¶ … Onyshko v. NCAA Case briefing:

Onyshko v. NCAA pending in the United States District Court for the Western District of Pennsylvania.

Recently, the heightened publicity in regards to the dangers of college sports, specifically football, has raised the question of the degree to which colleges and the NCAA have a responsibility both to warn and protect players on teams from participating institutions. The case of Onyshko v. NCAA currently pending in the courts concerns such allegations. It is the contention of the plaintiff that the NCAA was negligent in both its duty to protect him as a student athlete regarding the risks of traumatic brain injury (TBI), dementia, and other complications associated with repeated head trauma in football and also that the NCAA did not do due diligence in informing coaches how to mitigate the risk of blows to the head and creating rules which decreased the likelihood that athletes like himself would sustain blows which would have negative life repercussions later on.

Analysis/Discussion

The duty to protect someone from the risks inherent in a sport or recreational activity

In this particular case, there is a clear duty on the part of the NCAA and member schools to protect the health and well-being of student athletes. It is important to remember that this is not merely a case of an individual pursuing a risky sport during his own leisure time, like a marathon runner entering an extreme race. Athletes are supposed to benefit from the relationship they have with the school. Moreover Article 2.2 of the NCAA Constitution specifically addresses the "Principle of Student-Athlete Well-Being" by stating that "intercollegiate athletics programs shall be conducted in a manner designed to protect and enhance the physical and educational well-being of student-athletes. [footnoteRef:1]Also, according to 2.3.3 Health and Safety, "it is the responsibility of each member institution to protect the health of, and provide a safe environment for, each of its participating student-athletes."[footnoteRef:2] [1: Onyshko v. NCAA, 2. ] [2: Onyshko v. NCAA, 2. ]

Schools act in 'loco parentis' for student athletes and students are not treated as fully-fledged adults within the context of the university environment. The university takes many measures to shape student activities and ensure that they are less risky. It has a similar obligation with student athletics. Even if this means changing the rules of football to ensure there is less head contact or other regulations to protect safety that might reduce the pleasure of football as a spectator sport, the welfare of the athletes must come first. Furthermore, since these are student athletes, their performance in the classroom may be impacted by the risks sustained in football. It is a mockery of the concept of student athletics to allow students to sustain potentially mentally incapacitating blows to the head without attempting to mitigate the risk.

It is alleged that "during the time period of the events in this action, the NCAA failed to address and/or correct the coaching of tackling or playing methodologies that cause head injuries; the NCAA failed to educate coaches, trainers and student-athletes as to the symptoms indicating possible concussions; the NCAA failed to implement system-wide 'return to play' guidelines for student-athletes who have sustained concussions; and the NCAA failed to implement system-wide guidelines for the screening and detection of head injuries." [footnoteRef:3]The NCAA at a very basic level has a responsibility to enhance the safety of players as much as current knowledge and technology allows. Bur it neglected to give relevant personnel the tools that would enable them to screen for concussions to the maximum degree allowed for by current medical science. Players are in a poor position to determine if the plays they are executing or if their injuries are likely to put themselves as long-term risk and they must trust in the expertise of the medical staff and coaches. [3: Onyshko v. NCAA, 3. ]

Initial vs. long-term risk

The concept of long-term risk is relevant to this case because it is not enough that individuals participating in the activity are merely aware of the initial risk. This ties directly to the argument that football is a risky sport and therefore football players 'know the risks.' In fact, they often do not. Players may understand that they can hurt a knee or a shoulder while playing; even that football runs the risk of violent immediate injury; they are often unaware of the long-term sustained brain damage they can suffer as a result...

Even a player that does not sustain a life-threatening injury in an immediate sense on the field can still be at risk for long-term consequences such as dementia.
Young players do not have the knowledge or even the inherent cognitive ability to understand that risky behavior now will result in damage to them later in life; young people do not have the cognitive ability to fully assess risk (which is one reason why certain privileges such as drinking are only extended to 21-year-olds). That is why it is noted that the NCAA was negligent when it "failed to inform him [Onyshko] of the true risks associated with concussions and sub-concussive hits suffered while playing collegiate football." [footnoteRef:4]The contention that simply because players are aware of 'some risk' but not aware of all the risks is enough does not fully take into consideration the severity and duration of those long-term risks, not the pervasiveness of them amongst players that have suffered repeated trauma to the head. [4: Onyshko v. NCAA, 2. ]

Duty to protect and duty to warn

The NCAA has both a duty to protect as well as a duty to warn players. It has a duty to protect, given the purpose of college sports, which is ultimately to enrich the life of the student athlete as well as the college community. Student athletes are not paid employees of the university, but rather students on scholarship and the school has a protective function regarding the health and well-being of all of its students. Just as students trust the university to provide them with safe classrooms, athletes should feel as though all the necessary and possible steps are being taken to preserve and protect their current and future health.

Participation in athletics is not without risk. But although students may be aware of some of the risks, the NCAA has a privileged position of knowledge and should inform players of those risks so they can make a reasonable assessment of the costs and benefits of participation. The NCAA, based upon its own studies as well as the studies of other researchers was quite aware of the connection between traumatic brain injuries and repeated blows to the head. "Medical science has known for many decades that repetitive and violent jarring of the head or impact to the head can cause Mild Trauma Brain Injury ("MTBI") with a heightened risk of long-term, chronic neuro-cognitive maladies" [footnoteRef:5]However, to a student athlete, these risks are not always readily apparent. Also, student athletes are often under the pressure to play for the good of their teams and to please coaches and fans. They may be worried about retaining their scholarships. Given the incentive students have to not admit the seriousness of their injuries, it is the NCAA that must educate and inform coaches and other staff members that they must step in to mitigate harms. [5: Onyshko v. NCAA, 7. ]

How do these duties arise?

These duties arise to the player first and foremost out of the purpose of the NCAA and its relationship to the players. According to the NCAA's own constitution "the purposes of this Associations are: (a) to initiate, stimulate and improve intercollegiate athletics programs for student athletes." [footnoteRef:6]Informing athletes of the risks they might be sustaining is consistent with the principle that college athletics is for the athletes, who are not paid professionals. Also, the youth of the college athletes further underlines the paternalistic relationship between NCAA and players. Athletes are not unionized and do not have others representing their interests: the NCAA and the school are acting in loco parentis for them. Withholding information from young people in such a context is thus against the principles of the NCAA's own constitution as well as the duties of a college organization to care for the young people it is supposed to represent. [6: Onyshko v. NCAA, 6. ]

The defense of the assumption of risk

The defense of the assumption of risk is not applicable to this case. The risks in question are not evident in the short-term but in the long-term. There is no way to assess the risk from the player's perspective, unlike other kinds of physical trauma. Football is an accepted part of American culture and although the NCAA has long known the physical risks of the sport, the public as a whole is only just becoming aware of the dangers of head trauma sustained while playing it.

Conclusion

For all of these reasons, the NCAA has been established as having a clear duty to protect and warn Mr. Onyshko of the risks he could sustain college football as well as…