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Abuse and Mistreatment of Athletes at US Universities: Legal Implications for Institutional Duty-to-Protect

Abuse and Mistreatment of Athletes at US Universities: Legal Implications for Institutional Duty-to-Protect

Profile image of Ted TatosTed Tatos

2020, Texas Review of Entertainment & Sports Law

The recent spate of high-profile cases detailing abuse, mistreatment, and catastrophic injuries, suffered by college athletes have raised concerns regarding their well-being and the quality of care they receive. Post-hoc investigations have often followed in such cases, in an attempt to determine the cause and what preventive actions could have been taken. With disturbing regularity, such investigations have uncovered institutional dereliction of duty to protect and failure to prevent continued misconduct by those with the ability and opportunity to do so. This study presents a documentary investigation into issues college athletes raised during their exit interviews at one university in the United States. This study details the communication chain from athlete to administration and whether athlete concerns received attention commensurate with the gravity of the issues raised. Findings presented here indicate that administrative officials appeared less concerned with athlete well-being than with avoiding attracting attention to potential institutional malfeasance. The congruity of these results with evidence from the broader college athlete population as well as legal implication for institutional duty of care are discussed.

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DATE DOWNLOADED: Wed Sep 1 15:49:57 2021 SOURCE: Content Downloaded from HeinOnline Citations: Bluebook 21st ed. Ted Tatos, Abuse and Mistreatment of Athletes at U.S. Universities: Legal Implications for Institutional Duty-to-Protect, 21 TEX. REV. ENT. & Sports L. 1 (2020). ALWD 6th ed. Tatos, T. ., Abuse and Mistreatment of Athletes at U.S. Universities: Legal Implications for Institutional Duty-to-Protect, 21 Tex. Rev. Ent. & Sports L. 1 (2020). APA 7th ed. Tatos, T. (2020). Abuse and Mistreatment of Athletes at U.S. Universities: Legal Implications for Institutional Duty-to-Protect. Texas Review of Entertainment & Sports Law, 21, 1-54. Chicago 17th ed. Ted Tatos, "Abuse and Mistreatment of Athletes at U.S. Universities: Legal Implications for Institutional Duty-to-Protect," Texas Review of Entertainment & Sports Law 21 (2020): 1-54 McGill Guide 9th ed. Ted Tatos, "Abuse and Mistreatment of Athletes at U.S. Universities: Legal Implications for Institutional Duty-to-Protect" (2020) 21 Tex Rev Ent & Sports L 1. AGLC 4th ed. Ted Tatos, 'Abuse and Mistreatment of Athletes at U.S. Universities: Legal Implications for Institutional Duty-to-Protect' (2020) 21 Texas Review of Entertainment & Sports Law 1. MLA 8th ed. Tatos, Ted. "Abuse and Mistreatment of Athletes at U.S. Universities: Legal Implications for Institutional Duty-to-Protect." Texas Review of Entertainment & Sports Law, 21, 2020, p. 1-54. HeinOnline. OSCOLA 4th ed. Ted Tatos, 'Abuse and Mistreatment of Athletes at U.S. Universities: Legal Implications for Institutional Duty-to-Protect' (2020) 21 Tex Rev Ent & Sports L 1 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at https://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your license, please use: Copyright Information Abuse and Mistreatment of Athletes at U.S. Universities: Legal Implications for Institutional Duty-to-Protect Ted Tatos* 1 A BSTRACT ................................................. INTRODUCTION I. ABUSE AND MISTREATMENT AT A. B. 1II. 2 ............................................ U.S. 3 3 UNIVERSITIES .. RECENT CASES OF EGREGIOUS CONDUCT ......... OTHER 10 INJURIES AND CATASTROPHIC INCIDENTS. ANALYSIS OF ATHLETE EXIT INTERVIEWS FROM 15 15 UNC-CHAPEL HILL ................................. A . D ATA .......................................... B. C. V. 16 M ETHODOLOGY ................................ RESULTS ....................................... . 20 DISCUSSION ....................................... . 34 A. IMPLICATIONS OF FINDINGS FROM UNC-CHAPEL 34 H ILL ........................................... B. INSTITUTIONAL RESPONSIBILITY AND DUTY-TO- CARE .......................................... THE IN IOCO PARENTIS DOCTRINE ......... I. n. 38 .38 RECENT DEVELOPMENTS REGARDING INSTUTIONAL RESPONSIBILITY TOWARD 41 A THLETES ................................. III. DUTY TO CARE AND THE USE OF COLLEGE ATHLETES AS RESEARCH SUBJECTS ......... CONCLUSION .............................................. .45 52 ABSTRACT The recent spate of high-profile cases detailing abuse, mistreatment, and catastrophic injuries, suffered by college athletes * Economist and statistician, EconONE Research. Email: ttatos@econone.com. The author has no conflicts of interest to declare. This research received no external funding. 1 2 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 have raised concerns regarding their well-being and the quality of care they receive. Post-hoc investigations have often followed in such cases, in an attempt to determine the cause and what preventive actions could have been taken. With disturbing regularity, such investigations have uncovered institutional dereliction of duty to protect and failure to prevent continued misconduct by those with the ability and opportunity to do so. This study presents a documentary investigation into issues college athletes raised during their exit interviews at one university in the United States. This study details the communication chain from athlete to administration and whether athlete concerns received attention commensurate with the gravity of the issues raised. Findings presented here indicate that administrative officials appeared less concerned with athlete well-being than with avoiding attracting attention to potential institutional malfeasance. The congruity of these results with evidence from the broader college-athlete population as well as legal implication for institutional duty of care are discussed. INTRODUCTION Much of the attention on sports-related injuries at the collegiate level, particularly those with long-term negative consequences, have focused on the effects of brain trauma suffered from participation in collision sports. Mounting evidence continues to link repetitive head impacts sustained in sports such as football, hockey, rugby, and others to degenerative brain conditions or diseases including chronic traumatic encephalopathy ("CTE") and other neurocognitive sequelae. As a result, the National Collegiate Athletic Association ("NCAA") and member schools are among the organizations and institutions faced with individual and classaction lawsuits from athletes who have sustained brain injuries from sport participation. In addition to these concerns, the mistreatment of athletes and others whose welfare post-secondary institutions should protect continues to gain attention. Examples of athlete abuse by university officials, including coaches and sports medicine doctors, appear in the news with disturbing regularity, underscoring the systemic nature of this problem. Equally unsettling is the frequency with which subsequent investigative reports find that university administrators or other individuals in a position to report or curtail such abuse 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES 3 failed to do so. For the interested reader, Smith and Freyd offer an invaluable analysis of institutional betrayal and the "evolution of trauma psychology from a pursuit focused solely on individuals to one increasingly incorporating systemic forces."' Indeed, the failure of post-secondary educational institutions in the United States to safeguard their students and those in their care has become altogether too commonplace. This article begins by discussing some of the most conspicuous examples of such egregious institutional misconduct and, where available, the findings from investigations that followed in the wake of these incidents. With virtual unanimity, these investigations found that, where mistreatment occurred, individuals at the institution were aware of, yet did not take steps to address or eliminate, such behavior. Then, leveraging primary source information from athlete exit interviews conducted by officials at the University of North Caro- lina at Chapel Hill ("UNC" or "UNC-Chapel Hill") from 2004 to 2012, this article explores how athlete concerns were expressed but with little effect. This study also investigates how communicated concerns were diluted and neutered as they passed through the institutional hierarchy. The role of university officials who were in a position to effect a positive change, but apparently did not, is discussed. Finally, this article offers support for a college athlete bill of rights to address the epidemic of athlete abuse at undergraduate institutions in the United States. I. ABUSE AND MISTREATMENT AT A. U.S. UNIVERSITIES RECENT CASES OF EGREGIOUS CONDUCT The case of Larry Nassar, a serial pedophile and former sports medicine doctor at Michigan State University ("MSU"), sparked outrage when the length and scope of the appalling abuse, which spanned decades and included as many as five hundred victims, was revealed. A Special Committee of the Board of Directors of the United States Olympic Committee ("USOC") commissioned an investigation, detailed results of which appeared in the December 1. Carly Parnitzke-Smith and Jennifer Freyd, Institutional Betrayal, 69 AMERICAN PSYCHOLOGIST 575, 576 (2014). 4 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 2018 Ropes & Gray report. 2 Among other findings, the report, which covered over 100 witness interviews and 1.3 million documents, found that: Over the course of approximately 30 years, Larry Nassar sexually abused well over 400 children and young adults, some once and some dozens and even hundreds of times. . . . In all, Nassar committed thousands of sexual assaults between the early 1990s and 2016. Over a period of decades, numerous adults ignored credible reports of Nassar's criminal abuse. . . . In 2004 and 2014, the Meridian Township Police and MSU [Michigan State University], respectively, failed to effectively investigate allegations against Nassar, resulting in no charges being filed in response to 3 credible, first-hand accounts of abuse. The investigation into Nassar's abuse also resulted in former MSU President Lou Anna Simon being charged with giving false and misleading statements to police and impeding the investigation of first-degree criminal sexual conduct. 4 In the February 2019 opening of the preliminary examination of her felony criminal case, prosecutors described her as being more concerned about protecting MSU's brand than investigating the sexual assault that occurred at the university. 5 In 2018, six women filed a lawsuit against the University of Southern California ("USC") alleging that George Tyndall, the university's gynecologist for nearly 30 years, "sexually victimized 6 them under the pretext of medical care" with the university's 2. Joan McPhee and James P. Dowden, The Constellation of Factors Underlying Larry Nassar's Abuse of Athletes, Ropes & Gray (Dec. 10, 2018), https:// www.ropesgray.com/-/media/Files/USOC/ropes-gray-full-report.pdf. 3. Id. at 20, 44. 4. Beth LeBlanc, Former MSU President Lou Anna Simon to be Tried on NassarRelated Charges, THE DETROrr NEWS (Oct. 28, 2019), https://www.detroitnews.com/story/ news/local/michigan/2019/10/28/former-michigan-state-president-lou-anna-simon-to-be- tried-nassar-charges/2485600001/. 5. Carol Thompson and Megan Banta, Lou Ana Simon, Ex-Michigan State President, Returns to Court Monday in Criminal Case, LANSING STATE JOURNAL (Apr. 8, 2019), 2 https://www.lansingstatejournal.com/story/news/hocal/ 019/04/07/lou-anna-simon-court33625 560 02 /. hearing-msu-michigan-state-university-larry-nassar/ 6. Abby Garner, Six Women Are Suing USC for Allegedly Failing to Protect Them From Campus Gynecologist's Sexual Abuse, GLAMOUR (May 22, 2018), https:// www.glamour.com/story/women-sue-usc-campus-gynecologist-alleged-sexual-abuse. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES 5 knowledge. In response, 200 tenured professors penned a letter to the Board of Trustees expressing their "outrage and disappointment over the mounting evidence of [USC] President Nikias' failure to protect our students, our staff and our colleagues. . ." adding that "in this case, as in prior cases, faced with an ongoing pattern of serious wrongdoing by a powerful University official, the University has kept the wrongdoing quiet, settled financially with the wrongdoer in secret, and denied any responsibility on the part of the University." 8 In May 2019, the LA Times reported that, even after medical experts told the university that Tyndall was preying on vulnerable Asian students and had signs of 'psychopathy,' "lawyers for USC arrange[d] a secret deal with the doctor that allowed him to leave his post with a substantial financial payout and a pristine professional record." 9 On June 26, 2019, Tyndall was arrested and charged with 29 felony counts of sexual abuse.' 0 Contemporaneously, a May 15, 2019 report that stemmed from an independent investigation conducted by the law firm Perkins Coie, LLP detailed sexual abuse of Ohio State University ("OSU") students by former university physician Richard Strauss during his two-decade tenure (1978-1998) at the school." The report's two main findings were that: First . . . Strauss sexually abused at least 177 male student-patients he was charged with treating as a University physicianmany in his capacity as a team physician with the University Athletics Department; some in his capacity as a physician in OSU's 7. Harriet Ryan, Matt Hamilton, and Paul Pringle, Must Reads: A USC doctor was Accused of Bad Behavior with Young Women for Years. The University Let Him Continue Treating Students, LA TiMEs (May 16, 2018), https://www.latimes.com/local/californiala- me-usc-doctor-misconduct-complaints-20180515-story.html. 8. Read the USC Faculty Letter Demanding PresidentNikias' Resignation, LA Tn Es (May 22, 2018), http://documents.latimes.com/read-usc-faculty-letter-demanding-presi dent-nikias-resignation/. 9. Harriet Ryan and Matt Hamilton, USC was Told Gynecologist Could be Preying on Asian Students, Records Show, LA Titms (May 23, 2019), https://www.latimes.com/local/ lanow/la-me-usc-george-tyndall-asian-students-abuse-women-gynecologist-20190523-sto ry.html. 10. Jill Cowan, Former U.S.C. Gynecologist Arrested in Sex Abuse Case, NY TiMES (June 26, 2019), https://www.nytimes.com/2019/06/26/us/george-tyndall-sexualabuse.html. 11. Caryn Trombino and Markus Funk, Sexual Abuse Committed by Dr. Richard Strauss at the Ohio State University, Perkins Coie LLP (May 15, 2019), https://compli ance.osu.edu/assets/site/pdf/Revisedreport.pdf. 6 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 Student Health Center ("Student health"); and others in connection with his other pursuits, including purported "medical studies. Second . . . that University sexually abusive treatment 1979, but that complaints were not elevated beyond Health until 1996.12 personnel had knowledge of Strauss' of male student-patients as early as and reports about Strauss' conduct the Athletics Department or Student As a result of the news, Ohio's governor ordered a probe of the State Medical Board to determine whether it took appropriate action regarding Strauss.' 3 The investigation is ongoing as of the writing of this article. In a recent March 2020 article, six former OSU wrestlers told journalists that they were present when the assistant coach at that time, current U.S. Representative Jim Jordan, heard or responded to sexual misconduct complaints against Strauss.' 