Ryan M. Chabot WILMER CUTLER PICKERING · estate of michael p. mazza, donald mazza, and dara mazza,...

Ryan M. Chabot

WILMER CUTLER PICKERING

HALE AND DORR LLP

7 World Trade Center

250 Greenwich Street

New York, NY 10007

Tel. (212) 230-8800

Fax: (212) 230-8888

[email protected]

Attorney for Defendant National Collegiate

Athletic Association (NCAA)

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ESTATE OF MICHAEL P. MAZZA, DONALD MAZZA, and DARA MAZZA,

Plaintiffs, v.

NATIONAL COLLEGIATE

ATHLETIC ASSOCIATION (NCAA),

MOUNT IDA COLLEGE, MUTUAL

OF OMAHA INSURANCE, CATLIN

INSURANCE COMPANY, ROBERT

McCLOSKEY INSURANCE, BMI

BENEFITS LLC, ABC CORPS. 1-10,

and JOHN DOES 1-10,

Defendants.

Case No. 3:18-cv-10028-AET-LHG

Motion Day: August 20, 2018

Oral Argument Requested

MEMORANDUM IN SUPPORT OF DEFENDANT NATIONAL

COLLEGIATE ATHLETIC ASSOCIATION’S MOTION TO DISMISS

PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)

Case 3:18-cv-10028-AET-LHG Document 11-1 Filed 07/13/18 of 37 PageID: 80

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TABLE OF CONTENTS

Page

I. BACKGROUND ............................................................................................. 2

A. The NCAA’s Insurance Policy .............................................................. 2

B. Mazza’s Death ....................................................................................... 3

C. This Lawsuit .......................................................................................... 6

II. LEGAL STANDARD ..................................................................................... 8

III. ARGUMENT ................................................................................................... 9

A. The NCAA Is Immune From Plaintiffs’ Negligence Claims ................ 9

1. The Charitable Immunity Act covers nonprofit associations like

the NCAA. ................................................................................ 10

2. Plaintiffs seek damages for purported negligence. ................... 13

3. Mazza was a beneficiary of the NCAA’s works. ..................... 13

B. Plaintiffs Do Not Allege Sufficient Facts To Meet The Legal Test For

Duty Of Care ....................................................................................... 16

1. Plaintiffs do not allege sufficient facts to meet the legal test for

the existence of a duty of care. .................................................. 17

2. Plaintiffs do not allege sufficient facts to meet the legal test for

the applicable scope of a duty of care. ...................................... 22

C. Plaintiffs’ Threadbare Allegations Do Not Establish Causation ........ 24

D. Plaintiffs’ Intentional Infliction Of Emotional Distress Claim Fails .. 25

E. Plaintiffs’ Breach-Of-Contract Claim Fails ........................................ 28

IV. CONCLUSION .............................................................................................. 30


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TABLE OF AUTHORITIES

Page(s)

Federal Cases

Ashcroft v. Iqbal,

556 U.S. 662 (2009) .............................................................................................. 8

Cole v. Nat’l Collegiate Athletic Ass’n,

120 F. Supp. 2d 1060 (N.D. Ga. 2000) ............................................................... 12

Doe v. Univ. of the S.,

No. 4:09-cv-62, 2011 WL 1258104 (E.D. Tenn. Mar. 31, 2011)....................... 18

Durkin v. Paccar, Inc.,

Civ. No. 10-2013, 2010 WL 4117110 (D.N.J. Oct. 19, 2010) ........................... 16

Gardner v. N.J. State Police,

Civ. No. 15-8982, 2016 WL 6138240 (D.N.J. Oct. 21, 2016) ........................... 24

Green v. City of Paterson,

971 F. Supp. 891 (D.N.J. 1997) .......................................................................... 27

Guers v. Jones Lang LaSalle Americas, Inc.,

Civ. No. 1:13-cv-7734, 2014 WL 4793021 (D.N.J. Sept. 25, 2014).................. 26

Hayes v. Wachovia Mortg., FSB,

No. 11-cv-1622, 2011 WL 5036369 (D.N.J. Oct. 21, 2011) ................................ 6

Johnson v. Peralta,

Civ. No. 12-3604, 2013 WL 775541 (D.N.J. Feb. 27, 2013) ............................. 27

Mudey v. United States,

Civ. No. 09-1669, 2011 WL 13228440 (D.N.J. May 10, 2011)......................... 27

Orr v. Brigham Young Univ.,

No. 96-4015, 1997 WL 143600 (10th Cir. Mar. 31, 1997) ................................ 21

Pension Benefit Guar. Corp. v. White Consol. Indus., Inc.

998 F.2d 1192 (3d Cir. 1993) ............................................................................. 29


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Witherspoon v. Rent-A-Ctr., Inc.,

173 F. Supp. 2d 239 (D.N.J. 2001) ..................................................................... 26

Worldwide Basketball & Sports Tours, Inc. v. Nat’l Collegiate

Athletic Ass’n,

No. 2:00-CV-1439, 2002 WL 32137511 (S.D. Ohio July 19, 2002) ................. 10

Yourman v. People’s Sec. Life Ins. Co.,

992 F. Supp. 696 (D.N.J. 1998) .......................................................................... 27

State Cases

Bieker v. Cmty. House of Moorestown,

777 A.2d 37 (N.J. 2001) ..................................................................................... 15

Branch v. Cnty. of Sullivan,

34 N.E.3d 349 (N.Y. 2015) ........................................................................... 21-22

Buckley v. Trenton Sav. Fund Soc’y,

544 A.2d 857 (N.J. 1988) ............................................................................. 26, 27

Conklin v. Hannoch Weisman,

678 A.2d 1060 (N.J. 1996) ........................................................................... 24, 25

Dist. of Columbia v. Campbell,

580 A.2d 1295 (D.C. 1990) ................................................................................ 29

Goldberg v. Hous. Auth. of Newark,

186 A.2d 291 (N.J. 1962) ................................................................................... 17

Graber v. Richard Stockton Coll. of N.J.,

713 A.2d 503 (N.J. Super. Ct. App. Div. 1998) ................................................. 14

Green v. Monmouth Univ.,

178 A.3d 83 (N.J. Super. Ct. App. Div. 2018) ................................................... 12

Green v. Phila. Hous. Auth.,

No. 3433, 1985 WL 384552 (Pa. Ct. Com. Pl. July 10, 1985) ........................... 29

Harris v. Red Bank Reg’l High Sch.,

No. L-1770-0I, 2005 WL 2620577 (N.J. Super. Ct. App. Div. Oct.

