Indianapolis, Indiana personal injury lawyer represented Plaintiff, who sued Defendant on a negligence theory.

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Plaintiff Jennifer Finnerty, individually and as Personal Representative of the Estate of

Cullen Finnerty, brings this Complaint and Demand for Jury Trial against Defendant National

Collegiate Athletic Association, to obtain redress for Cullen Finnerty, who was injured and who

ultimately died as a result of Defendant's reckless disregard for his health and safety as a student-

athlete at the University of Toledo and Grand Valley State University. Plaintiff alleges as follows

upon personal knowledge as to herself and her own acts and experiences, and, as to all other

matters, upon information and belief, including investigation conducted by her attorneys.

PARTIES

1. Plaintiff Jennifer Finnerty brings this action on behalf of the Estate of Cullen

Finnerty, as Personal Representative of the Estate. Jennifer is a resident of the State of Michigan,

and Cullen Finnerty was domiciled in the State of Michigan when he died.

2. Defendant National Collegiate Athletic Association is an unincorporated

association with its principal place of business located at 700 West Washington Street,

Indianapolis, Indiana 46206. The NCAA is not organized under the laws of any State but is

Filed: 8/27/2018 11:00 AM

Myla A. Eldridge

Clerk

Marion County, Indiana

49D14-1808-CT-033896

Marion Superior Court, Civil Division 14

2

registered as a tax-exempt organization with the Internal Revenue Service. It is an unincorporated

organization.

JURISDICTION AND VENUE

3. Venue is proper in Marion County because Defendant NCAA has its principal place

of business in Marion County, located at 700 West Washington Street, Indianapolis, Indiana

46206.

4. As the NCAA has admitted in prior court proceedings, it is not a corporation, but

rather, an unincorporated association whose citizenship is determined by looking to the citizenship

of each and all of its members.

5. Because the NCAA has numerous members in Indiana (as well as in all other

states), it is deemed to be a citizen of Indiana. Therefore, diversity jurisdiction is lacking.

FACTUAL BACKGROUND

I. The NCAA Had a Duty to Protect Cullen Finnerty.

6. 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 in

the football programs at the University of Toledo and Grand Valley State University. According

to the NCAA, "[m]ore 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.”

7. 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.

8. To accommodate the wide spectrum of athletes at its member schools, the NCAA

has three different divisions of intercollegiate competition.

9. Each NCAA Division is composed of several "conferences” to facilitate regional

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league play.

10. The University of Toledo has a Division I football program in the Mid-American

Conference, of which it has been a member since 1950.

11. Grand Valley State University has a Division II football program in the Great Lakes

Intercollegiate Athletic Conference. Grand Valley State University Football has a long and storied

history, including appearances in six NCAA Division II national Title Games, and four Division

II National Championships since 2002, including three with Mr. Finnerty as starting quarterback.

12. The NCAA plays a significant role in governing and regulating the football

programs at the University of Toledo and Grand Valley State University and owes a duty of care

to safeguarding the well-being of its athletes.

13. 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,

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 As such, the genesis of the NCAA

was for a singular goal: "to keep college athletes safe.”3

1 Who We Are, National Collegiate Athletic Association, http://www.ncaa.org/about/who-

we-are (last visited August 27, 2018).

2 In 1910, the IAAUS changed its name to the National Collegiate Athletic Association.

3 Well-Being, National Collegiate Athletic Association, http://www.ncaa.org/health-and-

safety (last visited August 8, 2018)

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14. According to the NCAA, "[c]ollege and university presidents and chancellors guide

each division, supported by an extensive committee structure guided by athletic administrators,

faculty and student-athlete representatives [while each] division creates its own rules that follow

the overarching principles of the NCAA.”4

15. 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) (emphasis added).

16. 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,

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.

17. 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 well-

4 Membership, National Collegiate Athletic Association, http://www.ncaa.org/about/who-

we-are/membership (last visited August 27, 2018).

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being 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.)

18. 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. NCAA member

institutions are required to abide by the NCAA 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.

19. 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

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.”5

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

5 See, e.g., David Klossner, 2013-14 NCAA Sports Medicine Handbook, NATIONAL

C OLLEGIATE A THLETIC A SSOCIATION (Aug. 2013), available at

https://www.on.ncaa.com/2oEfOsq.