4 In February 2020, the Detroit Free Press reported that the University of Michigan had been investigating allegations of abuse against a former doctor, Robert Anderson, at the school since 2018.15 According to the recently-released July 2018 police report, Anderson, who died in 2008, had been a team physician with the University of Michigan Athletic Department from 1967 to 1988 and a faculty member with the university's Internal Medicine department as well as the director of Student Life Services from 1968 to 1980.16 In March of 2020, a former scholarship athlete in wrestling at the University of Michigan filed a lawsuit alleging the school covered up sexual abuse by former doctor Robert Ander- Id. at 1. Julie Carr Smyth, Governor Orders Probe of Medical Board in Ohio State Abuse, AP NEWS (May 20, 2019), https://apnews.com/e9f5ee9911054b6fb553c8db333ec7bd. 14. Curt Devine, Drew Griffin and Majlie de Puy Kamp, Six Former Wrestlers Say Rep. Jim Jordan Knew About Abusive OSU Doctor, CNN (Mar. 6, 2020), https:// www.cnn.com/2020/03/06/politics/ordan-osu-wrestlers-strauss-invs/index.html. 15. Kim Kozlowski, Former University of Michigan Team Doctor Investigated for Multiple Sex Abuse Complaints, THE DETROrr NEWS (Feb. 19, 2020), https:// www.detroitnews.com/story/news/local/michigan/2020/02/19/university-michigan-investi gates-sex-complaints-against-former-football-doctor/4712724002/. 16. Div. OF PUn. SAFETY AND SECURITY, University of Michigan Case Report, No. 1890303861, https://www.scribd.com/document/448298278/foia-u-of-m-1-202002211351. 12. 13. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES 7 son.1 7 The following day, Anderson's victims, flanked by victims of Larry Nassar, held a press conference in which one described the abuse suffered as a "horror story."s As of March 2, 2020, more than one hundred complaints had been logged against Anderson. 19 The university engaged the law firm Steptoe & Johnson to investigate the claims. Upon being informed that the firm had also performed work for Jeffrey Epstein and Roman Polanski, two prominent figures accused of sexual misconduct, the university terminated the engagement and announced plans to hire a different firm. 20 Incidents of athlete abuse and mistreatment occur with shameful regularity in collegiate sports, where the welfare of athletes should be the guiding principle. In too many of these cases, the responsibility falls, at least in part, on the coaches. While such incidents are legion, several stand out not only by the nature of the egregious conduct but also by the harm caused. The sexual abuse of children by former Pennsylvania State University ("Penn State" of "PSU") assistant coach Gerald Sandusky during his tenure at the school shocked the conscience of the nation. The resulting Report of the Special Investigative Counsel (the "Freeh Report") not only detailed Sandusky's horrific acts of pedophilia but also "the total and consistent disregard by the most senior leaders at Penn State for the safety and welfare of Sandusky's child victims." 21 The Freeh report also concluded that four 17. David Jesse, Former U-M Wrestler Files Lawsuit Against School Over Alleged Sexual Assault by Doctor, DETROrr FREE PREss (Mar. 4, 2020), https://www.freep.com/ story/news/education/2020/03/04/lawsuit-michigan-doctor-robert-anderson/4954663002/. 18. Meredith Bruckner, Survivors of Dr. Anderson, Larry Nassar Call on U-M to 'Do the Right Thing', ALL ABOUT ANN ARBOR (Mar. 5, 2020), https://www.clickondetroit.com/ all-about-ann-arbor/2020/03/05/survivors-of-dr-anderson-larry-nassar-call-on-u-m-to-dothe-right-thing/. 19. Steve Marowski, More Than 100 Complaints Now Logged Against Former University of Michigan Doctor Robert Anderson, MLivE (Mar. 2, 2020), https://www.mlive.com/ news/ann-arbor/2020/03/more-than-100-complaints-now-logged-against-former-university -of-michigan-doctor-robert-anderson.html. 20. University of Michigan Office of the President, Statement from the University of Michigan Board of Regents and President Mark Schlissel (Mar. 7, 2020), https://president. umich.edu/news-communications/statements/statement-from-the-university-of-michiganboard-of-regents-and-president-mark-schlissel/. 21. Report of the Special Investigative Counsel Regarding the Actions of The Pennsylvania State University Related to the Child Sexual Abuse Committed by Gerald A. Sandusky, Freeh, Sporkin & Sullivan, LLP (July 12, 2012), http://www.bishop-accountabili ty.org/reports/2012_07_12_FreehPennStateRepon.pdf. 8 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 of the most powerful people at Penn State "failed to protect against a child sexual predator harming children for over a decade." 22 Unfortunately, the Penn State case did not represent an anomalous example, but rather part of a pattern of egregious behavior and accompanying institutional failure to prevent it. In August 2015, the University of Illinois fired its football coach, Tim Beckman, after reports of mishandling of injuries surfaced. 23 The subsequent independent investigation and report, authored by the law firm Franczek Radelet, observed that: Through interviews with sports medicine personnel, coaches, and players, we learned that Coach Beckman discouraged studentathletes from seeking assistance from sports medicine personnel and, when players sought medical assistance, challenged and questioned medical judgments indirectly but routinely. . . Head Football Athletic Trainers left the program repeatedly and team physicians felt compelled to adjust their involvement with the Football Program several different times to ensure protection of student-athlete welfare. 24 University of North Carolina at Chapel Hill football coach Larry Fedora, who has since been dismissed after limited on-field success, subsequently hired Beckman as a volunteer assistant coach. 25 Fedora explained he was "very comfortable" with his decision and, regarding Beckman's firing at Illinois, opined that "[Beckman] didn't win enough games . . . that's all it was." 26 As a result of the 22. Id. 23. Shannon Ryan and Jodi S. Cohen, Aug. 28, 2015: Illinois Fires Football Coach Tim Beckman Over Mishandling of Injuries, CHICAGO TRIBUNE (Aug. 28, 2015), https:// www.chicagotribune.com/sports/college/ct-tim-beckman-fired-illinois-football-20150828story.html. 24. Peter G. Land, Jennifer A. Smith, Eric L. White, and Jamel A. R. Greer, Investigative Report: Injury Management and Scholarship Renewal in the University of Illinois Urbana-Champaign Division of Intercollegiate Athletics Football Program, Franczek Radelet (Nov. 6, 2015), https://illinois.edu/resources/FRAthletic_ReviewReport_Final_ Public_11-9-2015.pdf. 25. Robert Willett, UNC's Fedora Explains Hiring of Fired Illinois Coach Tim Beckman, NEWS & OBSERVER (Feb. 9, 2018), https://www.newsobserver.com/sports/college/ acc/unc/article98042157.html. 26. Id. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITrIS 9 public outcry following the news of his hiring, Beckman stepped down a day later.27 The 2018 death of Jordan McNair, a student and football athlete at the University of Maryland, a member of the same Big Ten Conference as Penn State, MSU, OSU, and Illinois, drew attention to the risks of catastrophic injury college athletes face and the importance of having trained medical personnel available to mitigate the risks of such injuries. 28 As in previous cases noted above, an independent evaluation followed Mr. McNair's heat-related death, which culminated in a report by sports medicine consultants Walters, Inc. 29 The report, which excluded any assessment of personnel, found that: There was the failure to identify escalating symptoms associated with exertional heat illness including removing the athlete from the field, assessing vital signs, and identifying the condition and aggressively treating the patient's elevated core temperature. The failure to rapidly recognize exertional heat illness is a concern. The lack of recognition and assessment of the severity of the 30 event delayed cooling the patient in a timely manner. A subsequent investigation ensued, which uncovered emails detailing abuse of athletes and concluded, among other findings, that a) the Athletics Department lacked a culture of accountability and did not provide adequate oversight of the athletic program, and b) the university leadership bore some responsibility for the dys- 27. Andrew Carter, Beckman Leaves Volunteer Post at UNC, NEWS & OBSERVER (Aug. 25, 2016), https://www.newsobserver.com/sports/college/acc/unc/article97952067. html. 28. Heather Dinich, Sources: Maryland OL Jordan McNair Showed Signs of Extreme Exhaustion, ESPN (Aug. 10, 2018), https://www.espn.com/college-football/story/_/id/ 24343021/jordan-mcnair-maryland-terrapins-died-heatstroke-team-workout (stating that McNair died two weeks after what appeared to be a heat stroke during an outdoor football workout). 29. An Independent Evaluation of Procedures and Protocols Related to the June 2018 death of a University of Maryland Football Student-athlete, Walters, Inc. (Sept. 21, 2018); Michael McCann, How Do the Findings of Jordan McNair Investigation Impact Pending Lawsuit, Durkin's Future?, SPORTS ILLUSTRATED (Sept. 22, 2018), https://www.si.com/col lege/2018/09/22/jordan-mcnair-death-investigation-findings-maryland-dj-durkin-lawsuit. 30. An Independent Evaluation of Procedures and Protocols Related to the June 2018 death of a University of Maryland Football Student-athlete, supra note 29; Anthony Rivas, Release of Report into Death of Maryland Football Player Iacks 'Sensitivity,' Parents' Lawyer Says, ABC NEWS (Sept. 23, 2018), https://abcnews.go.com/US/release-reportdeath-maryland-football-player-lacked-sensitivity/story?id=58008216. 10 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 function in the athletic department. 31 Nonetheless, the report did not find a 'toxic culture' existed in the football program. 32 Subsequently, the University Regents reinstated football coach DJ Durkin, who had been suspended. 33 Pursuant to public outcry from the team, political leaders and others, University President Wallace Loh bought out the remainder of the coach's salary for $5.4 million and dismissed him.34 Loh had previously apologized to McNair's family and admitted the university's 'legal and moral' responsibil- ity for staff mistakes.35 B. OTHER INJURIES AND CATASTROPHIC INCIDENTS Marquese Meadow, an 18-year-old freshman at Morgan State University died from heat stroke-related issues following a "punishment practice." 36 More recently, Garden City (KS) Community College player Braeden Bradforth died of exertional heat stroke following the first practice of the season, where players were allegedly not permitted to drink water. 37 Following criticism of the school's internal review by parties including U.S. Representative Chris Smith, who called the review a "sham" and "grossly inadequate and incomplete," 38 the university recently agreed to conduct 31. Report to the University System of Maryland of An Independent Investigationof the University of Maryland FootballProgram (Oct. 23, 2018), https://a.espncdn.com/pdf/2018/ 1025/MarylandReport.pdf. 32. Id. 33. Luke Broadwater, Talia Richman and Jeff Barker, University of Maryland President Fires Football Coach DJ Durkin, Reversing Decision by Regents, BALTIMORE SUN (Oct. 31, 2018), https://www.baltimoresun.com/sports/terps/tracking-the-terps/bs-md-dur kin-gone-20181031-story.html. 34. Id. 35. Don Markus, Maryland'sLoh Apologizes to McNair's Family, Says University Accepts Responsibility for 'Mistakes' by Staff, BALTIMORE SUN (Aug. 14, 2018), https:// www.baltimoresun.com/sports/terps/tracking-the-terps/bs-sp-loh-evans-aology-0814story.html. 36. Steven J. Gaither, Morgan State 'Punishment Practice' Led to Football Player's 2014 Death, Lawsuit Says, SPORTING NEWS (Feb. 17, 2016), https://www.sportingnews. com/us/other-sports/news/marquese-meadow-death-morgan-state-punishment-practicefootballdq8gylk9jz9bl7313zsfbqcl6. 37. Jorge Ruiz, Collapse and Confusion: The Death of Juco Football Player, SPORTS ILLUSTRATED (June 24, 2019), https://www.si.com/college/2019/06/24/braeden-bradforthdeath-heatstroke-kansas-juco-garden-city. 38. Kansas College Releases Review of Player's Heatstroke Death, AP NEWS (May 3, 2019), https://www.apnews.com/2a234a2c225349779fe2213828b26d9c. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNVERSITIES 11 an independent investigation. 39 The report, which was released on October 28, 2019, found multiple institutional failures, including: a) "[f]ailure of institutional control over employees including the head athletic coach and head athletic trainer who both operated independently and with little to no oversight" and b) "[f]ailure to plan to recognize and appropriately care for Braedon Bradforth as he drifted into medical distress." 40 Catastrophic injuries, including non-traumatic deaths, involving college athletes have been acknowledged in the literature as well. A 2017 article by Scott Anderson, head athletic trainer at the University of Oklahoma, noted that 33 (27 non-traumatic/6 traumatic) NCAA football players died between the years 2000 to 2016, the "age of year-round NCAA football." 41 That is, 4.5 nontraumatic deaths occurred for every traumatic death. 42 Anderson observed that: Football is a traumatic sport. In our practice and play of the game, we anticipate injury. . .traumatic injury. . .and even traumatic death. Collegiate football's dirty little secret is that we are killing our players-not in competition, almost never in practice, and rarely because of trauma-but primarily because of nontraumatic causes in off-season sessions alleged to enhance performance. 43 A recent presentation at the 2019 American Orthopedic Society for Sports Medicine ("AOSSM") Annual Meeting reviewed non-traumatic football fatalities over the 20-year period from July 1998 through June 2018. The authors found a total of 187 (150 high school, 37 college) non-traumatic fatalities (avg. 9/yr.)." Ap- 39. Steve Strunsky, Kansas College Will Investigate N.J. FootballPlayer's Death After Practice, NJ.COM (May 15, 2019), https://www.nj.com/monmouth/2019/05/kansas-collegewill-investigate-nj-football-players-death-after-practice.html. 40. Randy J. Aliment and Rod Walters, Report of Independent Investigation Death of Braeden Bradforth (Oct. 28, 2019), https://chrissmith.house.gov/uploadedfiles/report of_independent_investigation.pdf. 41. Scott Anderson, NCAA Football Off-Season Training: Unanswered Prayers.. . A PrayerAnswered, 52 J. OF ATHLETIC TRAINING 145, 145 (2017). 42. Id. 43. Id. 44. Barry P. Boden, Ilan Breit, and Scott Anderson, Non-Traumatic Fatalitiesin Football: Over-conditioning Kills, 7 ORTHOPEDTC J. OF SPORTS MED. 1, 1 (2019), https:// www.ncbi.nlm.nih.gov/pmc/articles/PMC6664653/pdf/10. 1177_2325967119S00303.pdf. TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW 12 VOL. 21:1:1 proximately 87% of the fatalities occurred during a practice or conditioning session.45 The presentation's findings included that: Hallmarks of exertion-related fatalities were: 1. conditioning sessions supervised by the football coach or strength and conditioning coach[;] 2. Irrationally intense workouts and/or punishment drills[;] and 3. an inadequate medical response. . .The football acclimatization model implemented by the NCAA in 2003 has failed at reducing exertional heat-related fatalities at the collegiate level. 46 Allegations of abuse involving non-catastrophic injuries also plague college athletics. In particular, clusters of rhabdomyolysis cases, a condition resulting from the breakdown of muscle fibers and the release of their contents into the bloodstream, have also become commonplace. In 2011, thirteen football players at the University of Iowa were hospitalized with exertional rhabdomyolysis ("ER") after an intense squat workout. 