A little-noticed but unprecedented court ruling could rip the lid off the NCAA's concussion settlement by putting a fundamental question back on the legal table: Does the organization that covers collegiate sports have a duty to care for its athletes?
Until now, courts have essentially said no and held schools, rather than the NCAA itself, responsible for athletes' care. But a legal challenge by a former Hofstra lacrosse player got a green light in court in September, and that might affect the NCAA's $75 million concussion settlement, which has been awaiting final approval since July 2016.
The NCAA first agreed in 2014 to settle concussion litigation filed by its athletes when it agreed to create a $70 million, 50-year fund to test current and former players for neurological problems and dedicate $5 million to brain injury research. As part of the settlement, the NCAA assented to major changes in its injury protocols: It would begin preseason baseline testing for all athletes, require schools to have concussion-trained medical personnel at all contact-sport games and ban athletes with concussions from returning to play on the day of their injuries.
After questioning by U.S. District Judge John Lee, lawyers for both sides in the settlement revised the deal to make it clear that athletes who play the same sport can still take legal action against individual colleges. (Football players at a particular university, in other words, can still sue that school.) Lee allowed that new version of the agreement to go forward nearly 18 months ago. But about 4.1 million current or former players will be eligible for the settlement, and it has taken longer than expected to contact them all. One reason: The NCAA had to send more than 400 subpoenas to schools to get contact information for their students. As a result, Lee has pushed back the settlement's ultimate approval date. He recently rescheduled its final fairness hearing from Nov. 28 to March 1.
In the meantime, 22 athletes have filed objections to the settlement. Many want the deal to pay for medical expenses, which the settlement does not compensate, or the athletes claim that plaintiffs' lawyers are asking for too much money. But three objectors say the settlement doesn't address their particular circumstances: lacrosse players Samantha Greiber, who played at Hofstra; Marissa Spinazzola, now at Division II Mercy College in Dobbs Ferry, New York; and Lacey Donlon, formerly at St. Joseph's College, a Division III school in Patchogue, New York.
Traditionally, the NCAA -- and U.S. Lacrosse, the sport's national federation -- has seen men's and women's lacrosse as different sports deserving different rules, partly because body-checking is illegal in the women's game. Until this year, the NCAA mandated protective headgear for men but banned it for women. (Women's lacrosse players now can wear certain types of soft protective equipment.) But rules outlawing contact haven't been enough to protect women from head injuries: Studies stretching back to 1994, some commissioned by the NCAA itself, have found that female athletes in general and lacrosse players in particular sustain concussions at higher rates than males who play comparable sports. In failing to implement protocols that could minimize injury risk, the Greiber group argues, "the NCAA has strikingly failed to protect women lacrosse players and has discriminated against them."
"You have rules that for years rendered young women playing lacrosse utterly defenseless from serious head injuries," said Aron Raskas of the law firm Rifkin Weiner Livingston, which represents the lacrosse objectors, "all for want of an idyllic scene of young women running down the field with ponytails flying unobstructed in the wind."
The NCAA declined to comment.
Had negotiations in the NCAA settlement wrapped up this month, as previously scheduled, it isn't clear what impact these objections would have had. As the NFL concussions settlement reached its endgame, for example, objectors got to speak at the final fairness hearing in 2014, but U.S. District Judge Anita Brody essentially ignored their concerns and approved the settlement. Now, though, the parties in the NCAA case have something more to think about because Greiber is also suing the NCAA for negligence in New York State Court.
Greiber grew up in Annapolis, Maryland, and played lacrosse from the time she was big enough to handle a stick, earning a scholarship to Hofstra. In March 2013, during a practice in her junior year, a freshman shot wide of the goal, and the ball ricocheted off the bleacher wall and nailed Greiber in the back of the head. The effects, she says, were immediate: "I knew something was off. I had a flood of emotions. It felt like my feet were off the ground, almost an out-of-body experience. It was hard to concentrate -- I couldn't get a grasp of what was going on."
Greiber's athletic trainer took her off the field of play but didn't send her to a doctor. She went to a hospital later that evening because her boyfriend's mother, a nurse, urged her to get checked out. Greiber had a concussion, and her symptoms -- irritation, sensitivity to sound and light, difficulty concentrating -- persisted for three months.