6

treatment and prevention of sports-related injuries upon which NCAA athletes, the University of

Toledo, Grand Valley State University, and all other member institutions can rely for guidance on

player-safety issues.

21. This has been the case since, at minimum, the time Mr. Finnerty played football at

the University of Toledo and Grand Valley State University.

22. Mr. Finnerty relied upon the NCAA'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.

23. As compared to Mr. Finnerty, the NCAA was in a superior position to know of and

mitigate the risks of him sustaining concussions and other TBIs while playing football at the

University of Toledo and Grand Valley State University. It failed to do so.

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

24. 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 memory loss, dementia,

depression, Alzheimer's disease, Parkinson's disease, chronic traumatic encephalopathy ("CTE”),

and other related symptoms.

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

them. As Jonathan J. Russin—assistant surgical director of 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.”6

6 Deanna Pai, Do Concussions Increase the Risk of Stroke or Brain Cancer?, Keck School

of Medicine at USC, https://bit.ly/2MzSkkC (last visited August 8, 2018).

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

in football follows.

A. An Overview of Concussions in Football.

27. 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.

28. 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.

29. 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.

30. Concussions typically occur when linear and rotational accelerations impact the

brain through either direct impacts to the head or indirect impacts that whiplash the head. During

the course of a college football season, studies have shown athletes can receive more than 1,000

impacts greater than 10 Gs (or gravitational) force. This is slightly more force than a fighter pilot

receives doing maximal maneuvers. The majority of football-related hits to the head exceed 20 Gs,

with some going well over 100 Gs.

31. 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

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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.”7

i. Concussion Symptoms.

32. 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, such as trouble remembering things that

happened right before and after the injury;

• 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 (such as being unable

to catch a ball or other easy tasks);

• feeling anxious or irritable for no apparent reason; or

• feeling overly tired.

33. 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. Post-Concussion Treatment.

34. 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

7 Malcolm Gladwell, Offensive Play, The New Yorker (October 19, 2009)

http://www.newyorker.com/magazine/2009/10/19/offensive-play (last visited August 8, 2018).

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particularly vulnerable to further injury.

35. 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.

36. 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, or, sometimes, even be permanent. Generally, people suffering from post-concussion

syndrome are referred to specialists for additional medical help.

37. 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. Studies Confirm the Dangers and Long-Term Effects of Concussions.

38. Two of the leading studies of the long-term effects of concussions were conducted

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.

39. 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.

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40. 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%).8

41. These more recent studies were neither aberrations nor surprises but confirmations

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

42. 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

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.9 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.”

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

presented by football. The editors of the Journal of the American Association recognized the long-

term risks posed by such head injuries, particularly in football, 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

8 Jesse Mez, MD, MS, et al., Clinicopathological Evaluation of Chronic Traumatic

Encephalopathy in Players of American Football, 318 JAMA 4, 360-370 (2017).

9 Sir William Bennett, Some Milder Forms of Concussion of the Brain, in A System of

Medicine Vol. 8 231-32 (2d ed. 1910).

10 Editors, The Football Mortality, 39 JAMA 1464 (1905).





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observed that a concussed player might go through multiple plays before his teammates noticed

his altered mental state.11

44. 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, and find that repetitive head impacts can cause permanent brain

damage and increased risk of long-term cognitive decline and disability.

45. 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

46. Countless studies were later conducted on boxers suffering chronic neurological

damage as a result of repeated head injuries, and who displayed signs of dementia and impairment

of motor function.14 As incidents of chronic encephalopathy increased, they were often

11 Edward Nichols, The Physical Aspect of American Football, 154 Boston Med. & Surgical

J.1 (1906).

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 &

12

characterized as a "Parkinsonian” pattern of progressive decline. However, in a 1940 publication

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 That

year, more than a decade after Dr. Martland's 1928 study, the American Football Coaches

Association first published a report warning that players who suffer concussions should be

removed from play.16

47. 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.17

48. 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”).18 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.

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, in Injuries of the Skull, Brain and Spinal Cord: Neuropsychiatric, Surgical, and

Medico-Legal Aspects 309 (S. Brock, ed. 1940).

16 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”).

17 Augustus Thorndike, Serious Recurrent Injuries of Athletes—Contraindications to

Further Competitive Participation, 247 New Eng. J. Med. 554, 555-56 (1952).

