NCAA concussion settlement bars future class actions

Posted on: August 6th, 2014 by Steve Larson
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football-injuryThe NCAA has agreed to pay $70 million to set up a concussion-screening framework under a proposed settlement with former student-athletes this week, but the deal would keep the organization’s future litigation exposure low by requiring players to bring individual suits, rather than class actions, in order to seek recovery for treatment or injuries.

The organization agreed Tuesday to an overall $75 million settlement, including $5 million for a concussion research fund, in a deal that would establish a 50-year medical monitoring program that includes neurological evaluations of concussion-related injuries. The deal would also allow players to obtain seasonal baseline tests that could help track such head and neurological injuries.

Although the proposal introduces a groundbreaking concussion-tracking system unprecedented in college sports, it neither covers treatment nor compensates players for their injuries, leaving players to address those issues in any future lawsuits against the organization or individual universities. The settlement also restricts them from bringing class actions, which would likely deter plaintiffs’ attorneys who might not be able to afford to take on cases involving comparatively smaller damages.

The NCAA proposed settlement is substantially different than the NFL proposed concussion settlement.  The NFL concussion settlement provided an uncapped compensation fund for a class of retired players, after U.S. District Judge Anita Brody, who is overseeing that multidistrict litigation, raised concerns that an earlier proposal’s $675 million ceiling would prevent all eligible players from being sufficiently compensated.

The seasonal baseline screening program could offer valuable material for plaintiffs to show causation in any future injury suits.  One of the biggest challenges for players attempting to litigate their concussion-related claims is that they bear the heavy burden of showing that their concussion-related injuries were caused by their participation in NCAA games, rather than other activities including past games in high school sports.

Having a monitoring program that allows players to more precisely pinpoint when they suffered concussive blows and how it affected them can help their case in the individual injury suits they may choose to bring. Such screenings may also indicate which universities have players most affected by concussion-related problems and potentially expose the schools to future litigation.