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IN THE UNITED STATES DISTRICT COURT


FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MATTHEW ONYSHKO and )
JESSICA ONYSHKO, his wife, )
)
Plaintiffs, )
)
v. ) Civil Action No. 13-1791
) District Judge Cathy Bissoon/
) Magistrate Judge Cynthia Reed Eddy
NATIONAL COLLEGIATE, )
ATHLETIC ASSOCIATION, )
)
Defendant. )

MAGISTRATE JUDGE CYNTHIA REED EDDY
REPORT AND RECOMMENDATION

I. RECOMMENDATION

For the reasons set forth in the following Report, the Magistrate Judge respectfully
recommends that Defendant National Collegiate Athletic Associations Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) be denied. It is further recommended that
Defendants Motion for a More Definite Statement of the claims against it pursuant to Rule 12(e)
be denied.
II. REPORT

A. Facts

This is a negligence action brought by a former collegiate football player at California
University of Pennsylvania, Matthew Onyshko, and his wife, Jessica Onyshko, against the
National Collegiate Athletic Association (NCAA). Mr. Onyshko played collegiate football for
five years from 1999 to 2003. Complaint (ECF No. 1), at 12. During Mr. Onyshkos
collegiate football career, he experienced numerous repeated blows to the head, and on three
specific occasions, he lost consciousness for at least thirty seconds. Id. After Mr. Onyshkos
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collegiate career ended, he progressively experienced frequent severe headaches, numbness,
twitching, muscle atrophy, fatigue, loss of mobility, slurred speech, difficulty swallowing,
weakness and other neurological symptoms. Id. Mr. Onyshko was recently diagnosed with a
progressive brain and spinal cord injury with ALS-like symptoms caused by repeated head
trauma during his college football career in the NCAA. Id.
Plaintiffs aver that the Defendant NCAA failed to take effective action to protect
Onyshko from the long-term effects of concussions and sub-concussive blows to the head
suffered while playing collegiate football in the NCAA. Id. at 1. Plaintiffs allege that the
NCAA assumed a duty to Plaintiffs by:
Acting in its role as the governing body of collegiate sports. Id. at 14.
Tightly regulating its member institutions through the NCAA Constitution, Operating
Bylaws, and Administrative Bylaws, which includes over 400 pages of detailed rules
that govern in great detail all matters relating to athletic events, including: player well-
being and safety, playing time and practice rules for each sport, contest rules,
amateurism, recruiting, eligibility, and scholarships. Id. at 15.
Updating its NCAA Manual, which contains the NCAA Constitution, Operating Bylaws,
and other legislative policies, at an annual conference, and annually publishing said
materials to the member schools. Id. at 16.
Promulgating sports-specific standards through its Playing-Rules Committees. Id.
Providing in its constitution that [i]ntercollegiate athletics programs shall be conducted
in a manner designed to protect and enhance the physical and educational well being of
student-athletes. Id. at 2.
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Mandating through its constitution that member institutions shall be obligated to apply
and enforce this legislation, and the enforcement procedures of the Association shall be
applied to an institution if it fails to fulfill said obligations. Id. at 19.
Providing in its constitution that [i]t is the responsibility of each member institution to
protect the health of, and provide a safe environment for, each of its participating student-
athletes, and providing that the NCAA shall assist the institution in its efforts to
achieve full compliance with all rules and regulations . . .
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Id. at 2, 3, 21.
Providing in its constitution that the NCAAs purposes and fundamental policies []
include maintaining control over and responsibility for intercollegiate sports and student-
athletes. Id. at 18.
Maintaining The Committee on Safeguards and Medical Aspects of Sports [Medical
Committee], which is publicly touted by the NCAA as serv[ing] to provide expertise
and leadership to the NCAA in order to provide a healthy and safe environment to
student-athletes through research, education, collaboration and policy development. Id.
at 22. The Medical Committee annually publishes the NCAA Sports Medicine
Handbook (Handbook) to formulate guidelines for sports medicine care and protection
of student-athletes health and safety and to assist member schools in developing a safe
intercollegiate program. Id. at 24. The Handbook is sent directly to head athletic
trainers, as well as various individuals at NCAA member institutions. Id. at 17.
Publishing in the Handbook the policies and guidelines for treatment and prevention of
injury, as well as return-to-play instructions. Id. at 17.

