By Dan Bernstein
The NCAA could end up becoming more liable to lawsuits if proposed measures aimed at protecting student-athletes pass, just one of the barriers to the organization taking a more active role in player health and safety issues.
As the NCAA introduces regulatory policies like guidelines to prevent non-traumatic deaths and improved accreditation standards for strength and conditioning coaches, it might expand its legal duty to provide care, thus making it more vulnerable to civil negligence claims, according to attorney Bob Wallace, who represents athletes and sports teams for national law firm Thompson Coburn. Two Oregon football players hospitalized in a January 2017 workout have filed such cases against the NCAA and the University of Oregon.
“When organizations or companies or industries are regulating conduct,” Wallace said, “there’s always a balancing act of how far can you go, should you go before you shift a bunch of the responsibility onto your organization.”
NCAA spokesman Christopher Radford, however, told Sporting News in a statement that “NCAA health and safety efforts are not calculated by whether there is increased legal liability but on what is in the best interests of our student-athletes.”
Fear of liability is one of several explanations offered by legal analysts, medical experts and college sports officials as to why the NCAA has not substantially addressed the issue of student-athlete fatalities. At least 27 Division I college football players have died in offseason conditioning sessions from non-traumatic causes since 2000, according to a 2017 study authored by Oklahoma head athletic trainer Scott Anderson.
Dr. Douglas Casa, who leads the Korey Stringer Institute (named after the former Minnesota Vikings player who died of heatstroke complications in 2001), blamed the NCAA’s hesitation to act on player safety issues on a philosophical disagreement between its sports science department — which is adamant the organization should have a role in health and safety issues — and the priorities of individual conferences and athletic departments, particularly as it relates to football.
“You have really stubborn people working in football (and college athletics) who don’t think in a particular way for a really long time,” Casa said, “and they don’t want to be told what to do.”
Casa’s view was echoed by several sources with direct knowledge of how conferences and member institutions think, including two who have participated in NCAA Committee on Infractions hearings, representing both the NCAA and member institutions.
Even so, Dr. Brian Hainline, chief medical officer of the NCAA’s Sports Science Institute, told SN “the needle is shifting rather rapidly” toward his organization playing a greater role in health and safety matters. He said he was aware of several NCAA investigations into schools that did not implement an NCAA-mandated independent care model, instituted in 2017.
Radford declined to elaborate on those investigations, but told SN its legislation was intended to reinforce standards of care and help schools understand their obligations.
“The NCAA does not determine the medical standard of care or second-guess the judgments exercised by health care professionals,” Radford said. “NCAA legislation does allow for limited review of whether our institutions have the structures and policies to support the health and safety of student-athletes.”
NCAA’s history with student-athlete safety issues
Anderson, the Oklahoma trainer who has become a leading advocate of student-athlete safety, said doctors realized in the late 1990s that people who carried the trait for sickle-cell anemia were at increased risk for collapsing during workouts, particularly when training in hot climates. This had led to a string of deaths in offseason conditioning sessions.
Anderson said a unified movement to screen for the trait — and educate athletic departments of its perils — began soon after, eventually leading the NCAA to require sickle-cell screening, starting in 2010.
Anderson said the screenings have prevented deaths, and he lauded the NCAA’s independent care model measure that discourages trainers from reporting directly to coaches or athletic personnel. The NCAA has also begun addressing concussions, a lightning-rod issue that has brought it criticism and put it in the crosshairs of frequent litigation.
But Anderson said it has been frustrating to watch other initiatives struggle to gain traction.
Student-athlete deaths have largely followed a pattern, wherein players are jeopardized by strenuous offseason workouts that follow sustained periods of inactivity, such as winter break or between spring and summer practices. Misunderstanding of basic medical principles has also played a role in hospitalizations.
Maryland football player Jordan McNair died in June 2018 after being asked to complete a conditioning test of 10 110-yard sprints in the team’s first organized conditioning session of the summer. His heatstroke was initially misdiagnosed, and trainers did not apply cold water immersion, a widely accepted practice to counter the effects of heat-related illness.