47 The medical details involved with this incident 8 resulted in a lawsuit against the school brought by one of the players, William Lowe, who never returned to the team.49 Twelve cases of ER were found at Howard Univer- sity, all among football players, between 1993 and 2016.50 In 2013, six women's lacrosse players at Ohio State University were hospitalized after suffering from ER after a new, intense workout. 51 A news article published in the wake of the incident quoted Jay Hoff- 45. Id. 46. Id. 47. Report of the Special PresidentialCommittee to Investigate the January 2011 Hospitalization of University of Iowa Football Players (Mar. 21, 2011), https:// www.iowaregents.edu/media/cms/finalreportonrhabdoincident-pdflA6655AB.pdf. 48. M. Kyle Smoot et al., A Cluster of ExertionalRhabdomyolysis Affecting a Division I Football Team, 23 CILNICAL J. OF SPORTS MED. 365, 365 (2013) (discussing the medical details involved in the death of thirteen football players at the University of Iowa). 49. Former Iowa Player William Lowe Files Lawsuit over 'Rhabdo' Injuries, DES MoWiEs REGISTER (Mar. 11, 2014), https://www.desmoinesregister.com/story/sports/col lege/iowa/iowa-football/2014/03/11/former-iowa-player-wiliam-lowe-files-lawsuit-overrhabdo-injuries/6285259/. 50. Terry L. Thompson, Thomas X. Nguyen, and Cina R. Karodeh, Twelve Cases of Exertional Rhabdomyolysis in College Football Playersfrom the Same Institution Over a 23-Year Span: A Descriptive Study, 46 THE PHYSICIAN ANS sPORTSMEDICINE, 331, 331 (2018). 51. Todd Jones, Rhabdomyolysis Laid Low 6 Athletes, COLOUMBIA DISPATCH (Mar. 9, 2013), https://www.dispatch.com/article/20130309/NEWS/303099822. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES man, president of the National Strength and Association from 2009 to 2012, as commenting: 13 Conditioning That type of injury is 100 percent avoidable. That should never have happened. That's absurd. People need to understand that rhabdo is not inherent with training. It's a good indicator of a training program that is inappropriate. 52 In 2017, three University of Oregon athletes were hospitalized with ER after a series of intense workouts. 53 Following the incident, the school suspended its strength coach and apologized.4 As a result of their injuries, two of the athletes, Samuelu Poutasi and Doug Brenner filed lawsuits in January 2019 against the school, head coach Willie Taggart, and the NCAA.55 In January 2018, two University of Nebraska players were also hospitalized for multiple days after off-season weight-lifting workouts. 56 In February 2019, the University of Houston fired strength coach Minor Bowens after twelve women's soccer players fell ill with rhabdomyolysis.57 The university's internal audit deemed that the incident was "excessive," but, because the university had no policy prohibiting "punishment" workouts at the time, it cleared the team's head 52. Id. 53. Andrew Greif, Multiple Oregon Ducks Football Players HospitalizedAfter Grueling Workouts, THE OREGONIAN (Jan. 16, 2017), https://www.oregonlive.com/ducks/2017/ 01/oregonwducks-workoutshospital.html. 54. Andrew Greif, Oregon Suspends Ducks Football Strength Coach After Players' Hospitalization,THE OREGONIAN (Jan. 17, 2017), https://www.oregonlive.com/ducks/2017/ 01/afterplayershospitalization.html. 55. Tim Daniels, Oregon Player Sam Poutasi Sues Willie Taggart, NCAA, School for $5 Million, BLEACHER REPORT (Jan. 19, 2019), https://bleacherreport.com/articles/ 2815348-oregon-player-sam-poutasi-sues-willie-taggart-ncaa-school-for-5-million (discussing the lawsuit, Poutasi v. NCAA, that was filed on January 10, 2019); James Crepea, FormerDucks Football Player Doug Brenner Suing UO, Willie Taggart, NCAA for $11.5 Million, THE OREGONEAN (Jan. 9, 2019), https://www.oregonlive.com/ducks/2019/O1/former-oregon-ducks-football-player-doug-brenner-suing-uo-willie-taggart-ncaa-for-115million.html (discussing the lawsuit, Brenner v. Taggart, filed on January 9, 2019); Phil Anderson, The Rhabdo Trilogy: A Deeper Dive, FISHDuCK (Jan. 28, 2019), https:// fishduck.com/2019/01/the-rhabdo-trilogy-a-deeper-dive/. 56. Tom Schad, Nebraska Coach Scott Frost Confirms Two Players Were Hospitalized After Workouts, USA TODAY (Jan. 30, 2018), https://www.usatoday.com/story/sports/n caaf/bigten/2018/01/30/nebraska-coach-scott-frost-two-payers-hospitalized-rhabdomyolysis/1079461001/. 57. Paul Steinbach, U. of Houston Fires Strength Coach Over Rhabdo Cases, ATHLETIC Bus. (Feb. 2019), https://www.athleticbusiness.com/athlete-safety/u-of-houstonfires-strength-coach-over-rhabdo-cases.html. 14 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 coach of any wrongdoing. 58 The workout was described as "torture almost" by one of the athletes. 59 Rutgers University has faced three allegations of athlete abuse over the last six years.60 In response to media reports of the first two incidents, the university fired head basketball coach Mike Rice 61 and the women's swimming and diving coach, Petra Martin. Amid recent allegations of abuse of softball athletes by head coach Kristen Butler and her husband, a volunteer assistant, ten players left the program. 62 In addition, former Athletic Director Julie Hermann, who was fired without cause in 2015, also faced allegations of abuse while coaching the University of Tennessee women's volleyball team. 63 In 1997, all fifteen players submitted a letter in which they wrote, "The mental cruelty that we as a team have suffered is unbearable," noting that Hermann had called them "whores, alcoholics, and learning disabled."" When collectively analyzed, such incidents point to a breakdown in institutional duty of care towards college athletes. The inevitable question asked in the wake of such events is what could have been done to prevent them? Did athletes previously voice concerns over their treatment and were those concerns accorded the 58. University of Houston Internal Audit Department, Special Project Report No. SP2020-01 (Nov. 14, 2019), https://thedailycougar.com/wp-content/uploads/2019/11/ rhabdo.pdf. Katrina Martinez, Rhabdo Investigations: Athletics 'Acted Apropriately', UH COUGAR (Nov. 14, 2019), https://thedailycougar.com/2019/1 /14/athletics-bocanegra-rhabdo-investigation/. 60. Michael Hill, Rutgers Again Facing Allegations of Abuse of Athletes by Coaches, NJTV NEWS (Oct. 31, 2019), https://www.njtvonline.org/news/video/rutgers-again-facing-allegations-of-abuse-of-athletes-by-coaches/. 61. Id. 62. Id. 63. Keith Sargeant, Why Did Rutgers Pay Fired AD Julie Hermann $500K More than She Was Owed?, NJ.Com (Aug. 2, 2018), https://www.nj.com/rutgersfootball/2018/08/ whydid_rutgers_pay_fired_ad julie_hermann_500k_mo.html#:-:text=fired%20%22without%20cause.-,",29%2C%202015; Scott Gleeson, FormerPlayerfor Julie Hermann Says Abuse "All True', USA TODAY (May 29, 2013), https://www.usatoday.com/story/sports/ college/2013/05/29/former-player-rutgers-ad-julie-hermann-erin-zammett-ruddy-abuse/ 2370459/ ("Julie Hermann has been under massive scrutiny in the wake of accusations of verbal and emotional abuse from volleyball players she coached at the University of 59. DArLY Tennessee."). 64. Craig Wolff, Rutgers' New Athletic Director Faces Fresh Questions About Her Past, THE STAR-LEDGER (May 26, 2013), https://www.nj.com/sports/2013/05/rutgers_ newathleticdirector.html. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES 15 appropriate attention? The following section analyzes athlete exit interview notes collected by administrators at the University of North Carolina at Chapel Hill over the 2004-2012 period and compares them with meeting minutes and summary reports that followed to analyze if and how athlete concerns were addressed. I. ANALYSIS OF ATHLETE EXIT INTERVIEWS FROM UNC- CHAPEL HILL A. DATA Exit interview documents analyzed here originate from UNC documents released in response to public records requests from the News and Observer and The Daily Tar Heel.65 The approximately 1.8 million pages that UNC released in eight tranches between October 2015 and June 2017 stem from files UNC produced to the law firm Cadwalader Wickersham & Taft, whom the university commissioned to conduct an independent investigation into academic fraud at the institution. 66 The investigation, led by Kenneth Wainstein, former United States Attorney and Homeland Security Advisor, discovered a system of fraudulent classes that never met and that was allowed to operate within the university for nearly two decades. 67 As a result of this investigation, UNC admitted that it engaged in "long-standing" academic fraud to its accreditation agency, the Southern Association of Colleges and Schools' Commission on Colleges ("SACSCOC"), who took the extraordinary step of placing the university on academic probation, the penultimate step before loss of accreditation. 68 65. UNIV. University Releases Batch of Records Gatheredfor Wainstein Investigation, THE OF NORTH CAROLINA AT CHAPEL HILL (Oct. 21, 2015), https://carolinacommit- ment.unc.edu/university-releases-batch-of-records-gathered-for-wainstein-investigation/. 66. Id; Kenneth L. Wainstein, A. Joseph Jay III, and Colleen Depman Kukowsi, Investigation of Irregular Classes in the Department of African and Afro-American Studies at the University of North Carolina at Chapel Hill, Cadwalader, Wickersham & Taft, LLP (Oct. 16, 2014), https://carolinacommitment.unc.edu/files/2014/10/UNC-FINALREPORT.pdf. 67. Id. 68. University of North Carolina at Chapel Hill, Response to the Southern Association of Colleges and Schools Commission on Colleges (SACSCOC) Letter of November 13, 2014 (Jan. 12, 2015), https://oira.unc.edu/files/2017/07/UNC-Chapel-Hill-Report-to-SACSCOC-Redacted-for-Public-Release.pdf. 16 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 The scope of the documents produced reaches well beyond the academic fraud investigation and includes hundreds of thousands of documents generated during the normal course of daily internal and external communications at UNC. Given the documented involvement of the Academic Support Program for Student Athletes ("ASPSA"), a program funded by the UNC athletic department, many of these documents cover internal athletic department communications and athlete exit interviews. Such interviews are mandated by NCAA Bylaw 6.3, which requires member institutions to conduct them with a sample of individual athletes chosen by the school. 69 As such, interviewees were not chosen based on a random sampling protocol. The information gathered from these interviews and subsequent summary reports generated from this information are analyzed in this study. B. METHODOLOGY UNC produced the documents discussed herein in portable document format ("PDF") and made them publicly-available on its website.7 0 The documents were partially redacted, apparently either by the institution or its agents, and evidenced no readily apparent overall sorting structure. With the exceptions of email chains and attachments, which often appeared in proximity to the emails themselves, documents generally appeared in seemingly random order throughout the eight tranches. The author used optical character recognition ("OCR") to enable text searching in multiple files. Documents were searched using terms that included "exit interview," "athlete exit," and other words and phrases that the search protocol found relevant through their association with the aforementioned keywords. Some documents appeared multiple times within repository. Institutional redaction of these documents appeared inconsistent, with dates redacted in some versions but left unredacted in others. As such, keywords obtained from relevant documents with redacted dates were subsequently used to search for versions of the same documents that might display the date. This process enabled a 69. NCAA Drv. I OPERATING BYLAWS, art. 6.3, in 2017-2018 Div. I MANUAL (2017), https://web3.ncaa.org/lsdbi/reports/getReport/90008. 70. The documents can be found at https://carolinacommitment.unc.edu/records/. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES 17 longitudinal analysis of exit interviews and allowed this study to examine how information culled from exit interviews subsequently flowed through the institutional hierarchy. Specifically, interviewer notes were compared to subsequent summaries, which were in turn compared to reports and then, where available, to the findings presented to the UNC faculty athletic council ("FAC"). An important distinction warrants mention. This article focuses on in-person interviews, as opposed to survey forms that elicit Likert-scale type answers (e.g., 1=Strongly Agree to 5=Strongly Disagree) to pre-determined questions. For example, at UNC, the 2005 to 2006 survey consisted of 49 questions related to academic and athletic experiences. Figure 1 below illustrates one such survey instrument used at UNC during 2009. TEXAS 18 REVIEW OF ENTERTAINMENT AND SPORTS LAW 1. UNC 2009" FIGURE CA. VOL. 21:1:1 ATHLETE EXIT INTERVIEW SURVEY INSTRUMENT, University of North Carolina of Evaluation: _l _ __Your name (OPTIONAL): Estimated GPA entering Spring 200_ _ Hispanic_ Bbllon Hispanc_ Whte_ Otter Alaskan Naive Coches__ Teammates___ Facabtes___ Scial L&e___ Reason You Chose to Attend UNC: Academics__ Spefc srt program Spart Date Gender: Female____ Mae Race: AsanPafc____ Arncan Indian_ Thank you for taking the time to complete tis Student-Athlete Survey regardng your experiences as a student-athlete (sta) at thnhe Universly of North Carolina. Your responses wi be CONFIDENTIAL Using the following scale, please rate your experisnces for your most recent competitive season. Please retrn this survey to tie-Cricket Lane. RATING: Strongly Agree Exemplary performarce In all areas. Supasses the standards and performance expectations inmany inpartant areas. Good performance. Consistentty mees standrds and perfotrance expectations in:nportant areas. Performance does not meet expectations In some importantareas; below expected tevels. rprwoemen needed. Porlmmance fats below epectations in many areas. Substantialimprvement rintll. Agree Neutral Disagree Strongly Disagree Songly Agree Neutret Disagree streegly DOagree NtA STRENGTH &CONDITIONING (S &C) 1. Avaltablity ofeghtroom and 2. Utiization of safe, effective and 3. Corditon and maintenance 4. facites. Developmentoeolf-season programs witl dear indidual staff. arnent training lenqes of oas. SPORTS MEDICINE 1. Availability of sports medicine 2. 3. 4. 5. 6. 7. 8. Availabilityof xptsmedicine atletc tainers Level of care receivedfrom institutional ph siiarn Level of care received from athletic Salners. Level ofcoverage at off-season pacices and competition. Level of care received from speats medcnke staff regarding rehab and ateticaly related sues. Level ofcommunication betbeen sports metine staff and studert- athlites. Level of corruncaton bef'en medicine staff mpnts and cachfes. While such closed-ended survey answers illuminate aspects of college athletes' experiences, in-person interviews offer greater insight because of the presumptively more open-ended nature of the interviewer-interviewee interaction. Figure 2 offers a snapshot of the guide for those conducting in-person athlete exit interviews. 71. UNC Document Release, File 21 at 4949 (June 2017), https://s3.amazonaws.com/ url-carolinacommitment-storage/Final+Release+21.pdf. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT FIGURE 2. UNC ATHLETE IN-PERSON U.S. UNIVERSITIES 19 INTERVIEw GUIDE 72 Senior Student-Athlete Exit Interviews Guide for Interviewers We would like for you to give us your opinions about six areas-your academic experience at Chapel Hill; how your academic experience was affected by your participation in athletics; race relations and other diversity issues at UNC-CH; resources available to you as a student-athlete; gambling issues within the student-athlete population; and your opinions about any activities that run contrary to institutional, ACC, or NCAA regulations. Your Academic Experience at UNC-CH 1. How would you describe your academic experience? " Positive/ Negative? " Interesting/ Irrelevant? " Rigorous/ Superficial? " Challenging/ Unstimulating? 