Taking A Hit: Lawsuits Filed Against the NCAA and Its Member Institutions for Concussion Mistreatment
By: Alexandra Doran* Posted: 03/27/2021
On February 12, 2021 a former college football player filed a federal lawsuit against the University of Pittsburgh, the National Collegiate Athletic Association (NCAA), the Big East Conference, the American Athletic Conference, and the Atlantic Coast Conference (ACC).[1] Craig Bokor alleges that these “organizations were aware of the potential health ramifications caused by concussions and repeated blows to the head but never took action to protect players.”[2] Bokor alleges that he endured prohibited head-to-head contact during almost every full practice and game while at the University of Pittsburgh.[3] Bokor currently suffers debilitating injuries, stemming from concussive head injuries, such as memory loss, anxiety, and migraines.[4] Bokor’s filed suit in the United States District Court for the Western District of Pennsylvania and included claims of negligence, fraudulent concealment, breach of contract, and unjust enrichment.[5] He also sought class-action status for any varsity football athlete at the University of Pittsburgh since 1952 who “suffered concussive and subconcussive head injuries.”[6] However, on February 26th, 2021, Bokor’s case was closed after being designated for placement into the United States District Court’s Alternative Dispute Resolution program.[7]
Brief History of the NCAA’s Concussion Protocol
One of the allegations in Bokor’s lawsuit was that the NCAA knew about the dangers of concussions for almost four decades but failed to implement concussion management protocols until 2010.[8] Additionally, Bokor alleged that the organizations and school failed to follow the 2010 concussion management protocols.[9] In 1933, the NCAA first acknowledged the hazards of concussions in its Medical Handbook for Schools and Colleges, which stated that “the seriousness of [concussions] is often overlooked” and that they shouldn’t be “regarded lightly.”[10] Nearly five decades later in 1982 the NCAA adopted an Injury Surveillance System (“ISS”) to examine injury trends in intercollegiate athletics.[11] The committee monitoring this system is responsible for “recommending changes in rules, equipment, and coaching techniques” to reduce injury rates in athletics.[12]
In 1994, the NCAA’s Assistant Director of Sports Scientists published an article which found that “concussions accounted for at least [sixty] percent of head injuries” in each of the sports monitored by his study.[13] After this article was released, the NCAA adopted non-binding concussion guidelines for member institutions in its Handbook.[14] Additionally, three doctors wrote to the NCAA’s executive director in 1996 arguing that concussions were “overlooked as one of the most serious health problems facing amateur and professional athletes.”[15] In 2003, research funded by the NCAA was published in the Journal of the American Medical Association.[16] This research found that returning to play too soon after experiencing concussion symptoms “may increase the risks of recurrent injury, cumulative impairment, or even catastrophic outcome.”[17] Other studies by ISS and the Journal of Athletic Training were also released showing the dangers of concussions, especially in football.[18] Despite these various studies showing the dangers of concussions in sports, the NCAA still refused to change its rules or amend its handbook until 2010.[19]
The NCAA adopted its first Concussion Management Policy on April 29th, 2010 which required member colleges to develop a concussion management plan for the following school year.[20] However, this initial Concussion Management Policy did not include strong enforcement provisions.[21] Six months after this policy was adopted, the NCAA’s director of enforcement stated that the policy “was specifically written to require institutions to have a plan and describe what minimum components had to be part of the plan - not about enforcing whether or not they were following their plan - except for those isolated circumstances of systemic or blatant violations.”[22]
Similar Lawsuits
Since the NCAA’s adoption of the Concussion Management Policy, there have been class-action lawsuits filed against the NCAA and its member institutions for their mistreatment of concussions prior to 2010.[23] One concussion lawsuit originated in 2011 with a claim against the NCAA by former Eastern Illinois University football player Adrian Arrington.[24] In 2013, Arrington’s case was consolidated with several others and filed in the U.S. District Court for the Northern District of Illinois.[25] The lawsuit alleged that the NCAA was “negligent and failed to handle concussions and related illnesses.”[26] Ultimately, the federal judge approved an amended settlement which established a fifty-year medical-monitoring program for college athletes.[27] In accordance with the settlement, the NCAA “created a $70 million fund for monitoring current and former college athletes for brain trauma.”[28] The settlement also established a $5 million fund for concussion research.[29] However, the NCAA still refused to admit any wrongdoing and would not pay damages to any plaintiff in the class action.[30]
In February of 2020, the NCAA launched the medical monitoring program in accordance with the amended settlement.[31] The program provides free medical screening and two free medical evaluations for NCAA student-athletes who played a sport on or before July 15th, 2016.[32] Former NCAA student-athletes can still sue the NCAA for their lack of concussion protocols prior to 2010.[33] However, as the Arrigton and Bokor cases demonstrate, the NCAA is likely to push these complaints to settlement or alternative dispute resolution in order to avoid litigation.[34]
*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2022, Villanova University Charles Widger School of Law.
[1] See Complaint at 1, Bokor v. Nat’l Collegiate Athletic Ass’n, No. 2:21-cv-00211, (W.D. Pa. Feb 12, 2021); see also Mick Stinelli, Lawsuit: Pitt, NCAA neglected dangers of head injuries for football players, Pittsburgh Post-Gazette (Feb. 16, 2021), https://www.post-gazette.com/news/crime-courts/2021/02/16/pitt-ncaa-lawsuit-concussion-football-brain-injury-craig-bokor-joseph-delsardo-CTE/stories/202102160103 (noting Joseph DelSardo and Craig Bokor played football for University of Pittsburgh)
[2] Brock Fritz, Ex-Pitt Players Sue School, NCAA Over Concussions, Athletic Bus. (Feb. 16, 2021), https://www.athleticbusiness.com/civil-actions/ex-pitt-football-players-sue-school-ncaa-over-concussions.html (stating lawsuits allege University of Pittsburgh does not take player’s health seriously).
