Over the last two months, law firms representing college athletes have filed more than ten class action lawsuits in various courts around the country against the NCAA, major conferences and individual schools.
The attorneys, who promise that more lawsuits may be forthcoming, claim on behalf of their clients that the NCAA, major conferences, and several universities breached their duties to student athletes by concealing the dangers of concussions and failing to implement appropriate safety protocols. The attorneys suggest in some of their messaging, that “for decades, the NCAA, along with the major conferences and universities, has been aware that severe head impacts can lead to long-term brain injury, including memory loss, dementia, depression, and CTE, but actively concealed these facts from student-athletes and the public.
“Despite being advised by physicians and researchers of the severe risks associated with playing football, including the risks associated with traumatic brain injury (TBI), the defendants continued to expose their student-athletes to an extreme risk of harm and failed to timely adopt guidelines for concussion management until years after generations of student-athletes had been impacted.
“Claimants allege that NCAA and the other defendants ignored the medical risks to college football players; aggravated and enhanced medical risks to college football players; failed to educate college football players about the link between TBIs in amateur football and chronic neurological damage, illnesses, and decline; failed to implement or enforce any system that would reasonably have mitigated, prevented, or addressed TBIs suffered by college football players; and failed to timely implement ‘return to play’ guidelines for student-athletes who sustain concussions.
“Even when defendants began to make changes, their policies remained flawed, to the lifelong detriment of thousands of 18 to 22 year olds. These deficient policies were implemented far too late for the putative class of college football players, who suffered reasonably foreseeable harm as a result of the NCAA’s actions, and those of its member institutions and conferences.”
NCAA’s Remy Sees a Money Grab by Plaintiffs’ Attorneys
“These lawsuits, all filed by the same counsel using the exact same language, are mere copycat activity of the cases he filed last month,” NCAA chief legal officer Donald Remy said after a case in June was filed.
The lawsuits come on the heels of a 2014 settlement of a class-action lawsuit between another set of college athletes and the NCAA in which the association agreed to provide $70 million for concussion testing, and diagnosis of current and former NCAA student-athletes. The settlement agreement also included educational initiatives and $5 million in concussion research.
Under the settlement agreement, all current and former NCAA student-athletes in all sports and divisions who competed at an NCAA member school may qualify for physical examination, neurological measurements, and neurocognitive assessments. The agreement covers academic accommodations for student-athletes with concussions, return-to-play guidelines, educational programs, research and plaintiffs’ attorney fees. Bodily injury claims are not part of this settlement.
The latter point is significant, according to Remy.
“Failing to achieve a bodily injury component to the Arrington case settlement, it appears that counsel is attempting to extract a bodily injury settlement through the filing of these new questionable class actions,” Remy said. “This strategy will not work. The NCAA does not believe that these complaints present legitimate legal arguments and expects that they can be disposed of early by the court.”
Chicago-based attorney Jay Edelson told The Associated Press that “the reason that we’re bringing so many of them instead of one giant one is because the NCAA successfully argued to the court that we shouldn’t be allowed to bring just one big case. Because of that we have to file suit on a per school basis.”
He added that “whether that’s an easier path or not remains to be seen. We think that when we go before a jury the stories are going to be most impactful when we talk about in context of the school. The NCAA has a lot of liability, too, but the schools were the ones that had the most direct relationship with the student-athletes.”
Challenges Remain for the Plaintiffs
In a New York Times article. Hosea Harvey, a law professor at Temple, expressed skepticism about the plaintiffs’ chances, noting that the previous settlement was “more appropriate than seeking money from the N.C.A.A., universities or conferences.
“Absent extraordinary evidence of negligence at the time of the injury, I don’t see how the schools are culpable. The goal should be to mitigate the harm and make things safer for players moving forward. That’s a public-health victory even if it’s not a financial one.”
