Student-Athletes Left in a Daze: An Examination of the NCAA Concussion Class Action Law Suit and the Self-Defeating Amateur Designation that the NCAA Maintains Over Student-Athletes

Thomas Sternberg

Student-athletes are supposedly limited to 20 countable athletic training hours per week during the season and eight countable athletic training hours per week out of season.[i]  Countable athletic training hours include activities such as practices limited to four hours, coach’s meetings, weight-training, participation outside of the regular season in individual skill sessions, game film reviews, and competitions, which regardless of the actual duration, are counted as three hours.[ii]  What is not included in the countable hours are traveling to and from the site of competition, training room activities and medical examinations, training table meals, recruiting activities, compliance meetings, and public relations or promotional activities for the organization.[iii]  While the 20 countable hour work week seems to function as a part time job, the discretion left to the controlling organization and university is vast as it can economically and physically restrict the student-athletes from contracting with professional teams, receiving salary for participating in athletics, prize money above actual and necessary expenses, the ability to play with professionals, or contractually agree to be represented by an agent.  All of these restrictions are supposedly in place so the controlling organization, the National Collegiate Athletic Association (NCAA), can maintain an academic priority for student-athletes at their respective universities.[iv]

            The hour requirement imposed on individual student-athletes, the fiscal control the NCAA and individual university can maintain over the student-athletes, and the commercial nature of television contracts profited off of the competition among the amateur athletes, all point in the direction of employment designation for the student-athletes.[v]  The Control Test determines the practicability of an employee versus an independent contractor and is established if four sections are met:  (1) direct evidence of right or exercise of control; (2) method of payment; (3) the furnishing of equipment; and (4) the right to fire.[vi]  All four factors of the control test are met when it comes to student-athletes and their employment relationship with the NCAA and each respective university.  While all four factors are met concerning student-athletes as employees, evidence further suggests that the NCAA should allow employment benefits for student-athletes who suffer injuries such as concussions because the concussion symptoms and affects among student-athletes defeats the purpose that the NCAA lists for not allowing employment benefits.

However, a study from the NCAA Injury Surveillance Program revealed that from 2009-2010 and 2013-2014 academic years, sports related concussions (SRC) were found to injury 4.47 per 10,000 athletes.[vii]  More notably, one out of every eleven SRC was a recurring concussion.[viii]  Concussions have been proven to deplete a student’s concentration while the student-athlete must maintain their course load and focus attentively in school.[ix]  Danielle Ranson, a postdoctoral fellow in neuropsychology at the Children’s National Health System, studied 349 students aged 5 to 18 years of age who were previously diagnosed with a concussion.  Ranson’s results show a direct relationship between difficulties in school after suffering a severe head injury in the past.  88% of students in the study reported having more than one symptom, “including headaches, fatigue, difficulty understanding lessons or problems concentrating.”  77% said they had more trouble taking notes and took longer completing assignments.[x]  A class action law suit filed against the NCAA settled on January 26, 2016 dealing with the issue of concussions suffered by student-athletes while operating under the control of their individual universities.[xi]  The original complaint included twenty-four student-athletes and each alleged, as part of the class action complaint, that each student-athlete “…played an NCAA sport during a time when the NCAA's concussion-management and return-to-play guidelines failed to meet the best practice consensus standards, and each is at risk for developing future symptoms related to concussions and/or the accumulation of subconcussive hits.[xii]  The settlement included six major policy changes the would be instituted at the NCAA level.  The first policy that the NCAA will institute is the preseason base-line testing requirement that each student-athlete must undergo within each sport he or she plays.  The second policy change is within the return-to-play requirements.  The third requirement states that the NCAA will have medical professionals attending every game where contact between players can occur.  Fourth, the NCAA implements a uniform reporting and resolution standard for diagnosing concussions.  Fifth, NCAA-affiliated schools will educate the student-athletes, coaches and trainers on approved concussion instruction before each individual season.   The sixth and most relevant policy change is that the NCAA will educate faculty of the university with instruction on accommodations for students affected by concussions.[xiii]