18 John R. Hughes & D. Eugene Hendrix, Telemetered EEG From A Football Player In

Action, 24 Electroencephalography & Clin. Neurophysiology 183 (1968).

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49. 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

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.19

50. Overall, countless studies—published in prominent medical journals, including 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. These studies collectively established that:

• repetitive head trauma in contact sports, including football, has

potential dangerous long-term effects on brain function;

• 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) 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 injury requires 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.

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

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

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

52. 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.

53. 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.”20

54. 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.

55. 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

symptomatic, and coined the phrase, "when in doubt, sit them out.”

20 Michael McCrea, et al., Acute Effects and Recovery Time Following Concussion in

Collegiate Football Players, The NCAA Concussion Study, The Journal of the American

Medical Association (November 19, 2003), available at

http://jama.jamanetwork.com/article.aspx?articleid=197668.

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56. Ultimately, while the NCAA knew of the harmful effects of TBI on athletes for

decades, they ignored these facts and failed to institute any meaningful methods of warning and/or

protecting the athletes, including the football players. For the NCAA, the continued expansion and

operation of college football was simply too profitable to put at risk.

III. The NCAA Breached Its Duties to Cullen Finnerty by Ignoring the Dangers of

Concussions and Failing to Implement Adequate Concussion Management

Protocols.

57. For decades, the NCAA has been aware—through its own institutional knowledge,

medical science, and news articles about former football players—that severe head impacts can

lead to long-term brain injury, including memory loss, dementia, depression, and CTE.

Unfortunately, while the NCAA knew about the harmful and devastating effects of these sub-

concussive and concussive injuries, it recklessly ignored these facts and failed to implement

reasonable concussion management protocols to protect its athletes, including Cullen Finnerty.

58. In fact, on information and belief, throughout the second half of the twentieth

century (and well into the twenty-first century), the NCAA was advised, by physicians and

researchers, of the severe risks associated with playing football and incurring TBIs.

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

even recognized the need for appropriate concussion management protocols. In its 1933 Sports

Medicine Handbook—which it distributed to all member institutions, including the University of

Toledo and Grand Valley State University—the NCAA specifically recognized that head injuries

warrant special attention and should not be regarded lightly.

60. 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. Notably, the 1933 Sports Medicine

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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 body-contact sport.”

61. The NCAA recognizes that its Sports Medicine Handbook "may constitute some

evidence of the legal standard of care.” Indeed, the NCAA 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.”

62. 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:

[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. In the area of the head

and neck being super cautious is the only route to follow.

It would be hoped that this type of situation would never occur, but

often, due to pressure from enthusiastic players, parents, coaches,

alumni, and even enthusiastic and well-meaning physicians, boys

who should not be playing are allowed to play. Needless to say, we

all want the athlete to compete as safely as possible and it is in this

interest which prompted the Committee to call attention to this very

important aspect of health care.

63. Rather than inform Mr. Finnerty (and other athletes at the University of Toledo and

Grand Valley State University) of these risks or implement protocols to protect and safeguard him

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from TBI-related injuries (as the NCAA promised to do through the NCAA Constitution, among

other things), the NCAA failed to meaningfully adopt or enforce the internationally accepted

guidelines regarding concussion management and return to play protocols until 2010.

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

the resources and authority that it possessed, the NCAA 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 Mr.

Finnerty, about the increased risk of concussive and sub-

concussive 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 return to play procedures or take

adequate action to educate athletes, including Mr. Finnerty,

about the risks of repetitive head injuries;

• conduct a football program that proactively encouraged Mr.

Finnerty and other football players at the University of Toledo

and Grand Valley State University to avoid head injuries,

instead compelling Mr. Finnerty and others to ignore

concussion symptoms and continue to play football within

moments of experiencing concussion symptoms.

• contact football players after they left the University of Toledo

and/or Grand Valley State University to inform them that they

had been exposed to an increased risk of long-term brain

damage by the sub-concussive and concussive blows sustained

while playing football for their respective school.

65. It was also not until 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.

66. Under that new policy, 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

18

shall be removed from practice or competition and evaluated by an athletics healthcare provider

with experience in the evaluation and management of concussions.”

67. 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.

68. 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.

