You knew it was coming when attorney Jay Edelson voiced his displeasure when a $75 million NCAA concussion settlement was agreed to over the summer.
His frustration manifested itself in late August when he filed a 28-page objection to the settlement on behalf of his client in the Northern District of Illinois, arguing that the settlement does not cover medical costs for former college athletes as the suit originally intended. In short, he called it “a mess of a settlement.”
Edelson’s client is former San Diego State University football player Anthony Nichols, who played offensive lineman at the school from 1989 to 1992.
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 Edelson claims that only about 3,500 of the 4.2 million class members are expected to receive medical monitoring tests over the 50-year span of the program.
Further, bodily injury claims are not part of the settlement, meaning former college athletes must file individual claims.
“If the NCAA gets away with this and forces millions of people to forego the right to participate in a class action without getting a single benefit in return, it will, in one fell swoop, eliminate the vast majority of the personal injury liability that it is most fearful of,” Edelson wrote.
He elaborated.
“[Individual personal injury suits] require expert testimony, significant discovery and attorneys willing to fight the machinery of the NCAA — which will be looking to make an example of each litigant,” he added. “Given the relatively small stakes involved (likely tens of thousands of dollars for most class members), injured student-athletes will be unable to find lawyers and will be left in the dust.”
Steve Berman of Hagens Berman Sobol Shapiro LLP and co-lead counsel for the plaintiffs in the aforementioned proposed settlement, bristled at Edelson’s objection.
He told CBSSports that medical expenses are not covered because the NCAA would not assume class-wide liability because injuries vary based on individual cases. Berman also suggested most athletes would have their treatment covered by their own insurance.
“We’re not letting the NCAA off easy,” Berman told the Website. “The notion that there are billions of dollars of claims out there is ridiculous. … There’s maybe two dozen concussion cases on file in the country right now so Jay is just flat-out wrong, and he’s flat-out wrong on the law.
“Look, I represent people who have individual concussion claims. I have a battery of experts that are needed to do the right things for those kids in that case. You can’t do that in class-action. (Edelson) doesn’t even have a case on file and he’s coming into court telling us how we should be doing this?”
In addition to Edelson PC, other firm participating in the filing against the settlement are Clifford Law Offices PC, Coffman Law Offices, Gordon Law Offices Ltd., Steven Mamat PLLC, Law Office of Samuel Lasser and The Driscolll Firm PC.
The NCAA is represented by Mark S. Mester of Latham & Watkins LLP.
