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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA
JOVON PAGE, individually and on behalf of
all others similarly situated,

Case No. 1:19-cv-332
COMPLAINT

Plaintiff,
CLASS ACTION
v.
DEMAND FOR JURY TRIAL
NATIONAL COLLEGIATE ATHLETIC
ASSOCIATION, and ELON UNIVERSITY,
Defendants.

CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL
Plaintiff Jovon Page, individually and on behalf of all others similarly situated, brings
this Class Action Complaint and Demand for Jury Trial against Defendants National Collegiate
Athletic Association (“NCAA”) and Elon University (“Elon”) (together, “Defendants”) to
obtain redress for injuries sustained as a result of Defendants’ reckless disregard for the health
and safety of generations of Elon student-athletes. Plaintiff alleges as follows upon personal
knowledge as to himself and his own acts and experiences and, as to all other matters, upon
information and belief, including investigation conducted by his attorneys.
INTRODUCTION
1.

Nearly one hundred thousand student-athletes sign up to compete in college

football each year, and it’s no surprise why. Football is America’s sport and Plaintiff and a Class
of football players (defined below) were raised to live and breathe the game. During football
season, there are entire days of the week that millions of Americans dedicate to watching the
game. On game days, hundreds of thousands of fans fill stadium seats and even more watch
around the world. Before each game, these players—often mere teenagers—are riled up and told

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to do whatever it takes to win and, when playing, are motivated to do whatever it takes to keep
going.
2.

But up until 2010, Defendants NCAA and Elon kept players and the public in the

dark about an epidemic that was slowly killing former college athletes.
3.

During the course of a college football season, athletes absorb more than 1,000

impacts greater than 10 Gs (gravitational force) and, worse yet, the majority of football-related
hits to the head exceed 20 Gs, with some approaching 100 Gs. To put this in perspective, if you
drove your car into a wall at twenty-five miles per hour and weren’t wearing a seatbelt, the force
of you hitting the windshield would be around 100 Gs. Thus, each season these 18, 19, 20, and
21-year-old student-athletes are subjected to the equivalent of repeated car accidents.
4.

Over time, the repetitive and violent impacts to players’ heads led to repeated

concussions that severely increased their risks of long-term brain injuries, including memory
loss, dementia, depression, Chronic Traumatic Encephalopathy (“CTE”), Parkinson’s disease,
and other related symptoms.
5.

For decades, Defendants NCAA and Elon knew about the debilitating long-term

dangers of concussions, concussion-related injuries, and sub-concussive injuries (referred to as
“traumatic brain injuries” or “TBIs”) that resulted from playing college football, but recklessly
disregarded this information to protect the very profitable business of “amateur” college football.
6.

While in school, Elon football players were under Defendants’ care.

Unfortunately, Defendants did not care about the off-field consequences that would haunt
students such as Plaintiff Page for the rest of their lives.
7.

Despite knowing for decades of a vast body of scientific research describing the

danger of traumatic brain injuries (“TBIs”) like those Plaintiff experienced, Defendants failed to

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implement adequate procedures to protect Plaintiff and other Elon football players from the longterm dangers associated with them. They did so knowingly and for profit.
8.

As a direct result of Defendants’ acts and omissions, Plaintiff and countless

former Elon football players suffered and continue to suffer brain and other neurocognitive
injuries. As such, Plaintiff brings this Class Action Complaint in order to vindicate those players’
rights and hold the NCAA and Elon accountable.
PARTIES
9.

Plaintiff Jovon Page is a natural person and resident of the State of North

Carolina.
10.

Defendant NCAA is an unincorporated association with its principal place of

business located at 700 West Washington Street, Indianapolis, Indiana 46206. Defendant NCAA
is not organized under the laws of any State, but is registered as a tax-exempt organization with
the Internal Revenue Service. As such, Defendant NCAA is a citizen of the State of Indiana
pursuant to 28 U.S.C. § 1332(d)(10).
11.

Defendant Elon University is a private university located at 100 Campus Drive,

Elon, North Carolina 27244.
JURISDICTION AND VENUE
12.

This Court has subject matter jurisdiction over Plaintiff’s claims under 28 U.S.C.

§ 1332(d)(2) because (a) at least one member of the Class, which consists of at least 100
members, is a citizen of a different state than Defendants, (b) the amount in controversy exceeds
$5,000,000, exclusive of interest and costs, and (c) none of the exceptions under that subsection
apply to this action.

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13.

The Court has personal jurisdiction over Defendants because they conduct

significant business in this District, including establishing consumer and business contracts here
and because the unlawful conduct alleged in the Complaint occurred in, was directed at, and/or
emanated in part from this District.
14.

Venue is proper in this District pursuant to 28 U.S.C. § 1391 because a substantial

part of the events and omissions giving rise to Plaintiff’s claims occurred in and/or emanated
from this District, and because Defendant NCAA resides here.
FACTUAL BACKGROUND
I.

The NCAA and Elon Had A Duty To Protect Their Student-Athletes, Including
Plaintiff Page.
15.

The NCAA is the governing body of collegiate athletics that oversees twenty-

three college sports and over 400,000 students who participate in intercollegiate athletics,
including the football program at Elon. According to the NCAA, more than 1,200 schools,
conferences and affiliate organizations collectively invest in improving the experiences of
athletes—on the field, in the classroom, and in life.
16.

The NCAA brings in more than $750 million in revenue each year and is the most

significant college sports-governing body in the United States.
17.

Each NCAA member institution, including Elon, and each of the member

institution’s athletes, agree to abide by the rules and regulations issued by the NCAA.
18.

Collectively, Defendants play a significant role in governing and regulating the

Elon football program and owe a duty to safeguard the well-being of their student-athletes.
19.

In fact, since its founding in 1906, the NCAA (then the Intercollegiate Athletic

Association of the United States (“IAAUS”)), has claimed to be “dedicated to safeguarding the
well-being of student-athletes and equipping them with the skills to succeed on the playing field,

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in the classroom and throughout life.”1 The IAAUS was specifically formed for this purpose
because, at the turn of the twentieth century, head injuries were occurring at an alarming rate in
college football. In response, President Theodore Roosevelt convened a group of Ivy League
university presidents and coaches to discuss how the game could be made safer. After several
subsequent meetings of colleges, the NCAA was established.2
20.