In January 2014, during a rainy morning, Greiber took part in drills that required players to run toward each other. Just after watching two teammates collide on the wet turf, Greiber and her practice opponent slipped, and their heads crashed into each other's. Again she felt a rush of uncontrollable emotions, compounded by a need to try to walk off her injury. But her symptoms were worse this time: She couldn't stop crying and vomited in the locker room. She says an athletic trainer kept her at practice and never told her to go to the hospital, and she wasn't diagnosed with a concussion until three days later.
Greiber graduated that year, and although she has tried concussion treatments ranging from isolation to incense to botox (which can help migraines), the headaches caused by her career-ending injury have never gone away. "I don't remember a time without pain," she says.
In her lawsuit, Greiber contends that the NCAA was responsible for requiring safe conditions, rules and medical care for students such as her and warning athletes about the risks and long-term effects of concussions and that it failed to live up to its obligations. At first, the NCAA responded with what has become its standard defense in concussion cases. The NCAA describes itself as a voluntary organization of more than 1,000 separate institutions. It says it has no special relationship with any of the nearly 500,000 athletes at its member schools, and those students assume the risks inherent in their sports. The NCAA does not admit to breaching any legal duty to protect Greiber, or any other athlete, from brain injury because it doesn't admit that it has any such legal duty in the first place.
To date, those arguments have been very successful: Nearly all would-be plaintiffs have either backed off or folded their lawsuits into the massive class-action suit the NCAA is now settling.
The NCAA moved earlier this year to dismiss Greiber's case. But in a legal shocker, New York Supreme Court Justice Jeffrey Brown denied the NCAA's request. On Sept. 5, he wrote: "The court finds that the defendant NCAA owed a duty of reasonable care to the plaintiff." Brown held that because the NCAA has significant control over sports rules and equipment at its member schools and requires them to have concussion protocols, it is "charged with carrying out these functions with reasonable care."
Brown also found that because the NCAA "effectively prohibited the plaintiff from utilizing protective headgear," it can't argue that it has no responsibility for the dangers Greiber faced. The NCAA has a duty, he wrote, "to avoid exposing the plaintiff to risks that were unreasonably increased."
While Brown's decision to let Greiber's case go forward hasn't made many headlines, his ruling that the NCAA owed her a "duty of reasonable care" could be highly potent. Once it is established that the NCAA owes reasonable care to athletes, legal cases such as Greiber's will be about facts on the ground: whether the NCAA discharged that duty in specific circumstances. That could be dangerous for the NCAA, which didn't have any concussion guidelines until 2010, instituted its new rules only because of the litigation it was facing and has never disciplined a school for returning an injured athlete to play. Greiber's affidavit states: "The NCAA did not effectively research, monitor, assess or review the available data, nor did it implement or enforce any ... guidelines, protocols or requirement that would have prevented my severe concussive injuries."
That's why some of the parties involved in the NCAA settlement think their negotiations will have to take note of the Greiber group objections. The current version of the deal contains no requirements or guidelines particular to women, basically because the experts consulted by the lead plaintiffs' attorneys didn't say any were necessary. As Robert Cantu, professor of neurosurgery at Boston University and a leading concussions expert, puts it: "We did not include provisions specific to female athletes in the medical monitoring program. Maybe we should have."
Undecided will be whether the NCAA is inoculated and whether the message delivered by the New York court means the pending settlement might have to include more protections for women's lacrosse players or all female athletes.
In her lawsuit against the NCAA, Greiber argues that the NCAA treated her differently because of the gender differences in its helmet rules. The NCAA could address its duty to avoid putting lacrosse players at "unreasonably increased" risk by mandating or at least allowing women to wear the same kind of headgear as men. That's still an extremely controversial subject in lacrosse. No helmet can completely protect athletes from concussions, and many involved with the sport believe that helmets weaponize players and can increase injury risk. On the other hand, helmets are effective in reducing the force of ball-to-head and stick-to-head blows. Research published in the American Journal of Sports Medicine last year found that "women's field lacrosse can decrease the occurrence of high linear and acceleration impacts by having governing bodies improving rules, implementing the use of helmets, or both."
More broadly, the concussion settlement can change in any way the NCAA, the plaintiffs and Judge Lee agree to. Some advocates are sensing a chance to leverage a new sense of the NCAA's responsibilities into more thorough guarantees about research, equipment design and return-to-play protocols for all female athletes.
"The NCAA has an incredible opportunity at this moment to lead the way in female-specific education, coaching and care for brain injury," said Katherine Snedaker, founder of Pink Concussions in Norwalk, Connecticut. "Female athletes are not small men. As the military has had to adjust standards and safety gear as women's roles have changed, so should sports."