The NCAA is a magnet for litigation these days; if they’re not being hounded with dubious claims by Pennsylvania Governor Tom Corbett, they’re being challenged for a variety of meritorious antitrust claims, like on their rules limiting athletic scholarships and their licensing agreements for videogames. The cases raise substantial issues about the extent to which an organization can wholly dominate — and profit from — the field of college athletics free from legal accountability.
The Jack Hill, Jr., lawsuit filed last week in Pennsylvania state court, however, raises an issue of far greater importance: whether the NCAA has a duty to protect the health and well-being of student-athletes. Hill was a senior at Slippery Rock University trying to make the basketball team. For years, various medical professionals and health educators have discouraged coaches from using exercise as a form of punishment — in 2009, for example, the National Association of Sport and Physical Education released a position statement arguing that “Administering … physical activity as a form of punishment and/or behavior management is an inappropriate practice” — but Slippery Rock University’s basketball team apparently eschews modern sports medicine for medieval torture methods, and so was, according to the complaint, going through a third practice of the day, a late-night “insanity workout … intended to serve as a punishment for the entire team.”
Problem was, Hill, who was trying to make the team as a walk-on, had undiagnosed sickle-cell trait. He collapsed near the end of practice. According to the complaint, CPR was performed briefly, but stopped before emergency personnel arrived (which is wrong, you should keep doing CPR aggressively until help arrives), and an automated external defibrillator was brought but nobody knew how to use it. He was declared dead shortly after arriving at the hospital. The Pittsburgh Post-Gazette report that his autopsy showed his death was related to sickle cell trait. (I’m curious for more details on that point; I assume the cause of death was acute exertional rhabdomyolysis secondary to sickle cell trait.)
Hill’s death was, shockingly, no surprise at all. As Scientific American reported last month, “Between 2004 and 2008 there were 273 athlete deaths in the NCAA, five of which occurred among players with sickle-cell trait.” In 2007, the National Athletic Trainers’ Association noted that, apart from trauma, the four top killers of high school and college athletes were “cardiovascular conditions, hyperthermia (heatstroke), acute rhabdomyolysis tied to sickle cell trait, and asthma,” and that sickle cell trait deaths were among the easiest to prevent, because “simple precautions seem to suffice.”
It’s a killer, but many coaches, schools, and the NCAA didn’t care at all until the Lloyd lawsuit back in 2008. Per USA Today, “Dale Lloyd II was a freshman cornerback at Rice in September 2006 when he fell unconscious on the practice field after sprinting 100 yards for the 16th consecutive time. … 21% of universities had decided to test for the trait by 2006. Rice University was not among them, and the NCAA didn’t recommend it.” For all the noise made by insurance companies and other billion-dollar industries that profit from recklessness, lawsuits can and do make a difference, and the Lloyd lawsuit both substantially raised the profile of the dangers to athletes with sickle cell trait and, in the settlement, the plaintiffs demanded the NCAA do more to prevent deaths like Lloyd’s by implementing a mandate requiring players be screened for the trait or sign a waiver turning down the screening.
For the 2010 season, the NCAA agreed to do that sort of screening — but only for Division I athletes. Slippery Rock is a Division II school, and one that, as of 2011, still used the very sort of dangerous and pointless torture sessions rejected by every competent sports medicine organization.
Hence, Hill’s parents have sued both Slippery Rock, for its antiquated and reckless training methods, and the NCAA, for not requiring screening of Division II athletes as well.
As I’ve discussed before, it’s hard to establish liability against schools and coaches for dangerous practices in their sports programs, especially against state-owned institutions like Slippery Rock. Consider the Bennie “Buster” Abram lawsuit: Abram, an Ole Miss junior and walk-on defensive back, collapsed and died on the first day of spring practice on Feb. 19, 2010. His family sued, extracted more improvements in sickle cell trait screening from Ole Miss and the NCAA, and then received $50,000 from the insurer for the Ole Miss Athletic Foundation and $275,000 under an NCAA insurance policy, together a mere fraction of the ordinary amount paid in wrongful death claims involving college students who die needlessly.