As such, the genesis of the NCAA was for a singular goal: “to keep college

athletes safe.”3
21.

The overarching principles of the NCAA, including its purported commitment to

safeguarding its athletes, are contained in the NCAA Constitution. The NCAA Constitution
clearly defines the NCAA’s purpose and fundamental policies to include maintaining control
over and responsibility for intercollegiate sports and athletes. The NCAA Constitution states:
The purposes of this Association are:
(a) To initiate, stimulate and improve intercollegiate athletics
programs for athletes;
(b) To uphold the principal of institutional control of, and
responsibility for, all intercollegiate sports in conformity with
the constitution and bylaws of this association;
NCAA Const., Art. 1, § 1.2(a)(b).
22.

The NCAA Constitution also defines one of its “Fundamental Policies” as the

requirement that “[m]ember institutions shall be obligated to apply and enforce this legislation,

Who We Are, Nat’l Collegiate Athletic Ass’n, http://www.ncaa.org/about/who-we-are
(last visited January 26, 2019).
2
In 1910, the IAAUS changed its name to the National Collegiate Athletic Association.
3
Well-Being, Nat’l Collegiate Athletic Ass’n, http://www.ncaa.org/health-and-safety (last
visited January 26, 2019).
1

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and the enforcement procedures of the Association shall be applied to an institution when it fails
to fulfill this obligation.” NCAA Const., Art. 1, § 1.3.2.
23.

Article 2.2 of the NCAA Constitution specifically governs the “Principle of

Student-Athlete Well-Being,” and provides:
2.2 The Principle of Student-Athlete Well-Being.
Intercollegiate athletics programs shall be conducted in a manner
designed to protect and enhance the physical and educational wellbeing of student athletes. (Revised: 11/21/05.)
2.2.3 Health and Safety.
It is the responsibility of each member institution to protect the
health of, and provide a safe environment for, each of its
participating student athletes. (Adopted: 1/10/95.)
24.

To accomplish this purpose, the NCAA promulgates and implements standard

sport regulations and requirements, such as the NCAA Constitution, Operating Bylaws, and
Administrative Bylaws. These NCAA documents provide detailed instructions on game and
practice rules, player eligibility, scholarships, and player well-being and safety. Both NCAA
member institutions, including schools like Elon, and NCAA conferences are obligated to abide
by the NCAA’s rules and requirements. Specifically, according to the NCAA Constitution:
“Each institution shall comply with all applicable rules and regulations of the Association in the
conduct of its intercollegiate athletics programs . . . Members of an institution’s staff, athletes,
and other individuals and groups representing the institution’s athletics interests shall comply
with the applicable Association rules, and the member institution shall be responsible for such
compliance.” NCAA Const., Art. 2, § 2.8.1.
25.

The NCAA publishes a health and safety guide termed the Sports Medicine

Handbook (the “Handbook”). The Handbook, which is produced annually, includes the NCAA’s
official policies and guidelines for the treatment and prevention of sports-related injuries, as well

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as return-to-play guidelines, and recognizes that “student-athletes rightfully assume that those
who sponsor intercollegiate athletics have taken reasonable precautions to minimize the risk of
injury from athletics participation.”4
26.

The NCAA, therefore, holds itself out as both a proponent of and authority on the

treatment and prevention of sports-related injuries upon which NCAA athletes (including
Plaintiff Page), Elon, and all other member institutions can rely for guidance on player-safety
issues.
27.

As a member institution, Elon agreed to abide by the NCAA Constitution and is

charged with implementing and enforcing NCAA guidelines in a meaningful way to protect the
health and safety of Elon football players, including Plaintiff.
28.

Plaintiff Page—and football players at Elon—relied upon the NCAA’s and Elon’s

authority and guidance to protect his health and safety by treating and preventing head-related
injuries, including the effects of those head injuries later on in his life.
29.

As compared to Plaintiff and other Elon football players, the NCAA and Elon

were in a superior position to know of and mitigate the risks of sustaining concussions and other
TBIs while playing football at Elon. They failed to do so.
II.

Decades of Studies Firmly Establish the Dangers of Football-Related Concussions.
30.

Throughout the twentieth century and into the twenty-first century, studies have

firmly established that repetitive and violent impacts to the head can cause concussions and
TBIs, with a heightened risk of long-term injuries and impacts, including—but not limited to—
memory loss, dementia, depression, Alzheimer’s disease, Parkinson’s disease, and CTE.

John T. Parsons, 2014-15 NCAA Sports Med. Handbook, NAT’L COLLEGIATE ATHLETIC
ASS’N (Aug. 2014), available at https://bit.ly/2QD5DUx.
4

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31.

Such violent impacts to the head are a one-way street for those who experience

them. As Jonathan J. Russin—Assistant Surgical Director at the USC Neurorestoration Center at
the Keck School of Medicine—has stated, “there’s no way to undo a traumatic brain injury,” and
one’s “best bet is to avoid concussions altogether.”5
32.

To better understand the results of these studies, a brief introduction to

concussions in football follows.
A.
33.

An Overview of Concussions in Football.
A TBI is an injury to the brain that comes as the result of the application of either

external physical force or rapid acceleration and deceleration forces, which disrupts brain
function in a manner that causes impairments in cognitive and/or physical function.
34.

A concussion is a TBI initiated by an impact to the head, which causes the head

and brain to move rapidly back and forth. The movement causes the brain to bounce around or
twist within the skull, damaging brain cells and leading to harmful chemical changes in the brain.
35.

The human brain is made of soft tissue, cushioned by spinal fluid, and encased in

a hard skull. During everyday activity, the spinal fluid protects the brain from crashing against
the skull. But relatively minor impacts—including not only direct blows to the head, but also
blows to the body and movements that cause the neck to whiplash—can move the brain enough
to press through the spinal fluid, knock against the inside of the skull, and cause concussions.
36.

Concussions typically occur when linear and rotational accelerations impact the

brain, through either direct impact to the head or indirect impacts that whiplash the head. During
the course of a college football season, studies have shown that athletes can receive more than

5

Deanna Pai, Do Concussions Increase the Risk of Stroke or Brain Cancer?, Keck School
of Medicine at USC, https://bit.ly/2MzSkkC (last visited Sept. 18, 2018).
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1,000 impacts greater than 10 Gs. This is slightly more force than a fighter pilot receives from
performing maximal maneuvers. The majority of football-related hits to the head exceed 20 Gs,
with some going well over 100 Gs.
37.