69. This policy is also flawed: 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 condition to

make an informed decision about whether or not to continue playing, and is entirely dependent on

others, such as the NCAA, Grand Valley State University, and the University of Toledo, to identify

concussive injuries in real-time and take appropriate remedial actions. While Mr. Finnerty played

football at the University of Toledo and Grand Valley State University, the NCAA stood in the

role of guardian, tasked with making decisions in his best interest. The NCAA failed to fulfill that

role and instead acted in its own self-interest, to Mr. Finnerty's detriment.

70. In the end, the NCAA implemented these (still deficient) policies far too late for

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Mr. Finnerty.

FACTS SPECIFIC TO CULLEN FINNERTY

71. Mr. Finnerty played football at the University of Toledo in 2001 and Grand Valley

State University, from 2002–2006. At the University of Toledo, Mr. Finnerty was a red-shirt

freshman, and at Grand Valley Statue University, Mr. Finnerty was the starting quarterback.

During his playing career, Mr. Finnerty participated in dozens of football games, as well as

hundreds of practices and scrimmages.

72. While playing football at the University of Toledo and Grand Valley State

University, Mr. Finnerty was knocked unconscious and sustained multiple concussions and/or sub

concussive impacts to the head during games and/or practice.

73. Since the inception of the football programs at University of Toledo and Grand

Valley State University, through at least 2010, there were no adequate concussion management

protocols or policies in place to address and treat concussions sustained by Mr. Finnerty and others

during practices and in games.

74. As a Senior at Grand Valley State University Mr. Finnerty became the winningest

quarterback in NCAA All-Division history, with a record of 51-4. That season he was named to

the American Football Coaches Association All America Team.

75. After college, Mr. Finnerty's mental and physical health appeared to remain

relatively normal, as he began his career as a medical device salesman.

76. Things soon began to change. Mr. Finnerty began to suffer from paranoia, fatigue,

and forgetfulness.

77. One weekend, Mr. Finnerty had went fishing on a river in Lake County, and was to

be picked up later.

20

78. While on the river, Mr. Finnerty became confused and anxious, calling his wife

stating that he was being followed by two men and was getting out of the water.

79. This call was unfortunately reminiscent of an earlier incident he had. Mr. Finnerty

was out with co-workers in Detroit, Michigan when he began to believe he was being followed.

In a bout of paranoia, Mr. Finnerty drove 150 miles to his brother's house. When he arrived, there

was nobody behind him.

80. Nonetheless, Mr. Finnerty's brother-in-law and father-in-law arrived to pick up Mr.

Finnerty at a pre-arranged pickup location on his fishing trip, but he never arrived.

81. Three days later, Mr. Finnerty was found deceased in the woods, with no evidence

of trauma. He was 30 years old.

82. An autopsy was performed, and determined that Mr. Finnerty died of pneumonia,

most likely from the aspiration of gastric contents complicated by Oxycodone toxicity and CTE.

Mr. Finnerty had been prescribed Oxycodone as a result of chronic back pain in January of 2013.

Both CTE and prescription oxycodone put Mr. Finnerty at a higher than normal risk for aspiration.

83. Mr. Finnerty's brain was studied at the Center for the Study of Traumatic

Encephalopathy at Boston University by Dr. Anne McKee, and was diagnosed with Stage II/IV

CTE.

FIRST CAUSE OF ACTION

NEGLIGENCE – WRONGFUL DEATH

84. Plaintiff incorporates by reference the foregoing allegations.

85. 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 Mr. Finnerty. 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.

86. The duties of the NCAA included an obligation to supervise, regulate, and monitor

the rules of the University of Toledo and Grand Valley State University football programs and

provide appropriate and up-to-date guidance and regulations to minimize the risk of long-term and

short-term brain damage to football players at the University of Toledo and Grand Valley State

University, including Mr. Finnerty.

87. The NCAA had a duty to educate University of Toledo and Grand Valley State

University football players on the proper ways to evaluate and treat TBI during football games and

practices, including repetitive concussive and sub-concussive injury. The NCAA's duties further

included a duty to warn its athletes 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.

88. The NCAA had a duty not to conceal material information from University of

Toledo and Grand Valley State University football players, including Mr. Finnerty.

