The NCAA Gave Mental Health the Old College Try and Failed: Why Federal Regulation of Student Athletes' Mental Health Should Be Enacted
INTRODUCTION
The mental health of athletes, in particular the mental health of college athletes, is held to a different standard than the rest of the general student body. Student-athletes not only balance their training and game schedules but also a full course load. While the National Collegiate Athletic Association (NCAA) mandates schools to provide mental health resources, many student-athletes do not feel that their schools properly prioritize mental health.
The Co-Authors of this Note interviewed a small sample size of former male and female collegiate athletes who played different sports in various collegiate divisions.[1] In each interview, a common theme arose: nearly every school across all divisions lacked proper mental health resources and accommodations for their student-athletes. Coaches were more concerned about winning, no matter the toll it took on their student-athletes. Many of the interviewees felt their schools and athletic departments did not prioritize their mental health and did not take active measures in combating potential mental health issues.[2]
As the national concern for mental health grows, the NCAA and member schools should actively address this problem. However, as current law stands, the NCAA and member schools are not always held accountable for the mental health of their student-athletes. Accordingly, federal regulations to oversee the mental health and well-being of student-athletes should be implemented, and universities and the NCAA should be obligated to comply with these regulations in order to protect the health and well-being of all student-athletes.
I. Mental Health and Student-Athletes
Mental health impacts both non-athletes and athletes. As mental health continues to draw national awareness, it is important to understand what impacts mental health. Further, student-athletes can have their mental health affected by factors specific to the sports world.
A. Mental Health Overview
Mental health encompasses an individual’s psychological, emotional, and social well-being. Mental health affects how we think, feel, and act. There are numerous factors that contribute to an individual’s mental health, including biological factors, family history, life experiences, lifestyle, diet, and physical activity.
A leading cause of disability is mental illness, and individuals who suffer from poor mental health can also suffer negative consequences that adversely impact their lives. Poor mental health can cause severe behavioral, physical, or emotional health problems and can lead to depression, anxiety, physical injury, exhaustion, or even suicide. Numerous other complications can arise from poor mental health as well, including substance abuse, social isolation, relationship difficulties, or conflicts with families, friends, or co-workers. However, a healthy mind can help an individual cope with stress, be physically healthy, have good relationships, and work productively.
The trend in recent years has been to prioritize mental health and implement a work-life balance. Companies are now giving employees mental health days, which is paid time off to use when employees need to focus on their mental health. Colleges are beginning to recognize the importance of mental health. Most universities offer counseling services on campus and schools will send out emails on mental health resources. Though employees and students are starting to reap the benefits of the reprioritization of mental health, the same cannot be said for athletes, specifically collegiate athletes. Collegiate athletes are expected to balance a full class schedule, training, games, and their mental health with minimal support.
B. Student-Athletes and Their Mental Health
In 2013, the chief medical officer of the NCAA, Brian Hainline, indicated that mental health was the principal health and safety concern for the NCAA. While the NCAA’s Constitution requires member school to create an environment where physical and mental health are prioritized, it appears that member schools have not done enough. A study from the NCAA determined that over 30% of student-athletes have suffered overwhelming anxiety.[3]
Though the issues surrounding mental health are starting to receive general attention and awareness, there is a general misunderstanding that student-athletes are at a lower risk for mental health issues because their consistent exercise provides psychological benefits. A 2016 study found that 23.7% of student-athletes suffer from clinically depressive symptoms.[4] A supporting NCAA report also found that one in four college athletes will suffer from depression.[5] This ratio is identical to the ratio found in the general population.[6] There are also several sports-related factors that contribute to an athlete’s mental health, such as physical risk, hard coaching, substance abuse, sports gambling and culture, and gender and sex discrimination.
1. Physical Risks and Trauma
Physical and mental health are closely intertwined, especially in athletes. For instance, when an athlete is physically injured, there is an increased risk of developing a mental health disorder.[7] When a student-athlete must adhere to a rigorous training schedule, classes, and travel for games, the athlete’s sleep schedule can be affected, thereby making them feel overwhelmed. Further, some sports place an emphasis on maintaining a certain physicality, which can lead to eating disorders and other mental health issues. Another direct correlation between physical and mental health in athletes is head injuries, such as concussions and chronic traumatic encephalopathy (CTE).[8] Moreover, among college students, student-athletes are two and a half times more likely to endure sexual abuse.[9] Along with physical injuries, athletes who are sexually abused can suffer from mental health disorders such as post-traumatic stress disorder, anxiety, and substance abuse.