17, 2005) ............................................................................................................. 11


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Hehre v. DeMarco,

24 A.3d 836 (N.J. Super. Ct. App. Div. 2011) ............................................. 11, 14

J.S. v. R.T.H.,

714 A.2d 924 (N.J. 1998) ................................................................................... 17

Kelly v. Gwinnell,

476 A.2d 1219 (N.J. 1984) ................................................................................. 22

Lanni v. Nat’l Collegiate Athletic Ass’n,

42 N.E.3d 542 (Ind. Ct. App. 2015) ............................................................. 20, 21

Losada v. Princeton Univ.,

No. L-0057-14, 2017 WL 3623386 (N.J. Super. Ct. App. Div. Aug.

24, 2017) ............................................................................................................. 12

O’Connell v. State,

795 A.2d 857 (N.J. 2002) ................................................................. 10, 12, 14, 19

Palsgraf v. Long Island R. Co.,

162 N.E. 99 (N.Y. 1928) ..................................................................................... 22

Pomeroy v. Little League Baseball of Collingswood,

362 A.2d 39 (N.J. Super. Ct. App. Div. 1976) ................................. 11, 13, 14-15

Roberts v. Timber Birch-Braodmoore Athletic Ass’n,

852 A.2d 271 (N.J. Super. Ct. App. Div. 2004) ........................................... 11, 15

Romanowski v. Twp. of Washington,

No. L-1174-03, 2006 WL 1650967 (N.J. Super. Ct. App. Div. June

16, 2006) ............................................................................................................. 11

Saltiel v. GSI Consultants, Inc.,

788 A.2d 268 (N.J. 2002) ................................................................................... 17

Schultz v. Roman Catholic Archdiocese of Newark,

472 A.2d 531 (N.J. 1984) ................................................................................... 19

Townsend v. Pierre,

110 A.3d 52 (N.J. 2015) ..................................................................................... 16


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Statutes

M.G.L. Chapter 231, § 85K ..................................................................................... 16

N.J. Stat. Ann. § 2A:31-1 ......................................................................................... 16

N.J. Stat. Ann. § 2A:53A-7(a) ........................................................................... 10, 13

N.J. Stat. Ann. § 2A53A-10 ............................................................................... 10, 14


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The National Collegiate Athletic Association (NCAA) is a non-profit

association of more than a thousand colleges and universities around the country,

dedicated to providing educational and athletic opportunities to almost a half-

million student-athletes every year. The NCAA and its member institutions spend

upwards of $3 billion annually on scholarships and athletic programs designed to

provide student-athletes with access to academic and athletic excellence and to

teach them the value of teamwork, sportsmanship, and fair competition.

Michael P. Mazza was one of these student-athletes. Mazza played on the

football team at Mount Ida College, a former Division III member institution of the

NCAA that is now closed, until his untimely death in 2016 following a

conditioning exercise. Mazza’s parents Donald Mazza and Dara Mazza and his

estate have now filed suit against the NCAA and other defendants, alleging three

tort claims—wrongful death, negligence, and intentional infliction of emotional

distress—and a separate breach-of-contract claim based on an insurance

company’s denial of a death benefit provided for in a policy held by the NCAA

that provides payments to student-athletes injured or killed while participating in

college sports.

Mazza’s death is undeniably a tragedy. But Plaintiffs’ claims against the

NCAA are misplaced. Their three tort claims must be dismissed because the

claims are subject to state law granting immunity for entities organized for


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educational purposes; Plaintiffs do not allege sufficient facts to meet the legal test

for duty of care; and Plaintiffs’ complaint relies on conclusory statements and

lacks sufficient factual allegations to plausibly allege the elements of any of these

three causes of action. Plaintiffs’ contract claim fails under the plain terms of the

contract, which requires the NCAA’s insurer to administer benefits but imposes no

obligations to do so on the NCAA itself. Thus, even if Plaintiffs are correct that

the insurance policy contract has been breached, the NCAA is not the proper

defendant for that claim—only the party obligated under the contract to pay

benefits may be sued for a failure to do so.

Accordingly, Plaintiffs’ complaint against NCAA should be dismissed, with

prejudice, in its entirety.

I. BACKGROUND

A. The NCAA’s Insurance Policy

In 2014, the NCAA took out a Catastrophic Injury Blanket Insurance Policy

with its insurer, Mutual of Omaha Insurance Company, that provided certain

monetary benefits to student-athletes (and, in some cases, their designated

beneficiaries or family members) in the event of injury or death that occurs while

participating in certain collegiate sporting events. The Policy was written between

Mutual of Omaha as insurer and NCAA as beneficiary, and provides that “in return

for the payment of premium [by the NCAA] and the signed application, Mutual of


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Omaha Insurance Company … issues this Policy to [the NCAA] and agrees that on

and after the Effective Date of this Policy, it will provide the insurance herein

described for Insured Persons.” See Chabot Decl., Exhibit A (Policy Cover Page).

The Policy was effective from August 1, 2014 until August 1, 2016. Id.

One of the benefits provided for in the Policy was a death benefit to “be paid

if an Insured Person dies as a result of a Covered Accident.” Ex. A at 16. A

student-athlete playing on a school-sanctioned intercollegiate team qualifies as an

“Insured Person,” id. at 7, and a “Covered Accident” is defined to include injury or

death that “results from a cardiovascular accident or stroke or other similar

traumatic event caused by exertion while participating in a Covered Event,” id. at

4. “Covered Event” is in turn defined to include conditioning, which is exercise

outside official practice sessions that directly contributes to the student’s ability to

participate on his or her athletic team. Id. at 4. If these conditions are satisfied, the

death benefit—totaling $25,000, id. at 3—is to be paid by the administrator of the

Policy to the decedent’s designated beneficiary or, in the event no beneficiary was

chosen, to the decedent’s spouse, children, parents, guardian, or siblings, id. at 16.

B. Mazza’s Death

Mazza played competitive football through four years of high school, and in

2013, Mount Ida recruited him to play for its football team. Am. Compl. ¶¶ 11, 20

(ECF No. 1-2). As a member of the football team and a strong academic


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performer, Mazza received scholarships to attend Mount Ida. Id. ¶ 11. He played

football for three years without any significant health issues. Id. ¶¶ 12, 20.