Kevin Guskiewicz, of the University of North Carolina’s Sports Concussion

Research Program, compared the impacts sustained in a routine college football practice to
crashing a car: “If you drove your car into a wall at twenty-five miles per hour and you weren’t
wearing your seat belt, the force of your head hitting the windshield would be around 100 [Gs]:
in effect, the player [who sustained two hits above 80 Gs] had two car accidents that morning.”6
i.
38.

Concussion Symptoms.

When a collegiate athlete suffers a severe impact to the head, he may experience

concussion-related symptoms, including:
•

“seeing stars” and feeling dazed, dizzy, or lightheaded;

•

memory loss;

•

nausea or vomiting;

•

headaches;

•

blurred vision and sensitivity to light;

•

slurred speech or saying things that do not make sense;

•

difficulty concentrating, thinking, or making decisions;

•

difficulty with coordination or balance;

•

feeling anxious or irritable for no apparent reason; and

•

feeling overly tired.

6

Malcolm Gladwell, Offensive Play, THE NEW YORKER (Oct. 19, 2009)
http://www.newyorker.com/magazine/2009/10/19/offensive-play.
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39.

A collegiate athlete may not recognize the signs and/or symptoms of a

concussion, and, more often, the effect of the concussion itself prevents him from recognizing
them. Because of that, he may put himself at risk of further injury by returning to a game after a
concussion. Brains that have not had time to properly heal from a concussion are particularly
susceptible to further injury.
ii.
40.

Post-Concussion Treatment.

After a concussion, the brain needs time to heal. Doctors generally prohibit

individuals from returning to normal activities—certainly including contact sports—until all
symptoms have subsided. They do so because, immediately after a concussion, the brain is
particularly vulnerable to further injury. Even after the immediate effects have worn off, a person
who has suffered a concussion is four to six times more likely to receive another concussion than
a person who has been concussion-free.
41.

The length of the healing process varies from person to person and from

concussion to concussion. Symptoms may even last for one or two weeks.
42.

Individuals who do not recover from a concussion within a few weeks are

diagnosed with post-concussion syndrome. The symptoms of post-concussion syndrome can last
for months, and sometimes can even be permanent. Generally, people suffering from postconcussion syndrome are referred to specialists for additional medical help.
43.

Still, many people think of concussions as short-term, temporary injuries.

However, decades of scientific research demonstrate the effects of concussions are anything but
temporary.
B.
44.

Studies Confirm the Dangers and Long-Term Effects of Concussions.
Two of the leading studies of the long-term effects of concussions were conducted

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by Boston University’s Center for the Study of Traumatic Encephalopathy and the Brain Injury
Research Institute. These studies showed the “devastating consequences” of repeated
concussions, including that they lead to an increased risk of depression, dementia, and suicide.
These studies have also demonstrated that repeated concussions trigger progressive degeneration
of the brain tissue, including the build-up of an abnormal protein called the tau protein.
45.

Between 2002 and 2007, Dr. Bennett Omalu of the Brain Injury Research Institute

examined the brains of five former NFL players: Andre Waters, Mike Webster, Terry Long,
Justin Strzelczyk, and Damien Nash. Waters killed himself; Nash died unexpectedly at the age of
24; Webster, homeless and cognitively impaired, died of heart failure; and Strzelczyk died
driving the wrong way down a highway at 90 miles per hour. Four of the five brains showed the
telltale characteristics of CTE—a progressive, degenerative disease of the brain found in people
with a history of repetitive brain trauma.
46.

In his early studies, Dr. Robert Cantu of the Boston University Center for the

Study of Traumatic Encephalopathy found evidence of CTE in 90 of 94 (96%) autopsied brains
of former NFL players. A recent update to these studies found CTE in a staggering 110 of 111
(99%) former NFL players and 48 of 53 former college players (91%).7
47.

These more recent studies were neither aberrations nor surprises but

confirmations of what was already known or readily apparent from the existing medical
literature.
48.

Studies like these, which establish the devastating dangers related to TBIs, date

back to the early twentieth century. For example, in an article in the 1905 multi-volume medical

7

Jesse Mez, MD, MS, et al., Clinicopathological Evaluation of Chronic Traumatic
Encephalopathy in Players of American Football, 318 JAMA 4, 360–370 (2017).
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text A System of Medicine, surgeon Sir William Bennett noted that the dangers from TBIs can
arise just as easily when “no loss of consciousness occurs at all,” and that such injuries “may in
the end have far graver results” due to their “escap[ing] treatment altogether in the first instance”
given their less severe appearance.8 Bennett noted that the imposition of a strict treatment
regimen immediately after an injury, during initial recovery, and following the initial recovery
period, was essential to the “treatment of all cases of concussion of the brain, whether they be
severe or slight.”9
49.

Some early articles from this period began to recognize the unique dangers

presented by football, specifically. The editors of the Journal of the American Medical
Association recognized the long-term risks of such head injuries very early on, writing in 1905
that “[t]o be a cripple or lunatic for life is paying high for athletic emulation” via football. 10
Similarly, the risks of concussion in football were discussed in a 1906 article by Dr. Edward
Nichols, who observed that a concussed player might go through multiple plays before his
teammates noticed his altered mental state.11
50.

Beginning with studies on the brain injuries suffered by boxers in the 1920s,

medical science began to clearly recognize the debilitating effects of concussions and other TBIs,
connect it to contact sports (including football), and find that repetitive head impacts can cause
permanent brain damage and increased risk of long-term cognitive decline and disability.

8

Sir William Bennett, Some Milder Forms of Concussion of the Brain, A System of
Medicine Vol. 8 231-32 (2d ed. 1910).
9
Id.
10
Editors, The Football Mortality, 39 JAMA 1464 (1905).
11
Edward Nichols, The Physical Aspect of American Football, 154 Boston Med. & Surgical
J.1 (1906).

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51.