2. Do you feel that you performed up to your academic potential? * Why or why not? 3. How do you rate the quality of interaction with the faculty? " " What type of contact have you had with faculty? What type of contact would you have liked to have had with the faculty? 4. Do you feel prepared for a career? " What career? " What are your plans after graduation? One possible shortcoming of in-person interviews, however, rests with the loss of anonymity and potential athlete reluctance to express sentiments openly. However, UNC documents indicate that anonymity may be limited even with results obtained from survey forms, as those are administered at team meetings and an athletics department intern assists with compiling the results. Further, interviews are conducted in conjunction with the athletics department. 73 As such, while athletes may be encouraged to speak openly, they may decline that invitation given the potential loss of confidentiality. Compiled notes from UNC exit interviews conducted in Fall 2011 and Spring 2012 bear out this concern, observing that "there was a confidentiality issue with people opening up and then it got 72. 73. Id. at 4984. Id. at 4460-61, 4833. 20 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 back to coaches so everybody shut down."7 4 Further, instances have occurred where athletes appear to have been mentioned by name (though redacted) in UNC exit interview summaries. Finally, while such exit interviews contained information on a broad range of topics, including time demands, academic life, diversity, and others, this paper focuses on health-related issues, including sports medicine and athletic training. C. RESULTS The end of this paper provides a longitudinal perspective of the exit interview documents reviewed and the comments made regarding athlete care. The 2004 exit interview results represented the first tranche available for review. The summary contained information from every member of the Faculty Athletics Committee at UNC who conducted such interviews. The summary report evidenced concerns that some athletes "may have been harmed" by 75 substandard care provided by team doctors. Comments about team doctors were mixed. Instances of team doctors being responsive and helpful were noted. On the other hand, instances were noted of team doctors being ineffective, not listening, prescribing the same thing for nearly all occurrences, and failing to exhibit interest. This was of particular concern to the faculty participants, because situations may have occurred in which the well-being of a student-athlete was either not addressed or may have been harmed. Trainers received generally favorable reports.7 6 The subsequent tranche covered exit survey results presented in a summary report dated September 5, 2006.77 This survey does not appear to have collected information on sports medicine or athletic training and thus offered very limited insights on this topic. However, the results, which were cross-tabulated by race, gender, and sports category (revenue verses non-revenue), indicated that non-white and revenue sport athletes expressed more concern about 74. UNC Document Release, File 9 at 4929 (Dec. 2015), https://s3.amazonaws.com/ url-carolinacommitment-storage/PDF-D009.pdf. 75. UNC Document Release, File 10 at 924 (June 2017), https://s3.amazonaws.com/ url-carolinacommitment-storage/Final+Release+ 10.pdf. 76. Id. (emphasis added). 77. UNC Document Release, File 21 at 4835 (June 2017), https://s3.amazonaws.com/ url-carolinacommitment-storage/Final+Release+21.pdf. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES 21 "being too tired to complete homework or prepare for class" as a result of their athletic responsibilities. 78 The summary of Spring 2006 exit interviews reiterated the fatigue problem facing college athletes and observed that "while students often want to perform well academically, they are too tired to pay attention - or even stay awake - in class." 79 Such issues do not restrict themselves to UNC. Rather, they highlight a systemic problem under the NCAA model, where athlete fatigue presents a serious health concern. A 2015 study conducted by Penn Schoen Berland of 409 PAC-12 conference athletes from nine member universities found that: 71% of student-athletes say mention sleep as being the top thing their athletic commitments prevent them from doing.. . Physical exhaustion is a major issue student-athletes bring up qualitatively. . .their bodies and minds are exhausted from the non-stop stress during the competitive season. ... students say they are too exhausted to study effectively, that they are unable to devote enough time to both their academics and tests, and that athletic stress negatively impacts their academic focus.80 The results of this survey were also reported in the May 2016 PAC12 Report on Student-Athlete Time Demands. Pointed concerns about the medical care provided to UNC athletes resurfaced in the following year as observed in information obtained from Spring 2007 exit interviews. The summary, prepared in the fall of that year, drew a contrast between many comments regarding weaknesses in medical services provided to athletes and "alarming stories of inadequate care" versus the "high quality support" provided by the training staff.8 1 Comments indicated that athletes "did not have confidence in the abilities of the medical staff," prompting the summary's author to identify this as an area of concern and recommend that the university re-examine the quality of medical services provided to athletes at the school. 2 The university appears to have acted on this recommendation because 78. Id. at 4484. 79. Id. at 4907. 80. Penn Schoen Berland, Student-Athlete Time Demands (Apr. 2015), https:// sports.cbsimg.net/images/Pac-12-Student-Athlete-Time-Demands-Obtained-by-CBSSports.pdf?&elq=Elddl11 fb6ef406aabd4457bdO67dd45&elqCampaignld=1466. 81. UNC Document Release, File 4 at 650 (Aug. 2016), https://s3.amazonaws.com/urlcarolinacommitment-storage/PRR604.pdf. 82. Id. 22 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 in October of the same year, the UNC athletic department and Division of Student Affairs partnered to conduct a comprehensive review of the sports medicine program. The Sports Medicine Review Committee issued its final report in the following year, on August 29, 2008.3 The stated purpose of the review involved six primary focus areas. Figure 3 below provides an excerpt of the report detailing these topics. FIGURE 3. EXCERPT 2008 UNC SPORTS MEDICINE FROM AUGUST 84 REVIEW COMMITTEE FINAL REPORT Purpose of the Review The committee was charged to review all facets of the current program operations and was presented with six specific areas for discussion and analysis: I. Identify the physical and mental health needs of all students involved with athletic and recreational activities, including varsity sport, intramural, and Sport Club participants. IL Identify the services that are currently provided for all students involved with athletic and recreational activities, including varsity sport, intramural, and Sport Club participants. This should include: a. Review of services to be provided by the Stallings-Evans Sports Medicine Center; and b. Examination of schedules within Campus Health Clinics. Ii. Review specific needs of students involving sports nutrition and sports psychology. IV. Review the relationship with various entities (UNC Hospitals, UNC Physicians and Associates, UNC Dental School, private sector health services providers, etc.) and associated financial costs. v. VI. Review provisions for adequate health insurance coverage for student-athletes. Review process for collecting revenue once insurance claims have been submitted. In addition to these six topics, the review committee's report addressed two additional areas: the increase in athlete requests for a "second opinion" on medical diagnoses and the relationship between sports medicine staff and the strength and conditioning staff.85 With respect to the former, the committee regarded the increase in requests for a second opinion as a "sign of the times" and focused almost exclusively on the financial arrangements necessary 83. UNC Document Release, File 37 at 1197 (June 2017), https://s3.amazonaws.com/ url-carolinacommitment-storage/Final+Release+37.pdf. 84. Id. 85. Id. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES 23 to pay for such services. 86 Notably, the report did not mention issues that had been previously raised in exit interviews: instances of inadequate medical care and occasions where the well-being of college athletes at UNC may have been harmed. Perhaps even more surprisingly, the words and phrases "concussion," "brain injury," "TBI" (traumatic brain injury), or "head injury" never appeared in the report, despite the fact that the review committee included the university's leading concussion researcher. Nearly simultaneous with the release of the Sports Medicine Review Committee's August 29, 2008 report, UNC circulated the results of exit interviews conducted with graduating athletes from spring of 2008.87 The compiled notes from these interviews indicate that athletes raised concerns regarding misdiagnoses, despite no such mention in the sports medicine review report discussed above. Specifically, the notes observed that: The student athletes had heard of so many misdiagnoses from other athletes that this fuels their mistrust. They said they hear about misdiagnoses, which extends injury time. The soccer players (male and female), in particular, commented about the many incidences of misdiagnoses that student athletes experience that they (and their teammates) do not trust the doctors here. Sports Medicine elicited the most negative of the responses. The athletes felt that with the exception of the surgeons, the physicians were not doing a good job - they ignored or minimized their complaints, they would frequently go home and see their own doctors because of non-diagnoses or mis-diagnoses. Hospital services were not good. 88 While some athletes also expressed positive statements about experience with sports medicine, the compilation included a cific note from UNC professor Kathleen Mullan Harris Executive Associate Athletic Director Larry Gallo expressing cern about a specific doctor. 89 The note stated: their speand con- 86. Id. 87. UNC Document Release, File 21 at 4468 (June 2017), https://s3.amazonaws.com/ url-carolinacommitment-storage/Final+Release+21.pdf. 88. Id. at 4477. 89. UNC Document Release, File 4 at 6506-07 (Dec. 2016), https:// s3.amazonaws.com/url-carolinacommitment-storage/PRR7-04.pdf.; UNC Document Release, File 8 at 227 (May 2016), https://s3.amazonaws.com/url-carolinacommitmentstorage/Public Records_Release_004_Part008.pdf. ' 24 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 One doctor has been repeatedly mentioned as providing the worst care, misdiagnoses, and maltreatment (prescribing the same treatment for all injuries-take Advil) and that is <redacted>. I want the FAC to insist that something be done about this doctor.90 This observation appears to have encouraged the interviewers to investigate further to identify the source of the problems. The results are detailed in undated exit interview notes, though these appear to be from the same time period. Two versions of these notes exist, one of which names a specific university sports medicine doctor as the source of many of the problems. 9 Sports medicine did not receive good marks. Students commented that it was a joke; there are no preventative measures in place (to avoid injury); sports medicine only gives you medicine (no treatment)-same medicine for all ailments; players won't go to sports medicine because they don't help you, so they don't bother. One student commented that if you are sick or injured, you were screwed. They all said this is widely known among all student athletes. When we pushed further for more details on this issue, it became apparent that there is one particular doctor who seems to be the most unhelpful and least attentive, but that the majority of others are fine. One doctor was identified by name as being a source of problems and the opening comment was reinforced by others in the group (Dr. Brickner); problems include delayed and incorrect diagnoses, standard prescriptions with little perceived differentiation for the nature or severity of the condition.92 Problems with the university's sports medicine services were discussed at the Faculty Athletics Committee's September 2, 2008 meeting. 93 Minutes of the meeting indicate that athlete criticisms of sports medicine garnered only a "brief' discussion of the topic. 94 Professor Harris noted that the most recent summary prepared by Professor Wildemuth had noted some comments made by student 90. Id. 91. See UNC Document Release, File 7 at 6506-07 (Dec. 2016), https:// UNC Document Res3.amazonaws.com/url-carolinacommitment-storage/PRR7-04.pdf.; lease, File 8 at 227 (May 2016), https://s3.amazonaws.com/url-carolinacommitmentstorage/PublicRecords_Release_004_Part008.pdf. 92. Id. 93. UNC Document Release, File 37 at 1165 (June 2017), https://s3.amazonaws.com/ url-carolinacommitment-storage/Final+Release+37.pdf. 94. Id. 1167-68. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES 25 athletes that were critical of medical services. A brief discussion occurred regarding the report of the committee chaired by Melissa Exum and Larry Gallo.9 5 Little or none of this information appears to have been passed along to the Faculty Athletic Council. In both the October 10, 2008 and the October 9, 2009 report to the council, the Faculty Athletic Committee indicated, with respect to the sports medicine review committee, that: Following discussions with head coaches, team physicians, the Student-Athlete Advisory Committee and others, the committee has concluded that the two principal opportunities for strengthening our Sports Medicine services are in nutrition and sports psychology. 96 Indeed, none of the general or specific athletic concerns with respect to misdiagnoses and mistreatment that were raised in previous exit interviews appear to have been acknowledged or discussed before the Faculty Athletics Council. The following year's exit interviews, conducted between February 25 to 27, again elicited complaints about the university's sports medicine services. A specific doctor was again singled out as a problem: One doctor told an injured athlete he had a strained hamstring; 3 weeks later it turned out it was a torn ACL. A particular physician's name came up again this year as an especially poor sports med doctor (in all 5 years that I have conducted exit interviews, this physician has been cited by student athletes as a very poor sports med doctor).97 The summary report noted that the university had acknowledged previous issues and had attempted to address concerns regarding sports medicine. 98 Nonetheless, exit interviews pointed to the continuation of previous problems: 95. Id. at 1167. 96. University of North Carolina, Faculty Athletics Committee Annual Report to the Faculty Council (October 10, 2008), https://facultygov.unc.edu/files/2010/10/ ATH2008.pdf; University of North Carolina, Faculty Athletics Committee Annual Report to the Faculty Council (October 9, 2009), https://facultygov.unc.edu/files/2010/10/ ATH2009.pdf. 97. UNC Document Release, File 8 at 247 (May 2016), https://s3.amazonaws.com/urlcarolinacommitment-storage/PublicRecords_Release_004_Part008.pdf. (emphasis added). 