I have no doubt that the attorneys for Hill’s family will be able to prove that Slippery Rock was negligent (and likely reckless) for taking anyone through the idiotic “insanity workout,” particularly an overweight walk-on who had not been screened for sickle cell trait. Yet, I strongly suspect that the settlement offer they eventually receive will be modest, given that Slippery Rock is a member of the Pennsylvania State System of Higher Education (PASSHE), and thus covered by sovereign immunity. See Poliskiewicz v. East Stroudsburg University, 113 Pa.Cmwlth. 13, 536 A.2d 472, 474 (1988); also see this post of mine about the two types of state-related universities in Pennsylvania).
The claims against the NCAA are a bit more intriguing. Like in Lloyd and Abram, I think the NCAA might offer the family some sort of incremental changes in their handling of sickle cell trait, as well as some modest compensation, but what if the family kept pursuing it? Would they win?
Though these cases against athletic associations are rare compared to other forms of litigation, they’re not wholly novel, but brief searching did not reveal to me many reported cases addressing whether an athletic association could be liable for failing to test athletes for conditions (or, presumably, for failing to prevent schools from utilizing unsafe training methods). There’s the utterly dismal case of Miulli v. Fla. High Sch. Ath. Ass’n, in which the parents of a high schooler who died in practice sued the Florida High School Athletic Association, Inc., claiming, inter alia, “FHSAA was required to adopt bylaws that required all students to pass a medical evaluation prior to participating in interscholastic athletic competitions, tryouts, workouts, or other physical activity associated with the student’s candidacy for an interscholastic athletic team.” Miulli v. Fla. High Sch. Ath. Ass’n, 998 So. 2d 1155, 1156 (Fla. Dist. Ct. App. 2d Dist. 2008). The Court dodged all of the interesting tort questions relating to the standard of care and the association’s legal duties and jumped to a purely governmental analysis, holding that governmental entities have no duty to follow their own laws.
In Sanchez v. Hillerich & Bradsby Co., a pitcher was seriously injured when struck by a line drive hit by an aluminum bat. He sued the bat manufacturer, the opposing player’s school, the Pac-10 conference, and, importantly here, the NCAA, because “the NCAA rules allowed the use of metal bats, and the bat was made in compliance with NCAA standards.” Sanchez v. Hillerich & Bradsby Co., 104 Cal. App. 4th 703, 707, 128 Cal. Rptr. 2d 529, 532 (2002).
The NCAA moved to dismiss for a variety of reasons, including the argument “that it did not owe a duty to appellant because at the time of the accident the baseball community was in significant disagreement over the risk of aluminum bats,” but the Court never addressed this issue directly. Rather, the Court reviewed the evidence, found the NCAA was “aware of the additional danger presented by the newer aluminum bats” yet failed to address it, and so held there was adequate evidence to take the case to trial, thereby implicitly holding the NCAA did have a duty to the player.
The Hill case is in Pennsylvania, which to my knowledge doesn’t have any precedent squarely on point, so in many ways we can start from scratch. Let’s review the basics on “duty” under negligence law:
The duty element in negligence requires us to make a policy judgment whether it is in the public interest to impose damages on those who have failed to conform their behavior to a particular standard. In deciding whether to impose a duty, we consider the following five factors: (1) the relationship between the parties; (2) the utility of the defendant’s conduct; (3) the nature and foreseeability of the risk in question; (4) the consequences of imposing the duty; and (5) the overall public interest in imposing the duty.
Pyeritz v. Commonwealth, 613 Pa. 80, 89, 32 A.3d 687, 692–93 (2011)(citations omitted).
We could go back and forth over the merits of sickle-cell testing all day; for an opposing view, see this recent column in Insider Higher Ed. But that’s a question about the standard of care, not whether the NCAA owes a duty of reasonable care to athletes. In reviewing those five factors in Pyeritz — and considering (1) the near-absolute power of the NCAA over athletics, (2) the ‘utility’ of NCAA regulations being themselves a function of athlete well-being, (3) the superior knowledge the NCAA has about the risks of athletics, (4) the improved student safety that would result from liability, and (5) the strong public interest in safe athletics — is there really any doubt the NCAA owes a duty to student-athletes to implement reasonable safety standards?
And, conversely, is there any excuse for the NCAA to deny such a duty, like they did in Sanchez, and like they presumably will again in Hill?