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Attorneys for four former college athletes and the NCAA are in the midst of a mediation process that could settle a class-action lawsuit alleging that the governing body for college sports ignored a burgeoning concussion problem for decades.
Some experts believe the NCAA could have a harder time defending itself than the National Football League, which recently agreed to dole out $765 million to pay for injury settlements and medical monitoring and care for former players who suffered concussions and other brain injuries.
The suit against the NCAA, filed in federal court in Illinois, asserted that the organization was negligent by failing to adopt any formal concussion policy until 2010 – and failing to establish any minimum standards when it finally did.
“Continuing to turn a blind eye and continuing to essentially pretend that the concussion issue isn’t as severe as it is, those are the things we say make the NCAA negligent,” said Joseph Siprut, a Chicago attorney who represents two former football players, a former soccer player and a former hockey player at the heart of the suit, which was filed in 2011.
The first mediation session was held Friday in New York, and attorneys for the former players and the NCAA signed a confidentiality agreement. Both sides declined to comment after the session, and it’s not known whether they have agreed to more talks.
NCAA officials declined an interview request from FOX Sports about its approach to concussions over the years, but did issue a statement through its chief legal officer, Donald Remy: “While the NCAA continues to believe these allegations are inappropriately made against the NCAA, we are willing to consider reasonable mediation options that address student-athlete health and safety concerns, which has always been our priority.”
Some attorneys have predicted that the NCAA could have trouble defending itself if the mediation breaks down and the suit proceeds to a courtroom.
“I think the vulnerability is higher than the NFL had,” said Travis Leach, a Phoenix sports attorney and member of the Arizona Governor’s Council on Spinal and Head Injuries.
NFL players, he pointed out, had a collective bargaining agreement – and managers and agents to help look out for their well-being.
“In the NCAA case, you don’t have that bargaining unit,” Leach said. “So the parties negotiating for the best interest of the players are taken out. I think you’ve also got a causation problem with the NCAA case. In the NFL, potentially they could have looked to injuries a player sustained in college as being the root cause.
“In college, I think it’s harder for the NCAA to point to high school and youth leagues.”
In addition, the number of former college players who could be affected is staggering. In the past 50 years, it’s estimated that more than 500,000 men have played college football – and that’s just one of nearly two dozen varsity sports offered at NCAA schools.
The organization known today as the National Collegiate Athletic Association was formed in 1906, largely in response to the number of young men who lost their lives playing football – 19 deaths the previous year had been attributed to the game.
The organization’s mission: “To protect young people from the dangerous and exploitive athletics practices of the time.”
More than a century later, that principle is central to the NCAA’s work and figures prominently in its descriptions of its duties.
But former football players Adrian Arrington and Derek Owens, former soccer player Angel Palacios and former hockey player Kyle Solomon alleged in their federal lawsuit that the NCAA failed to live up to that calling. Instead, they alleged that the NCAA failed to properly educate competitors about the dangers of concussions, failed to establish comprehensive policies for the diagnosis and treatment of head injuries, and failed to draft rules setting minimum standards for when an injured player could return to competition.
Three former college football players filed a similar suit in federal court in Tennessee earlier this year, and it is currently scheduled for mediation in February – although there is also the possibility that it will be combined with the Illinois suit. Another lawsuit was recently filed in federal court in Illinois by two former college football players – and they are seeking to join the suit filed by Arrington, Owens, Palacios and Solomon and plan to seek additional damages.
Arrington, who played football at Eastern Illinois from 2006 through 2009, told FOX Sports that he was knocked out multiple times while playing and began suffering seizures while he was still in school.
“I’ve seen people get concussions, but I never knew anything about the side effects of concussions, or people taking their lives and things like that, the things like memory loss and depression and things like that,” Arrington said. “I never knew anything or heard anything about the seriousness of concussions. I always saw the coaches be like toughen up and come on back and play.”
