By Patrick Lichtenstein
Gregory Ploetz had everything a collegiate student-athlete could hope for: he played Division I college football at the University of Texas, won a national championship, and was even named the Southwest Conference Defensive Player of the Year. However, starting in the early 2000s, Ploetz started displaying signs of memory loss, confusion, erratic behavior, and difficulty communicating with others. By 2009, Ploetz became apathetic, disinhibited, exhibited compulsive behaviors, experienced paranoia, and his personal hygiene began to decline.
At sixty-six, Gregory Ploetz succumbed to his symptoms and passed away. Following his death, Gregory Ploetz’s wife, Debra Hardin-Ploetz, donated Gregory’s brain to Boston University, where researchers discovered that Ploetz suffered from stage four chronic traumatic encephalopathy (“CTE”), the most severe level of the degenerative neurological disease, often caused by multiple blows to the head. For those with CTE, a protein called “tau” builds and clumps in the brain. This disease kills brain cells and causes physical problems like headaches, as well as drastic mood swings and dementia; however, it can only be diagnosed after death because the necessary diagnostic tests cannot be performed on living patients. Consequently, Gregory Ploetz never even knew he suffered from the disease that afflicts many football players — and eventually killed him.
Following the CTE diagnosis, Hardin-Ploetz sued the National Collegiate Athletic Association (NCAA) for negligence and wrongful death. Hardin-Ploetz sought more than $1,000,000 in damages for neurological injuries her husband suffered because of his participation in football while at the University of Texas. Hardin-Ploetz’s lawsuit became the first ever case to reach a jury trial in which an individual plaintiff argued that an organization, in this case the NCAA, did not do enough to prevent football players from developing brain injuries.
Hardin-Ploetz’s claims, if successful, would open the floodgates to litigation for collegiate athletes, as well as potentially high school or Pop Warner football players, who suffer from head injuries while playing. However, when Hardin-Ploetz and the NCAA settled their dispute three days after arguments began in the summer of 2018, it left unanswered how concussion-related cases should be decided. Even so, it is likely that, assuming a plaintiff has standing, a collegiate athlete, or someone suing on the athlete’s behalf, would be successful in proving a prima faciecase for negligence against the NCAA.
Generally, when someone causes an injury to another person, the legal principle of negligence will hold the careless person legally liable for any resulting harm. To succeed on a claim for negligence, a plaintiff must sufficiently establish the existence of a legal duty on the part of the defendant, a breach of that duty, proximate and actual causation, and a harm. Essentially, a defendant owes a duty, or legal obligation, to a plaintiff when (1) the special relationship between the two gives rise to a duty and, depending on the circumstances, (2) when the defendant could reasonably foresee that someone in the particular plaintiff’s position might be hurt by unreasonably risky conduct.
Courts have found that public colleges and universities have a duty to protect their students from potential violence in “school-sponsored activities.” Although the question at hand is whether the NCAA, not an individual school, is negligent, similar principles should apply. In fact, NCAA President Mark Emmert has openly acknowledged that it owes a duty owed to student-athletes. During a Senate hearing, President Emmert stated that the NCAA owed its student-athletes a moral obligation to protect their safety and well-being. Additionally, this duty to protect players is memorialized in Article 2 of the NCAA’s Constitution. This section of the NCAA Constitution proclaims that it is the responsibility of each member institution, meaning universities and colleges under watch of the NCAA, to protect “the health of, and provide a safe environment for” all student-athletes at member institutions.
A “breach” is generally a failure to conform to the required standard imposed on a defendant as a result of a duty to care for the plaintiff. A breach occurs when the defendant fails to exercise reasonable care in fulfilling the duty owed to the plaintiff or fails to fulfill the duty at all. The NCAA breached its duty owed to collegiate student-athletes when it failed to enact any policies, regulations, or educational programs aimed at mitigating brain injuries and concussions. The NCAA should have enacted such policies because it knew, or at least should have known, of the risks associated with concussions, sub-concussive blows, and head trauma to collegiate football players.
The NCAA knew or should have known about these risks as soon as the 1933. In NCAA medical journals and reports from that time, the NCAA discusses the risks of suffering multiple concussions and how to properly help mitigate the risks of repeated head trauma. One ailment, known as “punch-drunkenness,” referred to athletes suffering from concussions who later became disoriented and even physically sick. Further, the NFL began to recognize similar risks resulting from head injuries as soon as the early 1950s. Therefore, by 1968, when Gregory Ploetz began playing football at Texas, the NCAA either knew or should have known of the risks Ploetz faced as a result of repeated, sub-concussive blows to the head and concussions.