2. Hard Coaching
Hard coaching is a coaching technique aimed at using discipline and hard work to develop an athlete’s work ethic and character. However, there is a fine line between hard coaching and verbal abuse as coaches yell and taunt their athletes in order to motivate and achieve perfection. Because a coach is an authority figure, athletes can feel uncomfortable with the idea of coming forward regarding their mental health, leaving the athlete to suffer in silence.[10]
3. Substance Abuse and Addictions
Two additional factors that can affect student-athletes’ mental health are substance abuse and addiction. For example, the NCAA’s Sports Science Institute has found that alcohol and marijuana are the two drugs most commonly used by student-athletes.[11] But, there is a growing concern over the abuse of prescription narcotics and stimulants by student-athletes. In line with this concern is the fact that college athletes can become addicted to and abuse substances such as painkillers when recovering from an injury or doping substances to achieve peak physicality and performance.
Further, addiction, which can be a symptom of mental health issues, can also plague student-athletes and their mental health. Athletes can develop an exercise addiction because of the copious amount of time spent exercising and training. When athletes are addicted to exercise, they attempt to obtain the exercise “high.” However, an athlete’s body can become tolerant to exercise, which makes it harder for the athlete to achieve that “high.” When the high becomes unattainable through exercise, athletes may experience withdrawals from the exercise high and suffer from anxiety and depression.
4. Sports Gambling and the Sports Culture Impact
In 2018, the Supreme Court overturned the Professional and Amateur Sports Protection Act (PASPA) in Murphy v. NCAA, which legalized sports gambling in more than 30 states.[12] The knowledge that many Americans have placed bets on their games can place a huge amount of pressure on college athletes. Besides the pressure to perform well in connection to sports betting, the sports culture also expects athletes to have peak physical and mental performances at any given time. This means that in addition to internal pressure, college athletes can receive pressure to perform from the public and from the media. Sports culture also portrays athletes as larger-than-life. Student-athletes then become fearful of ruining that persona by sharing their mental health struggles publicly.
5. Gender and Sex Discrimination
The gender of collegiate athletes can also impact their mental health. A study conducted by Drexel University and Kean University found that female athletes are twice as likely to experience depression symptoms.[13] Additionally, many female athletes believe that mental health is not a priority at their schools, and many are uncomfortable reaching out to a mental health provider for help. According to one author, female athletes are also viewed as being unable to juggle the pressures of a sport.[14] Accordingly, many women athletes will not disclose their mental health struggles for fear of being seen as weak.
Collegiate athletes’ mental health may also be impacted from issues regarding their gender identity or sexual orientation. For example, LGBTQ+ athletes are subjected to the pressures and fear of revealing their sexual orientation, while transgender and intersexual athletes face the pressures of gender-identity related issues, such as the polarizing debate over whether a transgender female should be allowed to compete with cis-gendered females. That fear may not lessen anytime soon, as the Human Rights Campaign recently called out the NCAA on its lack of protection for LGBTQ+ athletes in the NCAA.
Overall, there are several sports-related factors that can affect a college athlete’s mental health. Though the NCAA has expressed concern over the mental health of its athletes, more needs to be done. This is especially true because the NCAA does not have a duty of care to its student-athletes.
II. DUTY OF CARE
Under current precedent, it is evident that universities could owe a duty to provide mental health resources and treatment to their student-athletes. However, the amount of care a university owes depends on the students’ relationship with the school. The NCAA, on the other hand, has no legal responsibility towards student-athletes. The duty of care universities owe to their student-athletes depends on certain criteria that must be met, which creates a special fiduciary relationship between the university and its student-athlete.
A. Universities’ Duty of Care to Students vs Student-Athletes
The relationship between schools and their students is “special” when an affirmative duty of reasonable care is owed for risks created through school activities. Courts have held that universities follow the “duty of ordinary care” standard for their students.[15] The duty to exercise reasonable care is invoked when certain conduct creates a risk of harm. Yet, certain relationships create a heightened duty of care; particularly, the existence of a “special relationship,” which creates an affirmative duty of reasonable care concerning risks that occur within the scope of the relationship.[16]This relationship typically has a higher threshold than risks associated with the average day-to-day life of regular students.
Courts have routinely denied the presence of a special fiduciary relationship between universities and their general student bodies because of the higher threshold showing that is required.[17] Courts have reasoned that a special fiduciary relationship with the general student body requires the university to owe a heightened duty to all students, which would therefore create a special relationship between the university and every single student.[18] This would be unworkable because the university, as a fiduciary, would need to prioritize the needs of one student over the other.[19] Applying a heightened duty to all students would lead to numerous conflicts of interests when the interests of one student is competing against the interests of another student. In addition, a special relationship with each student could infringe on a student’s desired freedom. For these reasons, courts have found that a special relationship between the university and their general student body is implausible.
