The NCAA may be Liable for the Mishandling of Concussions Thirty Years Ago, but are Players Sufficiently Protected Today?

KEVIN KULLMANN—A new lawsuit against the National Collegiate Athletic Association (the “NCAA”) may have significant ramifications on the future of contact sports. Alana Gee is suing the NCAA for $1.8 million following the alleged wrongful death of her husband, Matt Gee (“Mr. Gee”). Pre-trial proceedings began on Friday, October 21st of this year. 

Matt Gee played football for the University of Southern California (“USC”) from 1988–1991. The claims allege that Matt Gee died from complications due to chronic traumatic encephalopathy (“CTE”) stemming from the mishandling of concussions suffered during his collegiate football career. 

CTE is a degenerative brain disease caused by repeated trauma to the head. Particularly, CTE is thought to be caused by recurrent concussions suffered without sufficient time to recover from the initial head injury. The degenerative brain disease has become commonly associated with the deaths and suicides of former NFL players, including the notable suicide of Andre Walters in 2007, followed by the suicides of Junior Seau, Aaron Hernandez and other athletes. As a result, the NFL settled with over 4,500 retired players in 2013 over concussion-related injuries. The settlement—totaling $765 million—agreed to compensate victims, pay for medical exams, and support additional research initiatives. 

The NCAA argues that Mr. Gee’s death in 2018 was not caused by CTE but was rather caused by medical issues such as alcoholism, obesity, and other illnesses. Yet, Alana Gee argues that CTE was the cause for such behavioral changes, substance abuse and health issues. In Michael Rosenberg’s 2020 article covering stories of Mr. Gee and other players who died under similar circumstances, Rosenberg detailed how Gee’s body deteriorated over time. However, the NCAA is seeking to block the introduction of the article and other related media as evidence. 

The NCAA bylaws state that the schools are liable for any alleged mishandling of injuries. Thus, the NCAA argues that USC, not the NCAA, is responsible for the health and well-being of Mr. Gee. Yet, based on how the NCAA has settled cases involving concussions in the past, there is precedent indicating that the NCAA was on notice of such dangers in the sport of football. The NCAA further alleges that Mr. Gee assumed the risk of such dangers inherent to football. However, there are many valid questions as to whether players contemplate such long-term health risks, and whether the NCAA does enough to protect players from these risks. This is only the second case to go to trial over CTE allegations and may be the first to go before a jury. The jury may be tasked with resolving such factual and causation issues. 

The NCAA has not reached as large of a monetary settlement over concussions as the NFL has. Further, as the NCAA has many more former players than the NFL, the entity is in danger of additional legal liability over this issue. If Alana Gee’s claims succeed, the door can potentially open for future lawsuits. The potential liability for the NCAA is in excess of $100 million according to sports law attorney, Dan Lust. Nonetheless, going forward this case would not be binding precedent, especially outside of California. But if the NCAA successfully defends itself against Gee’s claims, it will strengthen its arguments against future plaintiffs. Despite the recent increase in awareness and research, the mishandling of concussions is still occurring today. The concussions suffered this year by Miami Dolphins quarterback, Tua Tagovailoa, are a relevant example.. Tagovailoa was visibly stumbling after an initial head injury, but he was cleared to play the rest of the game as well as the following week—just four days later. Unfortunately, Tagovailoa suffered an additional head injury the following week and was carted off the field and rushed to the hospital. After Tagovailoa’s injury, many alleged that the team mishandled his head injuries and allowed him to return to play too quickly. As a result, the NFL fired the physician involved in his concussion evaluation and updated the concussion policy in the Collective Bargaining Agreement (“CBA”) with the NFL Players Association. The NCAA has enacted similar rule changes over the years to prevent significant or repeated head trauma. Yet, clearly, instances of traumatic head injuries are still prevalent. 

Alana Gee’s lawsuit may subject the NCAA to significant legal liability, but the NCAA and the sport of football are not going anywhere any time soon. Indeed, star players such as Luke Kuechly and Chris Borland have retired earlyfrom the NFL in order to protect the long-term health of their brains. However, the NFL and NCAA have continued to adapt their rules and policies to protect players. As a result, many have even speculated that the sport of football is on a slow path to evolving into a contact-free game of flag football.

Recent rule additions include the NFL and the NCAA penalizing the targeting of players’ heads when initiating contact. Further, after head trauma, players are now assessed to ensure their cognitive abilities return to healthy levels determined by baseline tests. Notwithstanding these recent safety measures, the NCAA may be liable for mishandling Matt Gee’s head injuries thirty years ago. As concussions are still being mishandled in professional and collegiate sports, further liability may continue to encourage better monitoring of injuries and more research into player safety. These new rules coupled with the existence of on-field doctors monitoring all head trauma seemingly indicate that the responsibility does not—and should not—fall solely on the concussed player to protect himself from further injury. We cannot expect all players to take themselves out of the game and all possible steps should be taken to safeguard those playing each week.