98. Id. 26 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 Sports medicine, an area of concern in the past, still generated the most negative comments. Since these students' comments are based on their total experience at UNC-CH, it may take a year or two to recognize improvements made in this area. Many students did not have a favorable impression, citing difficulties getting apof specific medications, pointments, over-prescription misdiagnosis, and treatment that is too aggressive and not sufficiently holistic. While there were favorable comments regarding 9 some physicians, one continues to be singled out as a problem. The summary and compiled notes from the following year's exit interviews, which were distributed among the Faculty Athletics Committee in November 2010, observed that "while students were generally positive regarding Sports Medicine, including trainers and conditioning staff, there were a few comments by students who had issues or suggestions for improvement."100 Similar sentiments were expressed in the following year's (2011) interviews, which indicated that, while improvements had been made in the sports medicine services that the university offered to athletes, some concerns remained: While there were some mixed feelings regarding medical care, many of the student athletes were positive about their experiences, some citing this year as the best yet. There were concerns about communication among physicians, athletic trainers, and coaches. There was also a sense that experiences with Sports Medicine may vary by team with some reporting they wait to see a doctor at home for diagnosis and treatment.'01 The last available exit interview results from the UNC reposi- tory were dated Fall 2011 and Spring 2012. Thirty-seven athletes participated in these interviews, 17 men and 20 women.1 02 Two key documents are available from this period: compiled interview notes and a summary of results. The compiled notes noted that athletes in certain sports faced difficulties obtaining medical or trainer ser- 99. UNC Document Release, File 39 at 1110 (Feb. url-carolinacommitment-storage/PR3-039.pdf. 100. UNC Document Release, File 37 at 798 (Feb. url-carolinacommitment-storage/PR3-037.pdf. 101. UNC Document Release, File 2 at 2067 (Feb. url-carolinacommitment-storage/PR3-002.pdf. 102. UNC Document Release, File 9 at 4919 (Dec. url-carolinacommitment-storage/PDF-D009.pdf. 2016), https://s3.amazonaws.com/ 2016), https://s3.amazonaws.com/ 2016), https://s3.amazonaws.com/ 2015), https://s3.amazonaws.com/ 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES 27 vices. 103 For example, the notes indicated that for track and field, there were "80 athletes with 1 head trainer and 2 grad student trainers-just can't meet the needs of the team, so many injuries and not enough staff."10 4 Others commented that medical services were very good.105 However, athletes also noted that, while trainer guidance should be followed, it "seemed to be undercut/overridden by coach," a well-known issue in college athletics.10 For example, in a 2013 article in the Chronicle of Higher Education, Wolverton found that: Nearly half of the major-college football trainers who responded to a recent Chronicle survey say they have felt pressure from football coaches to return concussed players to action before they were medically ready. The respondents included 101 head athletic trainers, head football trainers, and other sports-medicine professionals from the highest rung of college football, the NCAA's Football Bowl Subdivision.1 07 A recent investigation by ESPN's Outside the Lines found that Texas A&M, upon hiring new football coach Jimbo Fisher, terminated athletic trainer Owen Stanley, observing that Fisher "will want to hire his own staff, as is the industry standard." 08 The NCAA's Chief Medical Officer, Brian Hainline, acknowledged that "this is not the industry standard today, and it[ ] [is] not consistent with independent medical care legislation."10 Further, a recent survey conducted by the National Athletic Trainers' Association ("NATA") indicates that the problem of improper coach influence over medical decisions at the collegiate level persists.1"0 The survey found that approximately 19% of col- Id. at 4919-34. Id. at 4927. 105. Id. at 4919-34 106. Id. at 4927. 107. Brad wolverton, Coach Makes the Call: Athletic Trainers Who Butt Heads with Coaches Over Concussion Treatment Take Career Hits, THE CHRONICLE OF HIGHER EDUCATION (Sept. 2, 2013), https://www.chronicle.com/article/coach-makes-the-call/. 108. Paula Lavigne, Documents, Claims Bring NCAA Medical Care Issues into Question, ESPN (Nov. 26, 2019), https://www.espn.com/espn/otl/story/_/id/28116817. 103. 104. 109. Id. 110. Press Release, National Athletic Trainers' Association, Only Half of CollegiateLevel Sports Programs Follow Medical Model of Care for Student Athletes, Survey Finds (June 26, 2019), https://www.nata.org/press-release/062619/only-half-collegiate-levelsports-programs-follow-medical-model-care-student. 28 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 lege athletic trainers reported that a coach played an athlete who had been deemed "medically ineligible for participation." 1" Only 52% of the 1,796 athletic trainers who responded to the survey indicated that their sports program followed the NCAA-legislated independent medical model of care. 1 2 These findings are particularly concerning in light of comments by NCAA Chief Medical Officer Brian Hainline that "the athletic trainers are probably the single most important person that could be on site for any sort of contact collision event."" 3 Additional cause for concern stems from observations made by at least one member of UNC's college football team, as indicated in the compiled notes: What comes to mind is the research on concussions. I understand what they are trying to do but to me with every hit you experience a concussion. The instrumented helmet lets you know how violent the impact was. I mean it's good, but players don't want to sit out even if they are hurt. They want to continue to play so as to secure theirfutures." 4 The admission that athletes play hurt, a phenomenon well-known and recognized throughout college sports, out of a perceived need to "secure their futures" casts doubt on claims that athletes make fully-informed decisions regarding their participation in collision sports that carry significant health risks. A 2004 study observed that "sports-related concussion is now recognized as a major public health concern" yet found that only 47.3% of high school players in their study who sustained a concussion reported their injury." 5 Of those who did not report, 66.4% listed "did not think [the concussion] was serious enough" as a reason.116 111. Id. 112. Id. 113. House Committee on Energy & Commerce, Forum on "Evaluating the State of Concussion Research and Implications for Public Health" (Mar. 14, 2016), https://energy commerce.house.gov/committee-activity/hearings/forum-on-evaluating-the-state-of-concussion-research-and-implications. 114. UNC Document Release, File 9 at 4928 (Dec. 2015), https://s3.amazonaws.com/ url-carolinacommitment-storage/PDF-D009.pdf (emphasis added). 115. Michael McCrea, Thomas Hammeke, Gary Olsen, Peter Leo, & Kevin Guskiewicz, Unreported Concussion in High School Football Players, 14 CLINICAL J. SPORT MED, 13, 13 (2004). 116. Id. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES 29 Finally, UNC documents evidence both an institutional realization that the findings obtained by the school from exit interviews may attract media attention as well as an effort to prevent such public scrutiny. For example, the aforementioned Fall 2011 to Spring 2012 exit interviews included the following question: "Keeping in mind the 20-hour rule, how many hours do you estimate you devote to your team sport during the season?" 1 7 Athlete responses are shown in the excerpt from compiled notes prepared by a UNC professor in Figure 4 below. FIGURE 4. EXCERPT FROM UNC SENIOR STUDENT-ATHLETE Exrr INTERVIEWS, FALL 2011 AND SPRING 2012, COMPILED NOTES PREPARED BY GLYNIS COWELL11 8 [Additional Q: Keeping in mind the 20-hour rule, how many hours do you estimate you devote to your team sport during the season?] "30 plus." (men's soccer) "60 plus." (football) "50 plus." (football) "25-30 plus." (women's lacrosse) "35 plus." (football) "20. I was one of the students who was responsible for keeping a log of actual practice hours." (women's field hockey) These findings indicated that, in some cases, athletes spent over three times the 20 hours per week maximum on countable athletically-related activities ("CARA"). In an email dated September 17, 2012, the author of the compiled notes, who also served as the Assistant Dean of the academic advising program, expressed a desire to keep these findings from public view: The summary will be available to the public but the compiled notes will not be posted anywhere except on our Sakai site. I want to make sure there is nothing to attract media attention in the summary. I think the comment about the 20 hr/week rule may need to be omitted.119 117. UNC Document Release, File 9 at 4932 (Dec. 2015), https://s3.amazonaws.com/ url-carolinacommitment-storage/PDF-D009.pdf. 118. Id. 119. Id. at 4918 (emphasis added). 30 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 The desire to shield these exit interview results from external scrutiny also appears in an email from another UNC professor to the Associate Athletic Director: Glynis is drafting the interview notes and I have the data for 1112 but have not written the report. I'd prefer not to share the raw data via email (those pesky public records requests!), but I will provide you with a hard copy on Thursday.1 20 Notably, the results obtained from UNC mirror those that the NCAA has reported from cross-institutional athlete surveys, as shown in Figures 5 and 6 below. Both NCAA surveys reported that NCAA FBS athletes spent in excess of 40 hours per week on their sport.1 21 Overall median time spent on sport was 1.5-2x higher than the 20 hours/week CARA limit. 122 120. Id. at 4897. A claim that such records are protected by FERPA would be unavailing. UNC has produced survey results elsewhere among the 1.8 million documents. Further, multiple universities in North Carolina (but notably, not UNC Chapel Hill), produced exit survey results, including handwritten responses, from athletes for the 2017 North Carolina Legislative Commission on the Fair Treatment of College Student-Athletes. Such records are publicly available at https://www.ncleg.gov/documentsites/committees/ BCCI-6725/Supplemental%20Information/Sample%20Responses%20from%20UNC %20Student-Athlete%2OSurveys%20for%20Legislative%2OCommission.pdf. 121. Symposium, Division I Results from the NCAA GOALS Study on the Student-Athlete Experience, FARA ANNUAL MEETING AND SymposiuM (Nov. 2011); Convention, Results from the 2015 GOALS Study of the Student-Athlete Experience, NCAA CONVENTION (Jan. 2016). 122. Id. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES FIGURE 5. NCAA 2010 31 SURVEY RESULTS1 2 3 Average Hours Spent Per Week In-Season on Athletic Activities in 2010 (SA Self-Report) Baseball Basketball Athletic Mrs 421 39. Athletic 39.0 37.7 Mrs Athletic 348 34.8 3. All Other Manes Basketball sportsSports (FBS/FC) 43.3 4 30.8 All Other men 32.0 37.6 33.3 37.5 31-3 34.2 31.7 33.1 292 29.8 28.9 1.3 Note Green - Drease of 2+ hours on athletics from 2006; Red = Increase of 2+ hous en athletics from 2006 FIGURE 6. NCAA 2015 SURVEY RESULTS1 24 Median Hours Spent Per Week on Athletic Activities In-Season (2015 SA Self-Report) Division I AthletIc Baseball Basketball 40 34 All Other Men'sFoal Me' Sromen's Wmen's Basketball (FBS/FCS) 42 41 II Hoursio I; All Other Worns 32 35 32 Athletic 37 32 36 30 32 31 Athletic Hours 34 29 31 27 29 27 123. Symposium, Division I Results from the NCAA GOALS Study on the StudentAthlete Experience, supra note 121. 124. Convention, Results from the 2015 GOALS Study of the Student-Athlete Experience, supra note 121. 32 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 Institutional desire to withhold potentially embarrassing or damaging records from the public has been documented elsewhere. In 2010, UNC's student newspaper, The Daily Tar Heel, whose investigative work contributed to the public release of the Wainstein files, noted the school's tendency to hide behind the Family Educational Rights and Privacy Act ("FERPA").1 25 This practice can be observed in the university's redactions to documents it produced, which, as noted previously, were inconsistent. For example, Figure 7 shows two versions of the same document, both obtained from the UNC depository. The second document redacts information well outside the scope of FERPA, including references to an athlete being nervous to have a UNC sports medicine doctor operate on her. 125. Sarah Frier, Universities Shouldn't Hide Behind FERPA, THE DAILY TAR HEEL 30, 2010), https://www.dailytarheel.com/article/2010/09/ (Sept. take_another lookatferpa. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES FIGURE 7. 33 COMPARISON OF UNIVERSITY REDACTIONS OF EXIT INTERVIEWS 126 Document: June 2017, File 21 at 4477 Sports medicine services Quality of cae The three students in non-revenue sports expressed major reservations about the quality of the sports medicine physician that they worked with and all reported that they wouldgo to the trainers or use others and avoid going to the physician. They doubted the quality of the medical care, two because they didn't get prcsciption medications to address problems and one because she felt that prescptions were handed out too freely without better diagnostic work. Committee member assessment: there clearly is notgood communication and shared understandings between these physicians and these students. Exception: The football player felt that the physicians attached to his team were quite good. The reports on sports medicine doctors from students were highly negative and a real player noted that she was nervous to have a UNC sports concem. The female She (and other athletes) do not trust the doctors we med doctor operate on her have. until Tuesday... She on Friday, but couldn't see A female athlete hurt her then she saw a on Friday and he told her she . saw again) who said it might be her doctor on Sunday (not clear whether it was on Tuesday, it was her . but when she finally saw The student athletes had heard of so many misdiagnoses from other athletes that this fuels their mistrust. They said they hear about misdiagnoses, which extends injury time. The soccer players (male and female), in particular, commented about the many incidences of misdiagnoses that student athletes experience that they (and their team mates) do not trust the doctors here. Note from Harris/Gallo: One doctor has been repeatedly mentioned as providing the worst care, misdiagnoses, and maltreatment (prescribing the same treatment for all . I want the FAC to insist that injuries-take Advil) and that is something be done about this doctor. 