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Plaintiffs assert that several years after Mr. Onyshkos football career concluded, the NCAA adopted a
concussion management policy that delegated the concussion problem to its member schools despite
decades of knowledge of risks associated with long-term brain injury in football players. Id. at 57, 58.
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Explicitly stating in the Handbook that student-athletes rightfully assume that those who
sponsor intercollegiate athletics have taken reasonable precautions to minimize the risks
of injury from athletics participation. Id. at 4, 24. Additionally, the Medical
Committee recognizes that the Handbook may constitute some evidence of the legal
standard of care. Id. at 24.
[C]onducting injury surveillance for more than 20 years and making the underlying
principle of the program . . . to promote and support student athlete health and safety.
Id. at 23.
Plaintiffs also contend that the NCAA had an overwhelming amount of knowledge
regarding the long-term, life altering risks and consequences of head injuries that can result
from participation in the game of football as compared to the student-athletes. Id. at 27-28.
Plaintiffs aver that medical science has known for many decades that repetitive and violent
jarring of the head or impact to the head can cause Mild Trauma Brain Injury (MTBI) with the
heightened risk of long term, chronic neuro-cognitive maladies. Id. at 29. Plaintiffs also
allege that the NCAA has known or should have known for many years the signs and risks
associated with MTBI, including memory loss, dementia, depression, and CTE and its related
symptoms. Id. at 30-32, 57. Plaintiffs further aver that the NCAA has known or should have
known for many years about various scientific studies identifying the risks and consequences of
multiple head injuries, concussions, and repeated traumatic head impacts sustained during a
football players career. Id. at 34-37, 40-57.
Plaintiffs allege that the NCAA had superior knowledge of the above risks as compared
to the student athletes. Id. at 28. Plaintiffs assert that [t]he NCAA has known or should have
known for many years that collegiate football players and their families, including Onyshko,
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were unaware of the serious risk posed to the players long-term cognitive health, caused by
repeated head impacts while playing football. Id. at 33. Additionally, Plaintiffs aver that Mr.
Onyshko relied on the NCAA to disclose relevant risk information and protect his health and
safety. Id. at 38.
However, notwithstanding the foregoing, Plaintiffs claim that [t]he NCAA ignored [its]
duty to protect Onyshko and failed to inform him of the true risks associated with concussions
and sub-concussive hits suffered while playing collegiate football. Id. at 5. Plaintiffs contend
that the NCAA failed to establish known protocols to prevent, mitigate, monitor, diagnose, and
treat neurological disorders. Id. at 6. Further, Plaintiffs assert that the NCAA failed to
address and/or correct the coaching of tackling or playing methodologies that cause head
injuries; [] failed to educate coaches, trainers and student-athletes as to the symptoms indicating
possible concussions; [] failed to implement system-wide return to play guidelines for student-
athletes who have sustained concussions; and [] failed to implement system-wide guidelines for
the screening and detection of head injuries. Id. at 7. Consequently, Plaintiffs assert that the
NCAA caused Mr. Onyshkos long-term and chronic injuries, financial losses, expenses and
intangible losses, and therefore, seek financial recovery from the NCAA. Id. at 9.
B. Standard of Review
1. Rule 12(b)(6)
In light of the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), a complaint may be dismissed pursuant to Rule 12(b)(6) if it does not allege enough
facts to state a claim to relief that is plausible on its face. Phillips v. Co. of Allegheny, 515 F.3d
224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 570). While Conley v. Gibson, 355 U.S.
41, 4546 (1957) allowed dismissal of a claim only if no set of facts could support it, under
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Twombly, and Ashcroft v. Iqbal, 556 U.S. 662 (2009), a claim for relief under Rule 12(b)(6) now
requires more than labels and conclusions or a formulaic recitation of the elements of a cause
of action. Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678.
In Iqbal, the Supreme Court held that a claim is facially plausible when its factual content
allows the court to draw a reasonable inference that the defendants are liable for the misconduct
alleged. Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009) (citing Iqbal, 556 U.S. at 678).
The plausibility standard in Iqbal asks for more than a sheer possibility that a defendant has
acted unlawfully. Iqbal, 556 U.S. at 678. While well-pleaded factual content is accepted as true
for purposes of whether the complaint states a plausible claim for relief, legal conclusions
couched as factual allegations or [t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, are not entitled to an assumption of truth. Iqbal, 566
U.S. at 678. Where the well-pleaded facts do not permit the court to infer more than a mere
possibility of misconduct, the complaint has alleged - but it has not show[n]' - that the pleader
is entitled to relief. Iqbal, 566 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). In order to satisfy the
requirement of Fed.R.Civ.P. 8(a)(2) that a plaintiff include a short and plain statement of the
claim showing that the pleader is entitled to relief, a plaintiff must aver sufficient factual
allegations which nudge its claims across the line from conceivable to plausible. Id.
As the Court of Appeals for the Third Circuit explained in Fowler, 578 F.3d at 21011:
. . . The Supreme Court's opinion in Iqbal extends the reach of Twombly,
instructing that all civil complaints must contain more than an unadorned, the-
defendant-unlawfully-harmed-me accusation. Iqbal, 129 S.Ct. at 1949.