89. The NCAA breached its duties owed to Mr. Finnerty by failing to implement,

promulgate, or require appropriate and up-to-date 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:

(a) failing to recognize and monitor concussive and sub-

concussive injury during football practices and games;

(b) failing to inform student football players of the dangers of

22

concussive and sub-concussive injuries;

(c) failing to 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 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 inform the families of student football players who

sustained concussive and/or sub-concussive injuries; and

(f) failing to provide adequate notification, warning and

treatment for latent neuro-cognitive and neuro-behavioral

effects of concussive and sub-concussive injuries, after the

time student football players left the University of Toledo

and Grand Valley State University.

90. The NCAA breached its duties to student football players, including Mr. Finnerty,

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 Mr. Finnerty.

91. The NCAA breached its duties to student football players, including Mr. Finnerty,

by fraudulently concealing or failing to disclose and/or failing to recognize, and/or being willfully

blind to: (a) material information regarding the long-term risks and effects of repetitive head

trauma the 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 student football players.

92. As a football player at the University of Toledo, Mr. Finnerty relied upon the

23

guidance, expertise, and instruction of the NCAA in understanding risks associated with the

serious and life-altering concussive and sub-concussive hits in football.

93. As a football player at Grand Valley State University, Mr. Finnerty relied upon the

guidance, expertise, and instruction of the NCAA in understanding risks associated with the

serious and life-altering concussive and sub-concussive hits in football.

94. At all times, the NCAA had superior knowledge of material information regarding

the effect of repeated traumatic head injuries. Because such information was not readily available

to football players at the University of Toledo or Grand Valley State University, including Mr.

Finnerty, the NCAA knew or should have known that they would act and rely upon its guidance,

expertise, and instruction on these crucial medical issues while attending these universities, and

thereafter.

95. 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.

96. 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 at an early age.

97. Mr. Finnerty experienced repetitive concussive and sub-concussive impacts during

his college football career, which significantly increased his risk of developing neurodegenerative

24

disorders and diseases, including but not limited to CTE, Alzheimer's disease, and other similar

cognitive-impairing conditions.

98. The repetitive head accelerations and hits to which Mr. Finnerty was exposed

presented risks of latent and long-term debilitating chronic illnesses. Absent the NCAA's

negligence and concealment, the risk of harm to Mr. Finnerty would have been materially

decreased, and Mr. Finnerty would not have sustained debilitating mental health issues and died.

99. Thus, as a direct and proximate result of the NCAA's negligence, Mr. Finnerty

sustained serious injuries and death.

100. As a result of its negligence, the NCAA is liable to Plaintiff for the full measure of

damages and other relief allowed under applicable law.

SECOND CAUSE OF ACTION

NEGLIGENCE – SURVIVAL ACTION

101. Plaintiff incorporates by reference the foregoing allegations.

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

athletics, the NCAA has historically assumed a duty to protect the health and safety of its athletes,

including Mr. Finnerty. 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 to provide appropriate and up-to-date guidance and regulations to

minimize the risk of injury to its athletes.

103. The duties of the NCAA included an obligation to supervise, regulate, and monitor

the rules of the football programs at the University of Toledo and Grand Valley State University

and provide appropriate and up-to-date guidance and regulations to minimize the risk of long-term

and short-term brain damage to University of Toledo and Grand Valley State University football

players, including Mr. Finnerty.

104. The NCAA had a duty to educate football players at the University of Toledo and

Grand Valley State university on the proper ways to evaluate and treat TBI during football games

and practices, including repetitive concussive and sub-concussive injury. The NCAA's duties

further included a duty to warn its athletes 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.

105. The NCAA had a duty not to conceal material information from football players at

the University of Toledo and Grand Valley State University, including Mr. Finnerty.

106. The NCAA breached its duties owed to Mr. Finnerty by failing to implement,

promulgate, or require appropriate and up-to-date 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:

(a) failing to recognize and monitor concussive and sub-

concussive injury during football practices and games;

(b) failing to inform student football players of the dangers of

concussive and sub-concussive injuries;

(c) failing to 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 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 inform the families of student football players who

sustained concussive and/or sub-concussive injuries; and

26

(f) failing to provide adequate notification, warning and

treatment for latent neuro-cognitive and neuro-behavioral

effects of concussive and sub-concussive injuries, after the

time student football players left the University of Toledo or

Grand Valley State University.

