Paul Anderson: ‘The NCAA Has Failed Its Student-Athletes’

(Editor’s note: What follows is a repost from Paul D. Anderson, Contributing Editor of Concussion Policy and the Law, and his blog www.NFLconcussionlitigation.com)

As lawyers fight for a seat at the table to negotiate a global settlement in the NCAA concussion litigation, an overlooked affidavit illuminates the NCAA’s historical failures.

A group of plaintiffs’ lawyers (hereinafter, the “Latecomers”) recently filed pleadings with Judge Lee seeking to halt settlement negotiations so that they can “adequately” represent the interest of pre-2004 football players.

The filing comes on the heels of the formation of the NCAA concussion MDL and against the backdrop of settlement talks between the Arrington lawyers and the NCAA (hereinafter, the “Negotiating Group”).

The Latecomers claim that there is a fundamental “intra-class conflict” that impedes the current Negotiating Group from reaching a global settlement that adequately represents all potential class members. Essentially, the Latecomers want a seat at the table because they believe their clients and hundreds of thousands of other former NCAA athletes that played prior to 2004 will be left without a voice.

The Negotiating Group contends that these accusations are without merit; rather, this is merely an attempt by a group of “copy-cat lawyers” to obtain a slice of the attorneys’ fees that may be awarded if a settlement is finally approved.

Both side’s arguments have merit.

The Arrington lawyers have represented to the MDL Court that they are negotiating a settlement on behalf of all former student athletes in all 50 states. However, their class certification motion seeks to represent only a class of post-2004 student athletes that played in 18 jurisdictions (i.e. jurisdictions that allow for medical monitoring without the necessity of proving an actual injury). The NCAA similarly has expressed its desire to settle the litigation on a global basis. “The only basis on which the NCAA is going to settle is all sports for all times and all jurisdictions,” the NCAA’s attorney told Judge Lee.

On the other hand, there is a real concern that certain comments (e.g. that pre-2004 claims lack merit) by the Arrington lawyers could hinder them from negotiating a deal that zealously advances the interests of all student athletes.

While there arguably is a strong inference that the Latecomers are just being opportunistic and seeking a windfall from any potential settlement, Rule 23 jurisprudence does support their position, to an extent. That is, during settlement negotiations, as opposed to after a deal is struck, it is essential that the negotiating parties are free of any interest that may be antagonistic to the interests of all class members. By publicly discounting the claims of pre-2004 players, there is a threat that a settlement could be struck that is detrimental to this allegedly abandoned group.

The Negotiating Group disagrees, arguing that Rule 23 provides adequate safeguards—such as the ability to object—to ensure this does not occur. The Negotiating Group also argues that any additional negotiators could potentially derail the settlement talks.

As an aside, the Latecomers’ argument would also necessitate the inclusion of additional sub-class counsel for all pre-2004 student athletes that played in any contact sport. The Latecomers are only representing football players, so their altruistic solution only solves a fraction of the purported problem.

On balance, and taking the representations regarding settlement negotiations as true, the threat may be artificial as opposed to real. If a global settlement occurs, it will apparently include all former and current student athletes that ever played a contact sport at any NCAA school. The remedy will merely be medical monitoring (i.e. neurological and neuropsychological evaluations), as opposed to CASH.

Thus, whether a student athlete played in 2009 or in 1989 for one season or four seasons, the remedy will be the same: medical monitoring. Unlike the inadequate NFL proposed settlement, it does not appear that there will be a compensation fund that entitles the players to cash payouts.

Judge Lee has informed the parties that he intends to rule on the above dispute prior to or at the March 5, 2014 hearing.

Finally, the most intriguing part of the court filings is an affidavit submitted by Dr. Robert Stern. The affidavit was included by the Latecomers to substantiate their position that pre-2004 student athletes have real claims and they are entitled to relief.

As an indictment on the NCAA leadership, Dr. Stern opines:

The NCAA and its leadership has known for two or more decades of the long-term risks associated with concussions and other brain trauma experienced by collegiate and other football players, and that medical intervention, brain trauma prevention strategies, and concussion management, may reduce the risk of subsequent brain disease and injury and related cognitive, mood, and behavioral impairment.

Accordingly, it is clear that the NCAA and its leadership have failed to live up to its founding principles of protecting student athletes for far too long. As you may recall, the NCAA did not take any action on concussions until 2010, and even then, it only issued toothless guidelines that have left member institutions scratching their head. And when it comes to schools egregiously violating NCAA rules, the NCAA does NOTHING. Instead, it spends its resources chasing down sandwich violators and ensuring that its labor force goes unpaid and medically unprotected from the real dangers of concussions. After all, that is the real meaning of modern-day amateurism: grave injustices.

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