As alleged in the complaint, on February 22, 2016, Mazza participated in a

conditioning workout, which involved weight training supervised by team staff,

including Mount Ida’s athletic director and assistant football coach, at Mount Ida’s

on-campus facility. Am. Compl. ¶¶ 13, 15. The conditioning session lasted

approximately two to two and a half hours. See id. ¶ 14. Following the workout,

Mazza returned to his dormitory, where, approximately thirty to forty-five minutes

later, he suffered a fatal seizure and cardiac arrest. Id. ¶ 16. Police and paramedics

arrived quickly to take him to a nearby hospital, where he was pronounced

deceased. Id. ¶ 17.

The medical examiner who evaluated Mazza determined that his cause of

death was a “probable cardiac dysrhythmia.” Am. Compl. ¶ 19. Plaintiffs allege

that “[n]o athletic trainers or physicians had ever detected any cardiovascular

related issues” with Mazza prior to February 22, 2016, and that Mazza’s “cause of

death is due to exertion from the official team conditioning activity that led to

sudden cardiac death.” Id. ¶ 21; see also id. ¶ 23 (alleging that “[t]he

circumstances surrounding Michael’s death and his conditioning immediately prior

thereto, are consistent with sudden cardiac death that is caused by exertion from

activities such as the conditioning workout Michael engaged in on February 22,


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2016”); id. ¶ 25 (alleging that “Michael’s death within 30-45 minutes of his official

team conditioning are [sic] consistent with sudden cardiac deaths”). Plaintiffs

claim that the circumstances of Mazza’s death qualify for the death benefit

provided in the Policy and have demanded payment of that benefit; the complaint

alleges that no such payment has been made. Id. ¶¶ 22, 43-44.

Plaintiffs do not allege that the NCAA directly or indirectly participated in

Mount Ida’s football program in general, or the February 22, 2016 conditioning

exercise in particular. Rather, they suggest only that the NCAA plays some broad

supervisory role in college athletics, and fault the NCAA for Mazza’s death. In

that capacity, Plaintiffs allege, “[t]he NCAA is well aware that this type of official

team conditioning is directly linked to sudden cardiac deaths … among college

student-athletes.” Am. Compl. ¶ 24. They reference an NCAA task force that

“concluded that there is an increased risk of sudden cardiac death from training and

conditioning among student-athletes with or without previously known

cardiovascular disease,” and they claim the NCAA “is also aware that sudden

cardiac death due to training or competition in an official team activity is ‘the most

common non-traumatic cause of death among college athletes.’” Id. ¶¶ 24-25.

In making these allegations, Plaintiffs reference a report titled

“Cardiovascular Care of College Student-Athletes.” Am. Compl. ¶ 24. This

report, which was published in June 2016 in the Journal of the American College


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of Cardiology, reflects that the NCAA convened a two-day multidisciplinary task

force in September 2014 to discuss cardiovascular care for student-athletes and to

develop recommendations for the future. Hainline et al., Interassociation

Consensus Statement on Cardiovascular Care of College Student-Athletes, 67 J.

Am. Coll. Cardiology 2981, 2991 (2016) [hereinafter “Task Force Statement”]

(attached as Chabot Decl., Exhibit B).1 The task force, and its recommendations

and findings in the Task Force Statement, reflect the NCAA’s “commit[ment] to

expanding the understanding of [sudden cardiac death] and advancing the

cardiovascular care of athletes through education, research, and creation of new

resources.” Id.

C. This Lawsuit

Plaintiffs initiated this action against the NCAA, Mount Ida, Mutual of

Omaha, Catlin Insurance Company, Robert McCloskey Insurance, BMI Benefits

LLC, ABC Corps 1-10, and John Does 1-10 in New Jersey Superior Court in

Monmouth County on February 20, 2018. ECF No. 1-1. They amended their

1 While Plaintiffs did not attach the Task Force Statement to their complaint,

they reference it by name and rely on its statements and conclusions. Am. Compl.

¶¶ 24-25. Accordingly, the Court may consider the full document on this motion

to dismiss. See, e.g., Hayes v. Wachovia Mortg., FSB, 2011 WL 5036369, at *2

(D.N.J. Oct. 21, 2011) (“[W]here the complaint explicitly refers to or relies upon a

document, and the defendant attaches an undisputedly authentic copy of that

document as an exhibit to a motion to dismiss, the Court may consider that

document in deciding the motion under the incorporation by reference doctrine.”).


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complaint on April 18, 2018, and Mount Ida removed the action to federal court on

June 1, ECF No. 1.

In their amended complaint, Plaintiffs assert four causes of action:

• Count I—Wrongful Death. Plaintiffs allege that the NCAA was “aware of

the risks” of sudden cardiac death among student-athletes and “failed to take

the necessary precautionary measures to prevent the death of Michael P.

Mazza.” Am. Compl. ¶ 31.

• Count II—Negligence. Plaintiffs allege that the NCAA was “negligent in

[its] duty to provide reasonable care for the decedent, Michael P. Mazza, by

failing to properly supervise and maintain the proper standards of care for

the athletes at their college of Mount Ida.” Id. ¶ 34. They also allege that

“Defendants have failed to compensate the estate and the parents of Michael

P. Mazza for the monies owed under the insurance policies in light of their

son Michael’s death.” Id. ¶ 35.

• Count III—Intentional Infliction of Emotional Distress. Plaintiffs allege that

“Defendants acted with a reckless disregard of the probability of causing

Plaintiffs emotional distress,” that such actions were “extreme and

outrageous,” and that such actions “were intended to produce emotional

distress, or were reckless and in deliberate disregard of a high probability

that emotional distress would follow.” Id. ¶¶ 38-39.


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• Count IV—Breach of Contract. Plaintiffs claim that “Defendants …

maintained contracts in the form of insurance policies to benefit Michael P.

Mazza and/or his parents in the event of injury and/or death,” and that

“Defendants have failed to compensate the estate and the parents of Michael

P. Mazza pursuant to the contracts and insurance policies for the monies

owed under the insurance policies in light of their son Michael’s death.” Id.

¶¶ 42, 44.

The NCAA now moves to dismiss each of these counts for failure to state a claim.

II. LEGAL STANDARD

To survive a motion under Federal Rule of Civil Procedure 12(b)(6) for

failure to state a claim on which relief can be granted, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’ A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The emphasis of

this analysis is on the factual material alleged; “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Id.