126. UNC Document Release, File 21 at 4477 (June 2017), https://s3.amazonaws.com/ url-carolinacommitment-storage/Final+Release+21.pdf; UNC Document Release, File 37 at 1177 (June 2017), https://s3.amazonaws.com/url-carolinacommitment-storage/ Final+Release+37.pdf. & 34 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 Document: June 2017, File 37 at 1177 Sports medicine services Quality of cam The three students innon-revenue sports pessed major rscrvations about the quality of the that they worked with and all reported that they would go to the sports medicine They doubted the quality of the oruse others and avoid going to the Committee member assessment: there clearly is not good communication and shared understandings bcmeen these and these students. attached to his team were quite good. player felt that the Exception: The from students were highly negative and a real The reports on sports medicine player noted that she was nervous to have concern. The female She (and other athletes) do not trust A female athlete The student athletes had heard of so many misdiagnoses from other athletes that this fuels their mistrust, They said they hear about misdiagnoses, which extends injury time. players (male and female), in particular, commented about the many incidences of misdiagnoses that student athletes experience that they (and their team mates) do not trust has been repeatedly mentioned Note from Harris/Gallo: One V. DISCUSSION A. IMPLICATIONS OF FINDINGS FROM UNC-CHAPEL HILL The disconcerting information gleaned from UNC athlete exit interviews from 2004 to 2012 discussed in this study evidence substantial cause for concern regarding the safety and welfare of college athletes. While interviews from the latter years in this period ostensibly indicate an improvement in athlete treatment at UNC, three additional pieces of evidence caution that such optimism appears unwarranted. First, the iniquitous view of college athletes as commodities to be exploited for the benefit of the college or university was cynically summarized in a May 2012 UNC presentation titled Carolina Athletics - Strategic PlanningBriefing and authored by Matt Terrell, the school's Assistant Executive Director for Strategy Communications, and Paul Friga, a professor in the UNC Kenan- 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES 35 Flagler School of Business. One slide from the presentation, which is reproduced in Figure 8 below, identified "increased student-athlete rights" and compliance with the Americans with Disabilities Act ("ADA") as threats to the school's athletics program.1 2 7 Such a view stands in direct contrast to the NCAA's claim that it "continues to support the opportunity for student-athletes with disabilities to participate in intercollegiate athletics." 12 8 8. 4, 2012129 FIGURE UNC EXCERPT FROM ATHLETICS PRESENTATION, MAY Threats to Carolina Athletics (draft/ prioritized) " r - - - -- '': -- Additional threats Identified included: "Talent drain -loss of personnel to other universities - -- - -Television rights revenue affecting decisions - Conference affiliation based on football [ - - - Decreasing athletes ethics Increased student athlete rights * Lower revenue growth rate due to economy * Decreasing fan attendance - Rising expenses due to tuition Increases, travel costs, etc. .__ _ _ _ Academic performance of UNC students vs. UNC student athletes ADA compliance -Tarnished reputation - NCAA Investigation and sanctions Second, in April 2019, UNC placed its entire women's basketball coaching staff under administrative leave in the wake of athlete complaints that the coach used racially offensive language and tried to force players to continue playing through serious inju127. UNC Document Release, File la at 14905 (Oct. 2015), https://s3.amazonaws.com/ url-carolinacommitment-storage/PDF 1 A-Final-web.pdf. 128. Student-Athletes with Disabilities,NCAA, http://www.ncaa.org/about/resources/inclusion/student-athletes-disabilities. 129. UNC Document Release, File la at 14905 (Oct. 2015), https://s3.amazonaws.com/ url-carolinacommitment-storage/PDF 1A-Final-web.pdf. & 36 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 13 1 ries. 3 0 Athletes also complained of receiving poor medical care. Washington Post reporter Will Hobson's article detailed one exam- ple, that of junior guard Emily Sullivan, explaining that: In December 2016, during a game against LSU, Sullivan dislocated her shoulder while fighting for a rebound. . .North Carolina medical staff waited three weeks to perform an MRI exam, [UNC sports medicine doctor Harry] Stafford told the Sullivans their daughter had suffered a dislocation with swelling but could continue to play with the aid of cortisone shots for the pain. Sullivan played the remainder of her freshman season and her entire sophomore season with her shoulder regularly slipping out of its socket. . .but Stafford assured them their daughter didn't need surgery. Sullivan got two outside opinions anyway, and both doctors found she had a torn labrum and needed surgery. . .After she finally got surgery in October 2018-nearly two years after the initial injury-the surgeon informed her parents she had actually suffered three tears to her labrum, and her rotator cuff required complete reconstruction.13 2 The day after the school announced the review of its women's basketball team, four players announced plans to transfer from the school. 13 3 The program's head coach, Sylvia Hatchell, resigned approximately two weeks after the allegations first surfaced.134 The university has since engaged the law firm Parker Poe Adams Bernstein to investigate the program.13 5 While UNC remains the primary subject of this study given the availability of internal documents, it should be noted that allegations of mistreatment and 130. Will Hobson. Sylvia Hatchell Accused of Racially Insensitive Remarks, Forcing UNC Players to Play Hurt, THE WASHINGTON POsT (Apr. 4, 2019), https:// www.washingionpost.com/sports/colleges/sylvia-hatchell-accused-of-racially-insensitiveremarks-forcing-unc-players-to-play-hurt/2019/04/04/499eb824-56f4-11e9-814fe2f46684196estory.html. 131. Id. 132. Id. 133. Id; Sarah Krueger, 4 UNC Women's Basketball Players to Transfer, WRALSPORTSFAN (Apr. 2, 2019), https://www.wralsportsfan.com/3-unc-womens-players-to-transferlink-to-program-review-unclear/18300770/. 134. Jonathan M. Alexander, North Carolina Women's Basketball Coach Sylvia Hatchell Has Resigned Amid Investigation, THE NEWS & OBSERVER (Apr. 19, 2019), https:// www.newsobserver.com/sports/article228892914.html. 135. Alaa Abdeldaiem, UNC Women's Basketball Coaching Staff Placed on Paid Leave While Under Internal Investigation, SPORTS ILLUSTRATED (Apr. 1, 2019), https:// www.si.com/college/2019/04/01/unc-womens-basketball-staff-placed-paid-leave-intemalinvestigation. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES 37 subsequent investigations of women's basketball programs have also recently occurred at Duke University and the University of Nebraska. 13 6 Third, UNC's recent academic fraud scandal, which prompted the release of the documents discussed in this study, underscored institutional commitment to self-preservation at the expense of student welfare. While initially lauding the Wainstein investigation and observing that its findings prompted dozens of self-described reforms, the university reversed course when appearing before the NCAA Committee on Infractions.13 ? In its public infractions decision, the Committee found that: UNC pivoted dramatically from its position roughly three years later within the infractions process. UNC disavowed its earlier support of the findings and conclusions of an independent report, distanced itself from earlier statements to its accreditor and ultimately defended its courses as a matter of academic autonomy. . .After boasting of the report's importance to its accreditor and using it, at least in part, to take disciplinary action against personnel and to implement significant corrective measures, UNC attacked the same report in the infractions process. . .UNC has offered two diametrically opposed character8 izations of the courses, seemingly dependent on the venue.13 In addition to the Committee's skepticism over UNC's claims, a recent report by the NCAA's Commission on College Basketball referred to the "sham courses" that UNC had defended as legitimate in front of the NCAA. 139 Such findings undermine 136. Mike Robinson, Duke Launches Investigation into Possible Player Mistreatment, SB NATION SWISH APPEAL (Apr. 12, 2016), https://www.swishappeal.com/2016/4/12/ 11414146/duke-launches-investigation-mistreatment; Sam McKewon, Connie Yori Resigns as Husker Women's Basketball Coach Amid Bullying Allegations, 'Vehemently' Denies Wrongdoing, BIG RED TODAY (Apr. 5, 2016), https://www.omaha.com/huskers/connieyori-resigns-as-husker-women-s-basketball-coach-amid/article_a0040cd0-fb55- l le5-afd7cb6951 f681 ae.html. 137. NCAA Comm. ON INFRACTIONS PANEL, UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL PUBLIC INFRACTIONS DECISION 1 (2017), https://www.ncaa.org/sites/default/ files/Oct2017_University-of-North-Carolina-at-ChapelHill_InfractionsDecision_20171013.pdf. 138. Id. 139. The University of North Carolina System, Letter to Legislative Commission on the Fair Treatment of College Student-Athletes (Feb. 8, 2019), https://www.ncleg.gov/documentsites/committees/BCCI-6725/Comments%20on%20Draft%20Report/ The%20Uni versity%20of%20North%20Carolina%20System%20response.pdf 38 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 institutional credibility and the sincerity of UNC's recent claims to the North Carolina Legislative Commission on the Fair Treatment of College Athletes that its "top priority is and must remain ensuring safe athletic competition that enhances academic success and graduation."" This study's findings raise a key question. What, if any, fiduciary responsibility do universities in the United States have to protect the athletes under their care? A related topic that will be addressed concurrently in the subsequent section, is the in loco parentis doctrine, which has been largely eviscerated by legal precedent. As students have garnered increasing independence, universities have replaced their early twentieth century roles as guardians with those of educators. Yet, as observed in the UNC fraud case, institutions appear to eschew responsibility, leaving college athletes with little recourse in the face of institutional misconduct. B. INSTITUTIONAL RESPONSIBILITY AND DUTY-TO-CARE i. TH E IN LOCo PARENTIS DOCTRINE Briefly, the in loco parentis doctrine in higher education stipulates that colleges and universities act "in the place of the parent" and hold authority to regulate and control students' daily lives commensurate with that position. 14 ' A detailed overview of this doctrine falls beyond the scope of this article. However, the interested reader is directed to George Washington University law 2 professor W. Burlette Carter's excellent synopsis and discussion4 of the doctrine's historical role in U.S. colleges and institutions as well as to her preceding article, Student Athlete Welfare in a Restructured NCAA.1 4 3 While this doctrine held sway in defining the 140. Id. 141. Furek v. Univ. of Delaware, 594 A.2d 506, 516-17 (1991) (citing Bradshaw v. Rawlings, 612 F.2d 135, 139 (3rd Cir. 1979) ("The concept of university control based on the doctrine of in loco parentis has all but disappeared in the face of the realities of modern college life where students 'are now regarded as adults in almost every phase of community life."')). 142. W. Burlette Carter, Sounding the Death Knell for In Loco Parentis, 35 IND. L. REV. 851 (2002). 143. W. Burlette Carter, Student Athlete Welfare in a Restructured NCAA, 2 VA J. SPORTS & L. 1 (2000). 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES 39 responsibilities of post-secondary institutions vis-a-vis their students for decades, more recent legal precedent has largely abrogated its scope.'" In University of Denver v. Whitlock, the Court described the shift from a custodial relationship under the in loco parentis model to an educational one: At one time, college administrators and faculties stood in loco parentis to their students, which created a special relationship 'that imposed a duty on the college to exercise control over student conduct and, reciprocally, gave the students certain rights of protection by the college.' However, in modern times there has evolved a gradual reapportionment of responsibilities from the universities to the students, and a corresponding departure from the in loco parentis relationship. Today colleges and universities are regarded as educational institutions rather than custodial ones. 145 While courts have widely acknowledged the abandonment of universities' custodial role, a perverse mutation of this doctrine endures in intercollegiate athletics, where institutional interests in extracting the fruit of athlete labor predominate.146 As Professor Carter explains: Under this mutation of the doctrine, the alleged parent (the institution) continues to exercise broad controls over the alleged child (the student-athlete) and yet the parent is unable to fulfill its responsibilities in protecting the welfare of the alleged child because the parent has an overwhelming financial interest in exploiting the child's talents.147 An example of the sway that institutional actors, particularly coaches, is succinctly described in a former UNC professor's email discussing the investigation into substandard education offered to 144. Gott v. Berea College, 156 Ky. 376, 379, 161 S.W. 204 (1913). 145. Univ. of Denver v. Whitlock, 744 P.2d 54, 59-60 (Colo. 1987). 146. Rather surprisingly, the misperception that universities continue to follow the in loco parentis model still persists. In his 2017 paper, antitrust scholar Herbert Hovenkamp wrote: "More importantly, the individual colleges and universities in the NCAA wear multiple hats. First, they act in loco parentis, supervising the lives of their young athletes, many of whom are living away from home for the first time in their lives." Herbert J. Hovenkamp, The NCAA and the Rule of Reason (2017), https://scholarship.law.upenn.edu/ cgi/viewcontent.cgi?article=2798&context=facultyscholarship#:-:text=relying%20on%20 NCAA%2C%20the%20Tenth,card%20holders%20and%20merchant%20banks. 147. Carter, supra note 142, at 853. 40 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 athletes at the school. In the email, which appears in Figure 9 below, one student, in response to being advised to speak up, responded, "it just doesn't work that way. . . You can't beat the system. You have to follow along or my coach will take it out on me." 148 FIGURE From: 9. UNC EMAIL DETAILING ATHLETE COMPLAINTS1 To: Sroman. Debomab L <dstro@unc.edu> Tuesday, April 10.2012 2:21 PM s1listserv.ine.edu> discsson <faculey-athletics f SubJet: RE: [faculty-ahleticsf.m]J Hmmm. Nocera again Sena: 49 oened dte Noomi asn with my st ymrsemiamr udnt s (99%ae sudem mhemes !tom football. reots brtatbib. Good day. I wreslig. gowin *nd kckeidl and rthe only cocmi ty pcyrCssd was ih ract Eit Nomna called o the Sarong angge .. Swmi ihsead of Portenesel A new so were disppointed Wt before they emolkd they moceiwed couse secomanendados for s,deW ad lies and ihey toliwad the adicc. tlowvcr when tbey Iaer gat on Connect Caroline and sow all thi other cowrve options they were upsa One clealy was wed t. he ad to 1*e AFAM 101 becaue it filled a tcquisement One qnore in iponwe to their wad to ape* up as *aw4ssdents.n Stroanou Just doesn' wed t. way. You enat bet the systen You luvc to follow .Ioy or sy coach will tc it not on ose to say, the discussion today ums rasher lively and eng~vs& We did end on a posite note tot Ttai Is, one Sodem stated tht. '"rsohuldjost ise it asa challcrgeto do well inurspot and inelm.1 Necdess po Good. Deborah L SuomE PD. CLU Engage. EqpIott Empower. Carter also correctly observes that, in the wake of the abandonment of the in loco parentis model, athletes did not experience the same broad expansion of rights that accrued to non-athlete students. 