Barring a last-minute settlement, the NCAA is likely to stand trial in the wrongful death case of a former football student-athlete.
On April 6, Montgomery County (Md.) Judge David A. Boynton denied the NCAA’s motion for summary judgment in the Derek Sheely wrongful death lawsuit. The trial is set to begin on June 20.
Sheely is a former fullback at Frostburg State University in western Maryland. Two years after Sheely’s death, his father, mother and sister filed a complaint in the Montgomery County Circuit Court naming the NCAA, three Frostburg State athletic staff members, helmet manufacturer Schutt Sports, Illinois-based helmet maker Kranos Corp. and a Pennsylvania retailer that sold the helmet.
In their complaint, Sheely’s family asserts that “utter incompetence, egregious misconduct, false hope and a reckless disregard for player health and safety led to the tragic death of Derek.”
Sheely died of brain trauma on Aug. 28, 2011, just six days after he collapsed on the sideline during practice. The complaint alleges that the practice itself, including the amount of contact involved, did not cause Sheely’s death, but rather the conduct, culture and apathy of the coaches did.
According to the complaint, many of Frostburg State’s preseason practices involved heavy contact, including drills where players competed against each other one-on-one with full contact.
As the senior fullback and captain, Sheely fully participated in these drills. During the drills, running backs coach and co-defendant, Jamie Schumacher, encouraged the players to lead with their heads and even berated them for not complying with his orders. Sheely sustained multiple wounds to his forehead.
Sheely’s family asserts that the culture created by the Frostburg State coaches made it nearly impossible for Sheely to abstain from practicing. Injured players were described as “gripers” and were forced to clean up the fields after practice.
Even after Sheely’s wounds re-opened, the medical staff neither evaluated him for a concussion, nor checked the fit of his helmet. Sheely told Schumacher that he “didn’t feel right” after his forehead wound opened for a fourth time in three days. Yet, Schumacher insulted and cursed at Sheely demanding that he resume practicing. After another collision, Sheely collapsed on the sidelines and was rushed to the hospital, where he died six days later.
Sheely was wearing a DNA Pro Plus helmet that was specially designed by Schutt Sports purporting to minimize the force of blows, given that Sheely had a history of head injuries. Allegedly, a Schutt Sports representative told Sheely that the helmet could prevent head injuries. Relying on this misrepresentation, Sheely acquiesced to the demands of the coaches and continued to actively participate in practice, despite his injuries.
In its summary judgment motion, the NCAA asserted that it had no duty because of its designation as a sports organization, but Boynton rejected this argument. The judge ruled that the NCAA has a special relationship to Sheely because its mission is to protect student-athletes.
The NCAA’s mission statement states its purpose “is to govern competition in a fair, safe, equitable and sportsmanlike manner and to integrate intercollegiate athletics into higher education so that the educational experience of the student-athlete is paramount.”
Boynton also rejected the argument that Sheely assumed the risk of sport. He emphasized the differentiation between second-impact syndrome, which causes rapid swelling of the brain after a second concussive blow before initial symptoms have subsided, and the initial head injury. Boynton opined that second-impact syndrome, and the resultant risk of death is not, therefore, an obvious risk of football, and a duty to warn may exist.
A key factual question at trial will be whether the NCAA provided sufficient guidance and oversight to its member institutions on concussion policy. There is at least some question as to whether the NCAA promptly proliferated information on the risks of second-impact syndrome.
In rejecting the NCAA’s argument that the burden imposed on sports organizations would be too great if it were liable in each instance, Boynton noted that the burden of informing member institutions and coaching staffs is relatively minor.
To be clear, the NCAA does require each member institution to have a concussion management plan, but enforcement of this requirement is lax or perhaps even non-existent. In 2013, NCAA Health and Safety Director David Klossner admitted under oath that institution’s concussion plans are neither reviewed nor enforced.
The ongoing Sheely case is taking place just as the NCAA has worked toward a class settlement in the case originally brought by lead plaintiff Adrian Arrington, a former football player at Eastern Illinois University. Under the proposed settlement, the NCAA has agreed, in principle, to pay $70 million to a medical monitoring fund to screen current and former student-athletes for signs of concussions and other trauma, as well as $5 million for concussion-related research.
The settlement, however, must still be approved with finality, including a key modification made by U.S. District Judge John Z. Lee in January. Some of the plaintiffs, including Arrington, had argued that the settlement did little to help those who had already been diagnosed with neurological disorders.
The modification stripped some of the immunities that NCAA had hoped to enforce in order to prevent future class-action suits and wrongful death claims like Sheely’s.
The Sheely case, and the modifications made to the Arrington settlement, signal that the NCAA will not be permitted to sit on the sidelines when it comes to managing issues surrounding concussion policy.
While the NCAA, as a sports organization, will not be liable for every instance of injury sustained during athletic competition, it undoubtedly still has a duty to protect against risks that are not inherent to the sport. Whether the NCAA breached that duty on the Sheely case is likely to be decided by a jury.