Weston v. Big Sky Conference

Decision Date12 June 2020
Docket NumberMDL No. 2492,Original N.D. Ill. Docket No. 17 C 4975,Master Docket No. 16 C 8787
Citation466 F.Supp.3d 896
Parties Eric WESTON, individually and on behalf of all others similarly situated, Plaintiff, v. BIG SKY CONFERENCE, a Utah non-profit Corporation, and National Collegiate Athletic Association, Defendants.
CourtU.S. District Court — Northern District of Illinois

Daniel Joshua Schneider, Jay Edelson, Edelson PC, Chicago, IL, Jeffrey Lewis Raizner, Raizner Slania, LLP, Houston, TX, for Plaintiff.

Paul Rafferty, Jones Day, Irvine, CA, Kristina Katz Cercone, Jones Day, Chicago, IL, for Defendant Big Sky Conference, Inc.

Mark Steven Mester, Latham & Watkins LLP, Chicago, IL, for Defendant National Collegiate Athletic Association.


John Z. Lee, United States District Judge

Eric Weston has filed this action individually and on behalf of a putative class of similarly situated student-athletes who played football for WSU University ("WSU") in Utah. He has sued the National Collegiate Athletic Association ("NCAA") and the Big Sky Conference ("Big Sky")—the athletic conference in which WSU plays—based upon theories of negligence, breach of express and implied contract, breach of express contract as a third-party beneficiary, and unjust enrichment, all arising out of Defendants’ alleged failure to adopt and implement adequate concussion treatment, concussion management safety protocols, and return-to-play guidelines.

Big Sky has moved to dismiss the complaint for lack of personal jurisdiction under Federal Rules of Civil Procedure 12(b)(2). The NCAA has moved to partially dismiss the complaint pursuant to 12(b)(6). For the reasons provided below, Big Sky's Rule 12(b)(2) motion is granted, and the NCAA's Rule 12(b)(6) motion is denied.

I. Factual Background 1
A. Weston at WSU

The WSU football program draws thousands of fans to games. Compl. ¶ 18, ECF No. 1. Given the team's consistent success and loyal following, the program generates millions of dollars of revenue every year. Id. The strength of WSU's football program has attracted top talent from around the country, and Weston was no exception. Id.

Weston played defensive end for WSU in Utah from 1996 to 1997, and, in that role, he sustained repetitive concussive and subconcussive hits during practices and games. Id. ¶¶ 71–74. The hits often were so severe that Weston would not be able to remember the games he played in or the injuries he suffered. Id. ¶ 72.

Weston alleges that, during this time, the NCAA and Big Sky failed to put in place adequate concussion treatment standards, concussion management safety protocols, and return-to-play guidelines. Id. ¶ 73. As a result, Weston would be put back quickly into games and practices despite his injuries. Id. ¶ 75. Moreover, he asserts that Big Sky and the NCAA knew at the time that such treatment, protocols, and guidelines were necessary to monitor, manage, and mitigate the risks associated with traumatic brain injury

. Id. ¶ 76. As a result, Weston now suffers from severe anxiety, depression, fatigue, headaches, neurological disorders, memory loss, mood swings, and other debilitating health issues. Id. ¶ 77.

B. Defendants’ Roles in Safeguarding Weston's Health

The NCAA is the governing body of collegiate athletics that oversees twenty-three college sports and over 400,000 students who participate in intercollegiate athletics, including WSU football players.2 Id. ¶ 15. To accommodate the wide spectrum of student-athletes at its member schools, the NCAA has three different divisions of intercollegiate competition. Id. ¶ 16. Each NCAA division is composed of several conferences, such as Big Sky, to facilitate regional league play. Id. ¶ 17.

Over the years, Big Sky has comprised member institutions located in Arizona, California, Colorado, Connecticut, Idaho, Montana, Nevada, New York, Utah, and Washington. Id. ¶ 17; see also Big Sky Ex., Nadolski Decl. ¶¶ 10–11 (listing members). According to Weston, Big Sky conducts business throughout the United States, including Indiana. Id. ¶ 10. Together, the NCAA and Big Sky regulate the WSU football program and owe a duty of care to safeguard the well-being of its student-athletes. Id. ¶¶ 19, 85.

The NCAA and Big Sky are governed by the NCAA Constitution, which states that their primary obligation is to ensure that "[i]ntercollegiate athletics programs shall be conducted in a manner designed to protect and enhance the physical and educational well-being of student athletes." Id. ¶ 24. To accomplish this purpose, the NCAA has promulgated and implemented certain regulations and requirements for its sports, such as Operating Bylaws and Administrative Bylaws, which provide detailed instructions on game and practice rules for player well-being and safety. Id. ¶ 25.

