By: Allan M. Siegel
A federal district court judge in Illinois has rejected a proposed settlement in a class action lawsuit brought against the NCAA by current and former athletes who had suffered concussions or were exposed to sub-concussive hits. The settlement, had it been approved would have been applied to all current and former student-athletes who played an NCAA-sanctioned sport.
The proposed settlement, which was tentatively agreed to by the NCAA and class representatives following mediation, would have required the NCAA and its insurers to pay $70 million to create a Medical Monitoring Fund. The Fund would have been used to pay expenses associated with a Medical Monitoring Program which would have included screening questionnaires and medical evaluations. Who qualified for a medical evaluation and what medical evaluations would be used, would be determined by a Medical Science Committee composed of four medical experts with expertise in the diagnosis, care, and management of sports-related concussions, and in mid-to-late-life neurogenerative disease. The Program was to last for 50 years. In addition to setting up the Medical Monitoring Fund/Program, the NCAA would have been required to provide $5 million to fund concussion-related research.
Perhaps even more important, the settlement would have also made changes to the NCAA's concussion-management and return-to-play policies. One of the changes included prohibiting student-athletes diagnosed with concussions from returning to play in a game or practice on the same day of the injury and requiring they be cleared by a physician before returning to play. Medical personnel trained in the diagnosis, treatment, and management of concussions would be require to be present at all games of contact sports (football, lacrosse, wrestling, ice hockey, field hockey, soccer, and basketball), and be available during all practices. The NCAA would also create a process for schools to report diagnosed concussions and their resolution, and the ability for persons to report potential problems directly to the NCAA, in addition to providing approved concussion education and training to student-athletes, coaches, and athletic trainers.
The settlement would have released the NCAA from any claims by the Settlement Class relating to medical monitoring and class-wide claims for personal injury related to concussions or subconussive hits. It would not have released the NCAA from individual personal injury claims, or any other claims not relating to medical monitoring.
In rejecting the settlement, the judge cited a number of reasons. The first reason was that the Class Representatives all played contact sports, yet more than half of the approximately 4.2 million potential class members played non-contact sports and the concussions suffered by non-contact sport athletes were not fully taken into account in calculating the sufficiency of the medical monitoring program, meaning the Class Representatives were not qualified to make the settlement decision for the non-contact sport athletes. The judge also raised concerns over whether the settlement would adequately address the concerns of former athletes, when current and future athletes would receive the additional protection of reformed return-to-play guidelines.
The judge also raised concerns that the settlement could be binding on a student-athlete, even if their school chose not to comply with the return-to-play reforms, whether due to costs or other reasons. Further questions were raised about the adequacy of the questionnaires used to screen members of the class and how members of the Medical Science Committee would evaluate them to determine which members qualified for medical evaluations. Even if a member qualified for the Medical Evaluation, they would be limited to only two evaluations over the 50-year period, despite Chronic Traumatic Encephalopathy ("CTE") research that shows that individuals may be asymptomatic for many years. The judge ruled that any settlement agreement must contain provisions that explain what was to happen if a student-athlete exhausted the maximum five questionnaires and two evaluations, but later began to show CTE-related symptoms, and allow a class member to ask the Committee for additional medical evaluations.
The judge further presented serious concerns about the sustainability of the Program over the 50-year period and what would happen if the Program either exhausted its funds or had residual funds remaining. Under the terms of the proposed settlement if funds were remaining after the 50-year period, the funds would be returned to the NCAA; however, if the Program funds were exhausted, the class members would only be able to reassert their claim for medical monitoring on an individual basis, which would be cost-prohibitive for the individual members. The judge rejected the provision that any remaining funds return to the NCAA, and suggested that the funds instead be used to extend the Program. Otherwise, a very serious potential conflict could arise – there could be an incentive for the Committee and Program Administrator to artificially reduce the number of medical evaluations so the Program could minimize its costs and leave a balance at the end of the 50-year period. The judge also stated that if the Program funds were exhausted before the end of the term, class members should have the right to re-assert their medical monitoring claims on either an individual or class-wide basis.
Although the judge rejected the proposed settlement he noted it was a "significant step in trying to arrive at a resolution." Now that the NCAA settlement has been rejected by the Court, the parties must continue to try to resolve the matter and work on a new settlement in hopes of gaining the Court's approval, which could take months. Chaikin, Sherman, Cammarata & Siegel, P.C. will continue to keep you informed about the NCAA settlement and other similar news involving traumatic brain injuries in sports. At Chaikin, Sherman, Cammarata & Siegel, P.C., we have long advocated for the prevention of brain injury in sports, and better concussion policies. In fact, Partner Joseph Cammarata helped draft the Athletic Concussion Protection Act of 2011. The Act, which became law in the District of Columbia, created strict return-to-play protocol for athletes 18 years of age and younger. If you have a question about a TBI case or need legal advice, please call our firm for a free consultation.