding those players who refused to comply. (11) After one drill, Sheely allegedly complained to Schumacher that he "'didn't feel right' and had a 'headache,'" (12) to which the coach responded by yelling, "[s]top your bitching and moaning and quit acting like a pussy and get back out there Sheely!" (13) Other players alleged that teammates who reported or complained about injuries were treated as "gripers," and were often forced to clean the practice field as punishment for complaining about their injuries. (14) All of these alleged actions constitute drastic violations of the medical community's advocated best practices on concussion management. (15)
In December 2011, Kristen Sheely wrote a letter to NCAA President Mark Emmert regarding the death of her son, in which she asked for the NCAA's support in investigating the circumstances of Sheely's death. (16) The NCAA responded by stating that while "[p]art of the NCAA's core mission is to provide student-athletes with a competitive environment that is safe[,] ... each school is responsible for the welfare of its student-athletes." (17) The response letter also noted, "[u]nfortunately, neither the NCAA nor any other organization can take the risk completely out of contact sports." (18) To this point, the NCAA has not investigated further into the death of Derek Sheely. Current NCAA bylaws mandate that member institutions maintain a concussion policy on file. (19) However, the NCAA only reviews the substance of each school's policy to determine if it meets the basic requirements of the bylaws. Further, the NCAA does not conduct oversight to ensure that member schools actually enforce or carry out their concussion policies.
As highlighted by Derek Sheely's tragic story, the NCAA has a great amount of work left to do in the regulation and management of head injuries. Its failure to properly regulate concussions has already exposed the NCAA to litigation, and will likely result in future court battles as more former college football players come forward to bring suits against the NCAA and its member institutions. Although the problem of head injuries is not unique to football, it is by far the sport in which concussions are most prevalent. (20) This Note focuses specifically on head injuries in college football. The issue of concussions in other college sports, although outside the scope of this Note, is certainly worthy of attention, and many of the policy adaptations recommended herein may be applicable to improving the regulation of head injuries by the NCAA in other sports.
Part I of this Note will examine the medical history of concussions, and the growing link between concussions suffered by football players and the development of long-term head injuries. Part II will discuss factors that exacerbate the concussion problem in football, as well as examine how the head injury issue is being addressed by the NCAA, the National Football League (NFL), and state legislatures. Part III will examine the NCAA's duty to protect student-athlete safety in light of the ongoing litigation against the NCAA, specifically the potential scope of legal liability for head injuries. Part IV will focus on what steps the NCAA can and should take to address the concussion issue, as well as the issue's potential threat to college football in its current form if the NCAA refuses to adapt to the latest scientific discoveries about the long-term consequences of repeated head injuries.
THE LINK BETWEEN FOOTBALL AND LONG-TERM HEAD INJURIES
A. The Medical Background: Concussions
The term concussion is derived from the Latin verb concutere, which means "to shake violently." (21) The American Association of Neurological Surgeons (AANS) defines a concussion as "a clinical syndrome characterized by immediate and transient alteration in brain function, including alteration of mental status and level of consciousness, resulting from mechanical force or trauma." (22) Although a concussion often involves a loss of consciousness, in many situations a person may suffer a concussion without losing consciousness at all. (23) These so-called "mild concussions" are dangerous because they are much more likely to go undiagnosed, yet may still result in the same complications as much more severe concussions. It is for this reason that neurosurgeons often emphasize that there is really no such thing as a "minor concussion," as all concussions carry the potential to cause long-term damage. (24)
One difficulty presented in concussion diagnosis is the wide range in type and severity of noticeable symptoms. (25) A player suffering from a concussion may experience dizziness, headaches, nausea, fatigue, loss of consciousness, difficulty concentrating, and memory loss. (26) The symptoms may last anywhere from a period of a few hours to months on end. (27) A concussion may only cause slight symptoms that are easily ignored by a player in the midst of a heated contest, while a similar injury in a different player may result in symptoms so severe that they prevent the continuation of an athletic career. (28) Every concussion case is unique, and thus the injury presents a challenge for medical professionals to properly diagnose, as well as for players to self-report their symptoms.
For decades, the long-term implications of concussions remained poorly understood by the medical community, as it was often assumed that a concussion had not occurred without a loss of consciousness and that concussions caused no permanent damage to the brain. (29) The disparity in symptoms exhibited by players who suffered concussions made researchers skeptical of a correlation between concussions and long-term head injuries. (30) As recently as 1994, less than a quarter of surveyed neurologists believed that post-concussion syndrome could be clearly defined. (31) The lack of understanding surrounding the concussion issue resulted in little consensus on the best practices of concussion management in sports until the early 2000s.
While scientists had long recognized a connection between repeated blows to the head and long-term brain damage in boxers, (32) they were slow to recognize that athletes in other sports might also be at risk. (33) In 1986, well known neurologist Dr. Robert Cantu published a seminal set of guidelines on concussion management in sports, which recommended specified periods of time that athletes should be required to sit out after suffering a concussion. (34) Although no longer widely accepted, the guidelines were an important early step in developing protocols to handle head injuries. Yet Dr. Cantu remained ahead of his time. His concussion guidelines were not adopted in football at either the collegiate or professional level. Even after the American Academy of Neurology released its own set of concussion guidelines in 1997, (35) both the NFL and NCAA failed to adopt any sort of return-to-play guidelines for their players. It would take the discovery of long-term consequences of great magnitude to begin to truly wake up the world of football to the potential dangers of brain injury associated with the sport.
B. Rise of the Crisis: Discovery of Chronic Traumatic Encephalitis in Football
In 2000, Dr. Julian Bailes, a neurologist, lifelong football fan, and former Division I college football player, (36) conducted a survey of 1090 former professional football players, asking questions about a wide variety of injuries to avoid indicating to the participants that he was specifically interested in head injuries. (37) The results of the survey were shocking: sixty percent of players surveyed reported they had sustained at least one concussion during their career, and those players with concussions were experiencing neurological problems such as memory loss, speech loss, confusion, headaches, and hearing issues. (38) In retrospect, Dr. Bailes believes the results of the first survey were...