NCAA & State of Maryland Reach Settlement in Concussion Case Brought by the Klamann Law Firm

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NCAA & State of Maryland Reach Settlement in Concussion Case Brought by the Klamann Law Firm

From The Baltimore Sun – Michael Dresser

mdresser@baltsun.com

twitter.com/michaeltdresser

http://www.baltimoresun.com/news/maryland/politics/bs-md-ncaa-lawsuit-20160725-story.html

The National Collegiate Athletic Association and the state of Maryland have reached settlements with the family of a Frostburg State University football player who died from concussion-related injuries in a case that could have nationwide implications for college sports.

The Board of Public Works approved the state’s part of the deal Wednesday. The three-member panel voted in favor of the proposed $50,000 payout to the family of Derek Sheely, who died in 2011 after he collapsed on the practice field from a traumatic brain injury.

The Maryland attorney general’s office became involved because the family filed a $1.6 million lawsuit that named three state employees — two coaches and an assistant trainer at Frostburg — among the defendants.

While the state financial settlement is relatively small, the potential reach of the case is significant.

The lead defendant is the NCAA, the governing body for college athletics in the United States. In recent years, the NCAA has come under fire for its reluctance to impose rules on colleges and universities for recognizing and preventing potentially lethal concussion-related injuries.

Concussions, once dismissed as “dings” to the head, are now widely recognized as having potentially catastrophic consequences. The NCAA, athletic conferences and individual schools are facing dozens of lawsuits over the alleged effects of concussions, mostly from former players who say they are suffering the after-effects of brain injuries.

The Sheely lawsuit stands out because the 22-year-old fullback died.

Hosea Harvey, a Temple University law professor who has been tracking the progress of the suit, said the settlement could become a catalyst for reforms in how the NCAA handles concussions and other health risks of playing sports.

“This is a very high-value lawsuit,” he said. “It has the potential to force change at the college level.”

Terms of the settlement have not been disclosed, but a June 16 filing in Montgomery County Circuit Court shows that the case had been settled and put on hold for 60 days.

Luiz Simmons, a Montgomery County attorney who is familiar with such filings, said it means that a deal has been struck and that the plaintiffs and defendants are working out the final details. Only rarely does a deal fall apart after such a filing, he said.

Derek Sheely’s parents, Kristen and Kenneth Sheely of Germantown, did not return telephone calls seeking comment. They told CBS Sports last year that their goal in bringing the suit was to force changes.

The $50,000 settlement with Maryland would go to a foundation named after Derek Sheely.

Among the changes the Sheelys have sought are a ban on certain football drills, limits on practices, and suspensions for coaches who violate rules that protect athletes’ health. They have also called for more education about concussions, and for NCAA investigations in cases such as their son’s.

Paul Anderson, a lawyer representing the Sheely family, the NCAA and the attorney general’s office declined to comment beyond acknowledging that the settlement process is underway.

Liz Medcalf, media relations director at Frostburg State, said the university would issue a statement outlining financial terms and other terms of the settlement after the Board of Public Works votes. The board is made up of the governor, the state comptroller and the treasurer.

The NCAA lost a key battle in the spring when a Montgomery County circuit judge ruled that the case could go to trial.

The association had claimed it had no legal duty to protect Sheely, but Circuit Judge David Boynton disagreed. He found that the NCAA mission statement gave the organization a “special relationship” with players, and ruled that the type of injury Sheely suffered was

not known to be an inherent risk of playing football.

Boynton also ruled that a jury could consider punitive damages.

But in June, just as the sides were preparing to select a jury, they agreed to settle.

Court filings show that the Sheely family had been prepared to put the NCAA on trial.

“The NCAA has neglected the central purpose for which it was established — to protect student-athletes — and now its primary purpose is to generate revenues for its conferences and its members,” their lawsuit contended.

Derek Sheely was a senior fullback in August 2011 when he took part in preseason practice with Frostburg’s Division III football team.

His family alleges that the team’s coaches put athletes through a series of punishing drills in preparation for the season.

They included a “ridiculously dangerous” drill in which the fullback was required to run full speed into a linebacker from six to 10 yards apart. If the linebacker defended himself or the fullback ran at less than full speed, the family alleges, the players would be told to repeat the drill.

“Preseason practices at Frostburg served more as gladiatorial thrill for the coaches than learning sessions for the players,” the family contended. They accuse former Frostburg head coach Thomas Rogish of adopting policies that discouraged players from reporting injuries and ridiculing those that did as “gripers.”

The family alleges that one of the defendants, then-assistant coach Jamie Schumacher, demanded that players drive their helmeted heads into other players despite long-standing prohibitions on the practice.

Sheely, who had suffered a concussion the previous season, took part in such drills for several days and showed persistent bleeding from the forehead, the family says. They contend Michael Sweitzer Jr., then Frostburg’s assistant trainer, failed to perform concussion examinations and cleared him to return to practice.

After a series of drills on Aug. 22, 2011, the family says, Sheely told Schumacher he “didn’t feel right” and complained of a headache.

Court filings indicate the family was prepared to present testimony from a former teammate of Sheely’s who said that Schumacher yelled: “Stop your bitching and moaning and quit acting like a [wimp] and get back out there, Sheely.”

Shortly after resuming drills, Sheely collapsed. He died six days later without having regained consciousness.

The family contends Sheely died from brain swelling caused by “second-impact syndrome” — a condition in which a person receives a second blow to the head shortly after a previous concussion.

The former Frostburg employees could not be reached for comment.

The case against the NCAA focused on the association’s knowledge about second-impact syndrome and whether it did enough to inform member institutions about how to prevent it.

Court records show that the Sheely family was prepared to use the words of current and former NCAA employees to argue that the association deliberately underplayed the dangers of the syndrome. The family contends that when the NCAA adopted a policy in 2010 requiring schools to adopt a concussion prevention plan, it rejected proposals to enforce its decision.

By settling, the NCAA and the other defendants can avoid the publicity of a high-profile trial. Among those who could have been called to testify was NCAA President Mark Emmert, who said in a deposition in the case that he had not heard of second-impact syndrome.

The family contends that the NCAA has known of the syndrome’s danger since the 1990s.

Emmert told Congress in 2014 that the NCCA made a “terrible choice of words” when it contended in the Sheely case that it had no legal duty to protect student-athletes.

Harvey said the NCAA might have won a trial, but it would have faced an unsympathetic jury.

“The NCAA’s policy is weakest on enforcement, so that’s an area where the plaintiffs had the opportunity to make the NCAA uncomfortable,” the law professor said.

 

 

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