CHICAGO — A federal judge won’t sideline a lawsuit from the family of a Pittsburg State University student who committed suicide four years after suffering more than 100 concussions while playing football for the Kansas college.
Charles Langston, the administrator of the estate of Zack Langston, filed a class action complaint along with Danae Young, the mother of Zack’s son, against the Mid-America Intercollegiate Athletics Association, PSU’s conference, and the NCAA, alleging negligence, breach of contract and unjust enrichment.
The case was transferred from federal court in Kansas to U.S. District Judge John Z. Lee in Chicago. In an opinion issued March 25, Judge Lee rejected the defendants’ motion to dismiss the complaint for procedural shortcomings.
Zack Langston was an outside linebacker from 2007 through 2010 at Pittsburg State, a small university located just over the Kansas-Missouri state line, about 30 miles northwest of Joplin, Mo. At the end of his college career he “began struggling with severe anxiety and stress” with symptoms including “drastic mood swings and anger issues” along with “memory problems and depression,” according to Judge Lee's opinion. He fatally shot himself in the chest on Feb. 24, 2014, at age 26, after which Boston University’s Chronic Traumatic Encephalopathy Center examined his brain and diagnosed stage II/IV CTE.
The original complaint details practice drills that resulted in “repeated concussive and sub-concussive impacts,” along with allegations the NCAA and MIAA “lacked adequate concussion management protocols and return-to-play guidelines” as well as detailing one instance in which the NCAA and MIAA withheld “medical attention and treatment that they knew was necessary to monitor, manage, and mitigate risks associated with traumatic brain injuries caused by concussive or sub-concussive hits.”
Although the applicable Kansas negligence law has a statutory limitation period of two years, Lee said it would be inappropriate to dismiss on those grounds at this stage because Langston’s complaint included allegations the MIAA and NCAA concealed facts from players and families regarding failure to protect athletes. If he can prove those allegations, Lee explained, Langston can defeat the defense his claims are time-barred.
The breach of contract claims have five-year limits, and although that might have expired five years from the end of Langston’s playing career, Lee noted a medical monitoring settlement the NCAA signed to end a different class action changed the timing for Langston’s claims, meaning they had not expired when the plaintiffs filed in June 2017. Though that agreement didn’t directly affect claims against the MIAA, Lee wouldn’t dismiss those claims on the same grounds he let the negligence claims survive.
Lee used similar reasoning in refusing to dismiss the unjust enrichment claim against the MIAA while also noting it’s unclear if the conference benefitted from Langston’s football career after his playing days “and nothing in the complaint forecloses” that possibility.
Both the NCAA and MIAA said Langston failed to make an adequate breach of contract claim. But Lee agreed with Langston that his son’s form agreement with the NCAA established an express contractual relationship with the NCAA Constitution, bylaws and rules and regulations are sufficient basis for the implied contract claims against the NCAA and MIAA.
“A written policy alone cannot create an implied contract,” Lee wrote. “Nonetheless, Kansas law is replete with cases in which courts have held that an entity’s express policy may be considered as one of many factors in determining whether an implied contract exists.”
Ultimately, Lee said, Langston’s allegations — including those of a breach of contract claim as a third-party beneficiary — suffice because he said his son “agreed to play under the NCAA’s and the MIAA’s control in accordance with their guidelines in exchange for their providing him with a safe environment in which to play football.”
Langston is represented in the action by attorneys Jay Edelson, of Edelson P.C., and Shannon M. McNulty, of Clifford Law Offices, both of Chicago; and Sol Weiss, of Anapol Weiss, of Philadelphia.
The NCAA is represented by attorneys Mark Mester and Johanna Spellman, of Latham & Watkins, of Chicago.
The MIAA is represented by attorneys Gregory Whiston and Kyle Ritchie, of Seigfreid Bingham, of Kansas City.