107. The NCAA breached its duties to Mr. Finnerty, 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 Mr. Finnerty.

108. As a football player at the University of Toledo and Grand Valley State University,

Mr. Finnerty relied upon the guidance, expertise, and instruction of the NCAA in understanding

risks associated with the serious and life-altering concussive and sub-concussive hits in football.

109. At all times, the NCAA had superior knowledge of material information regarding

the effect of repeated traumatic head injuries. Because such information was not readily available

to football players at the University of Toledo and Grand Valley State University, including Mr.

Finnerty, the NCAA knew or should have known that they would act and rely upon its guidance,

expertise, and instruction on these crucial medical issues while attending these universities.

110. 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 punch drunk syndrome studied

and reported by Harrison Martland in 1928.

111. 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 at an early age.

112. Mr. Finnerty experienced repetitive concussive and sub-concussive impacts during

his college football career, which significantly increased his risk of developing neurodegenerative

disorders and diseases, including but not limited to CTE, Alzheimer's disease, and other similar

cognitive-impairing conditions.

113. The repetitive head accelerations and hits to which Mr. Finnerty was exposed

presented risks of latent and long-term debilitating chronic illnesses. Absent the NCAA's

negligence and concealment, the risk of harm to Mr. Finnerty would have been materially

decreased, and Mr. Finnerty would not have sustained debilitating mental health issues and died.

114. Thus, as a direct and proximate result of the NCAA's negligence, Mr. Finnerty

incurred damages in the form of permanent brain damage, emotional distress, medical costs, health

care, secondary care, other out-of-pocket expenses, lost time, lost earnings, and other damages.

115. As a result of its negligence, the NCAA is liable to Plaintiff for the full measure of

damages and other relief allowed under applicable law.

THIRD CAUSE OF ACTION

BREACH OF EXPRESS CONTRACT

116. Plaintiff incorporates by reference the foregoing allegations.

117. As a football player at the University of Toledo and Grand Valley State University,

both of which are governed by the NCAA, Mr. Finnerty and other football players were required

to, and did, enter into contracts with the NCAA as a prerequisite to sports participation. The

contract required Mr. Finnerty to complete a form affirming that he had read the NCAA regulations

and applicable NCAA Division manual, which expressly encompassed the NCAA Constitution,

28

Operating Bylaws, and Administrative Bylaws, and further, that he agreed to abide by Division

Bylaws.

118. In exchange for Mr. Finnerty's agreement, the NCAA promised to perform certain

services and functions, including, amongst other things:

(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;

(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.

119. 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,

Mr. Finnerty fulfilled his contractual obligations to the NCAA.

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

agreement by failing to ensure Mr. Finnerty was 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 Mr. Finnerty about the symptoms and long-

term risks of concussions and concussion-related traumatic injury.

121. Mr. Finnerty entered into a written agreement with the NCAA in which he

committed to play football at the University of Toledo, to attend the University of Toledo as a

student, and to comply with all codes of conduct and obligations as both a football player and

student at the University of Toledo.

122. Likewise, Mr. Finnerty entered into a written agreement with the NCAA in which

29

he committed to play football at Grand Valley State University, to attend Grand Valley State

University as a student, and to comply with all codes of conduct and obligations as both a football

player and student at Grand Valley State University.

123. Mr. Finnerty fulfilled his contractual obligations to the NCAA.

124. The NCAA's contractual breached caused Mr. Finnerty to suffer physical injury

and damages in the form of, inter alia, past medical expenses, lost time, lost earnings, and other

damages.

125. As a result of its misconduct, the NCAA is liable to Plaintiff for the full measure of

damages and other relief allowed under applicable law.

FOURTH CAUSE OF ACTION

BREACH OF IMPLIED CONTRACT

126. Plaintiff incorporates by reference the foregoing allegations.

127. To the extent that an express written contract cannot be established between the

NCAA and Mr. Finnerty, the facts set forth above support the finding of an implied contract.

128. Under the implied contract, NCAA athletes, including Mr. Finnerty, agreed to be

bound by NCAA rules and regulations in exchange for their participation in NCAA-controlled

athletic programs, including the University of Toledo and Grand Valley State University football

programs. As a condition of the implied contract, the NCAA agreed to abide by the promises set

forth in its own Constitution and Bylaws, as described above.

129. Mr. Finnerty indicated his acceptance of the contract, and further, fully performed

under the contract, by participating in the University of Toledo football program in accordance

with NCAA rules and regulations.