On the other hand, courts have been more inclined to classify a student-athlete’s relationship as special due to certain characteristics held by student-athletes. Such characteristics include the following: student-athletes’ heightened risk of experiencing mental health issues; the amount of influence coaches and the university have over student-athletes’ day-to-day lives; the elevated pressures to win no matter the cost; the monetary gain universities receive for winning and having successful teams; and the recruitment process–especially when an athlete was recruited by the university to play a particular sport.[20] The student-athlete/university relationship can be described as mutually dependent because student-athletes depend on the university and their coaches for a higher education and to improve their athletic abilities. Meanwhile, the university depends on student-athletes to generate revenue through a successful team, higher media exposure, and recruitment opportunities.
Additionally, student-athletes’ relationship with the university is different from the general student body’s relationship because the general student body has more freedom in their social life, in picking their academic courses, and in participating in other extracurricular activities. Meanwhile, student-athletes’ lives are governed by their teams, coaches, and athletic departments, with more restrictions and higher obligations outside of what occurs just on the field. These are the characteristics that courts, for the most part, consider when deciding if student-athletes have a special relationship with their university.
Universities also have a heightened duty of care to provide medical assistance to student-athletes who are injured while participating in a sport they were recruited for by the university. For example, in Kleinknecht v. Gettysburg College, a lacrosse player died after suffering from cardiac arrest during a team practice.[21] The court found that Gettysburg College had formed a special relationship with the lacrosse player and therefore owed him a heightened duty of care because he was actively recruited by the university and chose to play at Gettysburg because of the success of its lacrosse team.[22] Additionally, he was participating in a “scheduled athletic practice . . . sponsored by [and] under the supervision of College employees” rather than “engag[ing] in his own private affairs” when he suffered from the heart attack.[23]
Similarly, in Davidson v. Univ. of N.C. at Chapel Hill, the court found a special relationship between a university and one of its cheerleaders who suffered permanent brain damage after incurring an injury.[24] Because the court found a special relationship, the university was required to exercise a heightened duty of care.[25] The court found a mutually beneficial relationship between the cheerleaders and the school because the university “exerted a considerable degree of control over its cheerleaders.”[26] The court also rejected the argument that a duty of care should not be imposed because it may suppress student freedom since the university already exerted considerable control over the student-athlete in question.[27] Moreover, the court reasoned that such considerable control over student-athletes, who participate in school-sponsored athletics, would expect a higher amount of protection owed to them by the school.[28]
Therefore, a majority of courts have held that certain characteristics between student-athletes and universities establishes a higher duty of care owed to the student-athlete and thus creates a special relationship between the two parties. However, there is no definite rule that determines whether a special relationship actually exists. Because there is no definitive rule, this has led some courts to find no special relationship, even after injury occurs to a student-athlete.[29]
Another factor considered when determining if universities owe their student-athletes an affirmative duty of reasonable care is whether the university could have foreseen the likelihood of harm.[30] If an injury is foreseeable by the university, then the university has a duty to act with reasonable care to mitigate the harm. However, the NCAA has no such obligation.
B. NCAA’s Duty of Care to Student-Athletes
Article 1(D) of the NCAA Constitution lists the student-athlete’s well-being, including both physical and mental health, as a primary concern of the NCAA.[31] Nevertheless, the NCAA has proclaimed that it has no legal duty to protect student-athletes. This seems counterintuitive to the founding principles of the NCAA–to protect the well-being of student-athletes.
While the NCAA may not be legally accountable for student-athletes, it has still taken steps towards protecting the well-being of student-athletes’ mental health. In 2016, the NCAA and the Sport Science Institute collaborated to publish a best practices guide, with four factors to consider to better support student-athletes’ mental health. The first is clinical licensure of practitioners providing mental health care.[32] The second is procedures for identification and referral of student-athletes to qualified practitioners.[33] Individual athletic departments should also create written institutional procedures to manage mental health referrals and other mental health emergencies.[34] The third is pre-participation mental health screenings.[35] The final is promoting environments that support mental health through the normalization of seeking help for mental health issues.[36] However, these guidelines are only recommendations, and universities are not required to abide by these recommendations.
