Analyzing Ploetz v. NCAA, the First Legal Battle Over CTE to Reach Trial
The nation’s first trial involving football and chronic traumatic encephalopathy (CTE) is fast approaching. On June 11, the widow of a former Division I college football player will appear in the Dallas courtroom of Judge Ken Molberg and argue that the NCAA is legally responsible for the death of her husband. The trial will be a landmark event in the decade-long legal effort to hold football organizers responsible for long-term brain injuries suffered by participating players. If successful, the lawsuit could lead to significant changes for the sport and the NCAA.
The death of Greg Ploetz
Last year, Dallas resident Debra Hardin-Ploetz sued the NCAA on behalf of herself and her deceased husband, Greg Ploetz. Represented by attorney Eugene Egdorf of the Houston law firm Shrader & Associates, Hardin-Ploetz seeks to recover monetary damages for neurological injuries sustained by her late husband.
Ploetz played linebacker and defensive tackle for the University of Texas in 1968, ’69 and ’71, winning a national title in ’69 and earning Southwest Conference Defensive Player of the Year honors in ’71. Like most college football players, Ploetz’s football career ended in college. After receiving his undergraduate degree in 1972, Ploetz continued his education at Texas and earned a Master of Fine Arts in ’75, after which he became a college and high school art teacher.
Ploetz endured serious health problems throughout most of his adult life, experiencing depression, memory loss, confusion, erratic behavior and difficulty communicating. These problems gradually worsened over the years. A clinical report on Ploetz details the worsening of these problems and how they impacted his life:
“[H]e became apathetic, disinhibited, exhibited compulsive behaviors, and his personal hygiene began to decline. He experienced paranoia and confusion, was psychiatrically hospitalized, and was in and out of respite homes due to aggressive behaviors. During his time in the respite homes, he was prescribed an array of medications that resulted in gait and motor problems … he could only respond to yes or no questions and was functionally dependent.”
These problems are conditions commonly associated with CTE, a degenerative neurological disease caused by repeat head trauma and only diagnosable with certainty in post-mortem examinations. Due to his deteriorating health, Ploetz stopped teaching in 2009. Six years later, he passed away.
After his death, Ploetz’s brain was donated to the Concussion Legacy Foundation at Boston University. Neurologists there carefully examined Ploetz’s brain and in 2015 concluded that it showed the “hallmark signifiers” of CTE. In fact, Ploetz’s brain had demonstrated such extensive damage that it was classified as Stage 4 CTE, the most severe level.
This led Hardin-Ploetz to conclude that playing football had caused her late husband to suffer CTE-related problems and significantly contributed to his death. She insists that her husband suffered repetitive head trauma, concussions and sub-concussive blows during his time as a Longhorn.
Understanding the key legal claims
Hardin-Ploetz’s lawsuit, which seeks over $1 million in damages, raises two basic claims: negligence and wrongful death.
The negligence claim rests on the theory that the NCAA unreasonably failed to protect Ploetz. Hardin-Ploetz reasons that the NCAA knew or should have known about the relationship between concussive and sub-concussive blows to the head and long-term neurological problems. With such knowledge, Hardin-Ploetz asserts, the NCAA should have adopted rules that prevented or slowed the progression of CTE suffered by her late husband.
To support this argument, Hardin-Ploetz insists that 1) the NCAA openly acknowledged a legal duty to minimize the risk of injury to Ploetz while he played college football, 2) Ploetz relied on the NCAA to satisfy this duty and 3) the NCAA failed to meet the duty.
Hardin-Ploetz stresses that the NCAA has long offered assurances that its rules are designed to promote player safety. The complaint cites various safety-related NCAA bylaws, committee reports and organizing documents. It also notes that the NCAA was founded in 1906 to—in the NCAA’s own words —“keep college athletes safe.” These documents are cited to advance the argument that the NCAA made clear promises to Ploetz and failed to keep them. Likewise, Hardin-Ploetz refers to 2014 testimony by NCAA president Mark Emmert before the U.S. Senate where he pledged, “I will unequivocally state we have a clear moral obligation to make sure we do everything we can to protect and support student-athletes.” These and similar comments reinforce the idea that the NCAA holds itself as a protector of college athletes and should be judged accordingly.
Hardin-Ploetz also draws attention to the NCAA’s awareness of risks related to concussions and other head trauma. For instance, in 1933 the NCAA’s Medical Handbook for Schools and Colleges offered recommendations that concussed players not play for 48 hours and avoid further head trauma. These recommendations track the findings of peer review scientific studies in existence before Ploetz played that discuss the consequences of traumatic head injuries. Such studies, Hardin-Ploetz contends, should have led the NCAA to require pre-season baseline neurological testing, among other safety practices. Hardin-Ploetz hopes to portray the NCAA as being aware of the risk of neurological harm and not adopting its own recommendations to mitigate such harm. Likewise, Hardin-Ploetz’s reference to scientific studies underscores the fact that while concussions have been a major topic in sports in recent years, it is hardly new to science—or to the NCAA.
