AuthorCaputo, Aaron
  1. INTRODUCTION 59 II. BACKGROUND: A HISTORY OF CONCUSSIONS, THE NCAA, AND LAWSUITS ARISING THEREFROM 61 A. What is a Concussion? 61 B. How Bad Can the Effects of Concussions Be? 62 1. The Effects of Concussions are More Than Short Term 62 2. Chronic Traumatic Encephalopathy Has Burst onto the Scene 63 3. Second Impact Syndrome: Why its Prevention Should be the First Priority 64 C. The NCAA and the Evolution of its Concussion Management Plan 64 1. The NCAA and its History of Concussions 64 2. The NCAA's Concussion Management System 65 3. Inherent Flaws of the NCAA's Concussion Management System 68 4. The NCAA's Current Infractions Program 69 D. Lawsuits against the NCAA in regards to Concussion Management 70 1. In re National Collegiate Athletic Association Student-Athlete Concussion Injury Litigation 70 2. Sheely v. NCAA 72 3. Brandon et al. v. NCAA & Mason v. NCAA 73 4. The "Bellwether" Cases 74 III. HOW THE NCAA IS FAILING ITS STUDENT-ATHLETES AND PROPOSED SOLUTIONS THAT WILL PROTECT STUDENT ATHLETES IN THE FUTURE 75 A. The NCAA's Failure to Enforce its Concussion Management Plan 75 B. Why Previous Lawsuits Will Not Reach the Preferred Outcome 77 C. A Judicial Challenge that Will Force the NCAA to Change 77 D. Compel Submission of Concussion Management Plans for All Member Institutions 80 E. Creation of the Concussion Safety Oversight Committee 81 1. Structure of the Concussion Safety Oversight Committee 81 2. The Concussion Safety Oversight Council under the Higher Education Act 85 3. The Concussion Safety Oversight Council Implemented by State Legislatures 87 IV. CONCLUSION 88 I. INTRODUCTION

    Recall your childhood. Remember when you would play on the playground and your parents would sit on the bench a couple feet away to make sure you didn't hurt yourself? Remember having the peace of mind that your parents would always be there to protect you? And if something did happen to you, your parents could always make the situation better? You would always hear someone shouting, "not too fast" or "get down from there," and if you scraped your knee, a bandage and some Neosporin were always waiting. You are graced with someone who always has your best interest in mind and will never let you end up in a situation where you would hurt yourself. That is what parents are for, right? Well, student-athletes have not received this care or guidance from its governing body that adopts such a parental role and prides itself on athlete safety--the National Collegiate Athletic Association ("NCAA"). Under the NCAA, student-athletes have been scraping their knees for decades. Except in this case, it is far worse than scraped knees; student-athletes are suffering from concussions and traumatic brain injuries ("TBIs") that can impact them for the rest of their lives.

    Angel Mitchel is one of the many unfortunate examples. During her sophomore soccer season at Ouachita Baptist University, an NCAA division II school in Arkansas, Mitchel went for a header and collided with one of her teammates. (1) The two collided and Mitchel's left eye began to swell up immediately. (2) Mitchel notified the trainer that she felt sick. (3) The trainer asked Mitchel if she was dizzy, nauseated, and had a headache; Mitchel replied, "Yes, yes, and yes." (4) The athletic trainer sent Mitchel back to her dorm room with an ice pack and no further instructions. (5) A neurological test was administered the next day, but the results were inconclusive because she still could not see out of her left eye. (6) A couple of days later, Mitchel was instructed to run laps but appealed to the trainer because she was still sick. (7) The trainer told her, "You don't want to make the coach mad." (8) Unlike many student-athletes, Mitchel made the correct decision and decided to go to the hospital. (9) As Mitchel was leaving to go to the hospital, the coach told her that she should expect to sit out for a long time. (10) Mitchel was diagnosed with a severe concussion. (11) She had migraines that persisted for three years, and she never played soccer again. (12) This situation was never investigated, nor was the member institution ever punished by the NCAA. (13)

    Concussions are a crisis in intercollegiate athletics. (14) Concussions for people under the age of 22 increased by 500% between the years 2010 and 2014. (15) The direct effects of a concussion usually impact an individual for a relatively short period of time, but the long-term effects of concussions can plague someone for the rest of his or her life. (16) Studies have shown that repetitive concussions have an impact on cognitive function and can lead to degenerative brain diseases. (17) As more concussions are suffered, the risk of long-term effects becomes greater. (18) In response to the rate and effects of concussions, the NCAA implemented a policy in hopes of reducing the number of concussions. (19)

