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What it does 

This order preliminarily approves a settlement between the NCAA athletes who sued the National Collegiate Athletic Association (“NCAA”) claiming common law and contractual claims based on the NCAA’s duty to its athletes in regards to ensuring safety measures against concussions and their long term effects.

Different plaintiffs brought similar actions against the NCAA and on behalf of NCAA student-athletes nationwide. These lawsuits were consolidated by the Judicial Panel of Multidistrict Litigation in the District Court of Northern Illinois.

This preliminary order:

  1. Approves a 50-year $70 million Medical Monitoring Fund for NCAA athletes. An additional $5 million is to be spent on research regarding the impact of concussions.
  2. Approves new and improved return-to-play guidelines for athletes that suffer from concussions.
  3. Requires the class to release any claims brought in the future as a class action related to personal injury against the NCAA.

Given that this settlement can potentially affect thousands of current and former-student athletes, the NCAA has created a website to inform those who are a part of the class about the settlement and their rights.

This settlement allows NCAA athletes to benefit from a screening process in order to better prevent and discover long-term head injuries. The new return-to-play guidelines will further restrict players from entering into play after a concussion before they are fully healed.

The facts 

In 2011, Adrian Arrington and Derek Owens filed a class action against the NCAA on behalf of a class of student-athletes.

Similar actions were filed by other NCAA student-athletes and consolidated by the Judicial Panel of Multidistrict Litigation before the District Court of Northern Illinois.

A First initial settlement was proposed on December 17, 2014. The Court denied this settlement based on issues with notice, the medical monitory fund, and other concerns.

Continued negotiations between the NCAA and the class resulted in a new proposed settlement on January 26, 2016. On July 15, 2016, the Court granted the Motion for Preliminary Approval subject to modifications moving forward. 

Decision Points 

One main concern with the settlement was whether the medical monitoring fund would provide proper relief to class members, as it was only to be in place for a specific time period. The court decided the $70-million-dollar fund was sufficient, after emphasizing that it would not be capped at a time limit if the funds exceeded the initial agreed upon time period of 50 years.

The medical monitoring program is limited to the diagnosis stage–screening and evaluation—of student-athletes with potential concussions or long term neurological damage. The NCAA has no further monetary commitment to its student-athletes within this settlement outside of the medical monitoring fund.

Relevant Science 

A number of athletes in this settlement class suffered from concussions, a mild form of traumatic brain injuries (TBIs). This is caused by non-penetrating head trauma. Most patients with mild TBI will recover quickly, but others report persistent symptoms, called post-concussive syndrome. These concussive injuries have been linked to the neurodegenerative condition known as chronic traumatic encephalopathy (CTE). CTE has been shown to have long term neurological effects, but no well-validated imaging or detection of neuronal damage in patients is currently available. At present, the diagnosis can only be confirmed by a post-mordem autopsy.

In the Memorandum and Opinion for the Preliminary Approval of the Settlement, the Court acknowledged that certain facts are undisputed:

“[T]here are multiple neurodegenerative conditions associated with concussions and subconcussive hits, including Post-Concussion Syndrome (“PCS”) and Chronic Traumatic Encephalopathy (“CTE”), often clinically mistaken for Alzheimer’s disease or frontotemoral dementia.”

Where & When 

This settlement was preliminary approved on July 15, 2016 by the District Court for the Northern District of Illinois Eastern Division.

Why It Matters 

This case involves over 4.4 million athletes in forty-three different men’s and women’s sports. The NCAA has over a thousand member institutions, each of which has the option to adopt or reject the NCAA’s concussion policies, as well as the option to create its own concussion policies on a school-by-school, team-by-team, or coach-by-coach basis. Concussion education, evaluation, and treatment varies widely from NCAA institution to the next.

This settlement affects the following group (Class): “All persons who played an NCAA-sanctioned sport at an NCAA member institution on or prior to the Preliminary Approval Date” (which is July 15, 2016).

This includes the following subclasses:

  1. All persons who played an NCAA-sanctioned Contact Sport at an NCAA member institution on or prior to the Preliminary Approval Date.
  2. All persons who played an NCAA-sanctioned Non-Contact Sport at an NCAA member institution on or prior to the Preliminary Approval Date.

The court allowed members of the affected class to submit a written request to opt-out of the settlement before March 10, 2017. A member of the class who does not opt out of the settlement would be precluded from filing another lawsuit based on the same claims of this case. However, members of the class would still be allowed to file lawsuits related to “personal injury or bodily injury class claims on behalf of persons who allege injury resulting from their participation in a single NCAA-sanctioned sport at a single-NCAA member school.”

Given that members of the class that do not opt-out will be bound by the settlement, the Court had to ensure that notice was given in a “reasonable manner”. The preliminary approved settlement establishes that notice should be given through different direct and indirect ways, including the following:

  • Contact information being gathered from member schools of former and current athletes in the settlement class
  • Print Publications (ESPN The Magazine, Sports Illustrated, and USA Today)
  • Settlement Class Website
  • Press release
Background 

As a result of the settlement decision, the class members were not forced to prove that the NCAA failed to warn or prevent the dangers associated with concussion injuries, like TBI and CTE.

There are major differences between this settlement class and the class in the NFL Concussion Litigation. As discussed in the January 26th opinion, NFL class members were injured in the same, unvarying way. Each class member “returned to play prematurely after head injuries and continued to experience concussive and sub-concussive hits.”

The main difference between the NCAA class settlement and the NFL settlement is that NCAA players and family members do not receive any monetary compensation. This settlement only incorporates costs associated with medical monitoring and research moving forward.

Status 

A final hearing that should have taken place on May 5, 2017 at 10 a.m., was scheduled to determine if the settlement was fair, reasonable, and adequate. However, on May 23, 2017, the court issued a scheduling order extending the deadline for Settlement Class Members to object or opt out of the Settlement to August 4, 2017 and re-scheduling the Fairness Hearing to September 22, 2017, at 10:00 a.m.

Primary Author 
Bobbie Burrows, JD/MA Bioethics and Science Policy Candidate
Editor(s) 
Rosa Castro, LLM, PhD, MA; Aubrey Incorvaia, MPP
Recommended Citation 

Duke SciPol, "In re: National Collegiate Athletic Association Student–Athlete Concussion Injury Litigation" available at http://scipol.duke.edu/content/class-action-district-court-northern-district-illinois-rules-concussion-injury-litigation (06/02/2017).

License 
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