            The countable athletic hours that a student athlete can be tracked by is a fallacy that results in a variety of violations of individual NCAA member institutions who can maneuver and outflank the regulations imposed by the NCAA.[xiv]  While the NCAA maintains the educational focus, the organization severely limits and controls individual student-athletes in regards to compensation, freedom of mobility among member institutions, and legal recourse that could ultimately compensate the student athlete for their fair market value.  The NCAA and its member institutions face a new challenge:  if the reasoning behind the amateur designation of student-athletes is to maintain an educational priority, and injuries such as concussions have been proven to deplete a student’s concentration, limit the ability to maintain their course load, and limit their ability to focus attentively in school, then the purpose of a student-athlete’s designation as an amateur is improper due to the prolonged effects of concussions and the accepted and adopted reasoning that concussions severely affect a student-athlete’s academic environment.[xv]  By pursing the commercial venture without adequate knowledge on the topic of concussions with direct and palpable standards that must be adopted at each member institution, the NCAA is foregoing liability in an indiscrete and obvious way:  Revenue over Student-athlete’s education.[xvi]  Overall, the rules, regulations, and restrictions imposed upon student-athletes would signify an employer-employee relationship under the control test.  The student-athletes, legislators, the NCAA, and its member institutions must grant an employment designation for student-athletes who suffer a concussion where it has been proven to severely limit or negatively impact the student-athlete’s educational experience, which, according to the NCAA, is the priority.[xvii]

[i]                Countable Athletically Related Activities at 5, 7, https://www.ncaa.org/sites/default/files/20-Hour-Rule-Document.pdf (last visited July 21, 2017).
[ii]            Id. at 6-7.
[iii]           Id.
[iv]           Amateurism, http://www.ncaa.org/amateurism (last visited July 21, 2017).
[v]            See generally Nat’l Collegiate Athletic Ass’n v. Bd. of Regents, 468 U.S. 85, 99 (1984).  Showing the commercial value of television contracts. Id. See generally Hennessey v. Nat’l Collegiate Athletic Ass’n, 564 F.2d 1136, 1148-49 (5th Cir. 1977). The NCAA is a business venture due to the multi-million-dollar budget and is not exempt from anti-trust regulation.  Id.
[vi]           Shelby v Peavey Electronics Corp., 724 So. 2d 504, 507 (Miss. Ct. App. 1998).
Their significance varies according to the facts of each particular case.  The weight to be given each of the factors pertaining to the employer-contractor question is ordinarily to be decided by the trier of facts.  It is the ultimate right of control, not the overt exercise of that right, which is decisive.”
Id.
[vii]           Study Looks at Concussion Rates Among NCAA SportsPT In Motion, (Oct. 7, 2015), http://www.apta.org/PTinMotion/News/2015/10/7/ConcussionNCAA/#.
                [viii]          Id.
[ix]            Alice Park, How Concussions Can Lead to Poor GradesTime (May 10, 2015), http://time.com/3852458/how-concussions-affect-school-grades/.
[x]              Id.
[xi]            In re:  Nat’l Collegiate Athletic Ass’n Student-Athlete Concussion Injury Litig., 314 F.R.D. 580, 583 (N.D. Ill. 2016).
[xii]           Id. at 585.
[xiii]          Id. at 587.
[xiv]          Division I Committee On Infractions Decision On Michigan, NCAA Release, (Nov. 4, 2010), http://www.ncaa.com/news/football/article/2010-11-04/division-i-committee-infractions-decision-michigan.
[xv]           Park, supra note [ix].
[xvi]          Christopher L. Chin, Illegal Procedures:  The Ncaa's Unlawful Restraint of the Student-Athlete, 26 Loy. L.A. L. Rev. 1213, 1237 (1993).
[xvii]         See Amateurismsupra note [iv].  See generally Mark R. Whitmore, Denying Scholarship Athletes Worker’s Compensation:  Do Courts Punt Away a Statutory Right? 76 Iowa L. Rev. 763, 772 (1991).

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