NCAA agrees to settle concussion lawsuits, impose new guidelines

Published Jul. 29, 2014 9:15 a.m. ET

foxsports

The NCAA has agreed to set aside $75 million for medical monitoring and research to settle a flurry of federal lawsuits filed by former student athletes who accused the governing body of college sports of ignoring a widespread concussion problem.

The preliminary settlement, outlined in court documents filed in federal court Tuesday in Chicago, does not include payments to athletes for head injuries suffered in competition, and the NCAA admitted no wrongdoing.

If ultimately approved by a federal judge, the settlement outlined in court documents will cover all former NCAA student-athletes – regardless of when they played or what what sport they played.

The agreement also requires the NCAA to impose strict new guidelines for diagnosing and managing players who suffer concussions and other head injuries – including the requirement that all athletes undergo a baseline neuro-cognitive test every year before entering competition. Athletes diagnosed with a concussion would have to be cleared by a doctor before returning to competition, and medical personnel trained in the diagnosis and treatment of concussions would have to be present at all games in the “contact” sports, which the proposed settlement agreement defines as football, lacrosse, wrestling, ice hockey, field hockey, soccer and basketball.

"The settlement does nothing less than change college sports forever," said attorney Joe Siprut, who filed the first concussion lawsuit against the NCAA in 2011. "Never before in the history of the NCAA have we seen a mandatory and consistent set of return to play guidelines that are enforced by the NCAA, and the medical monitoring program is the first of its kind."

“We have been and will continue to be committed to student-athlete safety, which is one of the NCAA’s foundational principles,” said NCAA chief medical officer Brian Hainline. “Medical knowledge of concussions will continue to grow, and consensus about diagnosis, treatment and management of concussions by the medical community will continue to evolve. This agreement’s proactive measures will ensure student-athletes have access to high quality medical care by physicians with experience in the diagnosis, treatment and management of concussions.”

Angelica Palacios, a former soccer player at Ouachita Baptist University, joined the suit after alleging that a coach tried to force her to practice even after a doctor diagnosed her with a concussion and told her not to return to the field.

“I’m really excited and happy that it’s settled, and I’m proud to say I was a part of it,” Palacios said. “I think we made history, and it’s definitely a good thing to know that people won’t have to go through that in the future.”

Although the proposed settlement provides no money for injury settlements, former college athletes will still have the ability to take legal action against their former schools, or the NCAA, or others to seek payment for specific maladies – but only as individuals, not as part of a class action suit.

That provision would prevent a situation similar to one in NFL litigation, in which the league has agreed to a set payment for any former player diagnoses with a specific condition related to concussions – $5 million, for example, for amyotrophic lateral sclerosis, which is also known as Lou Gehrig’s Disease, and $3.5 million for Parkinson’s or Alzheimer’s disease.

Those injury settlements account for the bulk of the proposed settlement in the NFL case, which was originally set at $765 million. That cap was recently removed.

The settlement in the NCAA suits includes $70 million to provide free medical monitoring and examinations for former NCAA athletes for 50 years and $5 million for research into concussions.

The money will come from the NCAA and its insurance companies, according to the proposed settlement.

The deal could be voided if the NCAA’s insurance carriers balk at funding the program.

If it is ultimately approved, the agreement will settle a 2011 lawsuit filed in Illinois by four former college athletes as well as 10 other suits filed in late 2013 and one filed earlier this year. All of them lodged the same basic allegation – that the NCAA, formed in 1906 in large part to protect player safety, ignored growing concussion problems and that when it finally did enact a policy it did not include any meaningful standards for assessing when an athlete was ready to return to competition.

For instance, the NCAA’s concussion guidelines, adopted in 2010, left it up to schools to decide who would diagnose concussions. And it allowed people who weren’t doctors to clear players to return to play.

The proposed settlement was reached after four closed-door mediation sessions that began last November and numerous other discussions between attorneys for the former athletes and the NCAA.

The NCAA has denied the allegations that it ignored the concussion problem for generations.

According to the settlement, both sides agreed that “neither this agreement nor the settlement it represents shall be deemed or construed as an admission of any sort or as evidence of any violation of any statute or law, or of any liability or wrongdoing whatsoever by the NCAA and/or its memberinstitutions or of the truth of any of the claims or allegations …”

Going forward, players will enter a system with much more rigorous requirements for diagnosing, tracking and treating head injuries.

The settlement names a dozen “class representatives” – nine football players as well as a women’s soccer player, a hockey player and a wrestler. They competed in the 1970s, 1980s, 1990s, and 2000s, and one is still active.

Among those named is Adrian Arrington, who brought the original lawsuit alleging the NCAA was lax in addressing a growing concussion problem. Arrington, who played football at Eastern Illinois from 2006 through 2009, told FOX Sports he was knocked out multiple times while playing and began suffering seizures while he was still in college.

“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.

At the crux of his lawsuit was the NCAA’s handling of the concussion issue going back decades.

According to the lawsuit filed by Arrington and the others, the NCAA knew as far back as 1933 that concussions were dangerous – its medical handbook, published that year, noted 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.”

But it wasn’t until 2010 that the NCAA adopted a concussion plan. And it simply instituted a rule that said each member school had to adopt its own plan for dealing with head injuries. It imposed no uniform standards for dealing with concussions, and specific protocols varied widely from school to school, FOX Sports found.

The NCAA policy left the specifics of education, testing and determining when a player could return to competition up to the individual schools. It also included no provision for the plans to be approved or for any monitoring to make sure they were being followed.

A FOX Sports investigation found that individual plans varied widely from school to school. In many cases, an athletic trainer was charged with evaluating whether a competitor has suffered a concussion. Others establish clear rules requiring intervention with a doctor. Some instituted rigid “return to play” guidelines – others are more lax.

One school allowed student trainers to evaluate players for possible concussions, FOX Sports found.

The proposed settlement includes sweeping new requirements, beginning with baseline testing for all student athletes before starting practice or competition each year and the requirement that any player diagnosed with a concussion see a doctor before returning to competition. The NCAA also agreed to impose new reporting requirements to track concussions and their outcomes and to make educational accommodations to students who suffer the brain injuries.

The program will include a written questionnaire for former student athletes. Those questionnaires will be reviewed, and the results will be used to determine which former athletes should undergo a medical examination.

Former athletes can complete the questionnaire as many as five times over the 50 years covered by the proposed settlement.

A five-member commission appointed by a federal judge will oversee the details of the program. The proposed settlement suggests that Dr. Robert Cantu, one of the leading experts on brain injuries in sports, be among those appointed to the committee.

That group will review and amend the questionnaire given to former athletes as well as the scope of the evaluations as medical science advances.

The settlement includes language designed to make sure that if the money runs out before the passage of 50 years that former athletes have avenues to seek medical monitoring.

The settlement sets attorneys fees at $15 million. They will be paid out of the $70 million medical monitoring fund.

Attorneys for the players and the NCAA are scheduled to appear at a hearing in Chicago on Monday afternoon, where they will discuss the proposed settlement with U.S. District Judge John Z. Lee.

Lee must ultimately sign off on the settlement, a process that could take months, or longer.