December 5, 2018
The legacy of Ploetz v. NCAA is playing out in two similar trials, both with very similar claims. If as successful as Ploetz was, the consequences for the NCAA along with its member conferences/institutions could be serious.
In August 2018 the manager of the estate of former Grand Valley State University American football player Cullen Finnerty, Jennifer Finnerty, filed suit against the NCAA in the Marion (Ind.) Superior Court. Three months later, former North Texas University American football player Gary Easley filed suit against the NCAA and the Missouri Valley Conference in the US District Court for the Southern District of Indiana. In addition to the two complaints making almost identical claims against the defendants, the complaints are very similar to another recent lawsuit against the NCAA, that which was filed by the widow of former University of Texas American football player Greg Ploetz.
In Ploetz, attorney Gene Egdorf argued the NCAA owed damages to Greg’s widow, Debbie, because of the nature of Greg’s death and the NCAA’s negligence in its duty to protect the safety of Greg during his time playing for the Longhorns. The work of Egdorf in discovery and the first days of trial led to an undisclosed settlement between the parties.
Both Easley’s and Finnerty’s complaints make the same assertions. Both complaints go into detail about research into the cognitive and neurological risks associated with playing American football that was available over the span of decades during the 20th and into the 21st centuries. The complaints also detail the NCAA’s responsibility to protect the health of American football players engaged in games between member institutions. Finally, they show how the NCAA failed to adjust policy based on the emergence of the published findings, some of which were distributed by NCAA member-institutions and at the expense of the NCAA.
While both Easley and Finnerty have more in common with Ploetz than not, there is one important distinction in Easley. In that complaint the NCAA is a co-defendant along with the Missouri Valley Conference. Including the MVC as a defendant raises the stakes of that case, which is the pertinent factor in the current situation for all parties involved.
In deciding how to resolve these suits, the NCAA is again faced with the same “Sophie’s Choice” that it faced in Ploetz but with even higher stakes. Litigating the cases in full runs the risk of not only further negative public relations on the subject for not only itself but its membership along with a financial penalty that would be determined by a judge or jury. While settling would allow the NCAA to avoid the drama of a lengthy and public trial along with have more control of the damages the plaintiffs receive, it acts to turn Ploetz from an incident into a precedent. If the MVC also reaches settlement with Easley, that would create a similar situation for all the NCAA’s member conferences whose institutions engage in American football as a sanctioned sport.
If two estates of former college American football players and one living former player cash in on settlements in three different courts within the span of a year, it’s reasonable to expect the dockets to begin to fill up with similar suits filed by living former players along with similar estates across the country. Any and every former player who suffered symptoms of neurological disease or their families could seek damages from the NCAA and/or the conferences the players worked for.
If that happens, pressure would be felt by the NCAA to limit its liability going forward. A couple of facts point to a possibility in that interest.
In 2010 the NCAA mandated conferences and individual institutions have concussion management protocols in place for athletes, but left the language of those policies completely up to those bodies. Additionally, the NCAA is not involved in the administration of the Division I bowl subdivision’s College Football Playoff outside of recognizing it as an official championship event.
To limit its liability going forward, the NCAA may follow the progression suggested in those facts and remove American football from its list of sanctioned sports, leaving the administration of that sport to the conferences and institutions. Most of the NCAA’s annual revenue comes from the men’s basketball championship so it might prove a cost-effective measure if the cost of one settlement after another begins to mount.
If Easley and Finnerty end as Ploetz did, with the NCAA opening the checkbook, the time may have truly came for the NCAA to “pay the piper” for decades of ignoring the risks of head trauma. How many pipers show up to be paid after that could mean very significant changes regarding the sport at the collegiate level.
Derek Helling is a journalist out of Chicago. Illinois, who covers the intersections of entertainment and sports with business, law, media and technology. He publishes a newsletter, "The Ninth Circle of Helling," that focuses on labor issues in North American sport.