Product Liability & Toxics Law News

NCAA Footballers With Head Injuries Look to Buck Settlement Trend

Dec. 11, 2018, 12:06 PM

Brain-injured football players who played for dozens of universities over several decades want jury verdicts, not settlements, in their lawsuits saying the NCAA didn’t protect them from chronic brain diseases.

Despite recent high-profile settlements, injured athletes still haven’t gotten a definitive ruling on a question central to all concussion litigation—whether playing a sport causes later-life brain diseases. Their lawyers believe that jury trials could answer that question, and that they might result in monetary damages exceeding what players could get from negotiated settlements.

“We still haven’t had a jury verdict on sports-related CTE injuries and neither insurers nor litigators know how a jury is going assess damages in these kinds of cases,” said Paul Anderson, a plaintiffs’ lawyer who also blogs about sports concussion litigation.

And the first cases against the National Collegiate Athletic Association, football conferences, and colleges are starting to ramp up now that the similar concussion claims brought by retired National Hockey League and National Football League players have settled. The NHL players’ claims settled last month for $19 million; the NFL claims last year for more than $1 billion.

But the college players’ lawsuits are different. The NCAA has thousands more participants than either of those two professional sports leagues. A favorable jury verdict for the college players linking injuries to illness could mean huge payouts by the NCAA and football conferences.

It also could help other concussed athletes, opening the floodgates to many more claims, amateur and professional, in all kinds of sports, sports lawyers said.

“The plaintiffs’ strategy is to try these cases—they want a classic bellwether case,” plaintiffs’ lawyer Paul Anderson, of the Klamann Law Firm in Kansas City, Mo., said.

The class complaints allege the NCAA, colleges, and more than two dozen football conferences for decades breached a duty to warn their student-athletes about the later-life risk of chronic traumatic encephalopathy and other neurological conditions.

And as brain-injured players were deprived of jobs despite college degrees, football conferences reaped millions in profits from them, including deals with media outlets and corporations, the players say.

One of four test cases recently got a green light to proceed and lawyers for ex-players are in the process of serving discovery requests on the NCAA and other defendants.

“The plaintiffs just want to make it safer and wish they had been told about the risks they were taking,” Benjamin Richman, of Edelson PC in Chicago, a prominent class action law firm that represents thousands of players in the litigation, said.

The NCAA declined to comment. But when the first class complaints were filed in 2016, Donald Remy, the NCAA’s chief legal officer, told Bloomberg Law the NCAA “does not believe that these complaints present legitimate legal arguments and expects that they will be disposed of early by the court.”

“The allegations made by the plaintiffs in these lawsuits remain very much in dispute and we vehemently deny the allegations and claims. Stacey Osburn, the NCAA’s public relations director, told Bloomberg Law recently.

Imperfect NHL Deal

It remains to be seen whether the cases consolidated in the U.S. District Court for the Northern District of Illinois will clear a class certification hurdle that tripped-up retired National Hockey League players.

Those ex-players and the NHL reached the $19 million tentative concussion settlement last month, but only after the U.S. District Court for District of Minnesota in July declined to certify a class. The proposed deal would provide medical monitoring and medical costs for players with diagnosed brain disorders.

“I expect the defendants might look at this settlement and say it’s a good model,” Richman said of the NHL deal.

But there’s a reason ex-college players may not see an NHL-like deal as the answer: They can participate in a $75 million concussion medical monitoring class settlement already reached between the NCAA and athletes.

That agreement, preliminarily approved in 2016 by the Northern District of Illinois, provides current and former NCAA athletes in an array of sports with medical monitoring apart from the personal injury actions carved out of the settlement.

“If these student-athletes go through medical monitoring and then develop a degenerative brain disorder, that will be a ticket to go to court, especially since the monitoring was done under the auspices of the NCAA,” Anderson said.

Defense lawyer Gary Wolensky, of Buchalter PC in Irvine, Calif., who has defended USA Football in youth league concussion cases, agreed that the NHL settlement doesn’t dictate the same route in the college cases.

The NHL deal will have “very little effect” on the tort cases, Wolensky said. “Each of those cases will rise and fall on their own merits.”

Bigger Than NFL

The $1 billion class settlement between the National Football League and its retired players may not be a good model, either.

That 2016 agreement provides payouts to players with Alzheimer’s disease and other impairments, but has been mired in litigation over player claims of a payout system “rigged” by the NFL and league counterclaims of fraud.

There’s also a big difference in the number of athletes potentially affected by the college-level cases.

“If we look at the NFL settlement, and the relief for the class, there are significantly more players in the NCAA each year,” Richman said. “It’s orders of magnitude larger.”

Only 1.6 percent of college football players make it to the pros, according to NCAA estimates, but in 2017 alone more than 73,000 student-athletes played for a college football team.

Those numbers, multiplied by decades of college teams, could strongly pressure the NCAA to settle, but at the risk of costs that could eclipse those incurred by the NFL.

First Case Moves

Meanwhile, one of four sample cases is in discovery with the other three likely to follow.

In Rose v. NCAA, the district court ruled Sept. 28 that Michael Rose and Timothy Stratton, who played for Purdue University in the 1990s, may proceed with their claims against the NCAA and the Big Ten Conference.

The defendants argued the case was filed too late, but it wasn’t clear the players knew they had suffered an injury and that the injury was wrongfully caused, the court said.

In the wake of that ruling, Richman said, “we are permitted to conduct discovery in the Rose-Stratton case, and we’ve just served discovery requests on the defendants.

Discovery will “shed light on on whether neurocognitive diseases are latent conditions caused by the occurrence of injuries of which a reasonable person should have been aware,” the court said.

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

To read more articles log in. To learn more about a subscription click here.