The most important question regarding student-athletes and their mental health is whether they would be able to bring a successful claim against their university and the NCAA for failing to provide them with the necessary care. Student-athletes may be able to bring a successful claim against their university if they are able to prove the existence of a special relationship and if the harm was foreseeable. However, under current law and precedent, a student-athlete’s claim against the NCAA would likely fail because courts have been hesitant to attach the same duty of care to the NCAA that has applied to universities. Student-athletes would therefore have difficulty claiming the NCAA violated a duty of care by failing to provide mental health treatment when the NCAA does not legally owe that duty in the first place. For these reasons, universities and the NCAA should both be obligated to abide by federal regulations that administer the mental health and well-being of student-athletes.
III. WHY FEDERAL REGULATION OVER COLLEGIATE ATHLETES’ MENTAL HEALTH IS NEEDED
Studies conducted by the NCAA in recent years have found that the mental health of student-athletes has become a serious issue.[37] Nevertheless, the NCAA, and sometimes universities, do not provide student-athletes enough resources to combat mental health issues. Federal regulation could ensure that universities and the NCAA comply with a uniform approach to combat student-athletes’ mental health struggles. Adopting the NCAA’s best practice guidelines into federal regulation would be the most effective means of fighting mental health issues in student-athletes.
A. Federal Regulation Through the Interstate Commerce Clause
Before analyzing how federal regulation should govern student-athletes’ mental health, it is important to distinguish what kind of power grants such federal regulation. For instance, both the NCAA and universities can be subject to regulation under the Interstate Commerce Clause. Granted to Congress in the Constitution, the Interstate Commerce Clause allows Congress the ability to regulate commerce among the states.[38]
Courts have repeatedly held that Congress may regulate interstate commerce in more than one way. First, Congress is allowed to regulate commercial activities that materially affect interstate commerce. The NCAA, which is comprised of schools located in different states, hosts athletic events in various states across the country and earns over a billion dollars in annual revenue.[39] Because the NCAA earns a substantial amount of income from its economic activities in interstate commerce, Congress would be justified to regulate the NCAA and the mental health of student-athletes. Second, Congress may control and protect people found in interstate commerce. The NCAA’s interstate commerce is dependent on the performances of college athletes in interstate sporting events. Therefore, these college athletes would be considered people in interstate commerce. Keeping this in mind, under the Interstate Commerce Clause, it would be pivotal for Congress to federally regulate the welfare and mental health of these student-athletes.
B. Why Federal Regulation Should Prevail Over State and Institutional Regulation
Although there are a few ways to regulate the mental health of college athletes, federal legislation would be the most beneficial approach. Congress has the ability to exert its power over the NCAA and the member schools under the Interstate Commerce Clause, and Congress has already recognized a need to address the mental health of student-athletes.[40] For example, the House of Representatives introduced a bill this year that proposes a National Student-Athlete Mental Health Week.[41]
Further, if Congress enacted federal legislation, the measures would be implemented uniformly across the country. Conversely, if states attempt to regulate the mental health of student-athletes, the measures would likely be inconsistent from state-to-state. Similarly, if regulation was left to the educational institutions, there would be variations in the measures from school-to-school because universities have different student body sizes, different categorizations of being public or private, and even have different amounts of funding. These discrepancies will cause schools to implement different measures to best fit their needs.
Finally, the NCAA should not implement student-athlete mental health regulations. Though the NCAA previously created mandates for member schools to follow, it has proven ineffective because it is left up to the individual schools whether they would like to implement these recommendations.
Unfortunately, the NCAA has a history of being reactive instead of proactive when addressing problems involving student athletes. The mental health of college athletes is too pivotal an issue to not be addressed as soon as possible. Therefore, the implementation of student-athlete mental health measures should no longer be left to the NCAA or individual universities.
IV. PROPOSED FEDERAL REGULATIONS
To begin, federal regulation should focus on increasing training and education for athletes, coaches, and athletic trainers. Because athletic trainers and coaches develop close relationships with their student-athletes, they should be trained to pinpoint telltale signs of mental illness. Nevertheless, many certified athletic trainers do not believe their educational background sufficiently prepared them to recognize signs of mental illness and has left them unable to refer student-athletes to the help they need. Therefore, coaches and athletic trainers must know the signs that indicate a decline in a student-athlete’s mental health. Once the coach or athletic trainer distinguishes signs of mental health issues, federal regulation must then obligate the coach or athletic trainer to refer the student-athlete to a formal evaluation conducted by a qualified clinical licensed practitioner of mental health services who has professional training in cultural competency, with special attention given to societal diversity and the culture of sports.[42] Additionally, the qualified practitioner must be easily accessible to the student-athlete; ideally, the qualified practitioner would be employed by the member university or be a local provider located close to campus.
