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Even as a plaintiffs' attorney called it historic and the NCAA touted its commitment to athlete safety, a proposed settlement in class action concussion litigation drew questions that indicate resolving the 3-year-old case won't happen without dissent.
The settlement agreement was presented in U.S. District Court for the Northern District of Illinois on Tuesday over objections of outside attorneys for lacking damages for athletes. The result of nearly a year of negotiation between the plaintiffs and the NCAA, the agreement's terms were criticized for not doing enough to protect current and future athletes while providing few remedies to former athletes who might be suffering the long-term effects of concussions incurred in a variety of collegiate sports.
"I think this settlement succeeds in addressing a wrong that the plaintiffs were seeking to have addressed," said Richard Southall, director of the College Sport Research Institute at the University of South Carolina. "Is it perfect? I don't think anybody involved in this would say it's perfect, but it's better than where we were before.
"I don't think either side is done in this. I think there's a lot of issues that need to be addressed."
Outlined in the settlement are changes to the NCAA guidelines, including baseline testing for athletes and a prohibition on returning to play on the same day an athlete is diagnosed with a concussion. It also includes $70million for a medical monitoring program for 50 years -- although up to $15million could be taken for attorneys fees -- and $5million for concussion research.
Joe Siprut, who was co-lead counsel for the plaintiffs, said, "It will change college sports forever."
But others are less sure. Chief among the concerns was the lack of a personal injury class. When Siprut first filed the lawsuit three years ago on behalf of Adrian Arrington, a former Eastern Illinois football player who saw concussions end his career and battles the long-term effects of them, damages were sought in addition to a medical monitoring class.
That case, which included Arrington and three other named plaintiffs in other sports, moved into mediation in August after the plaintiffs' attorneys filed a motion for class certification in July 2013. Jay Edelson, of the Chicago-based firm Edelson PC, tried to intervene in the talks in October on behalf of his clients after he says it became clear the Arrington plaintiffs were no longer seeking damages on behalf of the class.
In their filing, Siprut and co-lead counsel Steve Berman contend getting certification for a damages class would have been difficult. The proposed settlement, which must still be approved by U.S. District Court Judge John Lee, preserves athletes' rights to pursue individual personal injury claims.
"We think the settlement ends up really losing sight of what the original goal of the lawsuit was," said Edelson, who appeared in court Tuesday to object to the settlement. "We think the settlement would significantly hurt a lot of members of the class, and we'll fight to protect them.
"How are they going to explain for the people that they were supposed to be fighting for that have real serious injuries that they got nothing for them?"
The medical monitoring program would help form the foundation on which an athlete could file a lawsuit, Siprut said. The program includes an initial screening questionnaire. If the athlete meets the criteria, he or she could then submit to medical testing to try to reach a diagnosis and determine if he or she has a permanent decrease in brain function.
"It's exponentially tougher for players to fend for themselves," said Ramogi Huma, president of the National College Players Association. "They don't have the resources to hire lawyers, and what lawyer is going to take on the NCAA for one individual case that's not gonna pay much?"
But concerns also extend to changes to NCAA guidelines. Under the settlement, provisions such as baseline testing, return-to-play guidelines and having medical personnel trained in dealing with concussions at games and available for practices in contact sports are only recommendations.
The NCAA's executive committee says it will "recommend that the governing bodies of Division I, II and III pass legislation requiring member schools to certify they have concussion management plans in place" that meet the requirements of the settlement.
"We know just because a rule is proposed doesn't mean it's adopted," Huma said. "Just because it's adopted, it might not look the same and it might take years and years for that to happen."