The NCAA also publishes a Sports Medicine Handbook ("Handbook"), which it updates every year. Id. ¶ 26. The Handbook includes official policies for the treatment and prevention of sport-related injuries, as well as return-to-play guidelines. Id. These policies recognize that "student-athletes rightfully assume that those who sponsor intercollegiate athletics have taken reasonable precautions to minimize the risk of injury from athletics participation." Id. As an NCAA member conference, Big Sky is required to enforce all applicable NCAA policies to protect the health and safety of WSU football players, such as Weston. Id. ¶¶ 30–31. In addition, member institutions such as WSU also are required to comply with all applicable NCAA rules and regulations. Id. ¶ 31. Moreover, the NCAA Constitution states that the NCAA "shall assist [each] institution in its efforts to achieve full compliance with all rules and regulations." Id. ¶ 27.

As compared to Weston and other WSU football players, the NCAA and Big Sky were in a superior position to detect and mitigate the risks of concussions. Id. ¶ 32. And WSU football players relied on the NCAA and Big Sky to protect their health and safety by preventing and treating head-related injuries. Id. ¶ 91.

C. Concussions and Concussion-related Symptoms

A concussion is a traumatic brain injury

that occurs when an impact causes the head and brain to move rapidly back and forth. Id. ¶ 34. During everyday activity, spinal fluid protects the brain from touching the skull. Id. ¶ 35. But even relatively minor impacts, including direct impacts to the head and impacts to the body that cause the neck to whiplash, can cause the brain to press through the fluid and touch the skull. Id.

Studies have shown that collegiate football players, during the course of a season, can receive more than 1,000 impacts greater than 10G's.3 Id. ¶ 36. And the majority of football-related hits to the head exceed 20G's. Id.

When a football player suffers a severe impact to the head, he or she may experience a variety of symptoms, including: (1) seeing stars, dizziness or lightheadedness; (2) memory loss; (3) nausea; (4) vomiting; (5) headaches; (6) blurred vision or light sensitivity; (7) slurred speech; (8) difficulty concentrating or decision-making; (9) difficulty with coordination or balance; (10) unexplained anxiety or irritability; and/or (11) excessive fatigue. Id. ¶ 38. These symptoms may prevent a concussed person from even recognizing that they have suffered a concussion. Id. ¶ 39.

After a concussion, the brain needs time to heal to prevent further injury. Id. ¶ 40. Concussion symptoms may continue for two weeks. Id. ¶ 41. Doctors generally prohibit concussed patients from returning to normal activities until all symptoms have subsided. Id. ¶ 40. Individuals who continue to experience concussion symptoms after a few weeks are diagnosed with post-concussion syndrome

. Id. ¶ 42. Many people think of concussions as short-term injuries, but scientific research has shown that concussions can have long-lasting effects. Id. ¶ 43.

D. Long-term Effects of Concussions and Subconcussive Impacts

The complaint cites numerous studies that discuss the risks associated with brain trauma

. Id. ¶¶ 44–59. For example, studies of brain injuries suffered by boxers date back to the 1920s. Id. ¶ 49. In a study published in 1928, Dr. Harrison Martland described the abnormalities found in nearly half of the boxers who had either been knocked out or who had suffered a considerable impact to the head. Id. Other studies of boxers revealed that repetitive head injuries caused chronic neurological damage and a pattern of progressive decline in the form of dementia and motor function impairment. Id. ¶ 50.

The American Football Coaches Association published a report in the 1930s warning that players who suffered concussions should be removed from play. Id. ¶ 51. A 1952 article published in The New England Journal of Medicine recommended a three-strike rule that would prohibit players from playing football after three concussions. Id. In a 1967 study, Drs. J.R. Hughes and D.E. Hendrix used electroencephalograms

("EEGs") to examine the impact of severe hits on brain activity. Id. ¶ 52. Shortly thereafter, doctors identified a potentially fatal condition known as "Second Impact Syndrome," referring to a skull of an already-concussed brain that cannot accommodate another impact injury. Id.

More recently, Boston University's Center for the Study of Traumatic Encephalopathy and the Brain Injury Research Institute conducted two well-regarded studies describing the long-term effects caused by concussions. Id. ¶ 44. These studies demonstrated that repeated concussions triggered progressive degeneration of brain

tissue, including the build-up of an abnormal protein called "tau." Id. The studies also showed that repeated concussions resulted in an increased risk of depression, dementia, and suicide. Id.

In yet another example, Dr. Robert Cantu studied autopsies performed on the brains of former National Football League players, concluding that 90 of 94 (96%) of the samples showed signs of chronic traumatic encephalopathy

("CTE"). Id. ¶ 46. Dr....

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