The NCAA has announced that it will provide $70 million for concussion testing and diagnosis of current and former student athletes as part of an agreement to settle claims in several consolidated concussion-related class actions.
But does it go far enough? Some have countered that it does not. The ultimate decision will be left to Federal Judge John Lee of the United States District Court for the Northern District of Illinois.
Under the proposed 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.
But as the NCAA astutely notes: “Bodily injury claims are not part of this settlement.”
And that’s the rub.
“This settlement appears to be nothing but an attempt by the NCAA to pay for positive press and publicity,” said plaintiff’s attorney, Steven A. Shapiro of Fleishman & Shapiro P.C.
“The settlement does not implement anything that was not already in place or what should have been in place for the last 12 years. Why did it take a class action lawsuit for the NCAA to adopt minimal protections for athletes with concussions, when a consensus on how such injuries should be treated was reached in 2002? The settlement does not do anything substantive for these injured athletes,” said Shapiro. “Beyond some basic testing to confirm what these athletes probably are already well aware of — that they suffered a brain injury — this settlement does not provide for medical care, counseling, or any sort of help for these current or former athletes suffering from head injuries.”
“Instead, it is going to force these athletes to bring individual lawsuits if they want to obtain compensation to pay for any treatment, in addition to obtaining compensation for the other damages and losses they suffered as a result of the injuries,” continued Shapiro.
The latter point is at least one way that the NCAA settlement differs from the NFL settlement, which will likely top $1 billion before all is said and done.
Donald Remy, the NCAA chief legal officer, believes comparisons between the two are not valid.
“The facts, circumstances, issues and practices being challenged in the class actions and other cases filed against the NFL are very different from the cases involving the NCAA,” said Remy.
“Moreover, the two settlements are very different and comparisons between the two settlements would be very difficult. Indeed, Judge Layn Philips, a former federal judge and the person who served as the mediator for both the NFL and the NCAA, recognized in the declaration he submitted in support of the NCAA settlement that the two litigations and settlements are very different and that it would be difficult if not impossible to undertake a meaningful comparison.”
Steve Berman, managing partner of Hagens Berman and co-lead attorney representing a class of student athletes, hailed the agreement as “a significant settlement that will provide certainty, safety and measurable guidelines of player health.”
He also praised the fact that the proposed class includes all NCAA student-athletes.
“Much attention has been paid to concussions in football, but this settlement protects student-athletes in all sports,” said Berman. “The NCAA has observed significant concussions in soccer, hockey and lacrosse, and all contact sports will be protected by this settlement.”
Taking Shapiro’s point a different direction, Berman said there is nothing to “preclude players from filing individual suits against the NCAA for their injuries, which is huge for student-athletes. This stipulation coupled with regular player health examinations provided by the medical monitoring program will benefit any players that choose to act individually in future actions.”
Few would argue that the settlement, at the very least, is part of the solution.
“We have been and will continue to be committed to student-athlete safety, which is one of the NCAA’s foundational principles,” said NCAA Chief Medical Officer Brian Hainline. “Medical knowledge of concussions will continue to grow, and consensus about diagnosis, treatment and management of concussions by the medical community will continue to evolve. This agreement’s proactive measures will ensure student-athletes have access to high quality medical care by physicians with experience in the diagnosis, treatment and management of concussions.”
A number of return-to-play guidelines, several of which have already been adopted by the NCAA, are addressed by the settlement, including:
Baseline concussion testing of NCAA student-athletes.
Student-athletes with a diagnosed concussion will not be allowed to return to play or practice on the same day, and must be cleared by a physician.
Medical personnel with training in the diagnosis, treatment and management of concussions must be present for all games and available during all practices.
Establish a process for schools to report diagnosed concussions and their resolution.
Such measures have found a fan in plaintiff’s lawyer and co-lead attorney Joseph J. Siprut of SIPRUT PC in Chicago.
“The settlement does nothing less than change college sports forever,” said Siprut. “Never before in the history of the NCAA have we seen a mandatory and consistent set of return to play guidelines that are enforced by the NCAA, and the medical monitoring program is the first of its kind.”
Plaintiff’s attorneys involved in the case are expected to receive up to $15.75 million in fees and out-of-pocket expenses.