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III. ARGUMENT

Plaintiffs’ attempts to hold the NCAA liable in tort and recover damages,

and to charge the NCAA with breach of a contract, fail as a matter of law.

Plaintiffs’ negligence claims (A) are barred by a New Jersey statute that

immunizes educational organizations from negligence-based claims by their

beneficiaries. The negligence claims also fail because Plaintiffs do not allege

sufficient facts (B) to meet the legal test for duty of care or (C) to establish that the

NCAA caused Mazza’s death. Plaintiffs’ claims for intentional infliction of

emotional distress (D) similarly fails to allege facts giving rise to that cause of

action, especially intentional and outrageous conduct. Finally, Plaintiffs’ breach-

of-contract claim (E) cannot succeed because the NCAA is not the party obligated

under the Policy to provide the relief Plaintiffs seek. As a result, Plaintiffs’

complaint against the NCAA must be dismissed with prejudice.

A. The NCAA Is Immune From Plaintiffs’ Negligence Claims

Plaintiffs’ tort claims fail at the starting gate because they are barred by New

Jersey’s Charitable Immunity Act. The New Jersey Legislature passed that Act to

prevent the “diver[sion]” of “funds dedicated to a charitable use” through suits

based on the negligence of an organization’s agents filed by “the beneficiary” of

that organization—or, put differently, to ensure that funds raised for the public

good are spent not on judgments for negligence, but on the aims for which they


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were intended. See O’Connell v. State, 795 A.2d 857, 859 (N.J. 2002). To this

end, under the terms of the Act, “[n]o nonprofit corporation, society, or association

organized exclusively for religious, charitable or educational purposes … shall …

be liable to respond in damages to any person who shall suffer damage from the

negligence of any agent or servant of such corporation, society or association,

where such person is a beneficiary, to whatever degree, of the works of such

nonprofit corporation, society or association.” N.J. Stat. Ann. § 2A:53A-7(a).

This case falls squarely within the Act’s purview: (1) the NCAA is a covered

nonprofit association, (2) Plaintiffs seek damages for alleged negligence, and

(3) Mazza is a beneficiary of the NCAA’s works.

1. The Charitable Immunity Act covers nonprofit associations

like the NCAA.

The NCAA fits squarely within the scope of the Act. Per the threshold

requirements of the statute, it is a nonprofit association (see Am. Compl. ¶ 4) and it

has 501(c)(3) tax-exempt status with the Internal Revenue Service. See, e.g.,

Worldwide Basketball & Sports Tours, Inc. v. Nat’l Collegiate Athletic Ass’n, 2002

WL 32137511, at *1 (S.D. Ohio July 19, 2002).

The NCAA is also “organized exclusively for religious, charitable or

educational purposes” as contemplated by the statute. N.J. Stat. Ann. § 2A:53A-

7(a). Consistent with the statute’s broad intended sweep, see N.J. Stat. Ann.

§ 2A:53A-10, New Jersey courts have held that entities that organize and facilitate


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athletic events for students and youth fall under the Act. For example, in Pomeroy

v. Little League Baseball of Collingswood, the court noted that the defendant, an

organization dedicated to youth baseball, existed to “firmly implant in the boys of

the community the ideals of good sportsmanship, honesty, loyalty, courage and

reverence … by providing supervised competitive athletic games,” and that this

purpose meant the group had been “formed for exclusively educational purposes.”

362 A.2d 39, 41 (N.J. Super. Ct. App. Div. 1976). Similarly, in Roberts v. Timber

Birch-Broadmoore Athletic Association, a suit against a youth athletic association

that organized a soccer tournament, the court held that the defendant’s “purpose of

teaching and promoting good citizenship and sportsmanship and assembling teams

and groups for participation in sports qualifies it as a non-profit organization

within the scope” of the Act. 852 A.2d 271, 274 (N.J. Super. Ct. App. Div. 2004).

Numerous other decisions have similarly held that athletic groups (or schools in

their capacity as the sponsors of athletic teams) fall within the Act. See, e.g.,

Hehre v. DeMarco, 24 A.3d 836, 840-41 (N.J. Super. Ct. App. Div. 2011) (holding

that school was immune under the Act for injuries to student in car crash on the

way to a track meet); Romanowski v. Twp. of Washington, 2006 WL 1650967, at

*6 (N.J. Super. Ct. App. Div. June 16, 2006) (noting that it was not disputed that

New Jersey State Youth Soccer Association was a non-profit organization founded

for educational purposes under the Act); Harris v. Red Bank Reg’l High Sch., 2005


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WL 2620577, at *2 n.1 (N.J. Super. Ct. App. Div. Oct. 17, 2005) (noting that high

school athletic conference organization was a “non-profit corporation organized

‘exclusively’ for the ‘educational purposes’ of promoting sportsmanship of young

athletes,” thus entitling it to “invoke charitable immunity”). And NCAA member

schools have been held to fall within the scope of the statute. See, e.g., O’Connell,

795 A.2d at 866 (Montclair State University); Green v. Monmouth Univ., 178 A.3d

83, 94 (N.J. Super. Ct. App. Div. 2018); Losada v. Princeton Univ., 2017 WL

3623386, at *3 (N.J. Super. Ct. App. Div. Aug. 24, 2017).

The NCAA’s core goal of providing educational and athletic opportunities

for students brings it squarely within the Act’s scope. Specifically, the NCAA’s

constitution makes clear that its animating principle is “[t]o initiate, stimulate, and

improve intercollegiate athletics programs for student-athletes and to promote and

develop educational leadership, physical fitness, athletics excellence and athletics

participation as a recreational pursuit.” Cole v. Nat’l Collegiate Athletic Ass’n, 120

F. Supp. 2d 1060, 1063 (N.D. Ga. 2000) (quoting NCAA Const. art. 1.2). Further,

the NCAA and its membership view athletics as an integral part of a student’s

broader educational experience. See id. (“The competitive athletics programs of

member institutions are designed to be a vital part of the educational system. A

basic purpose of this Association is to maintain intercollegiate athletics as an

integral part of the educational program and the athlete as an integral part of the


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student body.” (quoting NCAA Const. art. 1.3.1)). These foundational aims of

athletics as an integral part of education are indistinguishable from those in

Pomeroy, 362 A.2d at 41, and other cases concluding that a given entity was

organized “exclusively [for] educational purposes.” Consequently, to effectuate

the Legislature’s goal of ensuring that the NCAA’s funds are spent on these critical

educational aims rather than on judgments based in its agents’ alleged negligence,

the Court should find that the NCAA falls within the scope of New Jersey’s grant

of immunity.

