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Judge grants conditional OK to settlement deal to end NCAA concussion litigation

By Jonathan Bilyk | Jan 27, 2016

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A federal judge has signed off on an agreement to settle the bulk of the litigation against the National Collegiate Athletic Association over concussions and other brain injuries suffered by college athletes nationwide.

On Tuesday, Jab. 26, U.S. District Judge John Z. Lee granted preliminary approval to the settlement agreement between the NCAA and a potential class of more than 4.4 million student athletes nationwide.

Under the terms of the settlement, the NCAA agreed to invest $70 million in a “Medical Monitoring Program,” under which current and former athletes would be eligible to receive free screening, once every five years, for symptoms which may indicate brain injuries as a result of playing any of 43 NCAA sports at more than 1,000 NCAA-member colleges and universities. Athletes whose screenings reveal a need for further testing could then qualify for two free medical evaluations.

The screening and evaluation program would continue for 50 years, at which time the NCAA can decide to either extend the program or donate any money remaining from the initial $70 million toward brain injury research. If the $70 million is exhausted before the 50-year period ends, athletes can sue to force the NCAA to pay more.

Screenings and evaluations would be available at 33 sites nationwide, the court document said.

The settlement also would compel the NCAA to institute a range of “corrective measures” to better address athletes’ health and safety when practicing and competing at official games and events, including: nationwide collegiate “return-to-play” guidelines for athletes who have suffered potential brain injuries; guidelines governing “protective treatment” for injured athletes; and rules governing management and oversight of NCAA-sanctioned events by medical personnel, among others.

The NCAA pledged to not object to paying plaintiffs’ attorneys fees of $15 million, and paying class representatives either $5,000 each, if they were deposed, and $2,500 for those not deposed.

In exchange, the plaintiffs agreed to waive certain rights to sue the NCAA or its member institutions over the allegations in the future. To receive the immunity, however, NCAA member schools must sign off on and implement the concussion protocols outlined in the settlement agreement.

Lee noted the difficulties athletes from different schools might have in sustaining a nationwide class action against the NCAA or groups of member schools, as schools have been free to set their own policies and protocols related to concussions among its student athletes. For those reasons, he set aside objections from two plaintiffs, identified as Anthony Nichols and Adrian Arrington, who had asked the judge to reject the settlement because it improperly and unfairly limited their legal options. The judge, however, said the objectors’ preferred option would create an “untenable” and “impractical” situation in which jurors in trials across the country would be compelled to sort through the differing concussion standards of the member schools and how those related to the NCAA.

However, Lee said the settlement agreement went too far in prohibiting groups of athletes from a particular college or university from bringing a class action against their alma mater. In response, Lee said he would require the NCAA and plaintiffs to agree to alter the language to assuage his concerns to earn his signature on the final settlement.

In a report by Jon Solomon, published on, plaintiffs’ lawyers indicated they would not oppose that provision. And at least one of the lawyers, Jay Edelson, of Edelson P.C. in Chicago, pledged those class actions against individual colleges and universities would be forthcoming “within weeks.”

The NCAA told Solomon it was reviewing the judge’s conditions.

If both sides approve the changes, the settlement would essentially end the litigation first introduced in 2011 by Arrington, a former Eastern Illinois University football player. Later cases were consolidated with Arrington’s.

The NCAA was represented by the firm of Latham & Watkins, of Chicago.

Attorney Steve Berman, of Hagens Berman Sobol Shapiro, of Seattle, along with other lawyers from the Hagens firm’s Chicago office, represented Arrington and other plaintiffs.

Nichols, an intervenor plaintiff, was represented by Edelson and the firm of Woodrow & Peluso, of Denver.

Two dozen student athletes named as plaintiffs in the action were named class representatives in the settlement agreement. They included: Derek Owens, who played football at the University of Central Arkansas from 2008-2011; Angelica Palacios, soccer, Ouachita Baptist University, 2010-2011; Kyle Solomon, hockey, University of Maine, 2008-2010; Abram Wolf, football, Simpson College, 2012-present; Sean Sweeney, wrestling, Buena Vista College, 1991-1993; Jim O’Connor, football, Drake University, 1971-1974; Dan Ahern, football, North Carolina State University, 1972-1976; Paul Morgan, football, Vanderbilt University, 1994-1997; Jeffrey Caldwell, football, Georgia Tech University, 1995-1998; John DuRocher, football, University of Oregon and University of Washington, 2003-2006; Sharon Washington, football, University of Missouri, 1987-1991; Shelby Williams, golf, Northwest Missouri State University, 2015; Brice Sheeder, track, Simpson College, 2015; Shavaughne Desecki, softball, DePaul University, 2003; Spencer Trautmann, baseball, Western Oregon University, 2015; Ryan Parks, baseball, University of Illinois, 2002; Ursula Kunhardt, volleyball, Montana State University, 2011-2012; Jessica Miller, volleyball, Seattle-Pacific University, 2015; Anna Bartz, track and field, University of Wisconsin, 2007; Peter Dykstra, track and field, University of Wisconsin, 2006; DaChe Williams, basketball, Northeastern University, 2015; Rachel Harada, soccer, Rockhurst University, 2015; Natalie Harada, soccer, Maryville University, 2015; and Adam Walker, golf, Simpson College, 2009-2010.

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Organizations in this Story

University of Missouri - ColumbiaHagens Berman Sobol Shapiro, LLPLatham and Watkins LLPNCAAEdelson, PC