Those who have criticized the NCAA for not taking a more active stance as it relates to player safety say the organization could mitigate those kinds of mistakes with stronger regulation, such as the proposed best practice guidelines for preventing non-traumatic deaths.
“When you’re a 17-year-old kid or 18-year-old kid, and parents say you’re going to play in a sport and you’re provided with a scholarship, they’re basically turning that child over to make sure that kid is taken care of,” Wallace said. “And so there’s a whole bunch of things you could have a real discussion about with college athletics and the way they’re treating athletes.”
Legacy of NCAA’s stances on non-health scandals
If the NCAA was worried about how regulation might impact its legal liability before 2013, the events of that year seemingly added to its level of concern, according to ESPN college basketball analyst Jay Bilas and several legal experts.
Penn State took the NCAA to court after the latter imposed heavy sanctions on the Nittany Lions following former assistant coach Jerry Sandusky’s years of sexual abuse of children (sometimes on Penn State property). At first, the NCAA imposed a $60 million fine, four-year postseason bowl ban, scholarship reduction and vacation of all Penn State wins after 1998. It was forced to rescind many of those penalties, however, as part of a settlement with the school.
“They basically overreacted and they imposed an enormous amount of sanctions that then they had to pull back from,” said a source who has worked with the NCAA as a legal consultant. “Now they’re just hesitant to do anything.”
Since then, the NCAA has not reacted to most off-field issues, not just those relating to offseason workouts. Recent abuse cases such as former Michigan State doctor Larry Nassar’s decades-long sexual abuse of gymnasts went unpunished by the NCAA.
“I think the NCAA and those in charge within the structure, the presidents, they realize they screwed up with regard to the Penn State matter and how they went outside of the normal structure,” Bilas said. “And you can tell that because they haven’t taken any similar action in any way, shape or form on nearly identical cases that have come up afterward.”
Scandals that have involved competitive advantages or threats to amateurism, such as an FBI probe into college basketball programs paying athletes through shoe companies, have been met with more forceful responses.
“These allegations, if true, point to systematic failures that must be fixed and fixed now if we want college sports in America,” NCAA president Mark Emmert wrote of the FBI probe. “Simply put, people who engage in this kind of behavior have no place in college sports. They are an affront to all those who play by the rules.”
While Bilas does not believe the NCAA should govern any off-field issues, he said it was hypocritical for it to offer such strong public rebukes while it remained relatively quiet in instances of student-athlete deaths. The NCAA did not condemn Maryland after McNair suffered a fatal heatstroke at the team workout.
“Essentially the silence is deafening,” Bilas said. “Where’s the commission on that? Where’s the outcry on that? And there isn’t one.”
When Casa was a senior in high school in 1985, he suffered a heat stroke during a 10K race. He collapsed and spent several hours in a coma. He nearly died.
As a result, he has devoted his life to reforming conditioning sessions so student-athletes are no longer endangered. But given the seemingly constant wave of negative news at the collegiate level — there is an average of more than one death every offseason — it can be difficult for him to remain confident in the level of progress being made.
“You have to balance the things, right?” Casa said. “The frustration of all of these things happening, but you still need to have the motivation and the passion to continue to try to make the changes.”
Casa is optimistic the two proposed measures currently being considered by the NCAA will make a difference. But given the obstacles that have limited its role in safety matters in the past — some of which continue to weigh on the organization — it remains unclear to what extent the NCAA will play a role in managing the healthy and safety of its student-athletes.
Molly Richman, an attorney who has represented both the NCAA and schools in infractions cases, said the NCAA becoming a stronger regulatory body faces challenges that eclipse simple liability in lawsuits.
She noted member schools would need to agree to the shift in the NCAA’s philosophy and maintain respect for it, even when under investigation. She said an expanded rulebook would necessitate the NCAA hiring additional enforcement staff members. She also emphasized other areas the NCAA has traditionally monitored — like recruiting — have not been clear of wrongdoing.
But she didn’t rule out the possibility the NCAA would take that challenge on in the future.
“It’s a hard question,” Richman said. “I think it depends on the member schools, and then you have to get all the internal protocols in place for being able to enforce those rules because you don’t want to just make rules that you can’t enforce.”
Source: Sporting News