Federal regulation should also hold athletic departments accountable for written institutional procedures that handle the management of mental health emergencies and regular mental health referrals to the qualified practitioner. The procedures must outline all necessary steps in order to support a student-athlete in both emergencies and non-emergencies. Additionally, the procedures must outline the specific training required when characterizing mental health signs and symptoms as well as the proper institutional referral processes that will be used to provide appropriate support and accommodations to the student-athletes.
Federal regulation over student-athletes’ mental health should also include pre-participation mental health screenings and student-athlete questionnaires. These screenings and questionnaires would allow member schools’ athletic departments to identify student-athletes who are suffering from mental health issues that may need additional support and resources. By screening and monitoring student-athletes before they begin to participate in university-regulated athletic activities, universities will be able to honor and adhere to the special relationship created with their student-athletes. In turn, college athletes will be able to receive mental health support and resources that are needed to properly maintain their mental health.
The final federal regulation that Congress should enact is to require the NCAA and member schools to promote environments that support the mental well-being of college athletes. These environments would assist in breaking the stigma behind mental health, which encompasses numerous elements that are beneficial to student-athletes’ mental health for several reasons. First, creating open channels of communication between the coaches, college athletes, and the school’s mental health professionals could help a coach modify any mentally harmful tactics the coach employs. Second, injured athletes would have medication management plans, which could help curb the risk of substance abuse or addiction. Finally, these new environments would aim at breaking the current stigma towards mental health in sports. This would allow student-athletes to feel comfortable speaking out about their mental health struggles and to ask for help when needed. Because athletic culture tends to deter athletes from sharing mental health issues because it can be interpreted as a form of weakness, athletes need to know they have the full support of their team, coaching staff, and trainers.
While the NCAA has already created guidelines for member schools to follow, it has been left up to institutions to implement them as they see fit, which has led to inconsistencies in enforcement. These inconsistencies have resulted in unequal standards of mental health care and resources provided to student-athletes at different universities. If Congress enacts these federal regulations, a regulatory scheme will therefore be established that will create a universal standard to protect the mental health of student-athletes equally across the country.
CONCLUSION
Congress must enact federal regulations to ensure that student-athletes receive the mental health resources they need. Federal regulation will create consistent measures from state-to-state and school-to-school. Further, studies have shown that college athletes disproportionately struggle with mental health issues as they balance the pressures of being both a full-time college student and an athlete.
Universities have already been held to a heightened standard of care regarding physical injuries to student-athletes during regulated university activity. It is time the NCAA is held to the same criteria. Additionally, it is counterproductive to hold mental health to a different standard when mental illness can be just as significant and debilitating to student-athletes. For these reasons, federal regulation needs to be implemented and adopted by NCAA member schools to protect the mental well-being of their student-athletes.
Sam Weiser (‘23) is a Juris Doctor candidate at Michigan State University College of Law. She is a Managing Editor on the Michigan State Law Review and is the Vice President of the INCBA-MSU chapter. She graduated from Michigan State University with a Bachelor of Art in Criminal Justice (‘17), a Bachelor of Art in Arabic and a minor in Muslim Studies (‘18), and a Master of Science in Law Enforcement Intelligence and Analysis (‘19). Her primary focus of interest is in criminal law and wills, trusts, and estates.
Jari Wilson (‘23) is a Juris Doctor candidate at Michigan State University College of Law. She is a Senior Notes Editor on the Michigan State Law Review and is a member of MSU’s Intellectual Property Law Student Society. She graduated from Saginaw Valley State University with a Bachelor of Art in Communication and Spanish (‘14). She also graduated from Syracuse University’s SI Newhouse School of Public Communications with a Master of Science in Public Relations (‘16). Her primary focus of interest is in entertainment law and intellectual property.
Both authors have forthcoming publications in the print copy of the Michigan State Law Review journal. Be on the lookout!
[1] The sample study group for the Co-Authors interviews include a total of ten student-athletes, from:
Division 1:
● Four former NCAA (men’s) football players at Michigan State University;
● One former NCAA (men’s) track and field runner at Michigan State University and University of Michigan;
● Two former NCAA (women’s) volleyball players at Central Michigan University and Western Michigan; University
Division 2:
● One former NCAA (men’s) Saginaw Valley State University football player;
● One former club (men’s) University of Miami Ohio hockey player (although this was a club team, the team played against other Division 2 schools in the NCAA);
Division 3:
● One former NCAA (women’s) Olivet College soccer player; and,
NAIA
● One former National Association Intercollegiate Athletics (NAIA) (men’s) Rochester College (now Rochester University) basketball player.
