Sports governing bodies and player welfare: examining the proposed NFL and NCAA concussion settlements

Published 04 August 2014 By: John Wolohan

On July 7, 2014, Judge Anita B. Brody of the United States District Court for the Eastern District of Pennsylvania approved a preliminary settlement between the National Football League (NFL) and the more than 4,500 retired players who sued the league for hiding the dangers of concussions and repeated hits to the head.¹

The highlights of the agreement, which covers the more than 20,000 retired players and their beneficiaries, includes a promise from the NFL to pay an unlimited amount of money in damages to players with certain severe neurological conditions; $765 million for cash awards, medical testing and concussion education. The settlement also allows the NFL, if it believes that the player’s claim is fraudulent, to contest an unlimited number of requests for awards by retired players, thereby potentially limiting the number of people who might ultimately receive cash awards.²

The players now have to decide whether to accept the agreement, or opt out of the settlement, which preserves their legal rights, or appeal the settlement to the United States Court of Appeals for the Third Circuit. If players do opt out, none of the former players will receive cash awards until all appeals are exhausted.This is important, because it will prevent former players without neurological damage suffered while playing football from trying to collect damages. Once the retired players have had a chance to respond to the settlement, the judge will hold a hearing, scheduled for Nov. 19 in Philadelphia, to determine whether the class of retirees has been fairly represented.³ After the players respond, it will then be up to Brody to decide whether to grant final approval and implement the court-supervised program. (https://www.nytimes.com/2014/07/08/sports/football/judge-approves-preliminary-nfl-settlement.html?_r=1)

IMPACT ON NFL

While the NFL waits for the court to finalize the settlement, it is not too early to review the impact of the settlement on the league. In summary:

It allows the NFL to settle a potentially devastating lawsuit and even though there is no cap on the possible damages the league might be liable for, the settlement allows the league to move forward.
The only players eligible to receive money under the settlement are those who have already retired.
The settlement could end up saving the NFL years of protracted litigation over allegations that its executives hid or ignored evidence that concussions can cause brain damage with long-lasting health implications.
It allows the NFL to challenge the eligibility of the players to receive cash awards, thereby protecting the league from a flood of former players without neurological damage suffered while playing football from trying to collect damages.

IMPACT ON THE NCAA AND OTHER ORGANIZATIONS

With the NFL’s concussion lawsuits seemingly settled, the rest of this article seeks to exam the impact of the settlement, besides providing a legal templet, on concussion cases filed against other sports leagues, and in particular the National Collegiate Athletic Association (NCAA).

To begin with, and perhaps the most important aspect of the NFL settlement, the current agreement allows players who received cash payouts from the NFL to also sue the NCAA and any other sports organization for additional damages.

Next, while the NFL did not admit any knowledge of the danger players faced from concussions, it is clear that concussions pose a real danger to the long term health of athletes. Therefore, any contact sport, especially football, needs to take precautions to reduce or eliminate the health risk of concussion to players. To this end, the NCAA, which is currently involved in its own concussion lawsuit by former players⁴, reacted to the settlement by releasing new voluntary guidelines on concussion safety.⁵

The guidelines, which the NCAA hopes will “generate a cultural shift”⁶ within college football, recommend that schools limit full contact practices, those involving tackling or full-speed blocking to two a week during the season and four a week in the preseason. The NCAA guidelines also require that team doctors should have unchallenged authority on whether a player is allowed to return to practice or play, without interference from the coach; that universities should make their concussion management plans publicly available; that students with concussions should not return to play on the day of the accident; and that both return-to-play and return-to-academics decisions should be managed by doctors.⁷

It should be noted, however, that these are merely recommendations, and not mandatory on schools. In addition, there is nothing in the guidelines concerning oversight or enforcement of the guidelines. This is important since the NCAA already has self-regulatory rules which forbids a player from returning to athletic activity on the day of a concussion. However, as the death of football player Derek Sheely in 2011, who died from head trauma sustained on the field after his coach allegedly bullied him into practicing despite the injury and the Chronicle of Higher Education study of 101 college football trainers, which found that nearly half had felt pressured to return players to the field after a concussion, illustrates the rules the schools cannot be trusted to regulate themselves.⁸

In addition publishing new voluntary guidelines on concussion safety, the NCAA also reached a preliminary settlement in a class-action lawsuit brought by former college athletes. The settlement, which covers the care and safety of all current and former college athletes, in all sports and divisions, includes a $70 million medical monitoring fund and a new national protocol for head injuries sustained by players during games and practices.⁹

Unlike the NFL’s settlement, the NCAA’s settlement does not provide any financial compensation for the players’ injuries. If a player has been found to be suffering from concussions related injuries, the player must sue the NCAA or the school him or herself for damages.

