In the newest development in the evolving area of concussion litigation by collegiate and professional athletes, a former Division 1 college soccer player has filed a lawsuit against the NCAA alleging that the NCAA was aware of, but failed to communicate to student-athletes, the health and safety risks associated with repeated concussions and the increased susceptibility of individuals to suffer a concussion after previously suffering concussions.
The plaintiff in the lawsuit against the NCAA, Mary Shelton Bryant Wells, played for Samford University, a Division I soccer program in Birmingham, Alabama, from 2008-10. Prior to her college career, Wells played soccer for her high school, the Baylor School (Chattanooga, TN), and played club level soccer for the Redoubt Lady Generals. Wells alleges that during her club career with the Lady Generals, Wells suffered concussions in January 2006 and April 2008. In May 2010, while playing for Samford University in a game against Mississippi State University, Wells suffered a third concussion in a head-to-head collision with an opponent. After the injury, Wells alleges that she immediately began showing symptoms of a concussion. Wells was thereafter medically disqualified from playing soccer. Wells alleges that she was “neurologically diagnosed with brain injury caused by her third concussion,” and now suffers and will continue to suffer migraine headaches.
Wells filed the suit against the NCAA on September 30 in Alabama state court alleging a claim under Alabama law for “fraud by suppression.” The pertinent Alabama law provides that a party may be liable for fraud if that party “[s]uppress[es] . . . a material fact which the party is under an obligation to communicate” to another party. Under the law, “[t]he obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.”
Wells alleges that the NCAA suppressed facts relating to and failed to disclose to student-athletes “the serious health risks posed by repeated concussions, including a person’s increased susceptibility to a concussion after having previously sustained a concussion or concussions.” Wells’s complaint alleges that the NCAA has known for years about a multitude of studies studying and explaining the connection between concussions and the onset of severe health conditions, including Alzheimer’s Disease, dementia, depression and Chronic Traumatic Encephalopathy (“CTE”). The complaint alleges that the NCAA is and has been aware of the prevalence of CTE in athletes with a history or head trauma, particularly for football players.
Despite that knowledge, Wells alleges that the NCAA failed to make student-athletes aware of the dangers of concussions and repeated concussions. Wells alleges that in April 2010, the NCAA Director of Health and Safety “admitted that ‘[c]ollege athletes . . . may not understand the consequences of playing with a concussion.’” Wells claims, however, that the NCAA’s 2010 Health and Safety Group’s one-page “Concussion Fact Sheet” for student athletes “provided no warning to student-athletes regarding the immediate or long-term consequences of concussions, of the consequences of repeated concussions.”
In short, and notwithstanding later measures taken by the NCAA in the form of the Concussion Management Plan in August 2010, Wells claims that the NCAA’s “accumulated knowledge about head injuries to student-athletes, and the associated health risks therefrom, was at all times, and still is, superior to that available to student-athletes.”
Wells further alleges that the NCAA’s relationship to student-athletes required the NCAA to disclose to student-athletes the serious health risks associated with concussions and the increased susceptibility of individuals who suffer concussions to suffer later concussions. Wells claims that the NCAA “has assumed a duty to NCAA athletes to protect their health and safety.” Wells alleges that by virtue of the NCAA’s efforts to monitor and ensure the health and safety of student-athletes, both through its constitution and regulations, as well as its public position on health and safety, the NCAA created either a confidential relationship or a special relationship between itself and student-athletes with the accompanying obligation to disclose all material facts necessary to protect student-athletes’ health and safety.
Wells contends that if the NCAA had not suppressed the facts regarding the health risks related to concussions and had instead disclosed the risks, Wells would not have continued playing soccer and would not have sustained a third concussion while playing for Samford University.
Notably, Wells’s lawsuit is in its infancy; it has been only days since the complaint has been filed. The NCAA has not had the opportunity to respond, and the litigation is a long way away from seeing a factual record developed. The NCAA is currently defending concussion-related lawsuits by other student-athletes that played football and hockey, among other sports, and it will be interesting to see the approach that the NCAA takes in the Wells litigation.
Wells’s lawsuit is interesting in the soccer world because it differs significantly from soccer’s most well-known concussion lawsuit, which was brought by Bryan Namoff against his former club, D.C. United and D.C. United’s coaches and personnel. Whereas Wells alleges that the NCAA, an organizational entity, knew about the serious health risks associated with concussions and failed to make student athletes aware of those risks, Namoff’s litigation focuses more on the discrete actions of his coach and the team’s trainers in failing to properly diagnose and treat Namoff after he suffered a concussion. In short, the distinction is that Wells claims that an entity systemically failed to warn student-athletes of a danger (alleging fraud by suppression), and Namoff alleges breaches of standards of care by individuals in caring for Namoff after he sustained a concussion (alleging negligence).
It is therefore unlikely that the legal issues presented in Wells’s lawsuit will overlap with legal issues that will be addressed in Namoff’s lawsuit. The two lawsuits, however, add to the building noise about the dangers of concussions in soccer and, more broadly, in collegiate and professional sports.