[2] All participants were asked if a coach’s consistent yelling took a toll on their mental health. Every respondent answered “yes.” This was especially true for the football players who were under constant scrutiny to perform well by the entirety of their coaching staff, athletic department, and university.
[3] See Maureen A. Weston, The Anxious Athlete: Mental Health and Sports’ Duty and Advantage to Protect, 13 Harv. J. Sports & Ent. Law 1, 5 (2022) (quoting Anxiety Disorders, NCAA Sports Sci. Inst., https://ncaaorg.s3.amazonaws.com/ssi/mental/SSI_AnxietyDisordersFactSheetpdf.pdf (last visited Oct. 29, 2021)) (“[An] NCAA study found that ‘[a]nxiety disorders are the most common mental health issue in the United States. Data from national surveys show that more than 30 percent of student-athletes have experienced overwhelming anxiety.’”).
[4] See Marnae Mawdsley, Note, A Losing Mentality: An Analysis of the Duty Owed by Universities to Provide Their Student-Athletes with Mental Health Services, 31 Marq. Sports L. Rev. 243, 247 (2021) (“[D]ata from a 2016 study showed that nearly a quarter of student-athletes - 23.7% - suffered from clinically relevant depressive symptoms.”).
[5] See Weston, supra note 3, at 12 (“An NCAA report found that approximately one in four U.S. college athletes will suffer from depression – the same rate as the general population.”).
[6] See id.
[7] See id. at 3 (“The risk of mental health disorders in elite athletes is heightened . . . when an athlete suffers a physical injury.”)
[8] See Chronic Traumatic Encephalopathy, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/chronic-traumatic-encephalopathy/symptoms-causes/syc-20370921 (last visited Nov. 15, 2022) [hereinafter CTE] (“Chronic traumatic encephalopathy (CTE) is the term used to describe brain degeneration likely caused by repeated head traumas.”); Weston, supra note 3, at 16 (explaining how a higher risk of mental health disorders can be found in “sports that commonly involve blows to the head that result in concussions”).
[9] See Erin Strout, Female College Athletes Are Facing A Mental Health Crisis–So Why Isn’t More Being Done?, Women’s Health (Nov. 2, 2022), https://www.womenshealthmag.com/health/a41696886/female-college-athletes-mental-health-crisis/ (“College athletes are also 2.5 times more likely to encounter sexual abuse than their peers who don’t play sports according to a 2021 survey of 1,500 college-educated Americans by Lauren’s Kids, a nonprofit organization.”).
[10] See Weston, supra note 3, at 20 (“Opening up about mental health issues can be challenging, especially when the source of stress comes from someone in a position of trust or authority.”). Our interviews with former Division I college football players also confirmed this. When faced with coaches and their yelling, these players felt unmotivated and more likely to internalize the potential verbal abuse instead of reporting it.
[11] See Brian Hainline et al., Mind, Body and Sport: Substance Use and Abuse, Nat’l Collegiate Athletic Ass’n, https://www.ncaa.org/sports/2014/11/4/mind-body-and-sport-substance-use-and-abuse.aspx (last visited Nov. 15, 2022) (“[A]lcohol and marijuana are the two most reported recreational drugs student-athletes use.”).
[12] See Murphy v. NCAA, 138 S.Ct. 1461,1483 (2018) (holding that “Congress lacks the authority to prohibit a State from legalizing sports gambling”); Weston, supra note 3, at 23 (“Sports gambling has become legal in over thirty states and D.C.”). Additionally, the United States has profited significantly from the legalization of sports betting and has profited over $11 billion in just four years. See US Sports Betting Revenue & Handle, Legal Sports Rep., https://www.legalsportsreport.com/sports-betting/revenue/ (last visited Nov. 15, 2022) (reporting that the United States has earned $11,859,989,359 in revenue from sports betting since 2018).
[13] See Weston, supra note 3, at 25 (quoting Lauren Ingeno, Depressive Symptoms Prevalent Among Division I College Athletes, Drexel Now (Jan. 27, 2016), https://drexel.edu/now/archive/2016/January/Depression-College-Athletes/ (“[F]emale athletes are ‘two times more likely to experience [depression] symptoms than their male peers.’”).
[14] See Strout, supra note 9 (“Women in particular are more often seen as unable to handle the rigors (or unfair mind games of sport).”).
[15] See Knelman v. Middlebury Coll., 898 F. Supp. 2d 697, 718 (D. Vt. 2012), aff’d, 570 F. App’x 66 (2d Cir. 2014) (citing Edson v. Barre Supervisory Union No. 61, 933 A.2d 200, 203–04 (quoting 16 V.S.A. § 834)) (mentioning that “the duty of a school and its officials to a student is governed by statute and is a ‘duty of ordinary care’”).
