With the settlement Tuesday of a 2011 class-action lawsuit, the NCAA agreed to provide $70 million to pay for medical testing of thousands of college athletes to determine whether they suffered brain injuries while playing contact sports. The settlement also establishes a concussion treatment protocol for all NCAA schools. The terms of the settlement and its timing raise legal questions:
Q: The payment for medical testing and a protocol for concussion treatment appears to be a realistic approach to a serious problem, although the settlement terms are raising some concerns among player-advocates. What prompted the NCAA to make this offer?
A: Facing a barrage of criticism from the U.S. Congress, numerous lawsuits across the nation and labor activism among athletes, the NCAA has begun to make changes and reforms it previously would have delayed or rejected. This settlement is one of them.
Instead of its typical procedure of fighting the athletes and their lawyers in court for the next two or three years, the NCAA and its insurance companies entered into settlement discussion a year ago. Recognizing the growing awareness of concussion-caused brain trauma as a result of the NFL concussion crisis, the NCAA agreed to terms in this settlement that are a significant first step toward a new approach to concussions. The settlement recognizes the rights of former athletes and allows the NCAA leadership to say, in response to criticism, that it is concerned about the health and welfare of "student-athletes."
Q: What does the settlement do for college athletes?
A: The settlement will provide medical evaluation and testing for any former college player who requests it. If the testing shows a significant problem, the athlete will be able to use the test results to make a claim for monetary damages against the NCAA and the school where the athlete played. It includes athletes who played football, hockey, soccer, basketball, wrestling, field hockey and lacrosse. Each athlete's claim would be evaluated individually in the form of an insurance settlement or a trial.
Q: How does this settlement compare with the settlement offer the NFL has made to its former players?
A: The NCAA settlement provides only medical testing as a basis for a future claim for damages. The NFL settlement offers damage awards for a list of ailments that result from concussions. The awards are based on the diagnosis, the player's age and the number of games played. The settlement includes a chart that allows any NFL player to ascertain his award. The college players are not limited to a list of specific ailments, and there is no schedule of payments.
Court papers indicate that more 1 million college students have played contact sports, although it is unknown how many suffered head injuries. There are at least 20,000 men who have retired from the NFL, and 5,000 have filed claims over concussions and long-term brain injuries. Both settlements are open-ended, with no cap on the compensation that will be paid.
Q: Is the NCAA settlement final? Will the players have a chance to consider it and to voice any objections or criticisms?
A: No, the settlement is not final. The attorneys for the players and the NCAA are asking U.S. District Court Judge John Lee in Chicago for preliminary approval of the settlement. Before the judge can approve the settlement, he will conduct a "fairness hearing." Any players with questions, criticisms or objections will be able to voice them at the fairness hearing. With the chance to make a claim for damages after the medical testing provided in the settlement, it is unlikely many players will object to the terms of the settlement.
Q: What does the settlement tell us about the NCAA and its willingness to consider reforms and changes?
A: The settlement proposal shows that the NCAA, under President Mark Emmert and Chief Legal Officer Donald Remy, is willing to acknowledge the rights of athletes and to offer things that previous NCAA leaders would have found unthinkable. But it also shows that the NCAA is willing to go only so far. The organization (with help from its insurance companies) is willing to pay for concussion testing, but it requires players to sue for any damages. Separately, it remains steadfast in its refusal to consider payments for performance or for use of athletes' names, images and likenesses. The NCAA is willing to pay for concussion testing, but it refused -- at least publicly -- even to consider settling with Ed O'Bannon and his group of players seeking payment for use of their names and for television broadcasts of their games. A decision on the O'Bannon case is expected soon.
Q: What if a player had concussions in college and then in the NFL? Can he collect from both?
A: Only a tiny fraction of college football players moves on to the NFL. But those who suffer head injuries at both levels could collect from both. Although there is no established procedure for these players in the settlement proposals, the likely outcome would be to prorate an award based on the injuries at the college level and the later injuries at the NFL level. It would be a bit complicated, but it is the kind of issue that can be negotiated.
Q: In the NFL settlement, the attorneys for the players are asking for $112.5 million in fees, a request that has prompted outrage among some players and their attorneys. What are the lawyers requesting in the NCAA settlement?
A: The lawyers for the players are requesting $15 million in fees. The NCAA has promised that it will not object to the fees, an agreement known as a "clear sailing" clause. Judge Lee will make the decision, but he is likely to conclude that the $15 million fee is reasonable in a settlement that is worth $70 million.