Next, the NCAA failed to mitigate the risks players faced during collegiate competition when it did not take the necessary steps to protect players from head trauma. In the same journals and medical reports from the 1930s, the NCAA laid out guidelines suggesting—not requiring—that players suffering serious head trauma refrain from physical activity for at least forty-eight hours. Despite knowledge of these risks, and suggestions that players should sit out significant time after suffering head injuries, neither the NCAA nor the University of Texas educated Gregory Ploetz about the risks head injuries presented in the development of CTE. In fact, the NCAA did not require any baseline neurological testing or any other safety practices when Gregory Ploetz played collegiate football at Texas.
Proving causation requires two different demonstrations: (1) that the plaintiff would not have suffered the injury “but-for” the defendant’s breach and (2) that the defendant proximately caused the plaintiff’s injuries. Under proximate causation principles, the plaintiff needs to show that the defendant could have reasonably foreseen that his or her actions or inaction might cause an injury to the plaintiff. The mere presence of outside or intervening forces that contribute to a plaintiff’s injury does not absolve the defendant from liability.
The NCAA did cause Ploetz’s injuries through its breach of duty owed to collegiate student-athletes. When addressing the “but-for” causation aspect, had the NCAA implemented health and safety protocols or policies for collegiate football players, Ploetz would not have contracted CTE. Research from Doctors Bennet Omalu and Robert Cantu have shown a link between playing football and suffering from CTE later in life. This research demonstrates that but-for the NCAA’s failure to develop policies, regulations, and educational programs, Ploetz would not have developed CTE and later died. Had Ploetz known about the risks of repeated head trauma and concussions from playing football, he may have decided not to play football at all.
In regard to proximate cause, the NCAA could have reasonably foreseen that failing to educate student-athletes on the long-term risks of head trauma, concussions, and repeated sub-concussive blows to the head would lead to collegiate student-athletes suffering neurological problems like CTE or even death. Based upon its special relationship with and authoritative position over its athletes, it would have also been reasonably foreseeable that players would have followed NCAA requirements or consumed NCAA educational materials about the risks.
The NCAA would most likely argue that there were intervening factors or forces that were the actual cause of Ploetz’s death. In Ploetz’s case, while he did engage in high school football, boxing, and wrestling, in addition to other activities following his graduation from the University of Texas, these acts do not break the causal chain because none were superseding causes that relieve the NCAA from liability for failing to adopt procedures and policies to protect student-athletes. The NCAA may also claim that the University of Texas, although a member of the NCAA and subject to NCAA control and authority, acted outside of the scope of the NCAA’s guidelines and therefore should be held individually responsible instead. However, that does not eradicate the NCAA’s contribution to the harm.
Plaintiffs like Hardin-Ploetz may be able to succeed in negligence claims against colleges and universities when injuries result from concussions and other head trauma, assuming they can demonstrate all aspects of the prima faciecase. While this issue has not yet been decided by the courts, it certainly will become the center of much sports-related litigation as more and more players start to experience the long-term effects of sustained and consistent head injuries, particularly as players become larger and faster. Perhaps players like Ploetz might be able to force the NFL or NCAA’s hand.
 See Mark Schlabach, NCAA, Wife of Former DT Greg Ploetz Settle CTE Lawsuit, ESPN (June 15, 2018), https://www.espn.com/college-football/story/_/id/23806167/ncaa-wife-ex-texas-longhorns-dt-greg-ploetz-settle-cte-lawsuit.
 See Michael McCann, Analyzing Ploetz v. NCAA, the First Legal Battle Over CTE to Reach Trial, Sports Illustrated (Apr. 26, 2018), https://www.si.com/college-football/2018/04/26/greg-ploetz-ncaa-cte-concussion-lawsuit.
 See id.
 See Schlabach, supra note 1.
 See id.
 See Jeremy Bauer-Wolf, A Verdict That Could Have Changed the Tide, Inside Higher Education (June 26, 2018), https://www.insidehighered.com/news/2018/06/26/settlement-highly-anticipated-concussion-lawsuit-against-ncaa.
 See id.
 See id.
 See Schlabach, supra note 1.
 See id.