Therefore, after Iqbal, when presented with a motion to dismiss for failure
to state a claim, district courts should conduct a two-part analysis. First, the
factual and legal elements of a claim should be separated. The District Court must
accept all of the complaint's well-pleaded facts as true, but may disregard any
legal conclusions. Id. Second, a District Court must then determine whether the
facts alleged in the complaint are sufficient to show that the plaintiff has a
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plausible claim for relief. Id. at 1950. In other words, a complaint must do more
than allege the plaintiff's entitlement to relief. A complaint has to show such an
entitlement with its facts. See Phillips, 515 F.3d at 23435. As the Supreme Court
instructed in Iqbal, ... [the] plausibility determination will be a context-specific
task that requires the reviewing court to draw on its judicial experience and
common sense. Id.

See also Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556
U.S. at 674, 679); Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011), cert.
denied, U.S., 132 S.Ct. 1861 (2012); Malleus v. George, 641 F.3d 560, 563 (3d Cir.
2011).
In considering a Rule 12(b)(6) motion, a court accepts all of the plaintiff's allegations as
true and construes all inferences in the light most favorable to the non-moving party. Umland v.
Planco Fin. Servs., 542 F.3d 59, 64 (3d Cir. 2008) (citing Buck v. Hampton Twp. Sch. Dist., 452
F.3d 256, 260 (3d Cir. 2006)). However, a court will not accept bald assertions, unwarranted
inferences, or sweeping legal conclusions cast in the form of factual allegations. See In re
Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215 (3d Cir. 2002); Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 906 n. 8 (3d Cir. 1997). A court is not required to consider legal
conclusions; rather, it should determine whether the plaintiff should be permitted to offer
evidence in support of the allegations. Maio v. Aetna, 221 F.3d 472, 482 (3d Cir. 2000).
Therefore, a plaintiff must put forth sufficient facts that, when taken as true, suggest the
required elements of a particular legal theory. See Wilkerson v. New Media Tech. Charter Sch.,
Inc., 522 F.3d 315 (3d Cir. 2008) (citing Phillips, 515 F.3d at 224). This standard does not
impose a heightened burden on the claimant above that already required by Rule 8, but instead
calls for fair notice of the factual basis of a claim while raising a reasonable expectation that
discovery will reveal evidence of the necessary element. Weaver v. UPMC, 2008 WL 2942139,
*3 (W.D.Pa. 2008) (citing Phillips, 515 F.3d at 234; and Twombly, 550 U.S. at 555).
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2. Rule 12(e)
Rule 12(e) allows a party, on motion, to move for a more definite statement of a
pleading . . . which is so vague or ambiguous that the party cannot reasonably prepare a
response. Fed. R. Civ. P. 12(e). The motion must point out the defects complained of and the
details desired. Id. The class of pleadings that are appropriate subjects for a motion under
Rule 12(e) is quite small the pleading must be sufficiently intelligible for the court to be able to
make out one or more potentially viable legal theories on which the claimant might proceed.
Sun Co., Inc. (R & M) v. Badger Design & Constructors, Inc., 939 F. Supp. 365, 368 (E.D. Pa.
1996) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 1376
(1990)). A motion for a more definite statement is directed to the rare case where because of
the vagueness or ambiguity of the pleading the answering party will not be able to frame a