[16] See Mawdsley, supra note 4, at 253 (“The existence of certain relationships may heighten the duty that is owed. Specifically, “special relationships” create an affirmative duty of reasonable care with regard to risks that arise within the scope of the relationship - not just those risks created by the defendant.”).
[17] But see Mawdsley, supra note 4, at 256 (noting that “while many courts have held that the university-student relationship is not special, others have disagreed. Those that have found a special relationship emphasize the importance of students’ expectations that an institution will provide protection and the amount of control an institution has over a student’s conduct”); Knelman, 898 F. Supp. at 718 (noting that “[s]uch a relationship would immediately prove unworkable in the school context.
[18] See Knelman, 898 F. Supp. at 718 (finding that in “rejecting a fiduciary relationship between a school and one of its students, courts have reasoned that schools and school officials owe duties to all students”).
[19] Id. (explaining why a special relationship between the general student body would be implausible because universities would need “to exalt the interests of his or her dependent over the competing interests of others, and to act exclusively on the dependent’s behalf ”).
[20] See Mawdsley, supra note 4, at 257; see also Sara Kirtley, Note, Healthy Mind, Healthy Body: An Examination of the Duty a University Owes to its Student-Athletes Regarding Mental Health Treatment, 2 U. Denv. Sports & Ent. Law J. 1, 16 (2019).
[21] See Kleinknecht v. Gettysburg Coll., 989 F.2d 1360, 1362 (3d Cir. 1993).
[22] See id.
[23] Id.
[24] See Davidson v. Univ. of N.C. at Chapel Hill, 142 N.C. App. 544, 546, 555 (2001) (“Plaintiff reached the top of the pyramid but became unstable and began falling backward . . . [and] fell approximately thirteen feet . . . . [T]he spotters were unable to prevent her shoulders and head from hitting the hardwood floor. Plaintiff suffered permanent brain damage and serious bodily injury as a result of the fall.”).
[25] See id.
[26] Id. (finding that the university exerted control over the cheerleaders because they “had to abide by certain standards of conduct, such as maintaining a minimum GPA and refraining from drinking alcohol in public”).
[27] See id. (“[T]he argument that a duty of care should not be imposed upon a school because it may stifle student autonomy is considerably less compelling where the school already exerts significant control over the students in question.”).
[28] See id. 555–56 (“[W]hen a school exerts significant control over students as a result of their participation in a school-sponsored athletic activity, the students may have higher expectations with regard to the protection they will receive from the school.”).
[29] See Orr v. Brigham Young Univ., 960 F. Supp. 1522, 1523 (D. Utah 1994), aff’d, 108 F.3d 1388 (10th Cir. 1997) (finding no special relationship between a football player, who accused his coaching staff and athletic trainers of failing to provide him with sufficient medical treatment, after sustaining a back injury).
[30] Compare Schieszler v. Ferrum Coll., 236 F. Supp. 2d 602, 607–09 (W.D. Va. 2002) (finding that a university had a duty to protect a student from danger of self-harm based on a special relationship, and that the college and dean breached their duty when the university knew of the student’s emotional struggles, the students past incidents of self-harm, and statements from the student suggesting that he intended to commit suicide) with Dzung Duy Nguyen v. Massachusetts Inst. of Tech., 479 Mass. 436, 453 (2018) (holding that neither dean nor chancellors had established a special relationship with a graduate student that required the university to take reasonable measures to prevent student’s suicide when the school did not have actual knowledge of the students suicidal intentions because the student made it known that he wanted to keep his mental life and academics separate).
[31] See NCAA, NCAA Division I Manual 2022–23 2 (2022) https://web3.ncaa.org/lsdbi/reports/getReport/90008 (“Intercollegiate athletics programs shall be conducted . . . in a manner designed to protect, support and enhance the physical and mental health and safety of student-athletes. Each member institution shall facilitate an environment that reinforces physical and mental health within athletics by ensuring access to appropriate resources and open engagement with respect to physical and mental health.”).