2. Plaintiffs seek damages for purported negligence.

Plaintiffs claim to have “suffer[ed] damage from the negligence of” the

NCAA, N.J. Stat. Ann. § 2A:53A-7(a). See, e.g., Am. Compl. ¶ 36 (“As a direct

and proximate result of Defendants’ negligence and wrongful acts, Plaintiffs have

suffered damages ….”). For that, they seek to hold the NCAA “liable to respond

in damages,” N.J. Stat. Ann. § 2A:53A-7(a). See, e.g., Am. Compl. ¶ 36(a)-(e)

(seeking compensatory, consequential, incidental, treble, and punitive damages).

Their claims therefore fall within the scope of the Charitable Immunity Act.

3. Mazza was a beneficiary of the NCAA’s works.

Under the Act, Mazza “is a beneficiary, to whatever degree, of the works of”

the NCAA. N.J. Stat. Ann. § 2A:53A-7(a). Consistent both with the text of the

Act—which deems a party a beneficiary of an entity’s public works if they benefit


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“to whatever degree”—and with the New Jersey legislature’s command that the

statute be read liberally, N.J. Stat. Ann. § 2A:53A-10, courts have taken an

expansive approach to determining whether a plaintiff is a beneficiary of a

defendant’s activities designed to help the public. In the collegiate setting, courts

have held that “a student engaging in educational pursuits is per se a beneficiary of

a college or a university,” even where she is not presently engaged in scholarship.

Graber v. Richard Stockton Coll. of N.J., 713 A.2d 503, 507 (N.J. Super. Ct. App.

Div. 1998); see also O’Connell, 795 A.2d at 861 (stating that “as a student of

Montclair [University] engaging in educational pursuits, [the plaintiff] is ‘per se a

beneficiary’ of Montclair” (quoting Graber, 713 A.2d at 507)).

Similarly, in the athletic context, courts have held plaintiffs to be

beneficiaries of a defendant’s activities for the public good even where they were

not directly participating in an athletic event at the time of their injury. For

instance, in Hehre v. Marco, a student injured in a car crash on the way to a school

track meet was held to “clear[ly be] a beneficiary of the High School’s charitable

activities at the time of the accident,” even though his injuries were ancillary to

actual participation in sports. 24 A.3d at 840. This principle has been extended

such that an athletic organization is protected even where the injured party is not

an athlete (or even a student) at all: In Pomeroy, the court ruled that a woman hurt

when the bleachers she was sitting on collapsed during a youth baseball game was


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a beneficiary of the defendant’s public works not only because she was a spectator,

but also because “[i]t is only essential that it be shown that at the time plaintiff was

injured defendant was engaged in the performance of the charitable objectives it

was organized to advance.” 362 A.2d at 41; see also Bieker v. Cmty. House of

Moorestown, 777 A.2d 37, 45 (N.J. 2001) (ruling that injured child “was plainly a

recipient of [a community gymnasium’s] ‘benefactions,’ even if only as a

companion of his father and a spectator at his father’s basketball game”); cf.

Roberts, 852 A.2d at 275-76 (stating that plaintiff who tripped over a cooler during

youth soccer game was a beneficiary of defendant’s activities if she attended the

game primarily in her capacity as a parent, but remanding for further fact-finding

regarding plaintiff’s volunteer activities).

Given these permissive standards, at a minimum Counts I and II of

Plaintiffs’ amended complaint—wrongful death and negligence—are barred by the

Act’s grant of immunity from actions based in negligence filed by beneficiaries of

organizations like the NCAA. The facts alleged reflect that Mazza was a

beneficiary of the NCAA’s works at the time of his death—indeed, Plaintiffs allege

that Mazza died as a result of his participation in the athletic endeavors the NCAA

was founded to promote. Am. Comp. ¶ 21. Consequently, even accepting all of

Plaintiffs’ allegations as true, New Jersey law serves to immunize the NCAA from

suit based on those allegations—and thus to effectuate the Legislature’s goal of


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ensuring that funds dedicated to benefiting the public through the promotion of

education and athleticism are spent on that goal.2 Accordingly, Counts I and II

must be dismissed.

B. Plaintiffs Do Not Allege Sufficient Facts To Meet The Legal Test

For Duty Of Care

In order to state wrongful death and negligence claims, Plaintiffs must allege

four elements: a legally cognizable tort duty owed by the NCAA to Plaintiffs, a

breach of that duty, an injury, and a proximate causal link between the breach and

that harm. See, e.g., Townsend v. Pierre, 110 A.3d 52, 61 (N.J. 2015).3 Plaintiffs

ask the Court to impose on the NCAA a broad, amorphous, and undifferentiated

legal duty to prevent all injuries to student-athletes at each of its over one thousand

member colleges and universities. See Am. Compl. ¶ 4. But Plaintiffs do not

2 Massachusetts, where Mazza attended school and where his death occurred,

has a similar law. See M.G.L. ch. 231, § 85K (capping tort liability for entities

organized for the public good at $20,000).

3 New Jersey’s Wrongful Death Act creates no independent theory of liability

but merely permits Plaintiffs to pursue Mazza’s tort claims after his death. See

N.J. Stat. Ann. § 2A:31-1; Durkin v. Paccar, Inc., 2010 WL 4117110, at *11

(D.N.J. Oct. 19, 2010); see also Am. Compl. ¶¶ 27-32.


- 17 -

allege sufficient facts to meet the legal test for duty of care.4 The allegations fail to

show that (1) the legal test for whether a duty of care exists is met and (2), even if

that test were met, that the scope of the legal duty of care extends to the

circumstances here.

1. Plaintiffs do not allege sufficient facts to meet the legal test

for the existence of a duty of care.

In New Jersey, “[u]ltimately, the determination of the existence of a duty is a

question of fairness and public policy.” J.S. v. R.T.H., 714 A.2d 924, 928 (N.J.

1998). That determination is a question of law for the Court that “involves a

weighing of the relationship of the parties, the nature of the risk, and the public

interest in the proposed solution.” Goldberg v. Hous. Auth. of Newark, 186 A.2d

291, 293 (N.J. 1962). Here, the allegations do not satisfy that test.

