Timothy Liam Epstein, a partner and chair of the Sports Law Practice Group at SmithAmundsen LLC, recently offered the following brief assessment of the concussion lawsuit Arrington et al. v. NCAA, which is set to go to mediation next month, to Concussion Litigation Reporter.
“The NCAA will be eager to dispose of this case at mediation, though largely from a cost perspective. At the outset, it should be noted that it is not entirely clear who is paying for the NCAA’s defense, and who will pay in the event of a settlement or judgment, inclusive of insurance monies.
“Using the NFL Concussion MDL in Philadelphia for comparison, the NCAA is in a better position than that NFL for defeating class certification in light of the fact the NCAA class is much more broad (across all NCAA-regulated sports for men and women as opposed to professional, tackle football players who played in the NFL), but that is likely where the positives end for the NCAA.
“While the NCAA has a good argument in defeating class certification, the court could still rule in favor of the plaintiffs. Further, the NCAA has the potential NFL settlement looming as pressure to pay out to the athletes under its own governance (the NFL and lead counsel for retired NFL players have agreed to a settlement of $765 million). Moreover, in the NFL concussion litigation, the NFL unsuccessfully moved to dismiss the lawsuit on the basis of the negotiated CBA’s term requiring arbitration. The NFL CBA specifically addressed treatment protocol surrounding concussions/suspected concussions.
“In Arrington’s case, or any collegiate player’s case, the NCAA cannot similarly argue that the litigation is unwarranted or precluded since student-athletes in the NCAA system have no bargaining power. The best that the NCAA could argue is that student-athletes sign an acknowledgement of the risk of concussion, and this would probably serve as a defense/mitigating factor, but not as a basis for dismissal. The student-athlete plaintiff also presents as much more sympathetic than the professional football players who were paid to play in the NFL.”
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