A Verdict That Could Have Changed the Tide

One of the most visible concussion cases against the NCAA went to a jury trial for only three days, but experts say the association's problems are not over.

June 26, 2018
 
Deb Hardin-Ploetz sued the NCAA last year, alleging negligence and the wrongful death of her husband, a former college football player who suffered from brain disease CTE.

It was the case that legal experts and college sports leaders were watching.

The aggrieved widow of a former college football player had sued the National Collegiate Athletic Association for allegedly ignoring the signs -- repeated head trauma -- that potentially led to her husband’s death.

Deb Hardin-Ploetz’s 2017 lawsuit stood out among the waves of concussion-related litigation filed against the NCAA because it was the first to reach a jury trial. A verdict in her favor, that the NCAA was legally responsible for the death of Greg Ploetz -- a scrappy linebacker and defensive tackle for the University of Texas in the late 1960s and early ’70s -- would have likely left the association open to liability in an avalanche of other cases and drawn more attention to an issue already under fierce public scrutiny.

But any hope that the Ploetz case would set groundbreaking precedent disappeared June 15, just the third day of the trial. After a lunch break, the judge announced the two sides had settled. The details of the deal remain undisclosed.

Legal scholars said in interviews that the settlement diminishes most of the case’s significance, but the NCAA’s court arguments, public statements and willingness to settle do hint at how it might handle the mounting challenges against the association.

To date, 111 lawsuits, led by Edelson PC, a law firm specializing in class action suits, have been filed and condensed against the NCAA and its membership. Four test sample cases have been selected, two by plaintiffs and two by defendants, to go through discovery, motions and more, and are part of the process for the federal court to officially certify them as class action.

Hardin-Ploetz sued in January 2017 after more than a decade of watching her husband deteriorate. He was diagnosed with dementia in 2009 and went from misplacing his keys and glasses to forgetting how to send an email to not being able to control when he went to the bathroom. A longtime teacher and coach, and part of the Longhorns’ national championship team of ’69, Ploetz died at age 66 in 2015, barely communicative and wasted away, in a long-term care facility.

After Ploetz's death doctors discovered he had an advanced stage of chronic traumatic encephalopathy, or CTE, a degenerative brain disease brought on by continual head trauma. Athletes and military veterans are most at risk for CTE. In cases of CTE, a protein called TAU builds and clumps in the brain, killing cells and causing physical problems -- severe headaches -- as well as significant mood swings and memory loss. It can only be definitively diagnosed after death.

Convinced that Ploetz’s years of college football (he never played professionally) led to his decline, Hardin-Ploetz sued the NCAA, seeking $1 million in damages over charges of negligence and wrongful death. She argues that the association knew about the dangers of concussions and did not warn her husband.

Lawyers representing the Ploetz family did not respond to questions about the settlement. The NCAA declined to comment beyond a statement from Donald Remy, its chief legal officer: “The settlement gives all parties the opportunity to resolve the case outside of a lengthy trial. The NCAA does not admit liability as part of the settlement. We will continue to defend the association vigorously in all jurisdictions where similar unwarranted individual cases are pursued. It is our hope that other plaintiff’s lawyers recognize that this is one settlement in one case.”

The NCAA and their witnesses would have been forced to answer questions on player safety to jurors, as Michael McCann, associate dean for academic affairs and director of the Sports and Entertainment Law Institute at the University of New Hampshire, noted in a Sports Illustrated column. The case may have clarified the association’s position on these issues. The NCAA has maintained that it’s obligated to protect players, but it’s also publicly contradicted that idea. In one 2013 court filing, for instance, the association denied any legal duty to protect athletes. About a year later, NCAA president Mark Emmert testified before Congress that the filing simply used a “terrible choice of words” by the association lawyers. But the association again denied any legal liability in the Ploetz case. That position conflicts with the association's own constitution, which states athletes must be protected physically and educationally. The NCAA argued that it had no legal obligation “that would serve as the basis of a negligence or wrongful death case,” McCann wrote.

