By Miguel Samano on August 11, 2016

Former Stanford football player David Burns ʼ76 has filed a class action lawsuit seeking damages for the alleged disregard of the health and safety of former Stanford football players.

The suit names the University, the National Collegiate Athletic Association (NCAA) and the Pacific-12 Conference (Pac-12) as defendants and covers Stanford football players active between 1959 and 2010. Stewart Pollock of the law firm Edelson Professional Corporation will be lead-counsel for the suit, which joins 12 others filed by former college football players since mid-May. The suits allege that private universities, the NCAA and regional athletic conferences knew or should have known of the danger concussions and other traumatic brain injuries (TBIs) pose, but neglected to either inform student-athletes or adopt adequate concussion management protocols.

According to the lawsuit implicating Stanford, some concussed players, such as Burns, were prematurely returned to games or practices and now suffer from chronic injuries ranging from impulse control to early onset Parkinson’s disease.

Burns, who was not available to comment, seeks redress for these injuries, which he alleges Stanford knowingly failed to prevent.

“We talked to a client recently who recalled playing in games where his ears were bleeding,” said Chris Dore, a partner at Edelson. “[Student-athletes] are looking at these [athletic and educational] institutions to protect them.”

In a statement to CBS San Francisco, Stanford spokeswoman Lisa Lapin maintained that the University prioritizes protecting student-athletes.

“Stanford was surprised to see this lawsuit purporting to be a class action on behalf of football players from 1959 to 2010 as Stanford had not previously heard anything from the plaintiff or his counsel about the allegations being made,” the statement read. “Stanford has always acted in the best interests of its student athletes.”

The complaint has been assigned to Judge Kandis Westmore of the U.S. District Court of Northern California, San Francisco Division.

Protecting Students

Edelson’s string of lawsuits followed another settlement between the NCAA and a class of former football players led by Adrian Arrington, wide receiver for the University of Michigan from 2004-07. The settlement provided for medical monitoring such as doctor’s appointments but not monetary compensation for an injured player, and it stipulated that future class actions against the NCAA, such as Burns’ complaint, must proceed on a college-by-college basis.

“The [NCAA settlement] didn’t account for anything that would occur if the test showed that there was something wrong with you,” Dore said. “You’d have players who were already experiencing injury, and the doctor’s appointment would be useless to them because they had already been to the doctor a thousand times.”

Dore stressed that the neurological injuries Edelson’s clients face have ruined their abilities to hold jobs and maintain social relationships. The former students represented in Burns’ suit, he explained, did not know the long-term dangers of repeated head injuries. College students and their parents now have access to information that was not in the public eye as recently as 10 years ago, according to Dore.

“When people look at these players in a lot of these suits, they are seeing them as men, middle-aged men,” Dore said. “People forget that they were 18 to 22-year-olds who were more or less under the guardianship of these schools and of these programs.”

While football players implicitly agree to take on some risk by participating in games, Osborne argued in one of the earliest law articles on sports-related head injuries that trainers and team physicians have a duty to protect athletes.

“Tremendous pressure may be placed on the athletic trainer to return the athlete to play as soon as possible by the coaching staff, administrators, other team members, alumnae and fans, and the athlete,” the article stated. “The athletic trainer cannot be influenced by the team’s need for the player or even by the athlete’s desire to play.”

According to Burns’ complaint, the NCAA, Pac-12 and Stanford “knew for decades of the harmful effects of TBI on student-athletes, [but] ignored these facts and failed to institute any meaningful method of warning or protecting the student-athletes.”

The NCAA first mandated concussion protocols in 2010. Due to Burns’ pending litigation, Stanford has not disclosed when the Cardinal first adopted a concussion protocol. However, former head coach Jim Harbaugh’s comments to The New York Times indicate Stanford has had a concussion protocol since at least 2007.

Law experts weigh in

Experts unaffiliated with either Burns’ or the defendants’ legal teams said the lawsuit may have a difficult time proving that Stanford and others were negligent.

“Even though [Stanford] has a duty to protect [students], anyone who plays any kind of sport knows that they could get hurt,” said Barbara Osborne, professor of sports medicine and law at the University of North Carolina at Chapel Hill (UNC). “Failing to adopt a safety standard is not the same thing as active concealment [of information].”

In Osborne’s opinion, the NCAA and athletic conferences do not have a duty to protect students, but rather a duty to not increase risks to the health and safety of student-athletes. Osborne believes that the actions and regulations of the NCAA and the Pac-12 should be evaluated under the norms for football during the time period covered in the suit, not current standards.

Though the suit alleges that “study after study published in medical journals” warned of the dangers of concussions, Osborne noted that there was no strong consensus in the sports medicine community when Burns played for the Cardinal. Medical experts disagreed on the dangers of concussions and other TBIs in football until relatively recently.

“If the standard is to be reasonably prudent, it looks like committees [within the NCAA] had been doing what they were expected to do, and did create policy when there was consensus,” Osborne said.

Though research on head injuries dated back to the 1920s, consensus on concussions specifically within football were not reached until Kevin Guskiewicz, dean of the College of Arts and Sciences at UNC and member of the NCAA’s Concussion Safety Protocol Committee, conducted a series of large-scale epidemiological studies identifying the effects of multiple concussions in the late 1990s. Guskiewicz’s research, which earned him a MacArthur fellowship, helped shift the field of sports medicine away from reliance on athletes’ self-reporting symptoms and towards more objective measures of athletes’ health.

“Coaches and trainers can’t make decisions on someone else’s safety if they are not getting honest information from the person,” Osborne said.

Burns’ recent complaint does not specify whether subjective self-reporting of symptoms was the norm when Burns played football from 1972-74.

According to a survey that then-student Richard Eagleston ʼ71 MA ʼ76 distributed to football players at Stanford and Santa Clara University in the 1975 season, however, players reported only slightly over half of the injuries they sustained, but were most likely to report head injuries. Most of the players surveyed reported receiving encouragement from their coaches or trainers to report injuries.

If evidence at trial demonstrates that Stanford football acted within the accepted coaching standards at the time, Osborne explained, there would be no breach of duty to players on Stanford’s part.

But Dore disagreed. He clarified that, per the conditions of NCAA’s settlement with Arrington, the firm must sue individual colleges even though the negligent behavior alleged in the complaint was typical of most college football programs from 1959-2010.

Burns’ case is “a matter of [the defendant’s] knowledge and their ability to control these players, to control the policies and limit the harm of [head injuries],” Dore said.

Deborah Hensler, Judge John W. Ford Professor of Dispute Resolution at the Stanford Law School, who specializes in class action litigation and procedure, suspects that the plaintiff’s definition of the class may cover too many people, but has withheld definitive judgement on the issue until more facts pertaining to the case are discovered.

“A court, at least at first blush, would think of it as being a very large amorphous class and judges are frequently uncomfortable allowing such class actions,” Hensler said.

A recent settlement with the NFL, Hensler noted, featured a narrower class of retired football players suffering from certain neurological diseases, while Burns’ suit limits the class solely by time period.

However, Hensler agreed with Dore that Stanford could be held responsible even if its practices were similar to peer institutions’.

“If there is some period where the plaintiffs show that Stanford and the other defendants knew and should have been doing other things and weren’t telling the players, then the plaintiffs would still have a strong case in that regard,” she said.

Contact Miguel Samano at msamano ‘at’ stanford.edu.