Take Me Out to the Ballgame – Maybe

The Indiana Supreme Court recently vacated the opinion of South Shore Baseball, LLC v. DeJesus, 982 N.E.2d 1076 (Ind. Ct. App. 2013) and granted transfer. The Court could ultimately issue an opinion which would set legal precedent as to how teams conduct off-the-field conduct with their fans.  In South Shore Baseball, the Plaintiff, a spectator at a baseball game, was struck in the face by a foul ball and suffered fractured bones in her face and blindness in her eye.  She was not sitting in an area protected by screens.  She sued the baseball team and stadium operator under theories of premises liability and negligence.

For the premises liability claim, the Court of Appeals held as a matter of law that “the risk of getting hit by a foul ball at a baseball game does not amount to an unreasonable risk of harm” and concluded, “As such, we conclude that, like the risk associated with an individual on a golf course, the risk that a spectator at a baseball game might be hit by a foul ball does not qualify as ‘unreasonable risk of harm’”.  Before transfer was granted, the Court of Appeals remanded the case with instructions to the trial court to issue an order granting summary judgment to the Defendants.

As for the negligence claim, the Court of Appeals recognized that the majority of jurisdictions provide that, as a matter of law, operators of baseball stadiums have only a limited duty to provide protective screening in the area behind home plate and stated, “[T]he operator of a stadium is not an insurer of its patron’s safety and the perils are not so imminent that the due care on the part of the management requires all the spectators to be screened in.”

The Missouri Supreme Court is deciding whether the “baseball rule”, in other words, whether fans know about the risk of being in the stands, should also apply to injuries caused by mascots or other team personnel who engage fans.  In that case, a fan was injured at a Kansas City Royals game when the team mascot threw a foil-wrapped hot dog into the stands striking the fan in the eye.  The trial court jury ruled in favor of the Royals on the basis that the fan was at fault for not being aware of what was going on around him.  The Missouri Appellate Court overturned the trial court ruling and found in favor of the fan.  The court held that while being struck by a baseball is an inherent risk, being hit by a hotdog is not.

That ruling by the Missouri Supreme Court in favor of the spectator could alter the way Missouri and other states and cities’ teams’ personnel, from mascots to cheerleaders, engage with fans at the ballpark.

NCAA Agrees to Mediate Suit Filed by College Athletes for Concussion-Related Injuries

Whether you prefer football bowl season or March Madness, it’s a fact that many of us enjoy watching the college sports regulated by the National Collegiate Athletic Association (the “NCAA”). Unfortunately, some of the very sports we enjoy watching can have very negative impact on the over 400,000 student-athletes that play them. Serious health conditions resulting from concussions in “contact” college sports has come to the forefront of public debate recently and is now the subject matter of a recent court case. If successful, that court case could result in significant changes in NCAA regulations.

Adrian Arrington, a former Strong Safety for Eastern Illinois University (“EIU”), filed against the NCAA two years ago. During his tenure at EIU from 2006-2009, Arrington played as a starter after his first year. He served as the team’s captain in the 2009 season and ended his college career with 154 tackles. His impressive football career, however, took a toll on his health. While still on the team, Arrington sustained several serious concussions and began experiencing memory loss, migraines, and seizures. Despite the serious nature of each of his injuries, the EIU team doctor often released him after less than a day of rest.  The EIU coaching staff never taught him effective, safe tackling techniques or discussed with Arrington how to prevent concussions in the future. Now, just a few years after his football career ended, Adrian Arrington cannot sustain employment because of his seizures and must rely on the welfare system.

Though the action filed in late 2011, Arrington now argues that NCAA acted negligently by failing to warn and disclose the risks stemming from repeated concussions and fraudulently concealed facts that exposed those former and current players to harm. For those alleged failures and negligence, Arrington now seeks damages for his own medical conditions and the medical conditions of similarly-situated current and former student athletes. In addition, the Arrington suit seeks medical-monitoring relief for athletes competing in certain “contact” sports, including, but not limited to, basketball, field hockey, ice hockey, lacrosse, and soccer.

Just this month, more student-athletes stepped forward against the NCAA, including Chris Walker, former defensive end for the University of Tennessee, Ben Martin, former defensive linemen for the University of Tennessee, and Dan Ahern, former offensive guard for North Carolina State.  Like Arrington, they are using the court system seeking compensation for their concussion-related health problems and to safeguard the health of future generations of student-athletes.

The arrival of this new set of plaintiffs prompted the NCAA to agree to settlement negotiations, and on October 17th, U.S. District Court Judge Layn Phillips granted a stay in the Arrington case in anticipation of mediation. The NCAA has agreed to try alternative dispute resolution despite the NCAA’s position that the allegations are inappropriately directed against it.

The question many have is why the NCAA is coming to the table for mediation when its position is that the allegations are either unfounded or misdirected. Alternative dispute methods- such as negotiation, mediation and arbitration- are often attractive to both parties for a variety of reasons. Both parties, for example, can benefit from shorter timetables in resolving a conflict, less expensive litigation fees, or a broader spectrum of possible resolutions. Parties choosing to mediate or arbitrate often have much more control or influence over the rules and procedures governing the resolution process. Moreover, alternative dispute resolution provides both individuals and organizations an opportunity to safeguard their personal reputation or their corporate image. Lastly, the activities and eventual agreement between the parties need not be disclosed and can be kept confidential among the parties if that is their wish. These are only a few of the benefits parties who choose to use alternative dispute resolution enjoy.