 See Rick Maese, NCAA Concussion Case Settles Three Days Into Trial, Wash. Post (June 15, 2018), https://www.washingtonpost.com/news/sports/wp/2018/06/15/ncaa-concussion-case-settles-three-days-into-trial/?utm_term=.8884938e3516(stating that unlike lawsuits former NFL players brought against the NFL, Hardin-Ploetz’s claims were not preempted by a collective bargaining agreement because college student-athletes are not recognized as employees, and thus cannot unionize to engage in collective bargaining); see also Associated Press, NCAA Settles CTE Lawsuit with Family of Former Texas Player Greg Ploetz, Sports Illustrated (June 15, 2018), https://www.si.com/college-football/2018/06/15/ncaa-cte-lawsuit-greg-ploetz(explaining that NFL players cannot individually file negligence suits against the NFL because they agree to arbitrate any disputes as part of their collective bargaining agreement with NFL team owners).
 See id.
 See Restatement (Second) of Torts § 282 (Am. Law Inst. 1997).
 See Palsgraf v. Long Island R.R., 162 N.E. 99, 100 (N.Y. 1928) (suggesting that a plaintiff must satisfy four basic elements to succeed in a claim for negligence).
 See Restatement (Second) of Torts § 283.
 See Univ. of Cal. v. Rosen, 240 Cal. App. 4d 1296 (Cal. Sup. 2018) (finding that UCLA owed a student a duty to protect her as a result of an assault that took place during chemistry class). But see Ochoa v. Cal. State Univ., 72 Cal. Rptr. 2d 768, 769 (Cal. App. 1999) (finding that a student-athlete was owed no duty by the university after she was stabbed and attacked by a third party).
 A plaintiff might very week seek to hold the individual school accountable as well, but there is more of a question about the NCAA’s liability.
 See Jon Solomon, NCAA’s Mark Emmert Ordered to Testify in Wrongful Death Suit, CBS Sports(Aug. 27, 2014), https://www.cbssports.com/college-football/news/ncaas-mark-emmert-ordered-to-testify-in-wrongful-death-suit/.
 See Nat’l Collegiate Athletic Ass’n, 2018-2019 NCAA Division I Manual3 (Aug. 2017), available at https://www.ncaapublications.com/productdownloads/D119.pdf (stating that intercollegiate athletics programs should be conducted in “a manner designed to protect and enhance the physical and educational well-being of student athletes”).
 See id. (describing the health and safety principle of student-athlete well-being).
 See Restatement (Second) of Torts § 282.
 See United States v. Carroll Towing Co., 159 F.2d 169, 170 (2d Cir. 1947) (finding that liability for negligence due to failure to take safety precautions exists if the burden of taking such precautions is less than the probability of injury multiplied by the gravity of any resulting injury).
 See Thomas A. Buckley et al., Concussion Management Plan Compliance: A Study of NCAA Power 5 Conference Schools, 5 Orthopaedic J. Sports Med. 1, 2 (2017).
 See id.
 See id.
 See id.
 See McCann, supra note 2.
 See Restatement (Third) of Torts § 29 (Am. Law Inst.1998) (defining causation in negligence claims); see also Aegis Ins. Servs. v. 7 World Trade Co., L.P., 737 F.3d 166, 167 (2013) (finding that to recover under a negligence theory, a plaintiff must prove that the defendant’s act was the cause-in-fact of the plaintiff’s injury).
 See Restatement (Third) of Torts § 29; see also Juisti v. Hyatt Hotel Corp. of Md., 94 F.3d 169, 170 (4th Cir. 1996) (reasoning that under the foreseeability standard in a negligence case, the question of proximate cause turns on whether the defendant’s negligence could reasonably be expected to cause the plaintiff any injury).
An intervening force will only defeat proximate cause if it breaks the causal chain between the defendant’s conduct and the plaintiff’s injury. See Restatement (Second) of Torts§ 444 (stating that an act by someone that is a normal response and foreseeable result of defendant’s conduct is not a superseding cause of the harm). However, an intervening cause will not break the chain if it lies within the scope of the foreseeable risk created by the defendant’s conduct. See id.
 See What is CTE?, Brain Injury Research Inst., https://www.protectthebrain.org/Brain-Injury-Research/What-is-CTE-.aspx(last visited Mar. 25, 2019); see alsoRobert Cantu, MA, MD, FACS, FACSM, Boston Univ. CTE Ctr., https://www.bu.edu/cte/about/leadership/robert-cantu-m-d/(last visited, Mar. 26, 2019).
 SeeAdam Cole & Michaeleen Doucleff, Are NFL Hits Getting Harder and More Dangerous?, NPR (Feb. 1, 2013, 12:02 PM), https://www.npr.org/sections/health-shots/2013/01/31/170764982/are-nfl-football-hits-getting-harder-and-more-dangerous.