Shook Team Helps Persuade Fourth Circuit That Return-to-Play Decisions Are Best Left to Team Doctors

U.S. Court of Appeals for the Fourth Circuit

On behalf of the National Collegiate Athletic Association (NCAA), Shook, Hardy & Bacon attorneys filed an amicus brief that helped shape a court's majority opinion on return-to-play policies in college-level athletics.

In August 2013, Gavin Class collapsed from heatstroke during his college football practice, lapsed into a coma, suffered multi-organ failure, and endured a liver transplant and numerous other surgeries. After years of rehabilitation, Class told his college, Towson University, that he was ready to take the field again, and he produced a doctor who agreed. Under the college’s “return to play” policy, Towson’s team doctor had the final say, and the doctor said the risks of serious injury or death were too high. Towson benched Class, who then sued the university alleging violations of the Americans with Disabilities Act and the Rehabilitation Act.

The federal district court agreed with Class, noting that the "team physician, who while qualified in sports medicine for the past five years, has no expertise in liver illness or heat injury.” The court ordered Towson to permit Class to "return to active status as a full participant in its football program.”

Towson appealed and asked NCAA to file an amicus brief in support. NCAA turned to Shook, Hardy & Bacon for assistance, and with just a few days to marshal NCAA’s arguments under the court’s expedited briefing schedule, a team led by Bill Odle, Phil Goldberg, Bill Martucci and Corby Jones evaluated the law and prevailing guidelines governing return-to-play decisions. Their brief asserted that the “medical risk and institutional capacity associated with returning a student-athlete to play, particularly when doing so could have fatal consequences, is a decision that must remain in the hands of the team physician—not student-athletes, parents, treating physicians, coaches and, least of all, courts. . . . When the team physician makes such a decision in good faith and based on reasoned medical judgments, courts should support, not overrule these decisions.” Were the district court’s decision permitted to stand, they argued, it would “adversely impact the ability of the NCAA’s member schools to follow the carefully-established Consensus Guidelines, which were designed to ensure that the diagnosis, management, and return-to-play determinations for collegiate student-athletes are the responsibility of the institution’s primary athletics health care provider” and thereby affect the more than 460,000 student-athletes annually competing in NCAA sporting events.

A panel of the Fourth Circuit agreed with Towson and the NCAA. A two-judge majority reversed the district court and found that “the University reasonably applied its Return-to-Play Policy.” In framing its discussion of the return-to-play issue, the majority prominently cited and quoted NCAA’s amicus brief. The court's majority opinion observed:

Unlike with many other educational activities, physical risk is an inherent element of athletic programs. The NCAA, as amicus, explains that decisions about the impact of health and safety risks on players “are made daily” concerning a host of “medical conditions[,] such as concussion, cervical spine trauma, cardiac arrest, knee injuries, and more.” Granting the Team Physician final clearance authority, a policy that is consistent with NCAA guidelines and national best practices, is a fair and reasonable manner for Towson University to coordinate these essential determinations for the unique and dynamic medical profiles of its several hundred student-athletes. While this policy does not completely safeguard against possible discrimination, it helps to ensure that the physician’s ethical and professional imperative to care for the best interests of student-athletes trumps other university concerns or motivations, including those that could be discriminatory. . . . Accordingly, we conclude that Towson University’s requirement that a student-athlete obtain the Team Physician’s clearance before returning from injury is legitimately an essential eligibility requirement. . . .