responsive pleading. Wadhwa v. Secretary, Dept. of Veterans Affairs, 505 F. Appx. 209, 214
(3d Cir. 2012) (quoting Schaedler v. Reading Eagle Publication, Inc., 370 F.2d 795 (3d Cir.
1967)).
C. Discussion
The NCAA argues that the Complaint should be dismissed pursuant to Rule 12(b)(6)
because it owed no legal duty to Mr. Onyshko. Defendants Brief in Support (ECF No. 4);
Defendants Reply Brief (ECF No. 9). Alternatively, the NCAA requests that Plaintiffs be
ordered to file a more definite statement of their claims pursuant to Rule 12(e). Id. Plaintiffs
counter that they have sufficiently pled a negligence cause of action, including the duty element.
Plaintiffs Brief in Opposition (ECF No. 8).
To adequately state a prima facia cause of action for negligence, a plaintiff must
demonstrate he or she was owed a duty of care by the defendant, the defendant breached this
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duty, and this breach resulted in injury and actual loss. McCandless v. Edwards, 908 A.2d 900,
903 (Pa. Super. 2006). Whether a duty exists is a question of law for the trial court to decide.
Brisbine v. Outside In Sch. of Experiential Educ., Inc., 799 A.2d 89, 95 (Pa. Super. 2002).
According to the Supreme Court of Pennsylvania, when deciding whether a to impose a duty on
a given defendant, a court must consider the following: (1) the relationship between the parties;
(2) the social utility of the actors conduct (3) the nature of the risk imposed and foreseeability of
the harm incurred; (4) the consequences of imposing a duty upon the actor; and (5) the overall
public interest in the proposed solution. Thierfeilder v. Wolfert, 52 A.3d 1251, 1264 (Pa. 2012)
(quoting Althaus ex rel. Althaus v. Cohen, 756 A.2d 1166, 1169 (Pa. 2000)).
Plaintiffs argue that in undertaking to act as the leader in setting safety standards for
athletic competition at the collegiate level, the NCAA, as the governing body of college sports,
assumed a duty to provide education and set safety standards that reflected the knowledge it had
or should have had with respect to the long-term risks of repeated head impacts through playing
football. Plaintiffs Response Brief (ECF No. 8), at 5. Plaintiffs contend that the Restatement
(Second) of Torts 323, which deals with negligent performance of undertaking to render
services, together with all of the factual allegations contained in the Complaint, establishes a
duty on behalf of the NCAA. Id. at 5-6.
Restatement (Second) of Torts 323, which has been adopted in Pennsylvania, see Filter
v. McCabe, 733 A.2d 1274, 1276 (Pa. Super. 1999), provides that:
One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of the other's
person or things, is subject to liability to the other for physical harm resulting
from his failure to exercise reasonable care to perform his undertaking, if (a) his
failure to exercise such care increased the risk of harm, or (b) the harm is suffered
because of the other's reliance upon the undertaking.

Restatement (Second) of Torts 323. The drafters of 323 indicated that:
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[T]his Section applies to any undertaking to render services to another which the
defendant should recognize as necessary for the protection of the other's person or
things. It applies whether the harm to the other or his things results from the
defendant's negligent conduct in the manner of his performance of the
undertaking, or from his failure to exercise reasonable care to complete it or to
protect the other when he discontinues it.

