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.
[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.
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 Sports, PT In Motion, (Oct. 7, 2015),
http://www.apta.org/PTinMotion/News/2015/10/7/ConcussionNCAA/#.
[ix]
Alice Park, How Concussions Can Lead to Poor Grades, Time (May 10, 2015),
http://time.com/3852458/how-concussions-affect-school-grades/.
[xi]
In re: Nat’l Collegiate Athletic Ass’n
Student-Athlete Concussion Injury Litig., 314 F.R.D. 580, 583 (N.D. Ill. 2016).
[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.
