The NCAA reached a $75 million settlement this summer regarding a concussion lawsuit arising from the NCAA’s policy of allowing individual schools to create their own concussion protocols, which plaintiffs claimed put players at risk. While former college athletes still have the ability to personally take legal actions against the NCAA or their school, the settlement prevents future class action suits and provides no money for injury settlements. This is largely attributed to the NFL concussion litigation, wherein the league will pay former players diagnosed with concussion related conditions.
The settlement was the first of its kind, applying to all collegiate athletes dating back decades. Attorney Joe Siprut stated that “[n]ever 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.” However, the settlement does not provide actual medical treatment. Instead, the settlement establishes a “50-year medical monitoring program for all current and former athletes in any sport, with $70 million going toward screening for long-term brain damage and $5 million going to research.” Additionally, the NCAA must issue a concussion-protocol that all schools in the NCAA will be required to follow. These new protocols are meant to provide a more stringent guideline to be followed in order for an athlete to participate in a game following any traumatic hit to the head. The changes include:
- Preseason baseline testing for every athlete for each season in which he or she competes.
- Prohibition from return to play on the same day an athlete is diagnosed with a concussion. Generally accepted medical protocols recommend athletes not return to play the same day if they exhibit signs of a concussion or are diagnosed with one, but a 2010 survey of certified athletic trainers conducted by the NCAA found that nearly half reported that athletes had returned to play the same day.
- Requirement that medical personnel be present for all games and available for practices for all contact sports, defined in the settlement as football, lacrosse, wrestling, ice hockey, field hockey, soccer and basketball. Those personnel must be trained in the diagnosis, treatment and management of concussions.
- Implementation of concussion tracking in which schools will report concussions and their resolution.
- Requirement that schools provide NCAA-approved training to athletes, coaches and athletic trainers before each season.
- Education for faculty on the academic accommodations needed for students with concussions.
While this all sounds nice on paper, many schools have already implemented identical or similar protocols. For example, The Big Ten has already issued an almost identical protocol and Ohio State football coach Urban Myer has said that the settlement would not change his program as they are “already following what’s been proposed.”
The settlement could be seen as the NCAA’s attempt to avoid a larger suit, such as the NFL’s, or an honest attempt to provide a safer, more responsible approach to head trauma. Unfortunately, I doubt it’s the latter. Many schools have already made concussion protocol a priority, and the fact that the settlement will not affect their approach suggests that the NCAA is merely trying to avoid suits and public scrutiny. By taking this long to issue an NCAA-wide concussion policy, the NCAA has failed to protect the student-athletes. As one representative of former college players has already pointed out, the settlement is “going to benefit no one here in any real way except for the NCAA and the plaintiffs’ lawyers.” While offering free evaluation is a step in the right direction, the settlement does not provide any medical treatment if the evaluation shows concussion-related issues. The NCAA has ultimately managed to foreclose future class action lawsuits without actually offering any solutions to concussion-related issues.
In a similar concussion case, the NFL recently had its $765 million settlement rejected by a District Court judge, who questioned whether the settlement “was sufficiently funded to address the medical needs of thousands of plaintiffs.” By comparison the NCAA, whose number of student-athletes far surpasses the number of NFL players, made out like bandits. That’s especially true considering that the NCAA’s settlement covers only diagnostic medical expenses, unlike the NFL’s rejectedproposal. Though the NCAA’s settlement seems a step in the right direction, it’s more a distraction than a solution. Now we’ll just have to see whether the federal court approves.
Jason Sosnik is a J.D. Candidate, ’16, at NYU School of Law.