NCAA Concussion Lawsuit Heading to Mediation, Settlement Appears Likely

In connection with a 2011 concussion lawsuit filed in the U.S. District Court in Northern Illinois, the plaintiffs and the National Collegiate Athletic Association (NCAA) have agreed to mediation, with the session to occur on November 1, 2013.  Presiding over the mediation will be Layn Phillips, a former federal judge who helped the NFL settle with around 4,500 retired NFL players for $765 million last month in its concussion lawsuit.  There is speculation that the NCAA, like the NFL, will also reach a settlement with the plaintiffs.

Former Eastern Illinois football player Adrian Arrington, one of the plaintiffs in Arrington v. National Collegiate Athletic Association, suffered five concussions during his playing career, and alleges the NCAA failed in its duty to protect student athletes.  Arrington and the other plaintiffs seek monetary damages for seizures and other long term effects of their concussions, but also want the NCAA to change its guidelines regarding concussions.  The plaintiffs moved for class-action certification last July, which if granted, could mean thousands of players would be affected by a settlement.

Included in the plaintiffs’ motion for class-action certification were damaging internal NCAA emails displaying a casual attitude towards concussions, which may have motivated the NCAA’s decision to enter into mediation.  Among the other damaging information uncovered was that less than half of NCAA schools require student athletes to consult with a physician after suffering a concussion.

Further increasing the likelihood of a settlement is the NCAA’s ongoing litigation with former players regarding use of their names, likenesses and images while in school, and the likelihood that the NCAA would seek to limit its liability by settling the concussion lawsuit.  Moreover, the NCAA arguably faces greater legal hurdles than the NFL did in its concussion lawsuit, because the NCAA may be found to owe a greater duty of care as it purports to exist to “protect young people” rather than generate profits.  Also, unlike NFL athletes, NCAA athletes have never been permitted to organize and negotiate over their “working” conditions, and while the NFL could have shifted some of its liability to the NCAA, the NCAA cannot shift its liability to the NFL as most of its athletes never played professional football.