Dropping the Ball: The Failure of the NCAA To Address Concussions in College Football

Notre Dame Law Review Volume 89 | Issue 5 5-2014 Dropping the Ball: The Failure of the NCAA To Address Concussions in College Football K. Adam Pretty Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Entertainment and Sports Law Commons Recommended Citation 89 Notre Dame L. Rev. 2359 (2014). This Note is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact . Article 13 \\jciprod01\productn\N\NDL\89-5\NDL513.txt unknown Seq: 1 28-MAY-14 8:25 DROPPING THE BALL: THE FAILURE OF THE NCAA TO ADDRESS CONCUSSIONS IN COLLEGE FOOTBALL K. Adam Pretty* “Football isn’t a contact sport—it’s a collision sport. Dancing is a contact sport.” –Duffy Daugherty, head football coach at Michigan State University, 1954–1972 1 INTRODUCTION On August 22, 2011 Derek Sheely, a starting fullback on the football team at Frostburg State University, a 4755-student National Collegiate Athletic Association (NCAA) Division III school,2 collapsed on the practice field after sustaining a blow to the head during full contact preseason drills.3 Despite the best efforts of doctors to relieve the swelling in his brain, Sheely remained in a coma for six days before passing away.4 Sheely’s head injury occurred while participating in what is known as an “Oklahoma drill,” where the fullback and linebacker are aligned on opposite sides of the ball and collide at full speed.5 A common exercise in the first few weeks of practice at the high school and college levels, the Oklahoma drill is often used by * J.D. Candidate, University of Notre Dame Law School, 2015; B.A. Miami University, 2011. I am grateful to Professors Jeff Pojanowski and Mark McKenna for their guidance and insight. I would also like to thank my family and friends for their love and support, as well as the staff of the Notre Dame Law Review for their efforts in editing this work. This Note is dedicated to my parents, as thanks for all they have done to help me reach where I am today. 1 THE LITTLE RED BOOK OF FOOTBALL WISDOM (Niels Aaboe ed., 2013). 2 Undergraduate Admissions, FROSTBURG STATE UNIV., http://www.frostburg.edu/un grad/admiss/ (last visited Apr. 7, 2014). 3 Dan Diamond, A Head Injury in Practice Killed Derek Sheely. Is the NCAA To Blame?, FORBES (Sept. 2, 2013, 7:47 AM), http://www.forbes.com/sites/dandiamond/2013/09/ 02/a-head-injury-in-practice-killed-derek-sheely-is-the-ncaa-to-blame/. 4 Nathan Fenno, Death of Frostburg State Player Derek Sheely Due to ‘Egregious Misconduct,’ Lawsuit Says, WASH. TIMES (Aug. 22, 2013), http://www.washingtontimes.com/news/2013/ aug/22/death-frostburg-state-player-derek-sheely-due-egre/print/. 5 Id. 2359 \\jciprod01\productn\N\NDL\89-5\NDL513.txt 2360 unknown Seq: 2 notre dame law review 28-MAY-14 8:25 [vol. 89:5 coaches to determine which players are not afraid to hit.6 “What the [Oklahoma] drill . . . showed was something simpler than technique or leverage . . . . It showed who had a hard nose for contact and, more importantly, who didn’t.”7 However, the Oklahoma drill is now rarely used at the professional level, and many commentators have been sharply critical of what such drills actually accomplish, as in many situations, “[i]t’s not even about winning a one-on-one. It’s just about slamming into each other.”8 According to a wrongful death complaint filed by Sheely’s family against the university, as well the NCAA and the team trainer, Sheely’s head had begun bleeding profusely at least four separate times over three days of preseason practice.9 The team trainer treated Sheely’s injuries by applying a bandage to his forehead and returning him to practice, allegedly without examining Sheely to determine if he might have a concussion.10 During practice, Frostburg State running backs coach Jamie Schumacher purportedly encouraged his players to “lead with your head” and to hit “hat first,” reprimanding those players who refused to comply.11 After one drill, Sheely allegedly complained to Schumacher that he “‘didn’t feel right’ and had a ‘headache,’”12 to which the coach responded by yelling, “[s]top your bitching and moaning and quit acting like a pussy and get back out there Sheely!”13 Other players alleged that teammates who reported or complained about injuries were treated as “gripers,” and were often forced to clean the practice field as punishment for complaining about their injuries.14 All of these alleged actions constitute drastic violations of the medical community’s advocated best practices on concussion management.15 6 Ron Borges, Today’s Players Don’t Know the Drill, BOS. GLOBE (July 29, 2006), http:// www.boston.com/sports/football/patriots/articles/2006/07/29/todays_players_dont_ know_the_drill/. 7 Id. 8 David Steele, ‘Oklahoma’ Drill Used by Bengals is Dangerous and Archaic, SPORTING NEWS (last updated Aug. 29, 2013, 7:08 PM), http://www.sportingnews.com/nfl/story/2013-0730/bengals-oklahoma-drill-concussions-chris-nowinski-mike-brown (quoting Chris Nowinski, a co-founder of Boston University’s Center for the Study of Traumatic Encephalopathy and a former college football player). 9 See Fenno, supra note 4. 10 Id. 11 Id. (internal quotation marks omitted). 12 Id. 13 Id. (internal quotation marks omitted). 14 Id. (internal quotation marks omitted). 15 See Frederick O. Mueller & Bob Colgate, Annual Survey of Football Injury Research 1931–2012, NAT’L CTR. FOR CATASTROPHIC SPORT INJURY RESEARCH 7–9 (2013), available at http://www.unc.edu/depts/nccsi/2012FBInj.pdf. See generally Amy W. Doolan et al., A Review of Return to Play Issues and Sports-Related Concussion, 40 ANNALS BIOMEDICAL ENG’G 106 (2012) (discussing the medical concerns behind returning an athlete to play too soon after a head injury); Kevin M. Guskiewicz, When Treating Sport Concussion, Check the Boxes, But Also Go the Extra Mile, 48 J. ATHLETIC TRAINING 441 (2013) (asserting that trainers must go beyond a simple checklist when treating concussions); Robert C. Lynall et al., ConcussionAssessment and -Management Techniques Used by Athletic Trainers, 48 J. ATHLETIC TRAINING 844 \\jciprod01\productn\N\NDL\89-5\NDL513.txt 2014] unknown dropping the ball Seq: 3 28-MAY-14 8:25 2361 In December 2011, Kristen Sheely wrote a letter to NCAA President Mark Emmert regarding the death of her son, in which she asked for the NCAA’s support in investigating the circumstances of Sheely’s death.16 The NCAA responded by stating that while “[p]art of the NCAA’s core mission is to provide student-athletes with a competitive environment that is safe[,] . . . each school is responsible for the welfare of its student-athletes.”17 The response letter also noted, “[u]nfortunately, neither the NCAA nor any other organization can take the risk completely out of contact sports.”18 To this point, the NCAA has not investigated further into the d (...truncated)