5 0 Indeed, quite the opposite occurred. As institutions sought to mine the pool of athlete labor to enhance their own brands, they collectively imposed increasing restrictions over athletes' abilities to govern their own behavior and daily lives. Unlike regular students, who are free to profit off their own name, image, and likeness, athletes under the NCAA model cannot do so without losing their athletic eligibility. The anodyne term "scholarship athlete" is also a misnomer and confounds the reward given to high academic achievers, which generally requires no reciprocal payment from the student, with the contractual nature of the labor-for-tuition offset that characterizes an athletic "scholarship." Further, unlike non-athlete students, who could and can transfer at will, athletes for 148. UNC Document Release, File 16 (Aug. 2016) at 9002, https://s3.amazonaws.com/ url-carolinacommitment-storage/PRR6 6.pdf. 149. Id. 150. Carter, supra note 142, at 853. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES 41 many years were restricted in their ability to transfer and coaches often prohibited athletes from doing so, particularly when the destination was an in-conference sports rival. Currently, the NCAA still limits athletes' ability to transfer without losing a year of eligibility, a process known as the "year-in-residence" rule. ii. RECENT DEVELOPMENTS REGARDING INSTITUTIONAL RESPONSIBILITY TOWARDS ATHLETES The question, then, remains: what responsibilities do universities have toward athletes enrolled at their institutions, particularly athletes who face potentially long-term health risks associated with participation in collision sports? The NCAA, members' athletic governing body, has disavowed any obligation either for athletes' safety or their education, placing the onus on the member institutions themselves. In a December 2013 filing in the Derek Sheely case, the institution stated that: The NCAA denies that it has a legal duty to protect student-athletes, but affirmatively states that under the NCAA Constitution each member institution is responsible for protecting the health of its student-athletes, and that for decades it had provided appropriate information and guidance on concussions to its member institutions.15 1 Subsequently, a class action complaint brought by UNC athletes Rashanda McCants and Devon Ramsay alleged negligence and breach of fiduciary duty against the NCAA and breach of implied contract against UNC on the basis of the school's administration of academically unsound courses.1 5 2 Therein, the NCAA denied any fiduciary duty toward the plaintiffs to safeguard the academic soundness of classes.153 As with obligations regarding athlete safety, the NCAA again placed responsibility at the feet of member institutions.- Nonetheless, rather paradoxically, the NCAA's managing director for academic and membership affairs, Diane Dickman, testified at the O'Bannon v. NCAA trial that the NCAA's 151. Mike Singer, NCAA 'Denies Legal Duty' to ProtectStudent-Athletes, Court Filing Says, CBS SPORTs (Dec. 19, 2013), https://www.cbssports.com/general/news/ncaa-denies- legal-duty-to-protect-student-athletes-court-filing-says/. 152. McCants v. NCAA, No. 1:15-CV-176, 2015 WL 6506161, at *1 (M.D.N.C. Mar. 30, 2015). 153. Id. 154. Id. 42 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 core mission was integrating athletic and academics because "at its heart, the NCAA's an educational entity and we're about educating young people." 55 With respect to Plaintiffs' breach of contract claim against UNC, the school argued, inter alia, that the claim represented "a thinly veiled attempt to bring a claim for educational malpractice," which the state of North Carolina does not recognize.1 56 UNC's position can be contrast against the Supreme Court of Ohio's characterization of the university-student relationship in Hanson v. Kynast as a contractual exchange of currency for education, which the high court explained: A university offers a diversified educational experience which includes classroom instruction in a great variety of subjects as well as optional participation in events such as school clubs, and intramural and intercollegiate sports. All of these offerings are designed to expand and enrich a student's overall educational experience. The student pays a fee and agrees to abide by the university rules. In exchange, the university provides the student with a worthwhile education. . .the relationship discussed above constitutes a contractual one between the student and his university. 7 The transaction between scholarship athlete and the university remains substantially the same. Instead of paying a fee in the form of fiat currency, scholarship athletes offer payment in kind in the form of labor and a temporary transfer of their name, image, and likeness rights to the institution, a payment that in some cases can substantially exceed the actual cost of attendance. In a seminal case, plaintiff Katherine Rosen alleged that the University of California at Los Angeles ("UCLA") and its employees were negligent in failing to protect her from an attack by a mentally-ill fellow student. 158 In characterizing the college-student relationship, the Supreme Court of California unanimously held that: 155. Ben Strauss, With UNC Decision, NCAA Makes Plain that Educating Athletes isn't a Priority,THE ATHLETIC (Oct. 13, 2017), https://theathletic.com/126946/2017/10/13/withunc-decision-ncaa-makes-plain-that-educating-athletes-isnt-its-priority/. 156. McCants, 2015 WL 6506161, at *4. 157. Hanson v. Kynast, 24 Ohio St.3d 171, 174 (1986) (emphasis added). 158. Regents of Univ. of Cal. v. Superior Court, 413 P.3d 656, 659 (Cal. 2018). 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UN[VERSITIES 43 Considering the unique features of the college environment, we conclude postsecondary schools do have a special relationship with students while they are engaged in activities that are part of the school's curriculum or closely related to its delivery of educational services. . . They [college students] are dependent on their college communities to provide structure, guidance, and a safe learning environment.. . Colleges, in turn, have superior control 159 over the environment and the ability to protect students. The court also pointed to similar decisions in other states, upholding the special relationship between a post-secondary institution and its students and the obligation of the former to ensure the safety and well-being of the latter.160 In Mullins v. Pine Manor College, the Supreme Judicial Court of Massachusetts observed that the general retreat from the in loco parentis doctrine "does not entitle it to abandon any effort to ensure their physical safety. Parents, students, and the general community still have a reasonable expectation, fostered in part by colleges themselves, that reasonable care will be exercised to protect resident students from foreseeable harm." 161 Likewise, the Supreme Court of Florida in Nova Southeastern University v. Gross explained that "[t]he special relationship doctrine creates a duty between parties, which would not exist but for their relationship" and, with respect to the case at hand, noted that "the 'special relationship' analysis is necessary in this case only because the injury was caused by the allegedly 'foreseeable' acts of a third party."16 2 The Court found that Nova owed plaintiff a duty to exercise ordinary care in providing educational services and programs.1 63 In the aforementioned Furek v. University of Delaware, the high court explained that the departure from the in loco parentis model does not absolve the university of duty. 1 However, while that duty exists, its limits extend to circumstances where the school maintains control. 165 The university is not an insurer of the safety of its students nor a policeman of student morality, nonetheless, it has a duty to regu- 159. 160. 161. 162. 163. 164. 165. Id. at 660, 668. Id. Mullins v. Pine Manor College, 389 Mass. 47, 54 (1983). Nova Southeastern Univ. v. Gross, 758 So.2d 86, 89 (Fla. 2000). Id. at 90. Furek v. Univ. of Delaware, 594 A.2d 506, 523 (Del. 1991). Id. at 517. 44 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 late and supervise foreseeable dangerous activities occurring on its property. That duty extends to the negligent or intentional activities of third persons. . .the duty of the university to regulate and supervise should be limited to those instances where it exer- cises control.166 Returning to the recent case involving Rosen, the fact that the attack occurred during a chemistry lab session played an important role in the California Supreme Court's decision, which likewise limited the schools' duty to activities under its significant control: The special relationship we now recognize is similarly limited. It extends to activities that are tied to the school's curriculum but not to student behavior over which the university has no significant degree of control.1 67 Precedent observing institutional responsibility to protect students in circumstances over which the school maintains some control is particularly relevant for college athletes, whose lives are under constant supervision or control of the institution or its agents. As illustrated in Figures 5 and 6, athletes in the high-revenue sports of football and basketball can spend over 40 hours a week on their sport, prompting Duke University football player Chris Duffy to observe that "It's a full-time job."1 68 The university's control over athlete lives extends to the academic side as well, even outside of the classroom. The boom in "learning centers" on college campuses, erected to ensure athletes maintain their academic eligibility to perform on the field and enhance the university's brand has extended the university's control over virtually every facet of the college athlete's life.1 69 With respect to the Yoh Football Center, a learning center for athletes at Duke University, Duffy again explained that "[w]e have our whole life in there." 170 Likewise, as athletes look to summer school to fulfill academic requirements and lighten the course load during the sports season, the school's 166. 167. Id. Regents of Univ. of Cali., 413 P.3d at 669. 168. Jack Dolgin, School vs. Sports: Which Really Comes Firstfor Duke Athletes?, THE CHRONICLE (Apr. 24, 2017), https://www.dukechronicle.con/article/2017/04/school-vssports-which-really-comes-first-for-duke-athletes. 169. Brad wolverton, Spending Plenty So Athletes Can Make the Grade, THE CHRONICLE OF HIGHER EDUCAION, (Sept. 5, 2008), https://www.chronicle.cornarticle/SpendingPlenty-So-Athletes/28072. 170. Dolgin, supra note 168. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSrrIES 45 control now encompasses the calendar year. 171 Further, in addition to institutional oversight in both athletic and academic settings, another aspect of control has emerged over the last twenty years: the use of college athletes as research subjects, particularly in concussion studies. iii. DUTY OF CARE AND THE USE OF COLLEGE ATHLETES AS RESEARCH SUBJECTS Concussion research in the United States has largely focused on male athletes participating in collision sports such as football. 172 Results from such studies have been, and continue to be generalized to other populations, including the military, based on claims of similarities between the study and target populations. For example, the claimed justification for the NCAA-DoD "Grand Alliance" (also known as "Care Consortium"), a cross-institutional study of military cadets and college athletes was founded on the ostensible "realization that military service members, particularly military service academy students, share similar physical and demographic characteristics with NCAA student athletes." 173 While such claims of translational relevance have been challenged elsewhere,174 the discussion here will focus on additional institutional responsibility that accompanies the use of athletes in medical research and the need for truly informed consent. Legal precedent discussed previously has established the existence of a special relationship between the institution and the student. 171. Shayna Elliott, Student-Athletes Find Expanded Opportunities Through Summer Internships, VANDERBILT UNIV. NEws, https://news.vanderbilt.edu/2018/07/18/student-athletes-find-expanded-opportunities-through-summer-internships/ ("For many studentathletes, summer means intensive physical training coupled with taking classes to lighten their course load during the playing season"). 172. Steven P. Broglio et al., A National Study on the Effects of Concussion in Collegiate Athletes and US Military Service Academy Members: The NCAA-DoD Concussion Assessment, Research and Education (CARE) Consortium Structure and Methods, 47 SPORTS MED. 1437, 1437 (2017). 173. Id. at 1438-39. 174. E.g., Ted Tatos and Don Comrie, Cognitive Deficits and LD/ADHD Among College Football Athletes and Undisclosed Inclusion in Concussion Research, JouRNAL OF SCIENTIFIC PRACTICE AND INTEGRITY (2019), https://www.jospi.org/article/8883-cognitivedisorders-among-incoming-college-football-athletes-legal-and-medical-implications-of-undisclosed-inclusion-in-concussion-research. 46 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 However, the normal institutional duty to protect and responsibility toward college students, regardless of whether they participate in intercollegiate athletics, increases further once the student becomes a research subject in a medical study. This issue has gained importance, though insufficient attention, as of late, given the wide-scale use of college athletes in broad cross-institutional concussion studies such as the Care Consortium. It is a well-recognized fact that college athletes matriculate with a variety of existing conditions that may be exacerbated through continued participation in their sport. NCAA Chief Medical Officer Brian Hainline acknowledged that "many athletes arrive in college with a history of injury that will affect both their performance and their well-being."1 5 In his recent book on brain injury, Jeffrey Victoroff, professor of neurology at USC, made the same observation with respect to widely-used preseason computerized neurocognitive baseline testing for college athletes involved in collision sports, observing that: "Many high school players will 76 have already sustained significant brain damage."1 The aforementioned 2008 UNC Sports Medicine Review Committee report observed that: [S]tudent-athletes arrive with a variety of pre-existing problems (e.g., prior physical injuries and/or emotional or mental challenges) that can easily be exacerbated by the stressors of college life. Most college students do not yet have the emotional maturity to know what they need, [in order to] advocate for themselves 77 and negotiate the intricacies of health care.' Such trenchant observations raise two issues. First, they acknowledge institutional awareness that college athletes are a vulnerable population. Second, they question whether the consent researchers must obtain from prospective research subjects from the college population is truly informed. Both issues are addressed seriatim. As various statements and evidence from exit interviews and student comments have noted, college athletes represent a population that has already sustained health damage and that is at risk of 175. The Coalition on Intercollegiate Athletics, Report on the COIA 2014 Annual Meeting February 28 -March 2, University of South Florida (2014), http://www.thecoia.org/ wp-content/uploads/2014/07/2014-COIA-Annual-Meeting-Report.pdf. 176. JEFF VICTOROFF, WHAT HAPPENS TO CONCUSSED HUMANS (2019). 177. UNC Document Release, File 37 at 1197 (June 2017), https://s3.amazonaws.com/ url-carolinacommitment-storage/Final+Release+37.pdf. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES 47 being exploited by institutions who cynically view athletes as profit centers. Moreover, the evidence discussed herein indicates that athletes often make uninformed choices and rely on institutional representatives for guidance. 