Id. at cmt a; see also Spence v. ESAB Group, Inc., 623 F.3d 212, 217 (3d Cir. 2010) (citing Feld
v. Merriam, 485 A.2d 742 (Pa. 1984). Plaintiffs assert that the factual allegations in their
Complaint sufficiently establish that the NCAAs duty arose through its assumption of a role of
educator and arbiter of safety standards and safe play practices, upon which [Mr. Onyshko]
relied. Plaintiffs Response Brief (ECF No. 8), at 5.
Additionally, Plaintiffs cite the Restatement (Second) of Torts 324A, arguing that in
undertaking to create and promote guidelines for prevention and treatment of sports-related
injuries, the NCAA, as the governing body of collegiate athletics, assumed the duty owed by
individual colleges to the student-athletes relying upon such policies for their safety and well-
being. Id. at 11. Section 324A has been adopted in Pennsylvania, see Cantwell v. Allegheny
County, 483 A.2d 1350 (Pa. 1984), and deals with liability to a third person for negligent
performance of an undertaking. Section 324A provides that:
One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of a third
person or his things, is subject to liability to the third person for physical harm
resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or (b) he
has undertaken to perform a duty owed by the other to the third person, or (c) the
harm is suffered because of reliance of the other or the third person upon the
undertaking.

Restatement (Second) of Torts 324A.
Moreover, in Kleinknecht v. Gettysburg College, 989 F.2d 1360, 1369 (3d Cir. 1993), the
Third Circuit predicted that the Supreme Court of Pennsylvania would hold that a lacrosse
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players college owed [him] a duty of care in his capacity as an intercollegiate athlete engaged
in school-sponsored intercollegiate athletic activity for which he had been recruited. In coming
to this conclusion, the Court in Kleinknecht relied on the case of Wissel v. Ohio High School
Athletic Assn, 78 Ohio App.3d 529, 605 N.E.2d 458 (Ohio Ct.App. 1992), an action where a
high-school football player claimed that a defective helmet rendered him a quadriplegic.
Specifically, the Court relied on the following portion of the Wissel opinion:
[A]ll three appellees specifically disclaimed owing young Wissel any direct duty
of reasonable care. We find it odd and disconcerting that organizations such as the
appellees, which undertake to enhance the quality and safety of high school
football games, disclaim that they do so to provide a service to the athletes who
participate in the games. Moreover, we find similarly incongruous the argument
that organizations whose rules govern the contest and whose discussions
determine the type of athletic equipment that the athletes are provided do not owe
those athletes a duty of reasonable care in their activities. The fact that these
organizations purport to act gratuitously and for noble purposes does not, ipso
facto, absolve them of a legal duty of care toward the athletes.