In opening statements, according to Law360, the NCAA lawyer said the plaintiff was “Monday morning quarterbacking” by suggesting that the association should have known about CTE and the consequences of head trauma when Ploetz was playing, despite the lack of advanced research on head trauma back then.

Legal briefs filed by the NCAA show that it would have argued that Ploetz assumed a certain amount of risk in playing football. And a deposition of an NCAA witness, obtained by Deadspin, also suggested that the association planned to question the connection between football and CTE. The NCAA’s chief medical officer, Brian Hainline, did acknowledge in his deposition a link between such brain diseases and football injuries.

Proving that the NCAA knew or should have known about the disease back when Ploetz was playing would be difficult, said Matt Mitten, professor of law and executive director of the National Sports Law Institute at Marquette University. Not even medical professionals understood it to the extent they do now, Mitten said. But such information was available, at least to a degree. As early as 1928, the Journal of the American Medical Association used “punch-drunk” as a way to describe the condition of boxers who took multiple blows to the head. The NCAA also referred to “punch-drunk” in its medical handbook published in 1933. It recommended players sit out at least 48 hours after a concussion.

Numerous other studies on concussions emerged before 2010, when the NCAA required its member institutions to form concussion-management plans for athletes who were concussed or suspected to be. The athletes weren’t allowed to play the same day they were possibly concussed, nor were they allowed to return until a medical professional had cleared them. Prior to this, the rules were inconsistent or nonexistent at some colleges.

The NCAA already agreed to pay $75 million to settle a class-action lawsuit on concussions, but none went to individual athletes, who can still file personal injury claims. Most of the money, $70 million, was used to set up a medical monitoring system for them, with the remaining $5 million going toward concussion research.

The public can’t draw much of a conclusion about the settlement, but it shows that the NCAA would be willing to settle for a reasonable amount, Mitten said.

Compare the NCAA’s tactics to those of the professional leagues, which have not fared so well against their iterations of concussion lawsuits. The National Football League offered a $1 billion settlement for former players who displayed lingering problems related to concussions and instituted much stricter rules around head trauma and play. But the National Hockey League, also being sued, has adopted a somewhat similar argument as the NCAA’s, fighting vigorously against the notion it should have been aware of concussions and their effects.

The most recent and eye-catching development in concussion research came last year from Boston University's CTE Center, which found that the brain of nearly every professional football player it studied had symptoms of CTE -- 110 of the 111 brains. The numbers weren’t much better for college football players -- 48 out of 53 brains, or 91 percent.

New, more advanced studies and public perception continue to pressure the NCAA, McCann said in an interview. Although the issue of head injuries has become much more visible in the last several years, legal battles against the NCAA can be complex because they can involve so many parties, including individual institutions, which are often protected from civil suits, McCann said.

Though the NCAA was able to settle in this case, a “significant cloud” hangs over college football, said Paul Haagen, professor of law at Duke University and co-director of its Center for Sports Law and Policy.

Why the NCAA settled remains unknown. Its representatives could have gotten a read from the judge that a potential verdict would be unfavorable, Haagen said, and this would have given traction to similar cases and opened the NCAA to lots of potential liability.

“What is really significant is that we have a very complicated medical condition about which there is relatively little known in any detail,” he said. “But the public narrative is such that people are accepting that there is liability.”

Critics of the NCAA say it is losing the public relations battle over concussions, especially as more people become aware of the harm from repeated head trauma and the end results. Jay Edelson, co-lead counsel on the potential class-action lawsuit, celebrated the settlement as a step forward for plaintiffs who have not yet had their stories heard.

“It makes a clear statement that even under the best of circumstances for it -- with a favorable jury, in a favorable jurisdiction like Texas state court -- that the NCAA doesn't believe the evidence is in its favor,” Edelson said in a statement. “The affirmative evidence presented to the jury in the Ploetz case revealed further -- and in several instances, for the first time publicly -- the true extent of the NCAA's knowledge, and its efforts to hide from players and the public, the serious and detrimental effects of concussive and sub-concussive hits on football players. It’s particularly striking that the NCAA apparently felt compelled to settle the case before presenting any defense at all at trial.”

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