Arrington Concussion Settlement: Important Deadline Today

National Collegiate Athletic Association (NCAA) member institutions have a fast approaching deadline (May 18, 2020) to comply with certification requirements under the Arrington class action settlement agreement. Because an institution may significantly reduce its potential exposure in subsequent litigation by making the certifications identified in that settlement, it is important to determine whether it has met the member obligations identified in the relevant portion of the Arrington settlement and, if so, to timely make the required certification.  

The Arrington case challenged the NCAA’s management of concussions in student-athletes participating in athletic programs prior to July 15, 2016. While individual institutions were not named in the lawsuit, every NCAA school may enjoy the protection of a release for related claims that might otherwise be brought by members of the settlement class, if the institution complies with the requirements set forth in the settlement agreement.

The description of member obligations can be found in Section IX of the settlement agreement. These obligations generally fall into three areas related to the management of concussions in student athletes: return to sport, academic accommodations and instructional and educational requirements. In addition, the member obligations apply to institutions participating at all levels of NCAA competition (Division I, II and III).

While the settlement agreement was negotiated directly with the NCAA and not its member schools, the agreement provides that an institution must certify in writing that it has complied with all the member obligations in order to receive the benefit of the release of related claims. These requirements include:

  • Preseason baseline concussion testing

  • Protocols for concussion diagnosis

  • Requirements for physician clearance for return to play

  • Concussion management training for medical personnel

  • Trained medical personnel at all defined practice activities

  • Academic accommodations provided with faculty education and compliance

  • Annual NCAA-approved concussion education training

In order for an institution to enjoy the release of liability for related claims, it must certify to the program administrator by May 18, 2020, that the relevant requirements of the settlement agreement have been met.

Of course, after certifications are made, institutions should continue to update their concussion management policies and guidelines to include best practices. These institution-specific plans should address, at a minimum, the management, diagnosis and treatment of concussions for student athletes in the areas covered by the Arrington certification discussed above. Such plans should be reviewed and updated as necessary on an annual basis. Collaboration with external experts in concussion management, athletic healthcare administration, quality assurance, event reporting and athlete safety also can help to ensure the Arrington requirements and evolving best practices are appropriately addressed in such policies and guidelines. Finally, institutions also should provide regular training and internal or external monitoring to ensure their updated plans are being implemented with fidelity.

Hayley Hanson is a Kansas City-based partner with the law firm Husch Blackwell LLP where she leads the firm's Higher Education practice, which counsels more than 250 higher education institutions. 
John Borkowski is a Chicago-based partner with Husch Blackwell LLP and is a member of the firm's Higher Education team. 
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