At some point, Big Ten competition will resume. This timing hinges on medical studies.
Too little attention is paid to the legal landscape for players who sue NCAA schools in negligence cases. My research shows that schools won four times more negligence cases than players. Coaches had twice the success rate as players who sued them.
These results affected men more than women due to football injury cases.
More generally, litigation involving mistreatment and harm connected to NCAA sports has rapidly accelerated. The first quartile of cases in my database were spread out from 1981 to 2006 (26 years); the second quartile, from 2007-14 (eight years); the third quartile, from 2015-17 (three years); and the most recent quartile, from 2018-19 (two years). Typically, athletes sued an alleged perpetrator and high-level university administrators.
The bottom line: NCAA athletes are more likely to sue than ever before.
Why do NCAA athletes fare poorly in negligence cases? Often, they ask a court to impose a special duty of care on coaches and athletic directors. Courts usually reject this argument. They apply an ordinary-duty-of-care standard. This means that schools pay less for taking risks with players.
A case from Kansas makes this point. In Howell v. Calvert, a college track athlete was killed, and another was hurt when a hit struck them during a pre-dawn mandatory training session. Their coach selected the route. The team asked the coach the week before to modify their route after an athlete hurt her ankle in a pothole, but the coach denied this request.
The plaintiffs argued that a college owes its student-athletes a special duty of care, but the court rejected this argument. This significantly lowered the payout to the survivors and injured player.
If NCAA players were employees, they would have more rights to compensation for injuries incurred in competition. They would have access to worker’s compensation, an insurance system that compensates not only for broken bones but also work-related illnesses.
Coal miners who have black-lung disease are compensated for this devastating illness. More generally, when an employee can prove that an illness was incurred in work, they receive a portion of lost pay, medical and hospitalization, and in severe cases, they are paid for loss of function and death benefits to their survivors.
NCAA athletes have nothing like this. Schools provide insurance for injuries incurred in games or competitions — but these policies do not cover diseases. For that, players have to pay for their own insurance, just like other college students.
Just three months ago, many NCAA football programs required players to sign COVID-19 liability waivers.
Even with the Big Ten season postponed, some players may be on the hook for long-term health consequences arising from these ill-advised summer workouts.
This appears to apply to Indiana University’s Brady Feeney, a lineman who has potential heart problems after battling COVID-19.
If Feeney has permanent heart damage, will Indiana or the Big Ten or the NCAA pay for these health costs over his lifetime? That’s unlikely.
It’s time to enact laws that make NCAA athletes employees. Putting the pay issue aside, this would cause NCAA schools to take fewer risks — including “voluntary workouts” — with athletes because they would pay for short- and long-term harm that players incur when they put on a uniform.
For now, NCAA players’ lives are made cheap as a matter of law.