Arrington graduated, but he continues to suffer seizures and is unable to hold a job. He also said he cannot be left alone with his three young children because of the danger that he could suffer a seizure.
Palacios played soccer at Ouachita Baptist University in 2010 and 2011. It was there, in the fall of 2011, that she suffered a concussion.
“We were having a heading practice,” she told FOX Sports. “It was something that we needed to work on for games – for game situations. There was me and three other girls that were jumping toward the ball to head it. And if you didn’t head it, you had to do sprints, and no one wanted to do that – and so I jumped up and headed the ball, and the girl in front of me threw her head back and it hit me just on my eyebrow above my left eye. And immediately I turned and grabbed my face. It was swollen probably a good inch off my face.”
Palacios said that later that week a coach told her to run laps with the team – even though she had not been medically cleared. And she said she was effectively kicked off the team after her mother called her coach to talk about her injury.
At that point, she decided to quit soccer.
Her former coach, who has since moved on to another school, declined to speak to FOX Sports.
According to the lawsuit filed by Arrington, Owens, Palacios and Solomon, the NCAA knew as far back as 1933 that concussions were dangerous – its medical handbook, published that year, noted that the “seriousness of these injuries is often overlooked.” The handbook also included a table addressing concussions that called for “infirmary or hospital treatment until symptom free 48 hours” and this passage: “If symptoms of headache, dizziness, blurred vision, vomiting continue over 48 hours, individuals should not be permitted to compete for 21 days or longer, if at all.”
And when the NCAA did adopt its concussion plan, in August 2010, it simply instituted a rule that said each member school had to adopt its own plan for dealing with head injuries. It called for those plans to require four things:
1) That all college athletes get training each year on the signs and symptoms of concussions and sign a statement taking responsibility for reporting concussions.
2) That all athletes who exhibit signs or symptoms of a concussion be evaluated by a member of the school's medical staff with experience in the evaluation and management of concussions.
3) That all athletes diagnosed with concussions be held out of competition for at least the remainder of that day.
4) That all athletes diagnosed with a concussion be cleared by a physician or the physician's designee before returning to competition.
The NCAA policy left the specifics of education, testing and determining when a player could return to competition up to the individual schools.
FOX Sports obtained the concussion management plans from more than a dozen schools across all divisions. They vary widely in language and requirements. In many cases, an athletic trainer is charged with evaluating whether a competitor has suffered a concussion. Others establish clear rules requiring intervention with a doctor. Some have rigid “return to play” guidelines – others are more lax. In some cases strong language is used – but in others it is not. One Ivy League school, for instance, has in its policy this following sentence: “All concussions should be reported to the certified athletic trainer and team physician.”
One school allows student trainers to evaluate players for possible concussions.
“Well, you know, there’s a Good Samaritan law,” said Dr. Walter Lowe, team physician for the University of Houston, “and I guess an athletic training student could function as a Good Samaritan interviewing, but obviously that’s a problem that the athletic training student should not be making decisions on at all.”
Siprut said it’s almost worse than having no policy at all.
“In practice, that’s led to disaster, because it’s been inconsistently implemented, some schools do better than others, there’s a lot of disconnect, and so in some ways that’s even worse because it creates the perception the NCAA has addressed the issue when in fact it really hasn’t,” he said.
How big is the problem?
According to information from the NCAA’s injury surveillance system, there were more than 29,000 concussions reported in college sports between 2004 and 2009 – more than half of them in football. That study also found that the number of concussions was increasing at 7 percent a year, and that a college player was three times more likely to suffer a second concussion if he or she returned to competition within 10 days of sustaining a first concussion.
In addition, an NCAA survey of head trainers in 2010 found that more than half of the schools did not require a physician to see all student athletes who suffered a concussion.
University of Houston quarterback David Piland gave up football on Oct. 8 after suffering his seventh documented concussion in a game against Temple. It was his junior season, and he said he looked forward to the chance to challenge school records and maybe, one day, get a shot to play in the NFL.
