The lawsuit which could throw open the curtain on the NCAA

Despite all the NCAA's attempts to shield the "man behind the curtain" from scrutiny, that scrutiny will proceed.


(Photo credit: Johntex)

One of the most famous scenes from the 1939 film “The Wizard of Oz” happens near the end, when the dog of the main character, Toto, pulls back a curtain to reveal that the terrifying elements of the wizard were nothing but mechanical fabrications being operated by a normal human being.

“Pulling back the curtain” has since become a cliché for exposure. The process of a lawsuit against the NCAA in the Dallas district of the state of Texas has the potential to provide such exposure.

Last year, the widow of former NCAA football player for the Texas Longhorns Greg Ploetz, Debbie, sued the NCAA in state court. Her claim against the NCAA was very similar to that made against the NFL in the now infamous class action concussion lawsuit brought by a group of players.

She argues that the NCAA is liable for the death of her late husband at 66 years old in 2015 because his death was related to chronic traumatic encephalopathy (CTE). The NCAA is liable, the complaint states, because it either knew or should have known of the connection between sustaining repeated blows to the head and developing neurological diseases then failed to educate Greg about the risks.

History of Ploetz v. NCAA

A trial date was originally set for January 22 of this year after the NCAA unsuccessfully attempted to change the venue of the trial. The legal proceeding then went into the discovery phase, which is when lawyers for both sides of a civil dispute exchange information so they can prepare their arguments.

In its original discovery order (the court determines what potential pieces of evidence each side has and doesn’t have access to), the district court was perhaps too giving to Ploetz’s counsel. The NCAA asked the Texas Fifth Circuit Court of Appeals for a writ of mandamus to limit the discovery. A ruling came down on that matter on March 1, and it was more bad news for the NCAA.

The Fifth Circuit upheld the original discovery order on all but one point. The NCAA can exclude from discovery any documentation which could reveal an injury not caused by blows to the head. Other than that, Ploetz’s attorneys now have access to NCAA internal documents relating to injuries suffered by any NCAA athlete in any sport for the past 67 years.

Why the NCAA wanted to limit discovery

Compiling every communication by NCAA personnel related to injured athletes from 1950 on will not only take time and come at great expense for the NCAA, but has the potential to reveal statements and policies that the NCAA would much rather not have the curtain drawn on.

Ploetz’s lawyers won another, perhaps more significant, victory in the dispute over discovery. The district court had placed a stay on their request to depose the NCAA’s medical officer, Dr. Brian Hainline. The Fifth Circuit lifted that stay.

This case is significant if it proceeds to trial for several reasons. The first reason is that it would be in that scenario the first time a CTE case has made it all the way to being heard in court. Previous attempts have all resulted in settlement or had CTE excluded in preference to other neurological disorders.

With the deposition of Dr. Hainline, the NCAA’s stance on the connection between CTE and its sports like American football, football and ice hockey will be made public. That’s a “Sophie’s Choice” for the NCAA. Hainline has to navigate the narrow path between appearing to be cognisant of the research done on the issue while not giving any ammunition to Ploetz’s case.

Finally, in nearly seven decades’ worth of documentation, the possibility of at least one revelation that could further damage the NCAA’s already-disintegrating reputation is high. There could be multiple bombshells, and they could have nothing to do with the relevant facts in Ploetz v. NCAA.

It’s still possible for the NCAA to avoid what could be a bad situation, but the alternative really isn’t that much better. The NCAA could settle with Ploetz out of court. It’s the job of her attorneys to get her the best deal possible. In doing so, however, the NCAA would set a precedent of some liability on its part and open itself up to many more similar lawsuits.

The NCAA’s best hope may be in winning the trial, but it might pay an awful price in terms of what’s revealed through discovery to get that victory. If the trial proceeds, the curtain is about to be pulled back and all will see exactly what’s been hidden.

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Derek Helling

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