178 The adverse selection problem facing college students has also been well-acknowledged in the literature.1 79 Curren and Blockhuis explain the often erroneous economic calculus that drives college athletes to make decisions that result in a net loss under the current intercollegiate athletics system: Student athletes may regard the fame and fortune associated with a possible career in the NFL as relevant goods; but as a group, these aspiring professionals face an expected return on their investment in playing football that is overwhelmingly negative. The number who will have a professional career in football will be a tiny fraction of those who will suffer brain injuries that limit their competitiveness in a vast array of other occupations.1 80 Compounding the information asymmetry problem, alumni success and professional compensation can serve to bolster a school's recruiting pitch, particularly for top football programs like the University of Alabama.181 Yet, only approximately 0.1% of high school and 1.5% of NCAA football athletes ever reach the NFL.18 2 Even the NCAA's president acknowledged that "athletes often have incredibly unrealistic expectations of their professional prospects," 178. The Report of the Services Subgroup of the Academic Support Program for Student-Athletes Committee, found in the June 2018 document release, states, "[o]ftentimes, first-year students, especially those who are first generation college students, lack limited knowledge and exposure to higher education, hence, they and their families rely heavily upon the information provided by the University and its selected representatives (e.g., recruiters)." UNC Document Release, File 32 at 6251 (June 2017), https://s3.amazon aws.com/url-carolinacommitment-storage/Final+Release+32.pdf. 179. The author summarizes the information asymmetry problem prospective college students face in Ted Tatos, NCAA Amateurism as an Anticompetitive Tying Restraint, 64 THE ANTITRUST BULLETIN 387 (2019), https://doi.org/10.1177/0003603X19863588. 180. Randall Curren and J.C. Blokhuis, Friday Night Lights Out: The End of Football in Schools, 88 HARvARD EDUCATIONAL REvmw 141, 153 (2018). 181. David Ching, NFL Salary Data Is Another Key Element In Recruiting Pitch For Programs Like Alabama, Georgia, FORBES (Jan. 29, 2019), https://www.forbes.com/sites/ davidching/2019/01/29/nfl-salary-data-is-another-convincing-element-in-alabamas-recruiting-pitch/#1e476a539881. 182. NCAA, NCAA Recruiting Facts, https://www.ncaa.org/sites/default/files/ Recruiting%20Fact%2OSheet%20WEB.pdf. 48 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 further indicating that athletes may lack the information necessary to make welfare-maximizing decisions.1 83 The ability to make informed decisions is particularly relevant when athletes become research subjects in university studies. Informed consent is enshrined in the Belmont Report, which places the onus of ensuring patient comprehension on the researcher: Because the subject's ability to understand is a function of intelligence, rationality, maturity and language, it is necessary to adapt the presentation of the information to the subject's capacities. Investigators are responsible for ascertaining that the subject has comprehended the information.184 Further, the American Academy of Neurology addressed the legal and ethical implications of concussion management and evaluation in sports in a special 2014 article. 185 The article, written on behalf of multiple committees, explained that: All physicians have an ethical duty to educate their athlete-patients and the patients' parents about concussion. Specifically, physicians have a duty to inform them (in understandable language) about the evidence for potential short-term and long-term neurocognitive and neurobehavioral risks associated with single and multiple concussions as well as common clinical concussion manifestations. This duty to educate is independent of whether an athlete has previously had a concussion. Physicians may choose to discuss data that demonstrates reduced learning and memory performance after playing contact sportseffects thought to be secondary to the accumulation of multiple subconcussive head impacts-even when overt concussions are not reported.1 8 6 Inconsistent with such standards, consent forms place the duty of obtaining information on the athlete. For example, as shown in Figure 10, the sample adult consent form and information/fact 183. Jake New, A Long Shot, INSIDE HIGHER ED. (Jan. 27, 2015), https://www.inside highered.com/news/2015/01/27/college-athletes-greatly-overestimate-their-chances-playing-professionally. 184. NAT'L COMM'N FOR THE PROTECTION OF HUMAN SUBJECTS OF BIOMEDICAL AND https://www.hhs.gov/ohrp/sites/ default/files/the-belmont-report-508cFINAL.pdf. 185. Matthew P. Kirschen et al., Legal and Ethical Implications in the Evaluation and Management of Sports-Related Concussion, 83 AMERICAN ACADEMY OF NEUROLOGY 352, 352 (2014). 186. Id. at 354. BEHAVIORAL RESEARCH, THE BELMONT REPORT (1978), 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES 49 sheets downloaded from UNC's Office of Human Research Ethics shift the responsibility of gathering information to the research subject rather than on the investigator,187 despite a) the acknowledgement in the aforementioned sports medicine review report that college students lack the maturity to negotiate the intricacies of health care, and b) the explicit statement in the Belmont Report that, particularly where subject maturity complicates consent, the obligation that the subject has full comprehension of the research falls on the investigator. FIGURE 10. UNC RESEARCH CONSENT FORM EXTRACT 18 8 What if you have questions about this study? You have the right to ask, and have answered, any questions you may have about this research. If you have questions about the study (including payments), complaints, concerns, or if a researchrelated injury occurs, you should contact the researchers listed on the first page of this form. What if you have questions about your rights as a research partelpant? All research on human volunteers is reviewed by a committee that works to protect your rights and welfare. If you have questions or concerns about your rights as a research subject, or if you would like to obtain information or offer input, you may contact the Institutional Review Board at 919-966-3113 or by email to IRBsubjects@unc.edu. In practice, however, concern with avoiding liability in potential litigation brought by injured athletes can take precedence over athlete well-being and ensuring athletes understand the risks. The 2014 National Athletic Trainers Association ("NATA") Position Statement, which included among its authors two concussion researchers and the team neuropsychologist for the NHL's Washington Capitals and the NFL's Baltimore Ravens advised that, "[o]ne simple way to educate athletes about the dangers of concussion and continuing to play while still symptomatic is to require them to read and sign a standard acknowledgment form indicating that they understand the signs and symptoms of concussion and their responsibility to report a concussion."1 89 However, it is clear from both the Academy of Neurology's statement and the Belmont Report that simply obtaining a signature is not sufficient 187. Sample Consent Forms - Adult Consent Form, UNC (accessed Aug. 1, 2019), https://research.unc.edu/human-research-ethics/consent-forms/. 188. Id. 189. Steve P. Broglio et al., National Athletic Trainers'Association Position Statement: Management of Sport Concussion, 49 J. ATHIErnC TRAINING 245, 250 (2014). 50 TEXAS REVIEw OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 to meet the standard of responsibility placed upon a researcher/care provider, nor does it absolve that individual from ensuring patient/ research subject comprehension of the risks. The duty to inform is potentially complicated by conflicts of interest ("COIs") that frequently exist in concussion research. Many investigators receive grant funding from sporting bodies in- cluding the National Football League ("NFL"), National Hockey League ("NHL"), Major League Soccer ("MLS"), and others. The COI can be especially acute when ostensibly independent researchers both receive funding from and serve as advisors or expert witnesses for such sporting bodies in litigation involving claims brought by college athletes or, in catastrophic cases, their parents. Such instances can serve as a conduit through which industryfriendly arguments can enter position statements of academic bodies that should be independent. For example, UNC's leading concussion researcher, Kevin Guskiewicz, also a co-author of the 2014 NATA position statement mentioned previously, has served as an expert witness for the de90 fense in several injury cases involving college athletes1 as well as for the National Hockey League in the class action concussion litigation. 19 1 Dr. Guskiewicz co-authored two 2010 articles with defense attorney Stephen Pachman, who retained Dr. Guskiewicz on behalf of defendant in the Plevretes v. LaSalle University case. One article expressed seeming hostility toward plaintiff claims, commenting that: [P]laintiffs' lawyers will make any and all efforts to discredit the defendant-athletic trainer's testimony in these action. . .In cases where a defendant asserts and can show the plaintiff 's injuries are a result of the plaintiff 's own negligence, the defendant may be able to prevail on a theory of "contributory negligence" or "comparative negligence," which could bar the plaintiff from re92 covering any damages whatsoever.1 190. E.g., Plevretes V. La Salle Univ., No. 07-5186, 2007 WL 4441220 *1 (E.D. Pa. Dec. 19, 2007). 191. In re Nat'l Hockey League Players' Concussion Injury Litigation, 120 F.Supp.3d 942 (D. Minn. 2015). 192. Steven Pachman and Kevin Guskiewicz. The Athletic Trainer'sLegal Liabilityfor Football-Related Injuries: Minimizing the Risk, NATA NEWS (Sept.10, 2010), http:// 6 2 39lm5827fzpu4Oze7s2y2ses-wpengine.netdna-ssl.com/wp-conten/uploads/ 01 /01/ nata_news_article-i .pdf. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES 51 Such commentary falls well into the purview of defense attorney advice to potential clients, on whose behalf he or she will advocate. However, the primary role of a concussion researcher should be safeguarding the welfare of the athletes under his or her care, not assisting potential defendants on how to avoid liability by questioning the plaintiff's own negligence. Notably, a key excerpt from this article was repeated almost verbatim in the 2014 NATA position statement, as Figure 11 shows. FIGURE 11. COMPARISON OF 2010 ARTICLE CO-AUTHORED BY 193 DEFENSE ATrORNEY WITH 2014 POSITION STATEMENT sait m: & Pachnran2010 NATA Nts article G 2014NATA Position Statement The athletic training profession must identify and adopt standard practice limitations and guidelines to cstablish the standard of care for managing concussions and other brain group, in particur plaintiff personal Inju e 1sarric d r sandard mkes i t injries. Ambiguity and the lack of a clear standard make it in Theacsadear atgrous, rorneys. standardmakei easier for plaintif' Iwyers to construct theories of tasier for plaintiffs lawyers to construct theeliability for lawsuits against ATs, alleging they breached the standard of care after a suspected concussion" ries ofliability for theirlawsuits against athlerLawsuits against ATs often involve the evaluation or Ictrainers,alleginga breach ofrhestandardof testing of the patient (or lack thereol), documentation of an care by the athletic trainer following an onIronically the ambiguity surrounding the proper standard is actually rkcme to one feld injury, a illustrated in this article. A second article co-authored by Guskiewicz and Pachman appeared as an editorial in the Athletic Training & Sports Health Care Journal. The authors again focused on minimizing legal liabilities and commented that athletic trainers "can become an easy target for plaintiff attorneys in the event of a catastrophic brain injury if the medical management comes into question."1 94 This article was also cited in the 2014 NATA position statement. The American Academy of Neurology's 2014 article addressed the potential tension that exists when a physician is employed by an athletic team, specifically between a physician's duty to an injured athlete and the interests of the employer (team). 195 The AAN explicitly advised that "[f]ailure to prioritize patient well-being represents a breach of ethical and professional 193. Id; Broglio, supra note 189. 194. Steven Pachman et al., Management of Sport-Related Brain Injuries: Preventing Poor Outcomes and Minimizing the Risk for Legal Liabilities, 49 s. ATHLETic TRAINING 248, 248 (2014). 195. Kirschen, supra note 185. 52 TEXAS REVIEW OF ENTERTAINMENT AND SPORTS LAW VOL. 21:1:1 conduct."'1 96 Further, with regard to disclosure of conflicts of interest, the AAN explained that: Ideally, physician reimbursement pertaining to sports-related concussion should be solely derived from patient evaluation, management, and counseling activities. Physicians and other members of concussion management teams (e.g., physical therapists and neuropsychologists) should disclose all financial arrangements that could influence patient care decisions to athletes and parents, including contractual relationships with teams, organizations, or governing bodies, involvement (scientific or financial) in the development of diagnostic or protective equipment, or paid sponsorships. 197 CONCLUSION This article has presented and discussed evidence that postsecondary institutions in the United States fail with disturbing regularity to uphold their duty-to-protect toward students. This failure appears particularly egregious in instances of college athletes, who routinely place their health and well-being at risk during sports participation. Even when athletes raise concerns with administrators or other individuals in a position to address them, safeguarding the institutional brand all-to-often receives priority. Further, conflicts of interest predominate among university-affiliated researchers. Many serve as members or advisors to sporting bodies that have a vested interest in minimizing health concerns, such as concussions, that plague collision sports. Given the extraordinary sums of money college athletic programs generate, universities are reluctant to accept additional scrutiny and oversight. However, as this article explains, the current status quo has placed the welfare of college athletes in a subservient role to the financial interests of these institutions. Rather than the institution existing to serve the individual student, college athletes have become akin to disposable batteries that serve to illuminate the university's brand and are summarily discarded when no longer needed. With no long-term health care, many college athletes are left to deal with injuries that can accompany them for the rest of their lives. 196. 197. Id. Id. 2020 ABUSE AND MISTREATMENT OF ATHLETES AT U.S. UNIVERSITIES 53 As such, it has become abundantly self-evident that colleges and universities cannot police their own athletic programs, either individually or through a cartel-management mechanism such as the NCAA. Equally clear is that a legislative solution, which includes a college athlete bill of economic and medical rights, should be implemented. Such a bill should also re-emphasize the duty of university researchers, particularly those investigating traumatic brain injury (TBI), to fully disclose the risks of sport participation and eliminate existing or potential conflicts of interest. ***

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