For instance, in 1927, Drs. Michael Osnato and Vincent Giliberti discussed a

disease they called traumatic encephalitis in an article on post-concussion damage in Archives of
Neurology & Psychiatry, concluding that brain disease could manifest in “young men knocked
out in football and other games,” but noting that the issue had “not received adequate
attention.”12 Then, in 1928, Pathologist Dr. Harrison Martland published a study called “Punch
Drunk” in the Journal of the American Medical Association, where he described the clinical
spectrum of abnormalities found in nearly 50 percent of boxers who had been knocked out or
who had suffered a considerable impact to the head.13
52.

Countless studies were later conducted on boxers suffering chronic neurological

symptoms as a result of repeated head injuries, and who displayed signs of dementia and
impairment of motor functions.14 As incidents of chronic encephalopathy increased, they were
often characterized as a “Parkinsonian” pattern of progressive decline. However, in a chapter of a
mid-twentieth century book on brain injuries, psychiatrists Karl M. Bowman and Abram Blau
coined the term “chronic traumatic encephalopathy” to explain the deterioration of a boxer’s
mental state over time.15
53.

In 1936, Dr. Edward J. Carroll, Jr. wrote an article further recognizing “punch-

12

Michael Osnato & Vincent Giliberti, Postconcussion Neurosis-Traumatic Encephalitis,
18 Archives of Neurology & Psychiatry 181 (1927).
13
Dr. Harrison S. Martland, Punch Drunk, 91 JAMA 1103 (1928).
14
See, e.g., E. Guttmann & C.E. Winterstein, Disturbances of Consciousness After Head
Injuries: Observations on Boxers, 84 J. of Mental Sci. 347 (Mar. 1938); Harry L. Parker,
Traumatic Encephalopathy (‘Punch Drunk’) of Professional Pugilists, 15 J. of Neurology &
Psychopathology 20 (July 1934); C.E. Winterstein, Head Injuries Attributable to Boxing, 2
Lancet 719 (Sept. 1937).
15
K.M. Bowman & A. Blau, Psychotic States Following Head and Brain Injury in Adults
and Children, Injuries of the Skull, Brain and Spinal Cord: Neuropsychiatric, Surgical, and
Medico-Legal Aspects 309 (S. Brock, ed. 1940).

13

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drunk syndrome’s” seriousness, stating that “no head blow is taken with impunity, and [] each
knock-out causes definite and irreparable damage. If such trauma is repeated for a long enough
period, it is inevitable that nerve cell insufficiency will develop ultimately, and the individual
will become punch-drunk.” He also noted that in addition to boxers, punch drunk had been
recognized among football players.16
54.

The next year, the American Football Coaches Association published a report

warning that players who suffer even “one concussion” should be removed from play.17
55.

In 1952, an article published in The New England Journal of Medicine first

recommended a “three-strike rule” for concussions in football, demanding that players cease to
play football permanently after receiving their third concussion.18
56.

Starting in the late 1960’s, the medical community began focusing on the effects

of concussion-related injuries in football. In a 1967 study, Drs. John R. Hughes and D. Eugene
Hendrix examined how severe impacts affected brain activity in football players by utilizing
electroencephalograms (“EEGs”).19 Several years after that, a potentially fatal condition known
as “Second Impact Syndrome” was identified, which is a re-injury to an already-concussed brain
that triggers swelling the skull cannot accommodate.
57.

In 1975, the Chief Medical Officer of the British Boxing Board of Control

suggested boxers were not the only persons or athletes vulnerable to the risk of long-term brain

16

Edward J. Carroll, Jr., Punch-Drunk, 191 Am. J. Med. Sci. 706 (1936).
Proceedings of the Seventeenth Annual Meeting of the American Football Coaches
Association (Dec. 29, 1937) (“Sports demanding personal contact should be eliminated after an
individual has suffered a concussion”).
18
Augustus Thorndike, Serious Recurrent Injuries of Athletes—Contraindications to
Further Competitive Participation, 247 New Eng. J. Med. 554, 555-56 (1952).
19
John R. Hughes & D. Eugene Hendrix, Telemetered EEG From A Football Player In
Action, 24 Electroencephalography & Clin. Neurophysiology 183 (1968).
17

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injuries, stating:
Irreversible brain damage caused by regular excessive punching
can cause a boxer to become punch drunk, a condition known
euphemistically in medical terms as [Chronic] Traumatic
Encephalopathy. The condition can be caused by other hazards of
contact sports—taking too many falls while hunting or steep
chasing or the continual use of brute force rather than skill in the
rugby field or heading a football incessantly over many years.
Anything which entails intermittent trauma to the head can
cause it.20
58.

Overall, countless studies—published in prominent medical journals such as the

Journal of the American Medical Association, Neurology, The New England Journal of
Medicine, and Lancet—warned of the dangers of single concussions, multiple concussions,
and/or football-related head trauma from multiple concussions and head injuries. These studies
collectively established that:
•
•
•

•

•
•
•
•

20

repetitive head trauma in contact sports, including football,
has potential dangerous long-term effects on brain function;
traumatic encephalopathy (dementia pugilistica) is caused by
repeated sub-concussive and concussive blows to the head;
acceleration and rapid deceleration of the head that results in
brief loss of consciousness also results in a tearing of the
axons (brain cells) in the brainstem;
with respect to head injury in athletes who play contact
sports, there is a relationship between neurologic pathology
and length of the athlete’s career;
immediate retrograde memory issues occur following
concussions;
head injuries require recovery time without risk of subjection
to further injury;
a football player who suffers a concussion requires
significant rest before being subjected to further contact; and
minor head trauma can lead to neuropathological and
neurophysiological alterations, including neuronal damage,
reduced cerebral blood flow, altered brainstem evoked
potentials and reduced speed of information processing.

J.W. Graham, Eight, Nine, Out! Fifty Years as Boxer’s Doctor, 56 (1975).
15

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59.

As a result of these studies, medical professionals began recommending changes

to the game of football and how concussion-related injuries should be handled.
60.

By 1991, Dr. Robert Cantu, the American Academy of Neurology, and the

Colorado Medical Society had developed return-to-play criteria for football players suspected of
sustained head injuries.
61.

In 2003, an NCAA concussion study concluded that football players who had

previously sustained a concussion were more likely to have future concussion injuries. Another
2003 NCAA concussion study concluded that collegiate football players “may require several
days for recovery of symptoms, cognitive dysfunction, and postural instability after [a]
concussion,” and that concussions are “followed by a complex cascade of ionic, metabolic, and
physiological events that can adversely affect cerebral function for several days to weeks.” 21
62.

