By Dylan Henry, Kacie Kergides, and Kimberly L. Sachs, of Montgomery McCracken Walker & Rhoads LLP
Recently, the NCAA and the plaintiffs in a concussion class action lawsuit reached a settlement that has major implications on how NCAA member schools structure their concussion management policies and how those policies are carried out in practice.
In 2011, Adrian Arrington, a former safety on the Eastern Illinois University football team, filed a class action lawsuit against the NCAA, alleging the NCAA negligently failed to ensure a safe environment for student-athletes. Arrington initially filed the suit on behalf of all former and current NCAA football players who suffered concussions or concussion-like symptoms while playing football at NCAA schools. The class was ultimately expanded to include “all persons who played an NCAA-sanctioned sport at an NCAA member school on or prior to July 15, 2016.” The class claimed the NCAA was negligent in how it treated concussions and fraudulently concealed the long-term effects of concussions. The NCAA, however, denied all allegations of liability and wrongdoing. After multiple proposed settlement agreements, the parties ultimately reached a settlement (the “Settlement Agreement”), which benefits both former and current student-athletes and has implications for NCAA member schools and their concussion-related policies and procedures.
The parties first agreed on a proposed settlement in July 2014, but it wasn’t until August 2019 that Judge John Lee in the United States District Court for the Northern District of Illinois approved the Agreement’s terms.
Under the Settlement Agreement, the NCAA agreed to a Medical Monitoring Fund of $70 million, which will provide monetary resources for the screening and medical evaluations of class members. In addition, the NCAA committed $5 million to fund research regarding the prevention, treatment, and/or effects of concussions.
In addition to the monetary contributions, the Settlement Agreement requires the NCAA to implement reporting processes and educational requirements for its member schools. The NCAA must create (1) a reporting process through which its member schools will report diagnosed concussions in student-athletes and how those concussion cases resolve; and (2) a reporting mechanism through which anyone can report concerns about concussion management issues to the NCAA. The NCAA must also provide member schools with educational materials for their faculty regarding academic accommodations for student-athletes with concussions (i.e., “return-to-learn” materials and accommodations).
The Settlement Agreement also requires the NCAA to change its policies and procedures for concussion management and return-to-play. Specifically, member schools will now have to implement the following five return-to-play guidelines into their concussion policies:
Every student-athlete will undergo pre-season baseline testing for each sport in which they participate before practicing for or competing in that sport.
Every student-athlete who has been diagnosed with a concussion will be prohibited from returning to play or participating in any practice or game on the same day on which the athlete sustained the concussion.
Every student-athlete diagnosed with a concussion by medical personnel must be cleared by a physician before being permitted to return to play in practice or competition.
NCAA member schools shall ensure that medical personnel with training in diagnosis, treatment, and management of concussion are present at all Contact Sports games.
NCAA member schools shall ensure that medical personnel with training in the diagnosis, treatment and management of concussion are available at all Contact Sports practices.
The member schools will also have to provide NCAA-approved concussion education and training to student athletes, coaches, and athletic trainers before each season.
In accordance with the Settlement Agreement, member schools must certify within six months after the Effective Date, defined as November 18, 2019, that they have put in place a concussion management plan that meets the return-to-play requirements. Member schools who certify by May 18, 2020, will be released from certain legal claims that might otherwise be brought by members of the settlement class; although, it is not mandatory for member schools to do so. It is also important to note that certification does not release member schools from all liability as student-athletes who current, specific concussion-related injuries are still able to bring claims against the NCAA and member schools.
Implications of the Settlement and Unanswered Questions
While the five return-to-play guidelines outlined in the Settlement Agreement seem quite simple on the surface, they are susceptible to multiple interpretations. Though the NCAA released answers to Frequently Asked Questions in an attempt to provide some guidance to the member schools, the NCAA has not clarified several key provisions.
For example, the guideline regarding baseline testing is ambiguous. According to the language of the Settlement Agreement, one might interpret that provision to mean that all student-athletes need a baseline test for all sports in which they participate every year. That could be a heavy burden on athletic trainers; under this interpretation, athletic trainers would be required to provide baseline testing every year for every student athlete, and that could increase to twice a year, every year for those student-athletes that play two sports. Putting the heavy burden aside, some athletic trainers view this frequency of baseline testing as overkill and not necessary to receive an accurate medical reading. Furthermore, the NCAA’s “Interassociation Consensus: Diagnosis and Management of Sport-Related Concussion Best Practices” and Concussion Safety Protocol Checklist suggests that all student-athletes should receive a one-time, pre-participation baseline test. The Settlement Agreement and the NCAA’s Checklist seem to conflict on the required frequency of baseline tests, which can be problematic for member schools trying to update their concussion management policies to comply with the Settlement Agreement. Member schools should recognize that compliance with the Settlement Agreement does not necessarily mean that they are compliant with the NCAA’s Protocol Checklist.
Another area of concern is the undefined terms “present” and “available” in guidelines four and five, which require member schools to ensure medical personnel are present and available at all contact sports games and practices. Most member schools have a limited number of athletic trainers for their teams, so schools with smaller athletic departments may interpret “present” and “available” differently than schools with large athletic departments and multiple athletic trainers.
Further complicating this issue is that it is also unclear how the NCAA defines “practice,” leaving member schools with unanswered questions. Does “practice” include captains-led practice? Weight-lifting sessions? Summer workouts? The NCAA did not provide any guidance on how it defines these terms, and thus the member schools are left with their own interpretations, for now.
The Arrington Settlement Agreement is just another example of how the standard of care for concussion management and prevention in sport is always evolving. These changes can come from a wide range of sources (medical, legal, association rules and regulations, statutes, best practices, etc.). Here, the evolution came from a legal settlement. The NCAA has slightly altered the standard of care (not in the clearest fashion), which impacts how member schools must conduct themselves. This has a butterfly effect on how non-NCAA collegiate programs should operate, and, in turn, how high school coaches and trainers, and so on, should run their programs. Or at least that is what a plaintiff’s lawyer would argue.
In an area that is already a hotbed for litigation, the inclusion of another set of concussion protocols and standards, while intended to increase the athletes’ safety, will also increase the number of legal claims against coaches, trainers, and universities. One can expect that future claims will involve allegations that a school failed to conduct baseline testing before each season each year or failed to have medical personnel “present” at all Contact Sports “games” or “available” at all Contact Sports “practices.”
Ultimately, member schools should review and update their concussion management policies, not only to benefit from the Settlement Agreement release terms, but also to better protect the health and safety of their student-athletes, which in turn will hopefully reduce injury and prevent the inevitable lawsuit that would follow. It would also behoove any other program that is capable of making such changes to do so. But, these schools and programs must continue to monitor updates to the standard of care, from the NCAA and beyond, and continue to review all changes with legal counsel and risk managers.
 Contact Sports include, whether a men’s or women’s team, football, lacrosse, wrestling, ice hockey, field hockey, soccer, and basketball
 “Interassociation Consensus: Diagnosis and Management of Sport-Related Concussion Best Practices” p. 8 http://www.ncaa.org/sites/default/files/SSI_ConcussionBestPractices_20170616.pdf; see also NCAA “Concussion Safety Protocol Checklist” https://ncaaorg.s3.amazonaws.com/ssi/concussion/2020_Concussion_Safety_Protocol_Checklist.pdf