While the NCAA has not given its statement on why it is considering settlement negotiations, according to its spokeswoman, Stacey Osburn, the NCAA is “willing to consider reasonable settlement options” at this point, and any or all of these factors could have influenced that decision. The outcome of the settlement negotiations with Arrington, scheduled in November, and the new set of plaintiffs, set for February, may lead to important changes in the NCAA’s regulations of contact sports. For example, a mediation agreement could result in the NCAA mandating affiliated colleges to train current student athletes on safer tackling methods, could result in a set of health guidelines or criteria that must be met before an athlete may return to play, or could lead to the establishment of a NCAA-funded medical monitoring program for both current and former student-athletes.


Approximately 30,000 high school athletes each year will sign a National Letter of Intent (NLI) to play their particular sport at the collegiate level.  The NLI is a binding agreement that the school will provide financial aid to the student athlete and the student athlete agrees to attend the school for at least one year.  All student athletes under the age of 21 must have a legal guardian or parent sign the NLI before the NCAA regards it as binding.

Some states require an individual to be older than 18 years of age in order to enter into an enforceable contract.  The NLI has implications on scholarship commitments and even the ability to play at another school if the student athlete were to transfer.  Many collegiate athletic conferences have established policies on the ability of a student athlete to transfer and to complete at another institution after signing a NLI.

National Signing Day for high school football players has become a national media event with ESPN covering the signings throughout the day.  Last weeks’ event included a bizarre turn of events for one signee.

Alex Collins a highly regarded running back from Flordia was prepared to express his commitment to the University of Arkansas.  His mother did not approve of his selection and took the NLI papers and went into hiding. Without the paperwork and the required signature of his legal guardian or parent Mr. Collins was unable to commit to Arkansas despite the publicity surrounding his announcement (he eventually signed the paperwork with his father’s endorsement).

Before you make the decision to announce which school’s colors you will be wearing next season make sure your Mom or Dad are on board with your decision (and are available to sign the NLI).

Professional Sports and Workers’ Compensation: California Here I Come

As repetitive and cumulative injuries take on greater significance and with the focus in contact sports being directed at concussions and head injuries, some states are introducing legislation to protect in state employers from out of state workers compensation claims.  Currently, California is the only state that provides worker’s compensation to retired professional athletes who file claims for long-term injuries sustained years or even decades earlier.  California statutes only require that the athlete have played at least one game within the state’s borders.  California’s worker’s compensation law provides that compensable injuries include both typical accidental injuries as well as cumulative injuries resulting from repetitive traumatic activities over an extended period.  The California worker’s compensation appeals board has ruled that the definition of cumulative trauma includes regular activities of professional athletes including disabling conditions experienced due to physical activities injured over the course of their careers.

The Florida Legislature recently passed legislation that classifies Florida workers as temporary workers in another state when the worker is in that state for no more than 10 days in a row or 25 days over a calendar year. The Florida legislation only applies in situations where the worker is temporarily in a state that has adopted a similar law ensuring its workers cannot pursue claims in other states. The bill is now before the Florida Governor for approval. Ironically, Florida does not recognize professional athletes as employees under worker’s compensation laws.  According to a New York Times report, more than 700 professional football players are pursuing cumulative injuries in California.

The Indiana Supreme Court has held that a student athlete on scholarship does not qualify under the definition of employee under the Indiana worker’s compensation statutes and therefore is not entitled to recover under a claim of worker’s compensation if injured.  Rensing v. Indiana State Univ. Board of Trustees, 444 N.E.2d 1170 (Ind. 1983).  In Indiana there is no specific exclusion of professional athletes under the worker’s compensation statutes.


Indiana has joined more than 30 states with its enactment of youth-concussion legislation.

Each year before the beginning of practice for an interscholastic or intramural sport, a high school student athlete and the student athlete’s parent must sign and return an information sheet acknowledging the nature and risks of concussion and head injuries.  Thereafter, a high school student athlete who is suspected of sustaining a concussion or head injury in practice or a game shall be removed and may not return until the student athlete has received written clearance from a licensed healthcare provider.

The IHSAA has crafted a protocol for implementation of National Federation of State High School Rules for Concussions which includes the filling of an official report with the removed player’s school by the official that removed the athlete from play.  Furthermore, in instances where there is an assigned IHSAA Tournament physician, his or her decision to forbid an athlete to return to competition may not be overruled.

Some states have taken additional steps beyond the national model.  A school committee in Massachusetts passed an interim policy that requires any student in marching band or going on a field trip to take a baseline concussion test.  A Niagra Falls high school is making baseline concussion tests available to all student athletes, and the New Jersey State Legislature approved a bill requiring the State Department of Education to include cheerleaders within its concussion policy.

These safety precautions reflect an increased awareness that concussions are no longer treated as minor injuries and that the majority of concussions do not involve a loss of consciousness by the athlete.