Following these studies, in 2004, the National Athletic Trainers’ Association

published a position statement, recommending baseline cognitive and postural-stability testing,
as well as return-to-play recommendations, including holding out athletes who exhibit symptoms
of a suspected head injury.
63.

Building upon that, a convention of neurological experts met in Prague in 2004

with the aim of providing recommendations for the improvement of safety and health of athletes
who suffer concussive injuries in ice hockey, rugby, football, and other sports, based on the most
up-to-date research. These experts recommended that a player never be returned to play while
symptomatic, and coined the phrase, “when in doubt, sit them out.”

21

Michael McCrea, et al., Acute Effects and Recovery Time Following Concussion in
Collegiate Football Players, The NCAA Concussion Study, The Journal of the Am. Med. Ass’n
(November 19, 2003), available at http://jama.jamanetwork.com/article.aspx?articleid=197668.
16

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64.

Ultimately, while the NCAA and Elon knew of the harmful effects of TBIs (and

other head injuries) on athletes for decades, they ignored these facts and failed to institute any
meaningful methods of warning and/or protecting the athletes, including football players like
Plaintiff Page and other Elon student-athletes. For Defendants, the continued expansion and
operation of college football was simply too profitable to put at risk.
III.

The NCAA and Elon Breached Their Duties to Their Student-Athletes, Including
Plaintiff Page, by Ignoring the Dangers of Concussions and Failing to Implement
Adequate Concussion Management Protocols.
65.

For decades, the NCAA and Elon have been aware—through their own

institutional knowledge, internal research, and current medical science, among other sources of
information—that severe and/or repeated head impacts can lead to long-term brain injuries,
including memory loss, dementia, depression, and CTE. Unfortunately, while the NCAA and
Elon knew about the harmful and devastating effects of these sub-concussive and concussive
injuries, they recklessly ignored these facts and failed to implement reasonable concussion
management protocols to protect their athletes, including Plaintiff Page.
66.

Such conduct stands in stark contrast to the NCAA’s approach in comparable

contexts. For instance, in 1960, the NCAA wholly discontinued its relationship with collegiate
boxing following widespread criticism of the sport’s dangers and a heightened organizational
awareness of the long-term risks student boxers faced—including, but not limited to, developing
“punch drunk syndrome.” But as to college football, including Elon’s football program, the
NCAA continued to govern, support, and profit from the sport without disclosing what it knew to
student-athletes, including Plaintiff Page.
67.

Since at least 1933, the NCAA has known of the serious nature of concussions

and other head injuries in college football, and even recognized the need for appropriate

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concussion management protocols. In its 1933 Sports Medicine Handbook—which it distributed
to all member institutions—the NCAA specifically recognized that head injuries warrant special
attention and should not be regarded lightly.
68.

The 1933 Sports Medicine Handbook then provided information for school and

college doctors, coaches, and trainers to identify the signs and symptoms of concussions, as well
as methods to be used on the sidelines for treating them. It discussed head injuries, stating that
they “are in a category by themselves and warrant special attention,” as they “may be, and often
are more severe in their immediate and remote consequences” than other injuries. Notably, the
1933 Sports Medicine Handbook recommended that, when concussion-related symptoms lasted
longer than two days, players should “not be permitted to compete for 21 days or longer, if at
all.” It also stated, “[t]here is definitely a condition described as ‘punch drunk’ and often
recurrent concussion cases in football and boxing demonstrate this,” and that “[a]ny individual
who is knocked unconscious repeatedly on slight provocation should be forbidden to play bodycontact sport.”
69.

The NCAA recognizes that its Sports Medicine Handbook “may constitute some

evidence of the legal standard of care,” and has publicly recognized its duty and moral obligation
to protect collegiate athletes. As NCAA President Mark Emmert testified to the Senate
Commerce Committee in January 2014, “I will unequivocally state we have a clear moral
obligation to make sure we do everything we can to protect and support student-athletes.”
70.

Indeed, in the September 1968 issue of NCAA News, the NCAA published an

article entitled Dangers of Grid Head Injuries Cited by Safeguards Committee. In the article, the
NCAA Committee on Competitive Safeguards and Medical Aspects of Sport issued a statement
on the dangers of repeated head injuries in football, stating:

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[T]hose individuals who have been rendered unconscious, even
momentarily, in a given game should never be allowed to play
again in the same game and not allowed to return to contact until
all symptoms have cleared up entirely and he has been checked by
a competent medical authority.
71.

Rather than inform Plaintiff and other Elon athletes of these risks or implement

protocols to protect and safeguard him from TBI-related injuries (as the NCAA and Elon
promised to do through the NCAA Constitution, among other things), Defendants failed to
meaningfully adopt or enforce the internationally accepted guidelines regarding concussion
management and return to play protocols until at least 2010.
72.

Instead, in complete disregard of the vast body of known scientific evidence and

the resources and authority that they possessed, Defendants failed prior to 2010 to, amongst other
things, do any of the following:
•

implement adequate guidelines or rules to prevent repeated
concussions, and failed to educate players, including
Plaintiff, about the increased risk of concussive and subconcussive injury in football, particularly under
circumstances when the helmet is used as a weapon when
tackling, blocking, or running with the football;

•

recommend or enforce adequate return to play procedures or
take action to educate athletes, including Plaintiff, about the
risks of repetitive head injuries;

•

conduct a football program that proactively encouraged
Plaintiff and other Elon football players to avoid head
injuries, instead compelling players to ignore concussion
symptoms and continue to play football within moments of
experiencing concussion symptoms. For instance, Elon
coaches demanded that their football players, including
Plaintiff, forego their own self-interest and continue playing
despite sustaining head injuries—all for the purpose of
advancing the Elon football program by winning games,
obtaining fame and favorable publicity, and gaining millions
of dollars in revenue for the NCAA and Elon; and

•

contact football players, including Plaintiff, after they left
Elon to inform them that they had been exposed to an
increased risk of long-term brain damage by the sub-

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concussive and concussive blows sustained while playing
football for Elon.
73.

In April 2010, under mounting public pressure, that the NCAA made changes to

its concussion treatment protocols, this time enacting a new policy that required its member
institutions to have a Concussion Management Plan (“CMP”) in place for all sports.
74.

