Davis v. NCAA closed this week at $140 million total. The NCAA spent the trial calling CTE a “hypothetical” disease. The NCAA’s own medical handbook from 1933 says otherwise.
If one thinks this case is the first of dozens, hundreds, thousands of such cases to come... what liability do universities already have for their participation in this voluntary (NCAA) organization? Presumably the NCAA bank accounts run dry very fast leaving only the institutions themselves, and disassociating from the NCAA going forward doesn't help for injuries already incurred. Do the state universities have some measure of sovereign immunity?
On NCAA bank accounts running dry and university liability: you're right that if Davis is the leading edge of a sustained litigation flow, NCAA reserves get exhausted before the case pipeline does. The NCAA's reserves are roughly $1-2B; ten Davis-magnitude verdicts (post-appeal) could meaningfully deplete that. After the NCAA, plaintiffs' lawyers pursue the deeper-pocket defendants (the member institutions).
The legal frameworks for university liability run through multiple doors. Joint and several liability if plaintiffs can show the schools participated in the failure to warn. Concert of action or civil conspiracy for collective failure. Vicarious liability if the NCAA is an agent of the membership (an arguable theory). And direct negligence claims against the specific school where each plaintiff played, separate from claims against the NCAA.
The 1933 handbook's distribution is particularly important here. The handbook went TO the member schools. The schools had the warning. The schools nonetheless ran football programs with knowledge of the CTE-precursor risks the handbook described. That's a direct-knowledge fact pattern at the school level, not an NCAA-only fact pattern.
On disassociating from the NCAA going forward: exit doesn't help for past injuries. Statute of limitations runs from injury discovery (often postmortem CTE diagnosis), not from membership status. A school that leaves the NCAA tomorrow still owes for injuries sustained while in membership. It's one of the reasons conference-separation isn't a clean liability ring-fence; it's mostly forward-looking. It's also one of the reasons settlement is more rational than continuing to litigate — the NFL's 2015 settlement contained per-plaintiff exposure even for retired players whose injuries predated the settlement.
One layer worth digging up a bit...the NCAA's authority is also financial. March Madness media rights produce roughly $900M of the NCAA's $1.2B annual revenue, redistributed to conferences and schools by performance. So when the NCAA's bank account is at risk, member institutions face two exposures: joint and several liability for past failures (your question) AND loss of the redistributed tournament revenue. The membership has revenue-stream incentives to support settlement before bankruptcy. That's a structural reason these questions tend to resolve sooner rather than later — and part of why conference-separation costs more than the litigation argument alone implies. I've written about this before: the NCAA's leverage stems less from legal clarity than from economic centrality. https://kylesaunders.substack.com/p/litigation-as-governance-in-college
On sovereign immunity: this is where the answer gets state-by-state with significant variance. State universities get partial protection through state sovereign immunity statutes, but the protection isn't uniform. State Tort Claims Acts cap damages in many states (Texas's TTCA caps personal injury at $250K per claim under most circumstances; California's has different rules; each state's statute matters). That's a real shield for individual cases but not for the cumulative class. The proprietary-vs-governmental-function distinction matters too — football programs may be characterized as proprietary commercial activities, which can defeat immunity, and courts have split on the question. Eleventh Amendment bars federal-court suits but not state-court suits, and Davis was state court (Dallas County). Insurance operates within the immunity framework.
The practical effect: private universities (SMU, Notre Dame, Stanford, USC, Duke, Vanderbilt, et al.) face full mass-tort exposure. State universities face capped exposure that's smaller per case but doesn't eliminate liability. The mass-tort math is therefore highly skewed by the composition of the plaintiff pool — if a meaningful share of plaintiffs are former players from private schools, the dollar exposure on those cases looks closer to Davis magnitude. If they're from state schools, the exposure is partially capped.
This is worth a follow-up piece on the layered-liability question specifically. Thanks for asking it.
If one thinks this case is the first of dozens, hundreds, thousands of such cases to come... what liability do universities already have for their participation in this voluntary (NCAA) organization? Presumably the NCAA bank accounts run dry very fast leaving only the institutions themselves, and disassociating from the NCAA going forward doesn't help for injuries already incurred. Do the state universities have some measure of sovereign immunity?
On NCAA bank accounts running dry and university liability: you're right that if Davis is the leading edge of a sustained litigation flow, NCAA reserves get exhausted before the case pipeline does. The NCAA's reserves are roughly $1-2B; ten Davis-magnitude verdicts (post-appeal) could meaningfully deplete that. After the NCAA, plaintiffs' lawyers pursue the deeper-pocket defendants (the member institutions).
The legal frameworks for university liability run through multiple doors. Joint and several liability if plaintiffs can show the schools participated in the failure to warn. Concert of action or civil conspiracy for collective failure. Vicarious liability if the NCAA is an agent of the membership (an arguable theory). And direct negligence claims against the specific school where each plaintiff played, separate from claims against the NCAA.
The 1933 handbook's distribution is particularly important here. The handbook went TO the member schools. The schools had the warning. The schools nonetheless ran football programs with knowledge of the CTE-precursor risks the handbook described. That's a direct-knowledge fact pattern at the school level, not an NCAA-only fact pattern.
On disassociating from the NCAA going forward: exit doesn't help for past injuries. Statute of limitations runs from injury discovery (often postmortem CTE diagnosis), not from membership status. A school that leaves the NCAA tomorrow still owes for injuries sustained while in membership. It's one of the reasons conference-separation isn't a clean liability ring-fence; it's mostly forward-looking. It's also one of the reasons settlement is more rational than continuing to litigate — the NFL's 2015 settlement contained per-plaintiff exposure even for retired players whose injuries predated the settlement.
One layer worth digging up a bit...the NCAA's authority is also financial. March Madness media rights produce roughly $900M of the NCAA's $1.2B annual revenue, redistributed to conferences and schools by performance. So when the NCAA's bank account is at risk, member institutions face two exposures: joint and several liability for past failures (your question) AND loss of the redistributed tournament revenue. The membership has revenue-stream incentives to support settlement before bankruptcy. That's a structural reason these questions tend to resolve sooner rather than later — and part of why conference-separation costs more than the litigation argument alone implies. I've written about this before: the NCAA's leverage stems less from legal clarity than from economic centrality. https://kylesaunders.substack.com/p/litigation-as-governance-in-college
On sovereign immunity: this is where the answer gets state-by-state with significant variance. State universities get partial protection through state sovereign immunity statutes, but the protection isn't uniform. State Tort Claims Acts cap damages in many states (Texas's TTCA caps personal injury at $250K per claim under most circumstances; California's has different rules; each state's statute matters). That's a real shield for individual cases but not for the cumulative class. The proprietary-vs-governmental-function distinction matters too — football programs may be characterized as proprietary commercial activities, which can defeat immunity, and courts have split on the question. Eleventh Amendment bars federal-court suits but not state-court suits, and Davis was state court (Dallas County). Insurance operates within the immunity framework.
The practical effect: private universities (SMU, Notre Dame, Stanford, USC, Duke, Vanderbilt, et al.) face full mass-tort exposure. State universities face capped exposure that's smaller per case but doesn't eliminate liability. The mass-tort math is therefore highly skewed by the composition of the plaintiff pool — if a meaningful share of plaintiffs are former players from private schools, the dollar exposure on those cases looks closer to Davis magnitude. If they're from state schools, the exposure is partially capped.
This is worth a follow-up piece on the layered-liability question specifically. Thanks for asking it.
Super interesting. Thank you.