THE NCAA'S SPECIAL RELATIONSHIP WITH STUDENT-ATHLETES AS A THEORY OF LIABILITY FOR CONCUSSION-RELATED INJURIES.

• Author: Abe, Tezira

TABLE OF CONTENTS INTRODUCTION I. KICKOFF: THE INSTITUTIONAL INCENTIVES OF THE PROFESSIONALS VS. THE AMATEURS A. The Pros: National Football League B. The Amateurs: The National Collegiate Athletic Association II. PERSONAL FOUL: THE NCAA SHOULD BEHELD LIABLE FOR THE CONCUSSION-RELATED INJURIES OF STUDENT-ATHLETES A. Targeting: The NCAA Is the Correct Defendant for B. Unnecessary Roughness: Why the NCAA Owes Student-Athletes a Heightened Duty of Care C. Unsportsmanlike Conduct: The NCAA Breached Its Duty of Care III. END AROUND: THE CONSEQUENCES OF HOLDING THE NCAA LIABLE A. Victory Formation: Special Relationship as a Litigation Strategy B. Win Probability: Implications of a Special Relationship C. Hail Mary: Strict Liability CONCLUSION INTRODUCTION

The National Collegiate Athletic Association (NCAA) recently settled a negligence suit brought by the widow of former University of Texas football player Gregory Ploetz, who was posthumously diagnosed with Chronic Traumatic Encephalopathy (CTE). (1) Mr. Ploetz was a student-athlete at the University of Texas, where he played football from 1968 to 1971. (2) Throughout his collegiate career, Mr. Ploetz suffered numerous concussions and blows to the head in practice and games. (3) Instead of pursuing a career in football, he earned a Master of Fine Arts in 1975 and worked as an art teacher for almost forty years. (4) Decades after his time as a football player ended, however, Mr. Ploetz began experiencing depression, memory loss, and confusion so severe that he could not remember how to send an email. (5) In 2009, he was forced to stop teaching, and his condition continued to deteriorate until he passed in 2015. (6)

The suit, brought by Mr. Ploetz's widow, exemplifies a growing trend of litigation against the NCAA. In these cases, the plaintiffs have alleged that the NCAA faces negligence liability when student-athletes suffer from the effects of concussion-related injuries. (7) Many believed that the Ploetz trial would be a landmark moment, potentially turning the tide of a decade-long series of court battles between the NCAA and its former athletes. Instead, the parties settled under undisclosed terms, leaving the NCAA's critics to wonder if the college sports juggernaut would ever be held accountable. (8) CTE research has advanced significantly (9) since Mr. Ploetz's time on the field in the late 1960s, and a medical consensus has crystallized, connecting the disease to the high-impact brain trauma of football and other contact sports. (10) Accordingly, modern research on CTE and other degenerative brain diseases could create a path for current and former student-athletes to hold the NCAA accountable in court. For example, the widow of former NCAA football player Jeff Staggs recently sued the NCAA. (11) She alleged that the association "knew of the harmful effects of [traumatic brain injuries] on athletes for decades," ignored the facts, "and failed to institute any meaningful methods of warning and/or protecting the athletes." (12) Regardless of the outcome of the Staggs case, negligence lawsuits against the NCAA for concussion-related injuries are certain to continue multiplying in the coming years.

Of the concussion cases that the NCAA has recently settled, none of the plaintiffs have argued that a special relationship with the NCAA exists. (13) Instead, they have made their case under a traditional negligence theory. (14) This is a missed opportunity. Litigants should consider arguing that a special relationship exists between student-athletes and the NCAA. A special relationship would impose a higher duty of care on the NCAA--an affirmative duty to provide protection--and would ease the burden on litigants who seek to recover against the organization in the future. (15) In order to take advantage of more exacting judicial scrutiny, the next plaintiffs who bring concussion litigation against the NCAA should argue that a special relationship between the NCAA and injured student-athletes exists.

Because of contemporary research and increasing public pressure, now is an opportune time to hold the NCAA accountable for its mishandling of concussion protocol and student-athlete safety. Although the NCAA has known about the harmful effects of concussions for decades, (16) CTE did not enter the public consciousness until 2002, when Dr. Bennet Omalu examined former professional football player Mike Webster's brain and discovered that Webster had been living with the disease. (17) Even after this discovery, another decade passed before enough pressure mounted to force action by prominent sports organizations. (18) With science continuing to confirm the dangers of football and the public growing increasingly concerned, (19) student-athletes finally have a chance to hold the NCAA accountable.