Under that new policy, which became effective in August 2010, member schools

were required to have a CMP on file “such that a student-athlete who exhibits signs, symptoms,
or behaviors consistent with a concussion shall be removed from practice or competition and
evaluated by an athletics healthcare provider with experience in the evaluation and management
of concussions.”
75.

The policy further states that students diagnosed with a concussion “shall not

return to activity for the remainder of that day” and the team physician would determine that
medical clearance.
76.

Finally, the policy required students to sign a statement “in which they accept the

responsibility for reporting their injuries and illnesses, including signs and symptoms of
concussion” to medical staff and noted that students would be provided educational materials on
concussions during the signing process.
77.

This policy is flawed though: due to the very nature of concussions, athletes

suffering concussive injuries are in no position to police themselves or to give informed consent
about whether to continue playing. For example, the types of questions used to screen players for
concussions include “What’s your name?”, “What year is it?”, and “What sport are we
playing?”. These types of questions are used for screening precisely because players
experiencing concussions routinely fail to answer them correctly, despite their very elementary
nature. Following logically on that, a player who cannot state his or her own name is in no

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condition to make an informed decision about whether or not to continue playing, and is entirely
dependent on others, such as the NCAA and Elon, to identify concussive injuries in real-time and
take appropriate remedial actions. Defendants have stood in the role of guardians, tasked with
making decisions in Plaintiff’s and other Elon football players’ best interests. Defendants failed
to fulfill that role and instead acted in their own self-interest, to the detriment of their studentathletes, including Plaintiff.
78.

In the end, Defendants implemented these (still deficient) policies far too late for

Plaintiff Page and other Elon football players.
FACTS SPECIFIC TO JOVON PAGE
79.

Plaintiff Jovon Page played football at Elon from 1994 to 1996, as a running back.

80.

While playing at Elon, Plaintiff Page suffered from numerous concussions, as

well as countless sub-concussive hits as part of routine practice and gameplay.
81.

Since the inception of Elon’s football program, through at least 2010, there were

no adequate concussion management protocols or policies in place to address and treat
concussions sustained by student-athletes during practice and in games. For instance, when
Plaintiff Page and other Elon players experienced a significant head injury or concussion, they
would quickly be returned to the field of play or only be taken out of play or practice for an
inadequate period of time.
82.

In fact, although Plaintiff Page sustained repetitive serious blows to the head in

practices and games for their profit, the NCAA and Elon failed to adopt or implement adequate
concussion management safety protocols or return to play guidelines during his time on Elon’s
football team.

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83.

As a result, Plaintiff Page now suffers from issues including, but not limited to,

emotional instability, loss of concentration, post-concussion syndrome, and suicidal thoughts.
CLASS ACTION ALLEGATIONS
84.

Class Definition: Plaintiff Jovon Page brings this action for himself and on

behalf of a class of similarly situated individuals, defined as follows:
All individuals who participated in Elon’s football program between
1952 and 2010.
The following people are excluded from the Class: (1) any Judge or Magistrate presiding over
this action and members of their families; (2) Defendants, Defendants’ subsidiaries, parents,
successors, predecessors, and any entity in which the Defendants or their parents have a
controlling interest and their current or former employees, officers, and directors; (3) persons
who properly execute and file a timely request for exclusion from the Class; (4) persons whose
claims in this matter have been finally adjudicated on the merits or otherwise released; (5)
Plaintiff’s counsel and Defendants’ counsel; and (6) the legal representatives, successors, and
assigns of any such excluded persons.
85.

Numerosity: The exact number of members of the Class is not available to

Plaintiff at this time, but it is clear that individual joinder is impracticable. Upon information and
belief, hundreds of individuals fall into the definition of the Class.
86.

Commonality: There are many questions of law and fact common to Plaintiff and

the Class, and those questions predominate over any questions that may affect individual
members. Common questions for the Class include, but are not limited to, the following:
(a)

Whether Defendants had a duty to adequately warn and educate
players about the dangers and symptoms of concussions and
concussion-related brain injuries;

(b)

Whether Defendants had a duty to enact rules and procedures to
protect players from sustaining concussions and concussion-related
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brain injuries;
(c)

Whether Defendants’ conduct as alleged herein constitutes a breach of
duty;

(d)

Whether Defendants’ conduct as alleged herein constitutes negligence;

(e)

Whether Defendants’ conduct as alleged herein constitutes breach of
contract;

(f)

Whether Defendants’ conduct as alleged herein constitutes fraudulent
concealment; and

(g)

Whether Plaintiff and the Class are entitled to relief, including actual
and compensatory damages, and injunctive or other equitable relief.

87.

Typicality: Plaintiff’s claims are typical of those of members of the Class, as

Plaintiff and other members sustained injuries arising out of the same wrongful conduct of
Defendants.
88.

Adequate Representation: Plaintiff will fairly and adequately represent the

interests of the Class and has retained counsel competent and experienced in complex litigation
and class actions. Plaintiff has no interests antagonistic to those of the Class, and Defendants
have no defenses unique to Plaintiff.
89.

Predominance and Superiority: Class proceedings are superior to all other

available methods for the fair and efficient adjudication of this controversy, as joinder of all
members of the Class is impracticable. Individual litigation would not be preferable to a class
action because individual litigation would increase the delay and expense to all parties due to the
complex legal and factual controversies presented in this Complaint. By contrast, a class action
presents far fewer management difficulties and provides the benefits of single adjudication,
economy of scale, and comprehensive supervision by a single court. Economies of time, effort,
and expense will be fostered and uniformity of decisions will be ensured.
FIRST CAUSE OF ACTION
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NEGLIGENCE
(Individually and on Behalf of the Class as Against Defendants)
90.

Plaintiff incorporates by reference the foregoing allegations.

91.

From its inception and by virtue of its role as the governing body of college

athletics, the NCAA has historically assumed a duty to protect the health and safety of all
athletes at member institutions, including Plaintiff Page. The NCAA also assumed a duty of care
by voluntarily taking steps to protect and promote the health and safety of its players, including
promulgating safety handbooks and regulations. That duty included an obligation to supervise,
regulate, and monitor the rules of its governed sports, and provide appropriate and up-to-date
guidance and regulations to minimize the risk of injury to its athletes.
92.

