May 2019 saw Matthew Onyshko in his wheelchair at the front of a Washington County, Pa., courtroom, face to face with an attorney representing the NCAA. The Ukrainian was a football player for Division II California University of Pennsylvania from 1999 to 2003.
Rebecca Droke/Pittsburgh Post-Gazette
Matthew Onyshko with his two daughters in a 2013 photo.
After graduating, he became a fireman in his hometown of Pittsburgh. On a November 2007 day while fighting a fire, he had difficulty putting on his gloves, becoming aware his hands were losing strength. The father of two was diagnosed a couple of months later with the degenerative brain disease ALS. After viewing a report about former New Orleans Saints Steve Gleason’s experience with ALS on Super Bowl Sunday of 2012, Onyshko questioned whether the head injuries he’d suffered playing football were the cause of his condition. His personal physicians agreed with him, concluding he had no genetic precondition for the disease.
Today, the 38-year-old Onyshko is fully paralyzed, long since unable to work, not able to talk, communicating via a device which tracks his eye movement to spell words and produce speech. In court he managed to testify that he endured some 20 concussions at Cal U, although he never reported them to trainers, thinking they were a non-issue. He was never taught the symptoms of a concussion, leading him to file suit in state court against the NCAA in June 2014. His complaint stated the NCAA should have known the risks to student athletes of repetitive head trauma.
The injury law firm representing Onyshko, Goldberg, Persky & White, were the first to sue the NFL over concussions in 2011, filing for 120 former players in a case that grew into a class action involving thousands more ex-players. In 2014 as the NFL suit moved toward settlement, headlines hinted the crusade could forever change the sport of football.
In actuality, the NFL was barely inconvenienced with estimates of the league’s actual payout from the 2016 settlement at $1 billion over 65 years. This translates into mere pittance for a business that generated $16 billion in revenue in the year 2018. Estimates claim some 5 percent of the 20,000-plus eligible former players were actually paid due to the legal and medical details each must navigate to receive compensation.
The NCAA suit gives the lawyers a second chance. Instead of a huge class action, where lawyers served themselves rather than the ex-players, the strategy will take on the NCAA in several individual brain-injury cases filed in state courts. Onyshko’s case was the first of eight suits the law firm filed against the NCAA in four states. Five additional ones are being prepared with more to come once the pandemic backlog eases. The new approach is case by case.
The strategy is risky due to high expenses, the time to be consumed and the overall challenge. The legal team must convince jurors the NCAA should have known playing football could lead to long-term brain disease well before the research and attention received from the past 15 years. Risky, yes, but with the right jury of peers, legal experts claim the cases can be won. Even one victory’s ripple effects could pose a threat to the NCAA’s finances and its operational model, at a time when the organization is vulnerable. (Diminishing revenue due to the pandemic, scrutiny from Congress, and conferences, schools and athletes pushing for more power make for most challenging times for the NCAA.)
Verdict and appeal
The verdict returned on May 23, 2019, by a Washington County jury said the NCAA was not negligent in its dealings with Onyshko by a vote of 10-2. NCAA attorneys successfully argued Onyshko’s brain injury could have been caused by a trauma other than college football collisions. Chronic traumatic encephalopathy (CTE) can only be confirmed through autopsy, meaning the known link between brain diseases and football was not yet applicable in Onyshko’s case. His side was not helped by the fact the Ukrainian linebacker failed to report his concussions. NCAA lawyer Arthur Hankin argued athletes’ health was the responsibility of individual schools, not the NCAA.
The issue of compensatory damages (the amount sought was $9.6 million) on behalf of Onyshko was not addressed due to the verdict, which was immediately appealed. Onyshko’s lawyers believe they lost their case because of technicalities. The presiding judge precluded a number of issues and arguments from the plaintiffs which may have made a difference in the trial’s verdict. The jurors deliberated for over seven hours, implying some serious debate and persuasion, with two jurors convinced of the NCAA’s negligence. Key testimony was provided by Dr. Bennet Omalu, whose research into the 2002 death of Pittsburgh Steelers great Mike Webster connected repetitive trauma to the brain and spine with diseases found in NFL players.
The appeal is moving forward, with the sides recently exchanging briefs, in addition to several similar state-level cases awaiting verdicts. The hope is for just one jury in favor of a sympathetic hometown hero like Onyshko over the NCAA’s hardened lawyers to produce an avalanche leading to more plaintiffs and lawsuits all over the country. If enough cases were to emerge, the litigation costs combined with settlements/damages would be a massive expense for the NCAA. Potential damage would go beyond money, as a headline proclaiming “NCAA responsible for player’s ALS” would result in major fallout. Even forcing the NCAA to publicly make its hard-edged legal arguments in cases upon cases could be extremely damaging.
* * *
It was in October 2013 that Jason Luckasevic, a partner at the Pittsburgh injury law firm Goldberg, Persky & White, opened his inbox and read an e-mail from someone named Matthew Onyshko. The e-mail explained he had been diagnosed with ALS seven years ago which he believed was from college football. He knew his law firm represented many NFL players, and he wanted to see if the firm would participate in a concussion lawsuit against the NCAA.
Onyshko may have started something with potentially future precedent-setting ramifications in the world of college football. His name may be well remembered proudly by his wife, Jessica, daughters, Kendall and McKenna, and a host of others.