Pretrial depositions also shed light on what to expect from Hardin-Ploetz in the trial. During one such deposition, Egdorf posed questions to Dr. Brian Hainline, the NCAA’s chief medical officer and a clinical professor of neurology at Indiana University School of Medicine and New York University School of Medicine. In a transcript of the deposition obtained by SI, Hainline acknowledged that there is a link between football and degenerative brain disorders like CTE. This acknowledgment tracks remarks by Jeff Miller, NFL senior vice president for health and safety, who in 2016 told the U.S. House Committee on Energy and Commerce that there is a link between playing football and suffering CTE. The more persuasively Egdorf can convince jurors of a firm causal link between playing football and CTE, the more likely Hardin-Ploetz will prevail.
Likewise, expect Egdorf to attempt to paint the NCAA’s healthcare structure for addressing players’ wellbeing as focused more on profits than safety. Egdorf aggressively challenged Hainline in the deposition on whether Hainline’s testimony about CTE is shaped by the advice of NCAA attorneys. Egdorf will try to portray how the NCAA defined the science of players’ neurological health in a similar way to how the tobacco industry defined the science of smokers’ lung health, minimizing liability over all other concerns. Whether jurors embrace or reject that approach remains to be seen.
In addition, Hardin-Ploetz contends that the NCAA made no real effort to educate Ploetz and other players about the short-term and long-term health risks of concussions and head trauma, or about the danger of returning to play before a head injury had healed. Essentially, Hardin-Ploetz reasons that the NCAA was apathetic or indifferent to health risks it knew about and consequently prevented Ploetz from making an informed choice about the wisdom of playing college football. At the same time, Hardin-Ploetz asserts, the NCAA “gained revenues and fees” as a result of Ploetz playing college football.
Hardin-Ploetz’s complaint also includes a claim for wrongful death. Such a claim typically centers on the accusation that one person or company caused another person’s death through negligence, recklessness or intent. Here, Hardin-Ploetz asserts that the NCAA’s failure to protect Ploetz in the ways described above is responsible for him developing CTE, which in turn caused his death. The complaint details related damages, including Ploetz’s inability to enjoy a full life or participate in hobbies and activities. Hardin-Ploetz also seeks recovery for accompanying “disfigurement” and “several physical pain” suffered by her husband, as well as for out-of-pocket payments related to his medical care and treatments.
Hardin-Ploetz asserts that she qualifies as a “wrongful death beneficiary” under Texas law. If she succeeds in her lawsuit, such a designation would allow her to gain recovery for a wide range of damages related to the impact of her husband’s death on her. This includes loss of her husband’s companionship, as well as mental anguish and loss of inheritance (on the theory that Ploetz would have earned more money had he not suffered from CTE). The complaint also demands that the NCAA be punished with punitive damages “in an amount sufficient to deter and punish the NCAA.”
In an important way, Hardin-Ploetz’s lawsuit is different from similar concussion lawsuits brought by retired NFL players and their widows against the NFL: the NCAA can’t argue that Hardin-Ploetz’s claims are preempted by a collective bargaining agreement. This is because college players are not (yet) recognized as employees and thus cannot unionize and enter into collective bargaining. The NFL has long argued that any claims against the league must be dismissed because current and former NFL players are contractually obligated to arbitrate claims before going to court. No such defense exists for the NCAA.
Understanding the NCAA’s legal defenses
While Hardin-Ploetz offers a detailed case that is not vulnerable to a preemption argument, the NCAA and its lead attorney, Ricky Raven of Reed Smith, are nonetheless armed with a number of defenses.
For starters, the NCAA contends that Hardin-Ploetz’s claims are barred by the doctrine of assumption of risk. “Ploetz,” the NCAA writes in a legal brief, “voluntarily participated in the activity of playing football and accordingly assumed the risk of injury.”
College football players unquestionably assume certain risks; the sport involves a series of collisions between relatively large men running at full speed. College players are presumably old enough—and experienced enough in football—to detect and understand these inherent dangers. Along those lines, the idea that a college football player could suffer a head injury is a concept players likely realized long before they or their teammates suffered such an injury.
