NCAA Reaches $75M Class Action Settlement Over Concussion Charges

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After being previously rejected, the NCAA and a group of former student athletes say they fixed the fairness problems pointed out by the federal judge and have reached a new class action settlement for $75 million to resolve concussion related claims.

When U.S. District Judge John Lee rejected the last NCAA class action settlement agreement in December 2014, he said that he didn’t think $70 million was sufficient to fund a medical monitoring program for any neurological problems athletes may develop in the 50 year time period. The first class action settlement was reached in July 2014.

In addition, Judge Lee said that athletes who played baseball, volleyball and other non-contact sports didn’t have class representatives even though they qualified for the program.

The class has now been expanded to include non-contact sports such as golf, cross country, track and field, volleyball, softball and baseball, in addition to football, soccer, hockey, basketball and wrestling.

“The proposed class representatives have reviewed, understand, and enthusiastically support the amended agreement from the perspective of current and former NCAA student-athletes,” according to request for preliminary approval filed in an Illinois federal court.

The class action settlement is for “all persons who played an NCAA-sanctioned sport at an NCAA member institution through the date of preliminary approval.”

Under the terms of the class action settlement, in the case that the fund for medical monitoring does not last 50 years, student athletes will be able to file a new class action lawsuit against the NCAA in search of more funds. If there is money left over after the 50 year time period, that money may be put toward extending the program or toward additional research.

The NCAA class action settlement requires that $5 million be put toward concussion research, and is the same amount in the previous agreement. There will also be $15 million that will go toward attorneys’ fees.

The NCAA will also adopt new return-to-play guidelines to help prevent concussions, which will include “pre-season baseline testing for each sport,” no same day return to play if diagnosed with a concussion, requiring every every NCAA institution to have the proper medical personnel capable of making a concussion diagnosis, “a reporting process in place . . . to report diagnosed concussions,” concussion education for athletes, coaches and athletic trainers prior to the start of each season, and providing the necessary materials for that purpose.

While the changes satisfy the requests of Judge Lee, there are several class members who object to the NCAA concussion class action settlement agreement because it does not provide funds for concussion treatment, including compensation for injuries they have already suffered.

The class action settlement does not prevent players from filing individual concussion lawsuits against the NCAA or their college in search of damages. However, current and former athletes will not be able to seek “relief for personal injury on a class-wide basis related to concussions or sub-concussive hits sustained during participation in collegiate sports as a NCAA student-athlete.”

On these grounds, and others, there are several objectors to the class action settlement.

Attorney Jay Edelson of Edelson PC, who is representing a former football player from San Diego State, told Law360 that “there have been some changes that are positive, but we still think it’s not a good settlement and we’ll be making our case before the court.”

Edelson added that “under the deal, very few class members will receive any benefit at all and they’ll be waving significant claims.”

Attorney Dwight E. Jefferson, representing Julius Whittier, the first African American football player to letter in football at University of Texas, also opposes the settlement, calling it “fundamentally unfair.”

Whittier is now “totally disabled,” he told the Law360, from early onset Alzheimers allegedly from football injuries.

The NCAA said that objections should be considered during the final approval stage of the class action settlement, not at this stage.

The class is represented by Steve Berman, Elizabeth Fegan, Daniel Kurowski and Thomas Ahlering of Hagens Berman Sobol Shapiro LLP and Joseph Siprut of Siprut PC.

The NCAA is represented by Mark S. Mester of Latham & Watkins LLP.

The NCAA Student-Athlete Concussion Class Action Lawsuit is In re: National Collegiate Athletic Association Student-Athlete Concussion Injury Litigation, Case No. 1:13-cv-09116, in the U.S. District Court for the Northern District of Illinois.