130. Likewise Mr. Finnerty indicated his acceptance of the contract, and further, fully

performed under the contract, by participating in the Grand Valley State University football

30

program in accordance with NCAA rules and regulations.

131. The NCAA breached its implied contractual duties by failing to ensure Mr. Finnerty

was provided with a safe environment in which to participate in football activities. The NCAA

further breached its contract by concealing and/or failing to properly educate and warn Mr.

Finnerty about the symptoms and long-term risks of concussions and concussion-related traumatic

injury.

132. The NCAA's breaches caused Mr. Finnerty to suffer physical injury and damages

in the form of, inter alia, past medical expenses, other out-of-pocket expenses, lost time, lost

earnings, and other damages, including death.

133. As a result of its misconduct, the NCAA is liable to Plaintiff for the full measure of

damages and other relief allowed under applicable law.

FIFTH CAUSE OF ACTION

BREACH OF EXPRESS CONTRACT – THIRD PARTY BENEFICIARY

134. Plaintiff incorporates by reference the foregoing allegations.

135. To the extent no express or implied contract is found to exist between Mr. Finnerty

and the NCAA, an express contract existed between the NCAA and the University of Toledo.

136. Under the terms of that contract, the University of Toledo agreed to abide by the

applicable NCAA rules and regulations, including those expressly set forth in the NCAA's

Division Manuals, Constitution, and Bylaws.

137. Under the terms of that contract, as set forth in the NCAA Constitution and

encompassed within the NCAA Division Manuals, the NCAA and the University of Toledo agreed

to, amongst other things: (1) conduct intercollegiate athletic programs in a manner designed to

protect and enhance the physical and educational well-being of student athletes, including Mr.

Finnerty; and (2) protect the health of and provide a safe environment for each of its participating

31

athletes, including Mr. Finnerty.

138. Likewise, To the extent no express or implied contract is found to exist between

Mr. Finnerty and the NCAA, an express contract existed between the NCAA and Grand Valley

State University.

139. Under the terms of that contract, Grand Valley State University agreed to abide by

the applicable NCAA rules and regulations, including those expressly set forth in the NCAA's

Division Manuals, Constitution, and Bylaws.

140. Under the terms of that contract, as set forth in the NCAA Constitution and

encompassed within the NCAA Division Manuals, the NCAA and Grand Valley State University

agreed to, amongst other things: (1) conduct intercollegiate athletic programs in a manner designed

to protect and enhance the physical and educational well-being of student athletes, including Mr.

Finnerty; and (2) protect the health of and provide a safe environment for each of its participating

athletes, including Mr. Finnerty.

141. Mr. Finnerty was an intended third-party beneficiary of the contract between the

NCAA and the University of Toledo, as well as the contract between Grand Valley State University

and the NCAA. Such an intention can be found in the express language of the NCAA's rules and

regulations, as well as the stated purpose and principles of the NCAA organization.

142. The NCAA breached the contractual duties owed to Mr. Finnerty under that

contract by: (1) failing to implement or require rules of play and return to play criteria to minimize

or prevent the risk of concussions and concussion-related injuries to them; and (2) failing to

adequately inform and educate him on the symptoms and long-term dangers of concussions and

concussion-related injuries.

143. The NCAA's breach caused Mr. Finnerty to suffer physical injury and damages in

32

the form of, inter alia, past medical expenses, other out-of-pocket expenses, lost time, lost future

earnings, and other damages, including death.

144. As a result of its misconduct, the NCAA is liable to Plaintiff for the full measure of

damages and other relief allowed under applicable law.

SIXTH CAUSE OF ACTION

RESTITUTION

(In the Alternative to Breach of Contract)

145. Plaintiff incorporates by reference the foregoing allegations, excluding Paragraphs

82–142.

146. The NCAA receives, and during Mr. Finnerty's participation on the University of

Toledo football team, received, significant revenues from the collegiate football played by its

athletes. These revenues include, but are not limited to, contractual revenues from broadcasting,

merchandising agreements, and ticket sales.

147. The NCAA receives, and during Mr. Finnerty's participation on the Grand Valley

State University football team, received, significant revenues from the collegiate football played

by its athletes. These revenues include, but are not limited to, contractual revenues from

broadcasting, merchandising agreements, and ticket sales.