[3] See Complaint, supra note 1, at 15; see also Fritz, supra note 2 (finding that DelSardo also played for Carolina Panthers from 2003-2006).
[4] See Fritz, supra note 2 (detailing DelSardo and Bokor accuse NCAA of “knowing the dangers of concussions for nearly four decades while concealing the impact football has on brain injuries, memory loss, dementia and depression”).
[5] See id. (noting the lawsuits were filed by Hagens Berman law firm).
[6] Complaint, supra note 1, at 2; see also Stinelli, supra note 1 (asserting representative from University of Pittsburgh declined to comment on these suits and NCAA did not respond to media inquiries).
[7] See Docket at 3, Bokor v. Nat’l Collegiate Athletic Ass’n, No. 2:21-cv-00211, (W.D. Pa. Feb 12, 2021) (noting that Bokor voluntarily dismissed his complaint against NCAA on February 25, 2021).
[8] See Complaint, supra note 1, at 13; see also Fritz, supra note 2 (stating plaintiffs allege that NCAA and University of Pittsburgh cared more about profits and game outcomes over health of its players).
[9] See Fritz, supra note 2 (stating NCAA member institutions includes University of Pittsburgh).
[10] Travis Waldron, The NCAA’s History With Concussions: A Timeline, Think Progress (July 23, 2013), https://archive.thinkprogress.org/the-ncaas-history-with-concussions-a-timeline-530a8c5af0df/ (recounting that, in 1933, NCAA also provided recommendations for immediate treatment).
[11] See id. (describing data found by ISS which showed that “in 2005-2006, [seven] percent of all football injuries were concussions”).
[12] Id. (noting ISS found that over a six-year period 16,277 out of 29,255 concussions occurred in football).
[13] Id. (stating NCAA’s Assistant Director of Sports Scientists was Randall Dick).
[14] See id. (finding Dick’s article called for “sweeping rule changes” in NCAA’s concussion protocol).
[15] Id. (declaring these three doctors were led by president of American Academy of Neurology).
[16] See id. (observing NCAA-funded research conducted multiple studies on effects of concussions and proper medical protocols).
[17] Id. (“A second study by the same authors finds that ‘players with a history of previous concussions are more likely to have future concussive injuries than those with no history.’”).
[18] See id. (depicting data from Journal of Athletic Training which states that concussions are third most common game injury in football).
[19] See id. (providing timeline of NCAA’s concussion policy).
[20] See id. (noting NCAA’s Concussion Management Policy went into effect during 2010-2011 school year)
[21] See id. (finding NCAA did not monitor member institutions’ concussion management plans)
[22] Id. (referring to Chris Strobel as director of enforcement for NCAA)
[23] See Ralph D. Russo, Wave of concussion lawsuits to test NCAA’s liability, AP News (Feb. 7, 2019), https://apnews.com/article/4a4ed68e4c3a426abc4e34606ae4a399 (stating NCAA facing more than 300 lawsuits from former college football players claiming mistreated concussions).
[24] See Complaint at 8, Arrington v. Nat’l Collegiate Athletic Ass’n, No. 1:11-cv-06356 (N.D. Ill. Sept. 12, 2011); see also Amended settlement in suit over concussions brought by former Eastern Illinois University football player calls for program to monitor college athletes, Chi. Trib. (Aug. 13, 2019) [hereinafter Amended settlement], https://www.chicagotribune.com/news/breaking/ct-ncaa-concussion-court-settlement-20190813-piqmtzelffgypjanvjaftwp364-story.html (detailing Arrington received multiple concussions while playing football at Eastern Illinois University).
[25] See In re NCAA Student-Athlete Concussion Injury Litig., 332 F.R.D. 202, 208 (N.D. Ill. 2019); see also Craig Lyons, $75 million NCAA settlement to fund concussion screening for 4 million former athletes, Lansing State J. (Aug. 15, 2019), https://www.lansingstatejournal.com/story/news/2019/08/15/ncaa-concussion-settlement-athlete-medical-testing/2012186001/ (advising “[p]eople seeking treatment under the medical monitoring program will first submit a screening questionnaire…and a panel of doctors will determine if a full evaluation is needed”).
[26] Lyons, supra note 25 (finding in accordance with settlement, thirty-six monitoring sites will be set up across country).
[27] See Amended settlement, supra note 23 (declaring Arrington opposed settlement because it did not pay damages to any of plaintiffs).
[28] Id. (noting initial settlement was reached in 2016).
[29] See id. (finding U.S. District Judge John Z. Lee approved settlement).
[30] See Waldron, supra note 9 (declaring settlement also allows athletes “to continue litigation against organization over its handling of concussions”).
[31] See Emily James, Medical monitoring program launches for NCAA student-athletes, NCAA (Feb. 19, 2020), https://www.ncaa.org/about/resources/media-center/news/medical-monitoring-program-launches-ncaa-student-athletes (stating that participation in medical monitoring program is voluntary).
[32] See id, (noting that qualification for in-person medical evaluation is dependent on screening questionnaire).
[33] See NCAA Concussion Lawsuit Attorneys, Pulaski Kherkher, https://ifspb.com/ncaa-concussion-lawsuit-attorneys/ (offering legal aid to any former athletes who want to pursue claims against NCAA for concussion related injuries).
[34] See Docket, supra note 7, at 3; see also In re NCAA Student-Athlete Concussion Injury Litig, supra note 25 (finding that Arrington negotiated settlement was reached after lengthy negotiations between NCAA and plaintiffs).