The hit that ended his career hadn’t amounted to much – “scrambling for it, I run, I just get hit on the side of the head,” Piland told FOX Sports. “It really doesn’t look like anything special. I think it just caught me right. … When I get up, I kinda fall down, and I stand up and I’m fine – jog off. Nothing looks wrong.”
Piland knows that now because he’s watched the play on film. He has no memory of the hit, the game, the plane flight home – all he knows is that he awakened in a Houston hospital.
“I go back in and play a couple more plays and I get hit in the head again, and I could notice on film because I started doing different things, signal-wise, play call-wise that I wouldn’t regularly do. At that point, I kind of realize I had lost it, watching it on film.”
As he recuperated, his doctors gave him a stark message: “It’s not so much ‘if’ I’m going to get another concussion, it’s ‘when.’”
Although Piland told FOX Sports he believes he could find a doctor to clear him to return, he opted to follow the advice of his physicians.
“Obviously, I don’t want to threaten my life over it,” he said. “A bunch of people would.”
One of those physicians was Lowe, who also is team doctor for the Houston Texans. Lowe said he had adopted NFL concussion protocol at the university.
“We have all the guidance in the world from the NFL,” Lowe said. “At the college level, there is not that degree or organization, for sure. … I don’t think there’s been the energy to get to dogma like we’ve gotten to in the NFL that this is how we’re going to treat college players.”
One of those who has been highly critical of the NCAA’s approach to concussions is former Harvard football player and WWE wrestler Chris Nowinski.
Nowinski, who suffered multiple concussions on the football field and in the wrestling ring, now dedicates his work to concussion research and education, both at the Sports Legacy Institute, where he is president, and at Boston University, where he is co-director of the Center for the Study of Traumatic Encephalopathy, a degenerative brain disease brought on by repeated trauma.
He was co-author of a recent study that looked at the concussion education program for six Division 1 men’s hockey teams – and that found a wide variation on what colleges were telling athletes.
And Nowinski’s work is not limited to his research and advocacy. He also works with a number of organizations that are trying to prevent concussions. One of them is the WWE.
“WWE has actually taken a real interest in this work,” he said. “I've been there three times to teach all the wrestlers on concussions. I had an hour with all the talent before the show and explain to them what's going on.”
Asked if the WWE – which many people equate with make-believe – had a better concussion education program than the NCAA, Nowinski was unequivocal.
“I guarantee you they have a better concussion education program because I wasn't even the first person to talk to them about it,” he said. “It is odd that WWE has a better handle on this issue than college sports. They have full disclosure to the wrestlers and they work together to protect their health. It's a shame that more people don't think that way.”
Depending on what happens with mediation, the suit could ultimately wind up in a courtroom. In either case, Siprut told FOX Sports he and other attorneys representing the former players would be fighting for two things – return-to-play guidelines, and a program to provide medical monitoring and care for former athletes.
“We want to make sure there’s a way to pay for that,” he said.
Palacios, who transferred to another school and gave up soccer, said she hopes that the suit changes things for the next generation of athletes.
“I hope it just sets a better precedent for the players to come,” she said, “so that none of them have to go through what I had to go through, and that basically there’s a standard for concussions, so they’re not forced to be put out there before they’re ready.”
Arrington said much the same thing.
“And in terms of the student athlete, and I’ve said before, we’re the product, we are what people are coming to see,” he said. “So why not make sure these kids are OK before going back on the field? Why not make sure these kids’ heads and brains are ok before they go off into the real world? I’m not saying every kid that get a concussion go and sue the schools or things like that.
“I’m not saying every kid that gets a concussion has brain damage or is going to have seizures all the time. … Why not take care of these kids and make sure they don’t have to go off into the real world, struggle in the real world, not being able to provide for their families in the real world, not be normal students in the real world.”