148. The NCAA appreciates and has knowledge of such benefits.

149. Under principles of equity and good conscience, the NCAA should not be permitted

to retain the profits received at the expense of Plaintiff, while refusing to pay for medical and other

expenses incurred as a result of its unlawful misconduct or otherwise failing to prevent such

injuries.

150. Plaintiff seeks restitution and/or disgorgement of all monies the NCAA has unjustly

received as a result of its misconduct alleged herein.

33

SEVENTH CAUSE OF ACTION

FRAUDULENT CONCEAMENT

151. Plaintiff incorporates by reference the foregoing allegations.

152. The NCAA knew that repetitive head impacts in football game and full-contact

practices created a risk of harm to student-athletes that was similar or identical to the risk boxers'

faced when receiving repetitive impacts to the head during boxing practices and matches, and

professional football players, many of whom were forced to retire from professional football

because of head injuries.

153. The NCAA was aware of and understood the significance of the published medical

literature described in the preceding paragraphs of this Complaint, which detailed the serious risk

of short-term and long-term brain injury associated with repetitive traumatic impact to the head to

which student football players, including Mr. Finnerty, were exposed.

154. The NCAA was willfully blind to and/or knowingly concealed from Finnerty the

risks of TBI in NCAA football games and practices, including the risks associated with returning

to physical activity too soon after sustaining a sub-concussive or concussive injury.

155. Through concealment and affirmative misrepresentation or material facts, the

NCAA intended to induce a false belief, under circumstances creating a duty to speak. Defendant

intended to induce a false belief that student football players, including Mr. Finnerty, should

continue to play football and should not be prevented from playing football after a concussion, or

several concussions that should have required time to heal.

156. Student football players, including Mr. Finnerty, could not have reasonably been

expected to know or discover the truth about the risks associated with sub-concussive or

concussive injuries, or were prevented or mislead from obtaining such truthful information. Mr.

34

Finnerty was under the care and treatment of the NCAA and justifiably relied on its silence, and

representations, as representing facts that did not exist.

157. Given the NCAA's superior and unique vantage point, Mr. Finnerty reasonably

looked to the NCAA for guidance on head injuries and concussions, including the later-in-life

consequences of the repetitive head impacts sustained during football games and practices and the

University of Toledo and Grand Valley State University.

158. The concealed information was such that Mr. Finnerty would have acted differently

had he been aware of the material facts known to, concealed, and misrepresented by the NCAA.

Had Mr. Finnerty known the full facts in the NCAA's possession, he would: (i) not have continued

to play after an injury; (ii) have taken additional time to allow brain injuries to heal before returning

to play; (iii) have taken additional precautions while playing football; or (iv) not have continued

to play college football at all. Despite the NCAA's knowledge, it failed to act reasonably by

developing appropriate guidelines or rules regarding return to play criteria and other safety

procedures. The NCAA's inaction, concealment, and misrepresentations, increased the risk of

long-term injury and illness in student football players, including Mr. Finnerty.

159. As a direct and proximate result of the NCAA's knowing concealment, willful

blindness, and affirmative misrepresentations, Mr. Finnerty was prevented from knowing the true

risks associated with his decision to play football, and the true cause of his injuries.

160. As a direct and proximate result of the NCAA's knowing concealment, willful

blindness, and affirmative misrepresentations, Mr. Finnerty incurred damages in the form of

permanent brain damage, emotional distress, medical costs, health care, secondary care, other out-

of-pocket expenses, lost time, lost earnings, death and other damages.

161. As a result of their misconduct, the NCAA is liable to Plaintiff for the full measure

35

of damages allowed under applicable law.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Jennifer Finnerty, individually and as Personal Representative of

the Estate of Cullen Finnerty, respectfully requests that the Court enter an Order providing for the

following relief:

A. Declare that Defendant's actions, as set out above, constitute negligence, breach of

contract, and fraudulent concealment;

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

damages caused by Defendant's conduct, including without limitation damages for past medical

expenses, other out of pocket expenses, lost time and interest, lost future earnings, death, and other

damages;

C. Award Plaintiff restitution and/or disgorgement of all monies Defendant has

unjustly received as a result of its misconduct alleged herein;

D. Award Plaintiff reasonable litigation expenses and attorneys' fees;

E. Award Plaintiff 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

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

36

JURY DEMAND

Defendant's verdict.