This past Tuesday, the NCAA and former athletes came to an agreement on a settlement that would appear to effectively put an end to the lawsuit filed by several former athletes approximately three years ago. Pursuant to the agreement, member schools of the NCAA will be required to amend their current concussion-management policies and enact return-to-play guidelines. Some of the specific provisions stated in the settlement agreement that place new demands on member schools include the following: 1) prohibiting players from returning to game action if the athlete has been diagnosed with a concussion; 2) requiring medical personnel to be available for practices for contact sports such as football, lacrosse, soccer and basketball and requiring their presence at all games; and 3) educating faculty on the academic accommodations needed for athletes with concussions. Additionally, the settlement agreement creates a 50-year medical program for all former and current athletes, with the NCAA providing $70 million in funding for screening for long-term damage and $5 million towards concussion research.
Most notably, the settlement agreement does not provide the plaintiffs with damages. Whereas the NFL concussion settlement will provide the members of that class action lawsuit with at least $675 million in compensatory damages to be determined by a payout formula that takes into account the individual’s age and illness, the NCAA settlement allows players to file separate personal injury lawsuits.
This last point is key. Personal injury lawsuits can result in a large windfall for the affected plaintiff. This is one reason why the NFL settlement permits those involved in the class action lawsuit to opt out of the agreement if they feel the compensation they would receive based upon the formula is not enough. There are a number of factors that go into the calculation of compensatory damages for personal injury cases; they include: 1) the cost of medical care associated with the injury such as reimbursement for treatment already received and compensation for the future cost of medical needs; 2) loss of income due to the inability to work as a result of the injury; 3) pain and suffering due and attributed to the accident; 4) emotional distress that result from the psychological aftereffects of the injury; 5) loss of enjoyment of day-to-day activities; and 6) loss of consortium. An NCAA athlete looking to initiate his or her own claim would have to prove the amount of each damage component in order to claim same against the Association.
An additional element needed to carry a personal injury claim is the ability to prove the opposing party was at fault. The most applicable defense the NCAA could assert is that the athlete knew and assumed the risk of injury that came with the sport that led to the concussion. The implementation of the settlement agreement makes this affirmative defense one likely to prevail in court based upon the many educational and preventative measures it incorporates. Nonetheless, the athlete may be able to assert negligence by the Association for failure to incorporate such measures at an earlier date.
The settlement agreed to by the NCAA and the former athletes is a double-edged sword. While it provides member schools with requirements to better protect their athletes, in the event athletes suffer, or have suffered, a concussion that results in long-term effects in the future, the settlement agreement provides no personal benefit. The settlement agreement may seem to be the end of the initial lawsuit, but it could also be seen as potentially opening the door for numerous individual lawsuits in the future, which may not be as fruitful for the plaintiff as imagined.