    The NCAA adopted a Concussion Management Plan ("CMP") in 2010 that required every member institution to implement an individual concussion management plan with certain requirements. (20) The purpose of the plan is to protect student-athletes. (21) There are some flaws with the plan, which is to be expected, but the central problem is that the NCAA fails to guarantee that all member institutions implement a concussion management plan, and assuming a member institution has adopted the required concussion management plan, the NCAA refuses to apply its enforcement process when member institutions violate their concussion management plans. (22) Mitchel was a victim of this perpetual crisis. (23) For years, student-athletes have suffered from injuries identical to Mitchel's because the NCAA has refused to ensure that member institutions are equipped with concussion management plans or apply its proper enforcement mechanism. (24)

    This Note examines the NCAA's unwillingness to enforce the requirement that all NCAA institutions must implement a concussion management plan; the NCAA's refusal to apply its appropriate enforcement mechanism when member institutions violate their concussion management plans, which are instituted in order to protect student-athletes from concussions, how both of these failures result in more concussions and a higher probability of debilitating long-term effects, and solutions to remedy this grave injustice. Part II of this note describes what a concussion is, the long-term effects of concussions, the NCAA's management of concussions, and lawsuits challenging the NCAA in relation to concussions. Part III analyzes the inefficiencies of the NCAA in its management of concussions, the previous and current lawsuits' failure to stimulate change within the NCAA, and the proposed solutions that will help create a safe environment for student-athletes.


    1. What is a Concussion?

      A concussion is a form of traumatic brain injury caused by a bump, blow, or jolt to the head or body, which causes the brain to move rapidly within the skull. (25) When the brain collides with the skull, bruising can occur. (26) In addition, different parts of the brain are pulled in separate directions, which causes shearing and tearing of nerve tissue. (27) The impact can alter the chemical balance and ions in the brain, which can impair nerve cell function. (28) As the cells in the brain begin to heal, the brain begins to regain its regular function, but it is incredibly vulnerable to further damage. (29) The length of time that one may experience symptoms of a concussion varies for each individual; it could be a few days, a few weeks, or even a few months. (30) Not only are concussions threatening to one's health, but they occur at an astonishing rate. An estimated 1.6-3.8 million sports and recreation related concussions occur in the United States each year. (31) There are millions of athletes who are subjected to significant brain injuries through concussions. (32)

      Injuries to the brain are not only sustained by concussions but also by sub-concussive hits. (33) Sub-concussive hits are blows to the head or the body in which the effect on the brain is not exhibited by detectable symptoms. (34) These hits are commonplace in collegiate sports. Some examples of sub-concussive hits are tackles in football, headers in soccer, and checking in hockey and lacrosse. (35) Similar to concussions, sub-concussive hits may have an accumulative effect and lead to long-term effects later in life. (36)

    2. How Bad Can the Effects of Concussions Be?

      1. The Effects of Concussions are More Than Short Term

        Concussions are a very dangerous condition, but the long-term effects suffered as a result of repeated concussions can be more perilous than the concussions themselves. Many other diseases and conditions stem from concussions and sub-concussive hits. These disorders debilitate athletes and prevent them from being able to live the life they previously lived. Research continues to grow in the area of long-term effects of concussions, but certain findings suggest that concussive injuries can disrupt fundamental elements of higher order neurocognition. (37) Concussions can lead to cognitive, physical, and emotional symptoms, such as confusion, vomiting, headaches, nausea, depression, moodiness, and amnesia. (38) Repetitive concussions can also lead to degenerative diseases such as Parkinson's disease, Amyotrophic Lateral Sclerosis ("ALS"), and Chronic Traumatic Encephalopathy ("CTE"). (39) All of these results of concussions are horrifying, but the condition that is recently garnering the most attention is CTE.

      2. Chronic Traumatic Encephalopathy Has Burst onto the Scene

        CTE is a degenerative brain disease found in brains that are subjected to repeated brain trauma. (40) some of the symptoms include impulse control, aggression, depression, paranoia, memory loss, confusion, and progressive dementia. (41) As the disease progresses, the symptoms become more...

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