First, the relationship alleged between Plaintiffs and the NCAA is

nonspecific and attenuated. The NCAA’s only alleged relationship to Mazza is his

4 Plaintiffs’ negligence claim also alleges that “Defendants have failed to

compensate the estate and the parents of Michael P. Mazza for the monies owed

under the insurance policies in light of their son Michael’s death.” Am. Compl.

¶ 35. This allegation is essentially identical to Plaintiffs’ breach-of-contract claim,

compare id., with id. ¶ 44, and it fails to state a claim for the same reason: The

NCAA was not the party obligated to administer and pay benefits under the Policy,

and Plaintiffs can only seek performance of a contract obligation from the party

that undertook that obligation. See infra at Part III.D. To the extent Plaintiffs do

attempt to assert a negligence claim based on the denial of the insurance benefit, a

monetary loss rooted solely in contract, that claim is barred by the economic-loss

doctrine. See, e.g., Saltiel v. GSI Consultants, Inc., 788 A.2d 268, 275 (N.J. 2002).


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participation in one athletic program at one member college. See Am. Compl.

¶ 11. No allegations distinguish the NCAA’s relationship with Mazza from its

relationship with over 460,000 other student-athletes. Nor do the allegations

distinguish the NCAA’s relationship with Mount Ida from its relationship with any

other NCAA members. And Plaintiffs do not allege any relationship between the

NCAA and Mazza’s parents (who sue in their own right for their own alleged

damages, see, e.g., Am. Compl. ¶¶ 32, 36), except through Mazza. But Mazza was

a legal adult, and there is no “relevant case law establishing any legal duty a

private university”—let alone an association of over a thousand universities—

“would have towards the parents of an adult student.” Doe v. Univ. of the S., 2011

WL 1258104, at *15 (E.D. Tenn. Mar. 31, 2011).

Second, the nature of the risk counsels against imposing Plaintiffs’ broadly

alleged legal duty. The specific risk—that Mazza would suffer fatal cardiac arrest

in his dorm room sometime after his February 22, 2016 workout—appears to have

been wholly unforeseeable, since Mazza “never had any significant health issues or

cardiovascular issues” before. Am. Compl. ¶ 12. In any event, Plaintiffs do not

and could not allege that the NCAA could have foreseen the specific risk to Mazza

that day. Instead Plaintiffs seem to believe that the general increased risk of

sudden cardiac death inherent in any athletic exertion suffices to establish the legal

test for duty of care in Mazza’s particular case. But the nature of that risk cannot


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sustain a legally cognizable tort duty. The NCAA does not cause or increase

student-athletes’ risk of sudden cardiac death; it is intrinsic to participation in

athletic activity. Nor could the NCAA eliminate that risk: the only way to reduce

athletes’ increased risk of sudden cardiac death to zero is to eliminate athletics

altogether. And while sudden cardiac death in college athletes is deeply tragic, it is

also extremely rare: In NCAA student-athletes during or soon after exertion, the

risk is estimated to be 0.0019%. See Task Force Statement at 2984. It would not

be fair or proper to impose Plaintiffs’ alleged duty on the NCAA for an intrinsic,

inevitable, and infrequent risk of athletics that the NCAA does not cause or

increase.

Third, to impose that legal duty on the NCAA would disserve the public

interest. The New Jersey public itself certainly thinks so: By the Charitable

Immunity Act, New Jerseyans’ elected officials codified the common-law principle

that “it would be contrary to the interests of society” that a charity’s funds “be

permitted to be diverted” to the tort claims of its beneficiaries. O’Connell, 795

A.2d at 859 (quoting Jones v. St. Mary’s Roman Catholic Church, 82 A.2d 187

(N.J. 1951)). In fact the New Jersey Legislature passed the Act when the New

Jersey courts tried to abolish charitable immunity “as a matter of public policy”—

“Within a week, the Legislature acted to restore the doctrine.” Schultz v. Roman


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Catholic Archdiocese of Newark, 472 A.2d 531, 534-35 (N.J. 1984). The public’s

interest could not be more clear.

Consider too that the NCAA’s only alleged connection to this issue is the

Task Force, convened as part of the NCAA’s commitment to “expanding the

understanding of [sudden cardiac death] and advancing the cardiovascular care of

athletes.” Task Force Statement at 2991; see Am. Compl. ¶ 24. That commitment

is not sustainable if it also requires the NCAA to oversee every aspect of the

athletic programs at each of its member institutions and makes the NCAA liable in

tort for all student-athlete cardiac deaths—meaning that imposing a legally

cognizable duty in tort on the NCAA in this case will result in less “education,

research, and creation of new resources” to address the issue. Task Force

Statement at 2991. That result disserves the public, most of all student-athletes and

their families.

Given the relationship of the parties, the nature of the risk, and the public

interest, then, the Court should conclude in the interest of fairness and public

policy that Plaintiffs have failed to allege sufficient facts to meet the legal test for

duty of care.

Several other courts have reached this or analogous conclusions. In Lanni

v. National Collegiate Athletic Association, for example, the court held that the

NCAA was not required to directly supervise the actions of its member institutions


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and was not otherwise bound to enforce standards to prevent all injuries to student-

athletes where a college fencer suffered a severe eye injury from a sabre while

watching a teammate’s match. 42 N.E.3d 542, 546 (Ind. Ct. App. 2015). The

student argued that the NCAA owed her a legally cognizable duty of care because

it had promulgated various rules and recommendations for its member institutions

concerning safety at fencing matches. Id. at 550, 552-53. The Indiana Court of

Appeals rejected this contention:

It is commendable for the NCAA to actively engage its member

institutions and student-athletes in how to avoid unsafe practices, but

those acts do not rise to the level of assuring protection of the student-

athletes from injuries that may occur at sporting events. Actual

oversight and control cannot be imputed merely from the fact that the

NCAA has promulgated rules and regulations and required

compliance with those rules and regulations. The NCAA’s conduct

does not demonstrate that it undertook or assumed a duty to actually

oversee or directly supervise the actions of the member institutions

and the NCAA’s student-athletes. Accordingly, … [the plaintiff]

cannot demonstrate the element of duty required for her negligence

claim.

Id. at 553. Other courts have rejected similar cases against universities for failure

to allege facts sufficient to meet the legal test for duty of care. See, e.g., Orr v.

