(06-26-2018, 09:47 AM)stupac2 Wrote: IANAL, but it seems to me like it would be really hard to simultaneously show:
1) The harm definitively came from the time at the school (Hilinski's almost certainly didn't, right? He hardly played for WSU).
2) The school definitely knew about the potential harms.
3) The student definitely didn't (or wasn't adequately warned or whatever).
4) The school didn't take any preventative measures to lessen the harm.
It seems to me like all or most of those would be necessary for a finding against a school, and it seems like it's going to be a tall order. The NFL? Sure, they were actively hushing this up. But I've never heard that individual schools or the NCAA were involved in anything like that, and they've generally been farther out in front of the problems than the NFL.
I'm not sure you'd have to prove each of those things. Ultimately, in a negligence case, you need to show that the defendant had a duty to you, that the defendant breached that duty, and that the breach caused you damages. Here's a good rundown of the legal theories in the Ploetz case that just settled:
https://www.si.com/college-football/2018...on-lawsuit
In short, the theory was that the NCAA had a duty to minimize the risk of injury and that, despite knowing about brain injury risks, failed to meet that duty.
Sure, assumption of risk would be a defense, and it might ultimately win some of those lawsuits, as we all know football is inherently dangerous. But do many of today's players really appreciate the risk of lifelong debilitating brain injury when they send in their letters of intent? Did a player really know it was
that dangerous? And whether they took protective measures is relevant, but the question, to me, would be whether they took
adequate protective measures, not whether they took any measures at all. As for having to definitively prove that it came solely from Hilinski's time at WSU, you wouldn't have to do that. There are lots of negligence cases in various areas where multiple factors contribute to the harm. Depending on the state, in a hypothetical case against the college alone, a jury could require the college to pay the entire sum of damages, and then the college would then be allowed to go after other likely contributors (here, the high school where he played, the college whose player gave him a concussion, etc.) for their share of the damages. Or, the college could be adjudged only liable for a certain percentage of fault, and it would only have to pay that percentage of the damages. But you wouldn't have to conclusively prove his time at WSU was the
only cause of his CTE, just that it was
a cause. (Specifically for Hilinski, I know he wasn't the primary starter, but he still had 209 career attempts in two seasons, so I'm not sure it's fair to say he barely played. He played enough to get hurt, and he practiced for two years.)
But that's just the legal side, and I'm not disagreeing with your primary point that these cases would be tough for plaintiffs to win. My main point, as shown in my earlier post, is that there is something deeply wrong about the NCAA--an organization that holds itself out as protecting student-athletes and keeping them safe--and its member institutions reaping the profits from this sport and publicly crowing about their sacred responsibility to ensure the safety of their players while, when push comes to shove, telling players, "hey, tough luck, but you knew what you were getting into." It may be legally defensible (though we don't know that for sure, as neither side has ever been willing to take one of these cases to verdict), but it isn't morally defensible for a school or the NCAA to make that argument.