Concussion lawsuit settlement surrounding NCAA remains ‘under advisement’

By Beth Werge

The saga continues over the head injury lawsuit against the National Collegiate Athletic Association.

A $75 million settlement to provide medical testing to college athletes suspecting brain trauma from concussions and other head injuries during play has been tabled due to reservations from a district court judge.

At a motion hearing Thursday, U.S. District Court Judge John Z. Lee raised concerns about the proposed settlement against the NCAA, including whether the right people were included in the class and whether there is enough money set aside for the testing. Lee determined that he needs more time for consideration before granting preliminary approval, stating that the case “remains under advisement.”

The class action lawsuit, initiated with an individual complaint by former Eastern Illinois defensive back Adrian Arrington in 2011, was filed against the NCAA charging improper treatment of athletes’ concussions. Arrington suffered at least five concussions playing football in college, and this case is a consolidation of 10 lawsuits into one to keep from having to hold multiple sessions with various plaintiffs.

The NCAA agreed in late July to a proposed settlement to help athletes with head injuries. But while college sports’ governing body touted the deal as a forward move, many critics say it doesn’t go nearly far enough, and the cracks in the $75 million settlement showed Thursday in court.

After thoroughly reviewing what he called “a rather voluminous” case, Lee brought up multiple aspects about the $75 million deal, questioning the scope of the proposed class and the types of sports covered in the settlement. Though non-contact sports are included in the settlement, Lee questioned the need for such terms while also wondering if the class suit included a good enough representation of non-contact sports, when there are no non-contact sport student-athletes on the plaintiffs list.

According to court documents, from October 2011 through July 2013, counsel also conducted an investigation of facts through analysis of a combined 29,502 documents from the NCAA, 42 non-parties, and plaintiffs in the Arrington case and another, as well as multiple depositions and extensive consultations with experts on sports-related concussions.

As the hearing went on, Lee also worried about funds running out, the potentially long distances subjects would need to travel for medical testing (up to 200 miles, in the current settlement proposal), effectiveness of notice and confidence that the NCAA would be able to ensure compliance at member institutions.

And objections from others also rang out at the Dirksen Federal building. Dwight Jefferson, who is representing Julius Whittier, a 63-year-old ex-lawyer who was the first black football player at the University of Texas in 1969, said the settlement needs to be more inclusive. Specifically, it should address the needs of those older players who are just now seeing the delayed negative repercussions of repeated head trauma. Jefferson also said time restrictions should be imposed on the settlement instead of it being an all-time thing, as there is no cutoff date for when athletes must have played at one of more that 1,000 NCAA member schools to qualify for exams. Since hard plastic helmets and facemasks were not introduced until the late 1930s, football wasn’t as much of a head game before then as it is now.

“Damages [should be included to] provide supplemental income to help with the need,” said Jefferson, whose client is suffering from early-onset Alzheimer’s disease. “There’s only so much that Medicare covers.”

Richard Lewis, an attorney for the plaintiffs, also said the need is great for people who are now seeing the effects of previous concussions.

“It is essential that… [it includes] former athletes,” Lewis said. “The older ones are the ones who need it most.”

Unlike the proposed NFL concussions settlement, this deal wouldn’t set aside any money for damages in the future. Instead, provisions of the settlement would leave open possibility of damage payments later by allowing individuals to file suit. The inclusion of a clause about not allowing future class action lawsuits in the settlement is also a concern.

When Lee questioned the ability of the punitive class to represent both contact (football, basketball, hockey, ice hockey, field hockey, wrestling, lacrosse, soccer) and non-contact sports, plaintiff’s attorney Steve Berman said it would likely be possible to introduce a female runner from an NCAA institution if that would alleviate any concerns about an imbalance in the representation.

Lee also expressed worry about the amount of money, particularly the costs of medical testing and whether or not the settlement provided enough funding for it. The NCAA has estimated that a 25 percent participation rate would cost $54 million but the settlement is only for $70 million, with another $5 million thrown in for the purposes of research in the future.

“We’re worried we don’t have enough,” Berman said to Lee.

There was also concern about compliance within each NCAA institution as well as if the money would be put to proper use, when, in the  settlement proposal, leftover funds would return to the NCAA.

When Lee asked if divisions of the NCAA have to agree to comply, NCAA attorney Mark Mester said: “They don’t, but they will.” Mester said that bylaws of the NCAA constitution state that there are consequences if institutions don’t comply, and that there isn’t a history of rogue institutions.

Mester also held fast to the notion that any settlement would not be construed as admission of any sort of liability of wrongdoing by the NCAA, at one point even referring to concussions as “alleged.”

Though raising numerous questions about his concerns, Lee did seem to like the NCAA offer to increase the number of medical testing facilities. According to NCAA attorney Mark Mester, there will be 33 or more locations for athletes to utilize, up from the initial 10. The medical evaluation would include neuropsychological tests, including a word-memory test, a word-association test, a card-sorting test, a story-learning exam and a naming test, along with 13 other exams, as well as a neurological examination with complete cranial and sensory-motor evaluation, a mood and behavioral evaluation, and ancillary testing if necessary.

If the settlement is approved, all NCAA athletes would have to take baseline tests each year. Among other things, coaches and athletes would have to go through mandatory concussion education seminars and a new, independent committee would oversee medical testing. The deal also calls for the NCAA to toughen return-to-play rules for players who receive head blows.