Brigham Young Univ., 1997 WL 143600, at *2-3 (10th Cir. Mar. 31, 1997). And

still others have applied the principles articulated in Lanni more broadly: In

Branch v. County of Sullivan, for example, the New York Court of Appeals ruled

that a county government that provided finances and support for a community

college but did not directly manage its facilities owed no legal duty of care in tort


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to a student who suffered a heart attack in the school’s dormitory and filed a claim

based on the dormitory’s lack of electric defibrillators. 34 N.E.3d 349, 351 (N.Y.

2015). In light of this precedent, and for the reasons stated above, the Court should

conclude that Plaintiffs have not alleged facts sufficient to meet the legal test for

establishing the existence of a duty of care.

2. Plaintiffs do not allege sufficient facts to meet the legal test

for the applicable scope of a duty of care.

Additionally, Plaintiffs fail to allege facts sufficient to establish that the

scope of any purported legal duty extends to the circumstances alleged—or even

what the scope of the duty they assert is. “Proof of negligence in the air, so to

speak, will not do.” Palsgraf v. Long Island R. Co., 162 N.E. 99, 99 (N.Y. 1928).

Determining the scope of a legal duty, like determining the existence of a duty, is

“a function of the judiciary”: “When the court determines that a duty exists and

liability will be extended, it draws judicial lines based on fairness and policy.”

Kelly v. Gwinnell, 476 A.2d 1219, 1222, 1226 (N.J. 1984).

At the outset, it is worth pausing on just how broad and indistinct a legal

duty in tort Plaintiffs want the Court to create. Plaintiffs do not allege that the

NCAA assumed a specific duty. And Plaintiffs provide no defined scope for the

duty they seek to impose, instead alleging broadly that the NCAA was required to

take undefined necessary precautions and to supervise all aspects of the Mount Ida

athletic program. Requiring the NCAA to supervise every aspect of the Mount Ida


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athletic program to prevent Mazza’s unforeseen, fatal cardiac arrest sometime later

in his dorm room would effectively create a legal tort duty to oversee every aspect

of athletic activities (and their aftermaths, indefinitely) at every NCAA member

school to prevent all injuries to all of their student-athletes—almost a half-million

of them across the country. Plaintiffs allege no narrower legally cognizable duty,

no limiting facts, no examples of necessary precautions, and no blueprint for how

the NCAA should have supervised Mount Ida.

Nor do Plaintiffs provide any basis to cabin the duty of care they seek to the

NCAA and student athletics. If Plaintiffs’ allegations meet the legal test for duty

of care, then other similarly situated national associations would be required to

behave similarly: the American Bar Association must insure every lawyer’s ethical

obligations, the Boy Scouts of America must oversee every camping trip, the

American Cancer Society must police every Relay for Life walk, and the National

Council of the YMCA must referee every pickup basketball game—or risk being

held liable for any resulting injuries. Fairness and public policy do not permit this

result.

Plaintiffs therefore fail to allege facts meeting the test both for the existence

of a duty of care and for the extension of the scope of a duty of care to these

circumstances. They accordingly fail to establish the element of duty necessary to


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sustain their negligence and wrongful-death claims, and those claims should be

dismissed.

C. Plaintiffs’ Threadbare Allegations Do Not Establish Causation

Plaintiffs also fail to allege facts sufficient to establish that the NCAA

caused Mazza’s death. In order to plead causation, Plaintiffs must allege facts

from which the Court could conclude “that the result complained of”—here,

Mazza’s death—“probably would not have occurred ‘but for’ the negligent

conduct” of the NCAA. Conklin v. Hannoch Weisman, 678 A.2d 1060, 1071 (N.J.

1996) (internal quotation marks and citation omitted).

The complaint falls far short of this requirement. The complaint states only

that the NCAA was aware of the risk of sudden cardiac death among student-

athletes but “failed to take the necessary precautionary measures” “by failing to

properly supervise and maintain the proper standards of care for the athletes at

their college of Mount Ida.” Am. Compl. ¶¶ 31, 34. Plaintiffs do not allege what

Mount Ida’s conditioning program did wrong that led to Mazza’s death sometime

later in his dorm room or how the NCAA’s supervision and intervention could

have fixed those errors in a way that would have prevented Mazza’s death. See,

e.g., Gardner v. N.J. State Police, 2016 WL 6138240, at *4 (D.N.J. Oct. 21, 2016)

(“The pleading standard requires more than mere conclusory statements. … [T]he

Complaint does not adequately plead that [the defendant’s] training and


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supervision were a proximate cause of Plaintiffs’ injuries. Establishing the

proximate cause element requires showing that the injury would not have occurred

‘but for’ the defendant’s negligence, and Plaintiff makes no such showing here.”).

To the contrary, the complaint states that Mazza had “no signs of a dysrhythmia or

arrhythmia prior to [his] conditioning … on February 22,” that he “had taken many

physicals and had been playing competitive football for the last seven (7) years,”

and that “[n]o athletic trainers or physicians had ever detected any cardiovascular

related issues” in him. Am. Compl. ¶¶ 20-21. What “precautionary measures” and

“proper standards,” then, do Plaintiffs think would have prevented Mazza’s death?

Id. ¶¶ 31, 34. The complaint does not say. The complaint instead recites the

causation element with a threadbare allegation that because of the NCAA’s

negligent acts, Plaintiffs have suffered damages. This is insufficient. The Court,

therefore, cannot conclude that Mazza’s death “probably would not have occurred”

if the NCAA had implemented some undefined precautionary measures. Conklin,

678 A.2d at 1071. Plaintiffs’ wrongful death and negligence claims therefore must

be dismissed.

D. Plaintiffs’ Intentional Infliction Of Emotional Distress Claim Fails

In order to state a claim for intentional infliction of emotional distress

(IIED), Plaintiffs must allege (1) intentional or reckless conduct (2) that is extreme


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and outrageous and (3) causes severe distress. See, e.g., Buckley v. Trenton Sav.

Fund Soc’y, 544 A.2d 857, 863 (N.J. 1988). The complaint fails to do so.

First, the allegations fail to show that by not supervising the Mount Ida

football team’s conditioning, the NCAA intended “to produce emotional distress”

or acted in “deliberate disregard of a high degree of probability” of that result.

Buckley, 544 A.2d at 863. The fact that the NCAA convened a task force to

research and make recommendations on this issue flatly contradicts any such

inference. See Am. Compl. ¶ 24. And the fact that the NCAA’s conduct affected

Mazza and Plaintiffs no differently than anyone else “negates any intentionality as

to Plaintiff[s].” Witherspoon v. Rent-A-Ctr., Inc., 173 F. Supp. 2d 239, 242 (D.N.J.

