The NCAA has reached a preliminary settlement in a class-action lawsuit brought by former college athletes to institute wide-ranging reforms to its head-injury policies. The settlement is the latest attempt by the NCAA to address concerns over athletes’ rights. It brings a significant change in the care and safety of all current and former college athletes – male and female, in all sports and across each division – including a $70-million (U.S.) medical monitoring fund and a new national protocol for head injuries sustained by players during games and practices.
“This offers college athletes another level of protection, which is vitally important to their health,” said the lead plaintiffs’ lawyer, Steve Berman. “Student-athletes – not just football players – have dropped out of school and suffered huge long-term symptoms because of brain injuries. Anything we can do to enhance concussion management is a very important day for student-athletes.”
The settlement does not provide financial compensation for injuries but allows for individual players to sue for damages. It was filed in U.S. federal court in the Northern District of Illinois on Tuesday morning, and still requires the approval of Judge John Z. Lee. At least one plaintiff’s lawyer involved in the case criticized the agreement and said he would urge the judge to reject the settlement.
Jay Edelson, who represents one of the plaintiffs, called the preliminary agreement terrible and said he planned to convey his objections to Lee on Tuesday. “It totally loses sight of the purpose of the case, which was to compensate people who were badly injured by concussions,” Edelson said.
“It’s a great deal for the NCAA, but very scary for the class.”
The proposed settlement would establish a medical monitoring fund similar in some ways to the one proposed recently by the NFL and its players. It would give all former college athletes a chance to receive a neurological screening to examine brain functions and any signs of brain damage like chronic traumatic encephalopathy, a degenerative brain disease.
Under the settlement, college athletes would preserve their rights to sue their universities or the NCAA for personal-injury financial damages, though Edelson worried that few would actually be able to bring such claims. “It’s going to be tough to find a lawyer to fight against the NCAA’s machinery when you’re talking about only $20,000 in damages,” Edelson said. “This is going to snuff out the vast majority of claims.”
He added: “Class members are allowed to fill out a questionnaire and then, based on a secret algorithm, they might be allowed to get a test to see if they have concussion-related symptoms. The vast majority of people already know that.”
The NFL’s agreement, which is pending approval, seeks to create a fund worth several hundred-million dollars to assist former professional football players with treatment for the effects from their brain injuries. The NCAA’s settlement covers only diagnostic medical expenses.
“There’s not a penny in it for the players,” said Ramogi Huma, the head of the National College Players Association.
Under the settlement, the NCAA would also prevent athletes who have sustained a concussion from returning to a game or practice that day. Trained medical personnel would be required at all contact sports events such as football, lacrosse, basketball, soccer and wrestling.
“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,” said Brian Hainline, the chief medical officer of the NCAA.
Huma countered that many of the guidelines were subject to the NCAA’s rule-making process.
“Even if they become official NCAA guidelines, they will be unenforceable,” he said.
While there are some 20,000 former NFL players affected by their potential settlement with the league, there are close to four million former college athletes, 1.4 million of them in contact sports. Their experiences vary drastically, Berman said, making monetary damages difficult to address.
“It’s hard to create one class that includes swimmers and football players, given how different their athletic careers are,” said Berman, who added that the NCAA, too, wanted only to discuss policy changes rather than financial rewards. “We felt individuals remain best off bringing individual suits, which they can still do.”
Several cases criticizing the NCAA’s handling of concussions began in 2011, when former Eastern Illinois football player Adrian Arrington said the NCAA had been negligent in educating and protecting him after he sustained multiple concussions. Derek Owens, a wide receiver at Central Arkansas, soon brought his own suit, as did a female soccer player and a hockey player. Thirteen similar lawsuits were consolidated earlier this year.
According to NCAA documents uncovered during discovery, there were more than 30,000 concussions at colleges from 2004 to 2009. Describing the organization’s concussion policy, the NCAA’s director of health and safety, David Klossner, wrote in a 2010 e-mail to a colleague: “Since we don’t currently require anything all steps are higher than ours.”
“A national policy is a very good thing,” said Matthew J. Mitten, the director of the National Sports Law Institute and the former chairman of an NCAA committee on safety. “We were only able to make simple recommendations, but now there is consensus among the athletic and medical community. The trick will be enforcing it at every school and not just at Ohio State and USC.”
Settlement talks occurred during four meetings over the past year (three with the same judge who mediated the NFL’s concussion settlement). Other terms of the agreement include $5-million for concussion research, to be funded by the NCAA and its member schools (the $70-million monitoring fund would be paid for by the NCAA and its insurers). Increased concussion tracking by schools and a preseason baseline test for every athlete would also be required.
To qualify for a neurological exam, former athletes must complete a questionnaire designed by a team of neurologists and concussion experts. Should players qualify and need additional treatment, they can seek it through their own insurance or file a damages claim.
Owens and Arrington, for example, will continue their suits against the NCAA
“I don’t think there’s been much done in this regard before,” said Owens, who said he continues to have anxiety and depression after multiple concussions during college. “Not only for old washed-up guys like myself, but the current players and all the players who are going to come to school.”
Berman said he expected the $70-million would hold up for the life of the 50-year agreement because testing for CTE and other brain diseases should become less expensive. The new diagnostic testing should also eliminate the need for future athletes to need postcareer screenings, he said.
“I’m cautiously optimistic,” said Dr. Jeffrey Kutcher, a neurologist at the University of Michigan. “It’s a good step; it’s a needed thing. But CTE is very difficult to diagnose, and the medical monitoring is only as good as the quality of the evaluations these athletes receive.”
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