The duties of both Defendants included specific obligations to supervise, regulate,

and monitor the rules of the Elon football program and provide appropriate and up-to-date
guidance and regulations to minimize the risk of long-term and short-term brain damage to Elon
football players, including Plaintiff Page.
93.

Defendants had a duty to educate Elon football players on the proper ways to

evaluate and treat head injuries during and after football games and practices, including
repetitive concussive and sub-concussive injuries. Defendants’ duties further included a duty to
warn Elon football players of the dangers of concussive and sub-concussive injuries and of the
risks associated with football before, during, and after they played college football, and as
additional information came to light.
94.

Defendants had a duty not to conceal material information from Elon football

players, including Plaintiff Page.
95.

Defendants breached their duties owed to Elon student-athletes, including

Plaintiff Page, by failing to implement, promulgate, or require appropriate and up-to-date

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guidelines regarding the evaluation and treatment of TBIs on the playing field, in the locker
room, and in the weeks and months after they sustained TBIs, as well as providing treatment for
the latent effects of TBIs. These failings included, but are not limited to:

96.

(a)

failing to adequately recognize and monitor concussive and
sub-concussive injury during football practices and games;

(b)

failing to adequately inform student football players of the
dangers of concussive and sub-concussive injuries;

(c)

failing to adequately design and implement return to play
regulations for student football players who sustained
concussive and/or sub-concussive injuries and/or were
suspected of sustaining such injuries;

(d)

failing to adequately design and implement procedures to
monitor the health of student football players after they
sustained (or were suspected of sustaining) concussive
and/or sub-concussive injuries;

(e)

failing to adequately inform the families of student football
players who sustained concussive and/or sub-concussive
injuries; and

(f)

failing to adequately provide adequate notification, warning
and treatment for latent neuro-cognitive and neurobehavioral effects of concussive and sub-concussive
injuries, after the time student football players, including
Plaintiff Page, left Elon.

Defendants breached their duties to student football players, including Plaintiff

Page, by failing to disclose and/or failing to recognize and/or being willfully non-observant of:
(a) material information regarding the long-term risks and effects of repetitive head trauma they
possessed or should have possessed; (b) the dangers of concussive and sub-concussive injuries;
and (c) the proper ways to evaluate, treat, and avoid concussive and sub-concussive trauma to
football players, including Plaintiff Page.
97.

As a football player at Elon, Plaintiff Page and those like him relied upon the

guidance, expertise, and instruction of Defendants in understanding the risks associated with
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serious and life-altering concussive and sub-concussive hits in football.
98.

At all times, Defendants had superior knowledge of material information

regarding the effects of repeated head injuries, including through the NCAA’s institutional
knowledge of such effects. Because such information was not readily available to Elon football
players, including Plaintiff Page, Defendants knew or should have known that they would act
and rely upon their guidance, expertise, and instruction on these crucial medical issues while
attending Elon and thereafter.
99.

Repetitive TBIs during college football practices and games have a pathological

and latent effect on the brain. Repetitive exposure to rapid accelerations to the head causes
deformation, twisting, shearing, and stretching of neuronal cells such that multiple forms of
damage take place, including the release of small amounts of chemicals within the brain, such as
protein, which is a signature pathology of the same phenomenon as boxer’s encephalopathy (or
“punch drunk syndrome”) studied and reported by Harrison Martland in 1928.
100.

In addition, repetitive concussive and sub-concussive blows to the head can

significantly increase a person’s risk of developing neurodegenerative disorders and diseases,
including but not limited to CTE, Alzheimer’s disease, and other similar cognitive-impairing
conditions, especially when such blows are sustained at an early age.
101.

As a direct and proximate result of Defendants’ negligence, student-athletes,

including Plaintiff Page, experienced repetitive concussive and sub-concussive impacts during
their college football careers, which significantly increased their risk of developing
neurodegenerative disorders and diseases, including but not limited to CTE, Alzheimer’s disease,
and other, similar cognitive-impairing conditions. And indeed, Plaintiff Page now suffers from,
and continues to suffer from, issues including but not limited to emotional instability, loss of

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concentration, post-concussion syndrome, and suicidal thoughts.
102.

The repetitive head accelerations and hits to which student-athletes, including

Plaintiff Page, were exposed to presented risks of latent and long-term debilitating chronic
illnesses. Absent Defendants’ negligence and concealment, the risk of harm to these studentathletes, including Plaintiff Page, would have been materially decreased, and they would not
have developed serious mental health issues.
103.

As a direct and proximate result of Defendants’ negligence, Plaintiff and the Class

have incurred damages in the form of permanent brain damage, emotional distress, past and
future medical costs, health care, home care expenses, other out of pocket expenses, lost time,
lost future earnings, and other damages. Plaintiff and other members of the Class will likely
incur future damages caused by Defendants’ negligence.
104.

As such, Defendants are the direct and proximate cause of Plaintiff and the

putative Class’s injuries, and are liable to them for the full measure of damages allowed under
applicable law, as well as interest, reasonable attorneys’ fees, expenses, and costs.
SECOND CAUSE OF ACTION
BREACH OF EXPRESS CONTRACT
(Individually and on Behalf of the Class as Against Defendant NCAA)
105.

Plaintiff incorporates by reference the foregoing allegations.

106.

As a football player at Elon, an institution governed by the NCAA, Plaintiff Page

and other Elon football players were required to, and did, enter into contracts with the NCAA as
a prerequisite to sports participation. These contracts required Plaintiff Page and other Elon
football players to complete a form affirming that they had read the NCAA regulations and
applicable NCAA Division manual, which expressly encompassed the NCAA Constitution,
Operating Bylaws, and Administrative Bylaws, and further, that they agreed to abide by Division

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Bylaws.
107.

In exchange for these student-athletes’ agreements, the NCAA promised to

perform certain services and functions, including, amongst other things:

108.

(a)

conducting intercollegiate athletics in a manner designed to
protect and enhance the physical and educational wellbeing
of NCAA athletes;

(b)

requiring that each member institution protect the health of,
and provide a safe environment for, each of its participating
athletes; and

(c)

requiring that each member institution establish and
maintain an environment in which the NCAA athletes’
activities are conducted as an integral part of the athletes’
educational experience.

By signing and agreeing to abide by NCAA rules and regulations, and thereafter

participating in NCAA-sanctioned sports programs in accordance with said rules and regulations,
Plaintiff Page and other Elon football players fulfilled their contractual obligations to the NCAA.
109.