NCAA Proposed Settlement terms

In summary, the proposed terms are¹⁰:

$70 million monitoring fund to be paid by the NCAA and its insurers.
The $70 million monitoring fund will only pay for a neurological screening to examine brain functions and any signs of brain damage like chronic traumatic encephalopathy, a degenerative brain disease, should players qualify and need additional treatment, they can seek it through their own insurance or file a damages claim.
$5 million for concussion research, to be funded by the NCAA and its member universities.
Current and former college athletes would preserve the rights to sue their universities or the N.C.A.A. for personal-injury financial damages
Increased concussion tracking by universities and a preseason baseline test for every athlete would also be required.
Athletes who have sustained a concussion would be prevented from returning to a game or practice that day.
Trained medical personnel would be required at all contact sports events like football, lacrosse, basketball, soccer and wrestling.
Unlike the N.F.L.’s agreement, which is pending approval, seeks to create a fund worth several hundred million dollars to assist former players with treatment for the effects from their brain injuries. The N.CAA’s settlement covers only diagnostic medical expenses.
No money to players for actual injuries.

As some critics of the proposed settlement claim, the settlement seems to be “a great deal for the NCAA., but very scary for the class.” This is especially true when you look at the potential number of athletes covered under the settlement. According to NCAA’s own documents, there were more than 30,000 concussions at colleges from 2004 to 2009. In addition, since there are around 55,000 college football players every year, and the NFL’s settlement covered a little more than 20,000 retired players, any NCAA settlement involves over four million athletes, 1.4 million of them in contact sports. Therefore, it should be reasonable to assume that based on these numbers, and the NFL’s settlement, the NCAA could have been on the hook for billions dollars.¹¹

Finally, for anyone who thinks that this is just an American football issue, all you needed to do was watch this year’s World Cup Brazil final to see that player concussions and return-to-play decision are concerns in all sports. During the final, Christoph Kramer, a German midfielder, suffered an obvious head injury and due to FIFA’s lack of a comprehensive protocol for dealing with head injuries was allowed to return to play. Kramer, who was at least the third player during the tournament to return to the field shortly after sustaining an obvious head injury, was still clearly dazed when he was replaced about 10 minutes after the collision. It will be interesting to watch and debate the wider implications of these recent U.S. developments.

References

^{1. K. Belson, ‘Altered N.F.L. Settlement Wins Judge’s Approval’, New York Times, July 7, 2014, viewed on August 4, 2014, https://www.nytimes.com/2014/07/08/sports/football/judge-approves-preliminary-nfl-settlement.html?_r=1}

^{2. Ibid.}

^3. Ibid

^{4. Editorial Board, ‘An Inadequate Response to Concussions’, New York Times, July 12, 2014, viewed on August 4, 2014, https://www.nytimes.com/2014/07/12/opinion/ncaa-guidelines-on-head-injuries-fall-short.html}

^{5. NCAA, ‘Concussion Guidelines’, NCAA.org, https://www.ncaa.org/health-and-safety/concussion-guidelines}

^{6. Brian Burnsed, ‘New guidelines aim to improve student-athlete safety’ NCAA.org, July 8 2014, viewed 4 August 2014, https://www.ncaa.org/about/resources/media-center/news/new-guidelines-aim-improve-student-athlete-safety}

^{7. Ibid at 5}

^{8. Ibid at 4}

^{9. B. Strauss, N.C.A.A . Deal Revamps Head-Injury Care, New York Times, July 29, 2014, https://www.nytimes.com/2014/07/30/sports/ncaa-settlement-overhauls-head-injury-policies.html?_r=0}

^{10. “NCAA reaches proposed settlement in concussion lawsuit’, NCAA.com, July 30, 2014, viewed on August 4, 2014, https://www.ncaa.com/news/ncaa/article/2014-07-29/ncaa-reaches-proposed-settlement-concussion-lawsuit}

^{11. B. Strauss, N.C.A.A . Deal Revamps Head-Injury Care, New York Times, July 29, 2014, viewed August 4, 2014, https://www.nytimes.com/2014/07/30/sports/ncaa-settlement-overhauls-head-injury-policies.html?_r=0}

Copyright notice

This work was written for and first published on LawInSport.com (unless otherwise stated) and the copyright is owned by LawInSport Ltd. Permission is granted to make digital or hard copies of this work (or part, or abstracts, of it) for personal use provided copies are not made or distributed for profit or commercial advantage, and provided that all copies bear this notice and full citation on the first page (which should include the URL, company name (LawInSport), article title, author name, date of the publication and date of use) of any copies made. Copyright for components of this work owned by parties other than LawInSport must be honoured.

Tags: 2014 FIFA World Cup Brazil | American Football | College Sport | Governance | National Football League (NFL) | NCAA | Regulation | United States of America (USA)

Author

John Wolohan

John Wolohan is an Attorney and Professor of Sports Law in the Syracuse University Sport Management program and an Adjunct Professor in the Syracuse University College of Law. In addition to being one of the lead editors of the book "Law for Recreation and Sport Managers" by Cotten and Wolohan, John has been teaching and working in the fields of doping, antitrust, gaming law, and sports media rights for over 25 years.