The NCAA and attorneys representing former Eastern Illinois University defensive back Adrian Arrington, and three others college athletes, will try to resolve their differences through mediation.
Plaintiff’s attorney Joseph Siprut of Siprut PC told Concussion Litigation Reporter that the process will begin on November 1.
Former federal judge Layn Phillips, who orchestrated a settlement between the NFL and NFLPA involving concussions in August, is expected to preside over the hearing.
NCAA Chief Legal Officer Donald Remy has expressed an openness to finding a middle ground, issuing the following statement over the summer: “While the NCAA continues to believe these allegations are inappropriately made against the NCAA, we are willing to consider reasonable mediation options that address student-athlete health and safety concerns, which has always been our priority.”
The 26-year-old Arrington alleged in a lawsuit in 2011 that NCAA officials knew as early as 2003 that multiple concussions could lead to health problems, yet chose not to require concussion policies until 2010. Arrington claimed he endured five concussions at EIU. Several times, he alleged, the team doctor cleared him to return to play one day after his injury.
In response to a NCAA mandate in 2010, EIU reportedly created a five-step process for athletes to return to play. The policy states that the student athlete must be symptom-free for 24 hours before taking the first step — light aerobic exercise — and that only one step can be taken per day. The protocol also calls for athletes to reveal after each step whether any of their symptoms have returned.
Arrington and his co-plaintiffs—former Central Arkansas football player Derek Owens, former Ouichita Baptist University soccer player Angela Palacios, and former Maine hockey player Kyle Solomon—are seeking unspecified monetary damages as well as long-term medical monitoring by the NCAA and stricter guidelines.
Siprut PC is joined by the law firm Hagans Berman Sobol Shapiro LLP in representing the plaintiffs.
There has been some controversy over the Arrington case and whether the Walker case filed in early September in Tennessee (see other story) should be folded into the Arrington case, where the aforementioned law firms would remain lead counsel for a larger class of plaintiffs. Arrington’s lawyers recently asked the following of the federal judge in Tennessee, who has been assigned the Walker case:
“(D)espite having done no work on this matter as reflected by their complaint, counsel in the Tennessee Action unabashedly asks this Court to allow them to piggyback on the Arrington mediation and order them to mediate. This Court should reject counsel’s attempt to interject themselves in a case where they have no knowledge, have performed no work, and appear to be motivated solely by reasons other than the best interests of the class.”
Hausfeld LLP, which is lead counsel in the Walker case, has publicly challenged the belief, claiming “there are many other differences (between the two claims). The two do not overlap.”
A Prediction
Timothy Liam Epstein, a partner and chair of the Sports Law Practice Group at SmithAmundsen LLC shared his prediction about what happens next in the case:
“The NCAA will be eager to dispose of this case at mediation, though largely from a cost perspective. At the outset, it should be noted that it is not entirely clear who is paying for the NCAA’s defense, and who will pay in the event of a settlement or judgment, inclusive of insurance monies. Using the NFL Concussion MDL in Philadelphia for comparison, the NCAA is in a better position than that NFL for defeating class certification in light of the fact the NCAA class is much more broad (across all NCAA-regulated sports for men and women as opposed to professional, tackle football players who played in the NFL), but that is likely where the positives end for the NCAA. While the NCAA has a good argument in defeating class certification, the Court could still rule in favor of the Plaintiffs. Further, the NCAA has the potential NFL settlement looming as pressure to pay out to the athletes under its own governance (the NFL and lead counsel for retired NFL players have agreed to a settlement of $765 million). Moreover, in the NFL concussion litigation, the NFL unsuccessfully moved to dismiss the lawsuit on the basis of the negotiated CBA’s term requiring arbitration. The NFL CBA specifically addressed treatment protocol surrounding concussions/suspected concussions. In Arrington’s case, or any collegiate player’s case, the NCAA cannot similarly argue that the litigation is unwarranted or precluded since student-athletes in the NCAA system have no bargaining power. The best that the NCAA could argue is that student-athletes sign an acknowledgement of the risk of concussion, and this would probably serve as a defense/mitigating factor, but not as a basis for dismissal. The student-athlete plaintiff also presents as much more sympathetic than the professional football players who were paid to play in the NFL.”