[32] See Mental Health Best Practices, Nat’l Collegiate Athletic Ass’n, https://www.ncaa.org/sports/2016/5/2/mental-health-best-practices.aspx (last viewed Nov. 15, 2022) (“Schools are encouraged to ensure that the mental health care of a college athlete is provided by a licensed individual who is qualified to provide mental health services.”). Research has demonstrated that NCAA Division I athletic departments are contracting both full-time or part-time psychology consultants to help student-athletes cope with their mental health. See Kirtley, supra note 20, at 18 (noting that “approximately from thirty to fifty percent of departments have contracts for either full-time or part-time psychology consultants”). However, for the most part, it is left up to the students-athletes to seek consultation, and coaches were far more willing to send student-athletes to a sport psychology consultant for performance issues rather than mental health issues. See id. 18–19 (finding that “other research showed that Division I athletic coaches overall were much more willing to send a student-athlete to a sport psychology consultant for a performance issue, rather than for personal problems . . . although more schools are hiring these kinds of psychological professionals, it remains up to the student-athletes or their coaches to actually use their knowledge or volunteer to participate in their programs”).
[33] See Mental Health Best Practices, supra note 25 (“Athletic departments are encouraged to work with sports medicine and campus mental health services to develop written emergency and non-emergency action plans for situations in which college athletes face a mental health challenge.”).
[34] See Kirtley, supra note 20, at 20.
[35] See Mental Health Best Practices, supra note 25 (“Schools are encouraged to develop and apply mental health screening tools, as well as a written mental health referral plan, prior to a student-athlete’s initial participation in college athletics.”).
[36] See id. (“Athletics departments are encouraged to educate student-athletes, coaches, and faculty athletics representatives to help create a culture that promotes care seeking and mental well-being and resilience.”); see also See Kirtley, Note, supra note 20, at 20–21.
[37] See Jayce Born, Note, National Protection of Student-Athlete Mental Health: The Case for Federal Regulation Over the National Collegiate Athletic Association, 92 Ind. L.J. 1221, 1244 (2017) (“In 2015, thirty percent of student-athletes stated that, over the past month, they felt ‘intractably overwhelmed,’ and nearly one-quarter reported feeling ‘exhausted from the mental demands of their sport.’”).
[38] See U.S. Const. art. I, § 8, cl. 3 (“The Congress shall have Power . . . to regulate commerce . . . among several States.”); see also Born, supra note 29, at 1241.
[39] See What is the NCAA?, Nat’l Collegiate Athletic Ass’n, https://www.ncaa.org/sports/2021/2/10/about-resources-media-center-ncaa-101-what-ncaa.aspx (last viewed Nov. 15, 2022) (displaying a map of where the NCAA’s members are located in the United States); NCAA Earns $1.15 Billion in 2021 as Revenue Returns to Normal, ESPN (Feb 2. 2022), https://www.espn.com/college-sports/story/_/id/33201991/ncaa-earns-115-billion-2021-revenue-returns-normal. For instance, the NCAA was reported to have earned $1.15 billion in 2021, and the bulk of that revenue is given to the NCAA’s member schools. See id. Additionally, the members that comprise the NCAA are universities, colleges, and athletic conferences located in states all over the country. See What is the NCAA?, supra note 32 (displaying a map of where the NCAA’s members are located in the United States). Finally, almost 500,000 college athletes comprise the teams that compete in NCAA sporting events across the nation. See id. (“Nearly half a million college athletes make up the 19,886 teams that send more than 57,661 participants to compete each year in the NCAA’s 90 championships in 24 sports across 3 divisions.”).
[40] See U.S. Const. Art. I, § 8, cl. 3 (establishing Congress’s commerce power); 117 H.R. Res. 1423, 117th Cong. (proposing a “National Student Athlete [sic] Mental Health Week”).
[41] See 117 H.R. Res. 1423, 117th Cong. (noting that some of the reasons the House felt the need to propose the bill included the fact that less than 50% of college athletes are comfortable asking for help addressing their mental health and that student-athletes endure uncommon stressors while balancing school and sports).
[42] See Mental Health Best Practices, supra note 25, at 5–6 (“Formal evaluation and treatment should be conducted by a licensed practitioner who is qualified to provide mental health services. Such licensed practitioners may include: Clinical or counseling psychologists; Psychiatrists; Licensed clinical social workers; Psychiatric mental health nurses; Licensed mental health counselors; Licensed family therapists/licensed marriage and family therapists; [and] Primary care physicians with core competencies to treat mental health disorders.”); see also id. at 5 (“With regard to societal diversity, cultural competency should extend to treating student-athletes from diverse racial, ethnic, gender identified, and other unique cultural experiences influencing help-seeking . . . . With regard to the culture of sports, although some licensed mental health professionals have formalized professional training that is specific to athletics (e.g., licensed clinical psychologist with a sub-specialization in sport psychology or primary care team physician with board certification), individuals without formal training related to athletics are encouraged to complete continuing education credits in this area and to become a member of a relevant professional organization that provides professional development resources and information.”).
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