As described in the foregoing allegations, the NCAA breached its contractual

agreement by failing to ensure Plaintiff Page and other Elon student-athletes were provided a
safe environment in which to participate in collegiate football. The NCAA further breached its
contractual agreement by concealing and/or failing to properly educate and warn Plaintiff Page
and other Elon football players about the symptoms and long-term risks of concussions and
concussion-related traumatic injury.
110.

Plaintiff Page and other Elon football players entered into written agreements

with the NCAA in which they committed to play football at Elon, to attend Elon as students, and
to comply with all codes of conduct and obligations as both football players and students at Elon.
111.

Plaintiff Page and other Elon football players fulfilled their contractual

obligations to the NCAA.
112.

The NCAA’s contractual breaches caused Plaintiff Page and other Elon football
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players to suffer injuries and damages in the form of, inter alia, past, ongoing, and future
medical expenses, lost time, lost future earnings, and other damages.
113.

As a result of its misconduct, the NCAA is liable to Plaintiff and the Class for the

full measure of damages and other relief allowed under applicable law.
THIRD CAUSE OF ACTION
FRAUDULENT CONCEALMENT
(Individually and On Behalf of the Class as Against Defendants)
114.

Plaintiff incorporates by reference the foregoing allegations.

115.

Defendants have long understood that repetitive head impacts sustained while

playing football created a risk of harm to student-athletes that was similar or identical to the risk
boxers faced by participating in boxing practices and matches.
116.

Defendants were aware of and understood the significance of the published

medical literature described herein, which detailed the serious risk of short- and long-term brain
injury and disease associated with repetitive head impacts, including those which Plaintiff Page
and other Elon football players were exposed.
117.

Defendants knowingly concealed these risks from Plaintiff Page and other Elon

football players considering whether or not to participate in Elon’s football program or in any
other NCAA program.
118.

By concealing these highly material facts, Defendants intended to induce a false

belief in Plaintiff Page and Elon football players like him about the short- and long-term risks of
repetitive head impacts in football, under circumstances creating a duty to speak. In particular, as
an entity that voluntarily took on the role of governing the sport of football in colleges across the
country (including Elon), and was created and perpetuated specifically to protect player safety,
the NCAA had a duty to speak about these issues—instead, it remained silent. And as a

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collegiate institution that was in a superior position to know, and to mitigate, the risks of
concussions and other traumatic brain injuries that its student-athletes were subjected to, Elon
similarly had a duty to speak about these issues, but also remained silent. Defendants’ intent in
doing so was to induce Plaintiff Page and other Elon football players to continue playing NCAA
football at Elon, even after sustaining one or more concussions and even when those concussions
required additional time to heal.
119.

Plaintiff Page and other Elon football players could not have reasonably been

expected to know or discover the truth about the risks associated with concussive and subconcussive blows to the head, or were misled from obtaining such truthful information. Plaintiff
Page and other Elon football players were under the care and treatment of Defendants, and
justifiably relied on Defendants silence as representing facts that did not exist.
120.

Given Defendants’ superior and unique vantage points, Plaintiff Page and other

Elon football players reasonably looked to Defendants for guidance on head impacts—and
concussions, in particular—as well as the later-in-life consequences of receiving repetitive head
impacts during football games and practices at Elon.
121.

Defendants failed to act reasonably in light of their omissions, including by

failing to develop and implement adequate guidelines and rules regarding return-to-play criteria,
and other safety procedures. Defendants’ inaction and concealment increased the risk of longterm injury and illness in Elon football players, including Plaintiff Page—and indeed, did result
in them suffering from long-term brain injuries and disease.
122.

As a direct and proximate result of Defendants’ knowing concealment and/or

willful blindness, Plaintiff Page and other Elon football players suffered substantial injuries.
123.

As a direct result of the Defendants’ failure to reveal pertinent information,

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Plaintiff Page and Elon football players like him incurred economic and non-economic damages
in the form of pain and suffering, permanent brain damage, past and future medical costs, health
care, home care expenses, other out of pocket expenses, lost time, lost future earnings, and the
loss of enjoyment of life.
124.

As a result, Defendants are liable to Plaintiff and the Class for the full measure of

damages allowed under applicable law.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Jovon Page, individually and on behalf of the Class, respectfully
requests that the Court enter an Order providing for the following relief:
A.

Certify this case as a class action on behalf of the Class defined above, appoint

Plaintiff as representative of the Class, and appoint his counsel as Class Counsel;
B.

Declare that Defendants’ actions, as set out above, constitute negligence, breach

of contract, and fraudulent concealment;
C.

Award all economic, monetary, actual, consequential, compensatory, and punitive

damages available at law and caused by Defendants’ conduct, including without limitation
damages for past, present, and future medical expenses, other out of pocket expenses, lost time
and interest, lost future earnings, and all other damages suffered, including any future damages
likely to be incurred by Plaintiff and the Class;
D.

Award Plaintiff and the Class reasonable litigation expenses and attorneys’ fees;

E.

Award Plaintiff and the Class pre- and post-judgment interest, to the extent

allowable;
F.

Enter injunctive and/or declaratory relief as is necessary to protect the interests of

Plaintiff and the Class; and

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G.

Award such other and further relief as equity and justice may require.
JURY DEMAND

Plaintiff demands a trial by jury for all issues so triable.
Respectfully submitted,
JOVON PAGE, individually and on behalf of all
others similarly situated,
Dated: January 26, 2019

By: /s/ Jeff Raizner
One of Plaintiff’s Attorneys
Jeff Raizner
efile@raiznerlaw.com
RAIZNER SLANIA LLP
2402 Dunlavy Street
Houston, Texas 77006
Tel: 713.554.9099
Fax: 713.554.9098
Jay Edelson*
jedelson@edelson.com
Benjamin H. Richman*
brichman@edelson.com
EDELSON PC
350 North LaSalle Street, 14th Floor
Chicago, Illinois 60654
Tel: 312.589.6370
Fax: 312.589.6378
Rafey S. Balabanian*
rbalabanian@edelson.com
EDELSON PC
123 Townsend Street, Suite 100
San Francisco, California 94107
Tel: 415.212.9300
Fax: 415.373.9435
Counsel for Plaintiff and the Putative Class
*Admission to be sought.

32