Kleinknecht, 989 F.2d at 1368-1369 (quoting Wissel, 605 N.E.2d at 465). This quoted
passage is particularly applicable to the present case. Therefore, based upon the factual
allegations contained in the Complaint, the Court agrees with Plaintiffs that they have
sufficiently pled that the NCAA owed Mr. Onyshko a duty of care.
The NCAA, however, argues that it owed Plaintiffs no duty because in Pennsylvania, a
defendant owes no duty to a plaintiff who suffers injuries as a result of common, frequent and
expected risks inherent during the activity in question. Loughran v. The Phillies, 888 A.2d 872,
875 (Pa. Super. 2005) (citing Jones v. Three Rivers Management Corp., 394 A.2d 546 (Pa.
1978)). This no duty rule applies to participants of athletic events. See Craig v. Amateur
Softball Assn of America, 951 A.2d 372 (Pa. Super. 2008). In Jones, the Pennsylvania Supreme
Court explained that under the no duty rule, plaintiffs who voluntarily expose themselves to
risks involved in. . . participating in . . . the activity are barred from recovery. Jones, 394 A.2d
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at 550. The no duty rule is essentially the same as the doctrine of assumption of the risk.
Martinez v. Skirmish, U.S.A., Inc., 2009 WL 1676144, *13 (E.D. Pa. 2009) (citing Hughes v.
Seven Spring Farm, Inc., 762 A.2d 339, 343 (Pa. 2000); see also Romeo v. Pittsburgh
Associates, 787 A.2d 1027, 1031 (Pa. Super. 2001). In the assumption of the risk context, the
court may determine that no duty exists only if reasonable minds could not disagree that the
plaintiff deliberately and with the awareness of specific risks inherent in the activity nonetheless
engaged in the activity that produced his injury. Howell v. Clyde, 620 A.2d 1107, 1113 (Pa.
1993) (plurality opinion); Staub v. Toy Factory, Inc., 749 A.2d 522, 527 (Pa. Super. 2000). If the
plaintiff establishes that the defendant deviated in some relevant respect from established
custom, it is appropriate for an inherent-risk case to go to the jury. Jones, 394 A.2d at 550.
The NCAA argues that it simply did not owe any duty to warn or protect from obvious,
inherent risks voluntarily assumed by a sports participant. Defendants Brief in Support (ECF
No. 4), at 12. The NCAA asserts that getting hit [is] an inherent risk of the game of football,
one which cannot be removed without altering the fundamental nature of the sport. Id.; see also
Crews v. Seven Springs Mountain Resort, 874 A.2d 100, 105 (an inherent risk is one that cannot
be removed without altering the nature of the sport) (internal quotations omitted). In Craig, the
Superior Court of Pennsylvania determined that the plaintiff had confused the concepts of risk
and result, stating [t]he risk at issue in this matter is being struck by an errant softball; the risk is
not the injuries that resulted from being struck. Craig, 951 A.2d at 376. The NCAA compares
the present case to Craig, arguing that [j]ust as getting hit in the head with a softball is inherent
to the game, sustaining blows to the head while playing football is a common, frequent and
expected risk inherent to the game of football. Defendants Reply Brief (ECF No. 9), at 3.
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At this preliminary stage, where the Court is required to take Plaintiffs factual
allegations as true, the no duty rule cannot provide a basis for dismissal. As discussed above,
the no duty rule provides that plaintiffs must not voluntarily expose themselves to risks that
are inherent in the given activity. Jones, 394 A.2d at 550 (emphasis added). Here, Plaintiffs
have alleged that the NCAA had superior knowledge as compared to Mr. Onyskho of the long-
term risks of repeated blows to the head as well as the dangers of returning to play after
sustaining head injuries, but did not disclose said information to Mr. Onyshko. Furthermore,
Plaintiffs assert that Mr. Onyshko relied on the NCAA to provide said information for the
protection of his health and safety based upon its role as the sole governing body of collegiate
sports. While it is true that getting hit in the head is an inherent risk of football, Plaintiffs assert
that the NCAA increased Mr. Onyshkos risk of long-term injury by failing to disclose crucial
information as well as failing to have procedures in place with respect to returning to play after
sustaining serious head injuries. Therefore, it cannot be said that Mr. Onyshko voluntarily
exposed himself to risks of which he was not aware.
Plaintiffs have provided sufficient factual allegations to plausibly state a prima facie
cause of action for negligence. As a result, the NCAAs motion to dismiss pursuant to Rule
12(b)(6) should be denied. Likewise, the NCAAs motion for a more definite statement pursuant
to Rule 12(e) should be denied because the Complaint is neither so vague [n]or ambiguous that
the [NCAA] cannot reasonably prepare a response. Fed. R. Civ. P. 12(e).
D. Conclusion
Based on the foregoing, it is respectfully recommended that Defendants Motion to
Dismiss pursuant to Rule 12(b)(6) and Motion for a More Definite Statement pursuant to Rule
12(e) (ECF No. 3) be denied.
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In accordance with the Magistrates Act, 28 U.S.C. 636 (b)(1)(B) and (C), and Rule
72.D.2 of the Local Rules for Magistrates, Objections to this Report and Recommendation are
due by June 16, 2014. Failure to timely file Objections will constitute waiver of any appellate
rights. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).

By the Court:
s/ Cynthia Reed Eddy
Cynthia Reed Eddy
United States Magistrate Judge

cc: all registered counsel via CM-ECF

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