To advance this argument, the NCAA could offer Ploetz’s former teammates, coaches and trainers as witnesses. The NCAA will seek to introduce any and all evidence suggesting that Texas players were treated well by their school and not forced or encouraged to play hurt. The NCAA will also want jurors to believe that players like Ploetz were adequately warned about the risks of concussions and sub-concussive blows to the head. It goes without saying, but testimony and evidence from 45 years ago may be limited by pragmatic realities. Some witnesses might no longer be alive or healthy enough to testify. Those that are available could struggle to remember what occurred so long ago. Also, there were no emails, texts or other electronic communications back in the 1960s and ’70s. This limits the scope of records that can be used to paint an accurate picture of what took place.
For her part, Hardin-Ploetz will attempt to portray the NCAA’s assumption of risk defense as something of a straw man argument. She doesn’t dispute that the NCAA had to protect her husband from obvious risks. Instead, she stresses that the NCAA knew about long-term neurological dangers faced by players and failed to adopt policies that would have both minimized those risks and educated student-athletes about them. Along those lines, while Ploetz likely knew that he could injure his head playing football, it’s unclear that he knew about the lifelong consequences of such an injury.
The NCAA also charges that it owed no legal duty to Ploetz that would serve as the basis of a negligence or wrongful death case. It may seem hard to believe that the NCAA—which stresses the importance of player safety—would simultaneously contend that it had no duty to protect Ploetz in the ways detailed in the complaint. In fact, the organization’s own rules arguably imply otherwise. Article 2.2 of the NCAA’s constitution requires that college sports “be conducted in a manner designed to protect and enhance the physical and educational well-being of student-athletes.”
Yet in other litigations, the NCAA has successfully convinced courts that while schools may owe duties to student-athletes, the NCAA itself does not. To that end, U.S. Magistrate Judge Martin Carlson wrote in the Flood v. NCAA ruling that while “the NCAA oversee[s] some aspects of intercollegiate athletics it is not a fiduciary for the thousands of student athletes who participate in those sports.” If Judge Molberg embraces a similar view, Raven and the NCAA will feel more confident that they will prevail.
The idea that players could sue schools instead of the NCAA may sound like an adequate recourse, but universities are often immunized from lawsuits through the doctrine of sovereign immunity, which dictates that public universities are extensions of the state government and can’t be sued unless they agree to be sued.
The NCAA also objects to the idea that it caused Ploetz’s health problems and subsequent death. The NCAA attributes these health problems to “new and independent” causes. In other words, the NCAA maintains that it had no control over most of Ploetz’s adult life, including the numerous decisions he made throughout the ’70s, ’80s, ’90s and ’00s that may have impacted his health.
The NCAA will likely offer witness testimony—such as from physicians and similar healthcare providers—and other evidence that attempts to lead jurors to surmise that Ploetz’s health problems could have stemmed from a variety of causes that had nothing to do with football. The NCAA might also point out that Ploetz’s football experience prior to playing in college could be part of the causation story, as could his participation in youth wrestling. Causal stories are often not neat or clean. With that in mind, the NCAA contends that Ploetz, and by extension his wife, failed to take steps to mitigate damages, including deciding not to play football.
The NCAA and Ploetz-Hardin have also argued over whether she waited too long to sue. Texas law generally dictates that a negligence claim must be brought within two years of when the underlying harm occurred. Hardin played at Texas 45 years ago and was diagnosed with neurological problems in 2009, when doctors attributed those issues to his football career. In response, Ploetz-Hardin asserts that the CTE diagnosis by Boston University physicians, which could only occur after he died, was made in 2015, within two years of when she sued.
Why going to trial matters
In some ways, Hardin-Ploetz’s lawsuit sounds just like hundreds of other concussion-related lawsuits filed by former football players over the last seven years. The difference is that while those cases led to settlements or dismissals, or remain in litigation, Hardin-Ploetz’s lawsuit is going to trial, barring a last-minute settlement.
NCAA witnesses will be forced to answer questions under oath about player safety with jurors watching them. Also, the viability of key defense theories against the concussion lawsuit—including assumption of risk and lack of causation—will be tested for the first time. Retired players and their attorneys will certainly gain important insights from this trial that could dramatically influence whether other former players choose to settle their claims or go to trial. The fallout of such decisions could influence how the NCAA designs game rules and protects student-athletes.
Also, while the NFL and NCAA have reached far-reaching settlements over concussion claims, by no means do those agreements provide closure. For one, various criticisms have been leveled about the 65-year, $1 billion NFL concussion settlement, leading to (thus far unsuccessful) attempts to nullify the settlement. Also, a number of retired NFL players opted out of the settlement and have brought their own cases. The NCAA’s concussion settlement does not preclude lawsuits like Hardin-Ploetz and scores of similar personal injury and wrongful lawsuits.
Michael McCann is SI's legal analyst. He is also the Associate Dean for Academic Affairs at the University of New Hampshire School of Law and co-author with Ed O'Bannon of the new book Court Justice: The Inside Story of My Battle Against the NCAA.