2001) (dismissing IIED claim for lack of intent because defendant administered

allegedly distressing examination to hundreds of employees).

Beyond that, the complaint contains no facts from which the Court could

infer the NCAA intended to distress Plaintiffs or deliberately disregarded that risk.5

On that basis, the IIED claim should be dismissed. See, e.g., Guers v. Jones Lang

5 The complaint is unclear as to whether Count III is based on the emotional

distress caused by Mazza’s death or on the distress caused by the denial of benefits

under the Policy. See Am. Compl. ¶¶ 37-40. To the extent the claim against the

NCAA rests on the latter, it must fail for the reasons discussed below regarding

Plaintiffs’ breach-of-contract claim. See infra at Part III.D. The NCAA is not the

party to the Policy responsible for administering and paying benefits; it hardly can

have intended conduct to inflict emotional distress when it was not the party that

engaged in the conduct in question.


- 27 -

LaSalle Americas, Inc., 2014 WL 4793021, at *4 (D.N.J. Sept. 25, 2014)

(dismissing IIED claim because “Plaintiff provides no underlying facts that show

that [that defendant acted intentionally or recklessly]”); Johnson v. Peralta, 2013

WL 775541, at *2 (D.N.J. Feb. 27, 2013) (dismissing IIED claim because intent or

recklessness were “unsupported by factual allegations”).

Second, the NCAA’s alleged conduct was not “extreme and outrageous.”

This standard is extremely high: The conduct must “go beyond all possible bounds

of decency, and to be regarded as atrocious, and utterly intolerable in a civilized

community.” Buckley, 544 A.2d at 863. That the NCAA did not oversee every

aspect of Mount Ida’s football program is self-evidently not utterly intolerable in a

civilized community. Rather, all associations with member organizations

“regularly” choose not to superintend certain aspects of their member

organizations’ conduct. Yourman v. People’s Sec. Life Ins. Co., 992 F. Supp. 696,

705 (D.N.J. 1998) (regular business decision not to issue insurance policy with

certain deductible did not constitute outrageous conduct). “For the Court to find

that such behavior is at all times beyond all possible bounds of decency … would,

to put it mildly, be hyperbole.” Id.; see also, e.g., Mudey v. United States, 2011

WL 13228440, at *2 (D.N.J. May 10, 2011) (alleged unfulfilled requests for

medical attention did not constitute outrageous conduct); Green v. City of

Paterson, 971 F. Supp. 891, 910 (D.N.J. 1997) (alleged failure to properly


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investigate a crime while the suspect remained in jail for eight days over

Thanksgiving did not constitute outrageous conduct). The complaint’s threadbare

recital of the standard (see Am. Compl. ¶ 39) offers no reason to conclude

otherwise.

Therefore, the NCAA is not alleged to have intentionally or recklessly

caused severe emotional distress through extreme and outrageous conduct. The

IIED claim should be dismissed.

E. Plaintiffs’ Breach-Of-Contract Claim Fails

Finally, Plaintiffs’ breach-of-contract claim against the NCAA must be

dismissed because the NCAA is the wrong party from which to seek relief.

Plaintiffs say that “Defendants maintained … insurance policies to benefit

[Plaintiffs] in the event of injury and/or death” and “have failed to compensate

[Plaintiffs].” Am. Compl. ¶¶ 42, 44. That allegation, undifferentiated as between

the Defendants in this case, obscures the fact that the NCAA owes Plaintiffs no

contractual duty. The contract provisions state that “in return for the payment of

premium” by the NCAA, “Mutual of Omaha Insurance Company … issues this

Policy to the Policyholder and agrees that … it will provide the insurance herein


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described for Insured Persons.” See Ex. A (Policy Cover Page).6 The Policy thus

obligates the NCAA to pay premiums and Mutual of Omaha to administer the

insurance program and “provide the insurance described herein”—that is to say, to

pay benefits. Paying benefits is not the NCAA’s obligation under the contract, and

Plaintiffs therefore cannot sue the NCAA for the alleged breach of that obligation.

Accordingly, even if Plaintiffs are proper third-party beneficiaries of the

Policy, and even if they are correct that they are entitled to the death benefits

provided for in the Policy, the only proper defendant for the claim is Mutual of

Omaha. See, e.g., Dist. of Columbia v. Campbell, 580 A.2d 1295, 1302 (D.C.

1990) (“[T]hird-party beneficiary’s action lies only against the promisor.” (citing

Restatement (Second) of Contracts § 304 (1981)); Green v. Phila. Hous. Auth.,

1985 WL 384552 (Pa. Ct. Com. Pl. July 10, 1985) (dismissing breach-of-contract

claim brought by third-party beneficiaries of insurance contract against a city

agency because the only obligation allegedly breached was owed by the insurers,

not the agency). The complaint therefore fails to state a breach-of-contract claim

against the NCAA.

6 Because the complaint refers to and relies on the Policy contract, the Court

may consider the full contract on this motion to dismiss. See Pension Benefit

Guar. Corp. v. White Consol. Indus., Inc. 998 F.2d 1192, 1196 (3d Cir. 1993)

(where plaintiff’s claims rely on a purchase and sale agreement, “a court may

consider an undisputedly authentic document that a defendant attaches as an

exhibit to a motion to dismiss if the plaintiff’s claims are based on the document”).


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IV. CONCLUSION

For these reasons, the complaint against the NCAA should be dismissed

with prejudice.

Dated: July 13, 2018

New York, NY

Respectfully submitted,

/s/ Ryan M. Chabot

Ryan M. Chabot

New Jersey Bar No. 162262015

WILMER CUTLER PICKERING

HALE AND DORR LLP

7 World Trade Center

250 Greenwich Street

New York, NY 10007

212-230-8800 Telephone

212-230-8888 Facsimile

[email protected]

Attorney for Defendant National

Collegiate Athletic Association (NCAA)


CERTIFICATE OF SERVICE

I hereby certify that on July 13, 2018, I electronically filed the foregoing

with the Clerk of the Court using the ECF system, which will send notification of

such filing to all counsel of record.

July 13, 2018

New York, NY

Respectfully submitted,

/s/ Ryan M. Chabot

Ryan M. Chabot


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