This Note argues that, by virtue of an existing but currently unrecognized special relationship between the NCAA and student-athletes, the NCAA must be held liable for student-athletes' concussion-related injuries. Part I sets the groundwork for finding a special relationship between the NCAA and student-athletes by differentiating the NCAA, where athletes are not paid and do not benefit from the ability to organize (therefore lacking power to effect change in a meaningful way), from the National Football League (NFL). Part II contends that due to this special relationship, the NCAA must be held liable for concussion-related injuries of student-athletes who compete under its purview. Part III analyzes the potential effects of a special relationship and suggests that litigants explore the possibility that football should be governed by the doctrine of strict liability.

1. KICKOFF: THE INSTITUTIONAL INCENTIVES OF THE PROFESSIONALS VS. THE AMATEURS

   Many view the NCAA as an extension of the major professional leagues. (20) Proponents of compensation for student-athletes suggest that student- athletes are essentially professionals, because of factors including their status on campus, the importance placed on winning championships, and the large amounts of money that they generate for their schools. But this comparison fails in one very significant way: when it comes to bargaining power and health-and-safety regulations, student-athletes do not have the same nonlegal options as professional athletes. Therefore, they are far from equal to the athletes competing in their sports at the next level. This Part illustrates how the NCAA differs from the NFL by identifying three primary differences in organizational structure: profit-driven purpose, professional player status, and players' ability to unionize. Because of these differences, the NCAA's incentive to settle student-athletes' claims is lower than that of the NFL.

   1. The Pros: National Football League

      The NFL's primary focus is maximizing profits for team owners. (21) The continuous buying and selling of teams, combined with the many sponsorship and marketing opportunities that were created throughout the history of the NFL, exemplifies the profit-maximization purpose of the league. (22) Before the NFL was founded, professional football was in a state of disarray.

      Professional teams, lacking any institutional governing structure, engaged in bidding wars for top players, who frequently jumped from one team to the next in pursuit of the highest offer. (23) Without any eligibility rules governing the game, some teams plucked college students--still enrolled in school--to join their squads. (24) Realizing that this chaotic disorganization was unsustainable, representatives from the major teams came together in 1920 to form the American Professional Football Association, what is now the NFL. (25) After a rocky start involving frequent buying and selling of teams, the NFL grew from fourteen teams in 1920 to its current size of thirty-two teams in 2002. (26) Now, the teams are owned and operated almost exclusively by individuals for profit. (27)

      The NFL, unlike the NCAA, employs paid professional athletes. Accordingly, NFL players enjoy various opportunities, resources, and protections--unavailable to the student-athletes of the NCAA--that allow them to collectively bargain and maximize their marketability and profitability. (28) NFL players are supported by the National Football League Players Association (NFLPA), their labor union, which ensures that players' interests are properly represented. (29) The NFLPA functions as the players' voice. It represents them in negotiations with NFL ownership over the league's collective bargaining agreement (CBA), which governs salary and workplace-related issues. (30) For example, the NFLPA recently helped players negotiate "tangible contract-related benefits" in health and safety. (31) One such benefit is the NFL's establishment of a health committee in 2013, two years after the current CBA went into effect. (32) But the NFLPA's work also extends off the field: with the current CBA set to expire after the 2020 season, the union intends to demand more generous pensions and robust health coverage for retired players. (33) The NFLPA, then, functions as an institutional advocate for the rights and dignity of players, publicly pressuring the league to take seriously the threat of CTE. (34) No such organizational equivalent exists in the NCAA.

      Finally, the NFL has settled a concussion-related class action with retired players. (35) This settlement class includes retired NFL players, authorized representatives of deceased or legally incapacitated retired NFL players, and close family members of retired NFL players. (36) The settlement creates three sources of benefits for the settlement class: (1) a $75 million program that offers retired players baseline neurological and neuropsychological evaluations to determine the extent of any cognitive defects, (2) an unlimited sixty-five-year fund that awards cash to all retired players who have or will receive a qualifying diagnosis, and (3) a $10 million...