NCAA Concussion Settlement - Like NFL's - In Legal Trouble

WASHINGTON - Feb. 8, 2014 - PRLog -- Just as the NFL's $765 million proposed settlement of concussion-related injuries is in big legal trouble - having been rejected by a federal judge amid allegations of "double dealing" by attorneys, and major concerns over its financial sufficiency to cover all claims - proposals to settle the bigger and much more complex problems of concussion injuries in college sports are likewise facing major legal problems, and the result could be a plethora of law suits which could seriously impact many collegiate sports, says public interest law professor John Banzhaf.

Banzhaf, who notes that tobacco industry likewise sought a settlement which would shield it from law suits but was unsuccessful, and as a result was substantially weakened and still faces many legal actions, has been called "The Law Professor Who Masterminded Litigation Against the Tobacco Industry." and "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars."

Banzhaf also predicted that the NFL settlement would be rejected by the judge and, based on conversations with players and attorneys, says that even a settlement approved by the judge is likely to be rejected by some 2000 retired NFL players, enough to effectively kill the fledgling deal.

Now efforts to settle the10 class-action concussion lawsuits which have already been filed against the NCAA, and many more about to be filed, are being held up by the NCAA's intransigence in demanding complete "peace" from all concussion law suits, and by squabbling between attorneys.

The NCAA has told Chicago federal judge John Z. Lee that  "From my clients' perspective, our interest in settlement is to resolve the class claims once and for all . . . We know darn well if we don't have an expansive class that covers all sports and all the time periods and all jurisdictions, we won't get peace. Our interest is to get peace. . . .  That's the only way we'll settle."  But. at the same time, NCAA attorneys conceded that the multiple classes of plaintiffs needed for such a universal settlement to succeed can be certified if they are not contested by the plaintiffs or others.

Unfortunately, lawyers for some of the other sixty plus players who have already filed law suits claim that the proposed settlement would exclude hundreds of thousands of former college football players, and they also complain that these attorneys have been frozen out of the negotiations.  Other attorneys are complaining that various personal injury claims are not being negotiated in the settlement talks, and said that the attorneys now supposedly negotiating for the plaintiffs have "been very slippery,"

Settling concussion related claims in college sports is far more complicated than those being brought against the NFL for many reasons. Each year there are about 27,000 college football players in each season in the NCAA compared to fewer than 1,800 in the NFL - a 15 to 1 ratio.

That's one reason why the Business Journals reported that "The untold story is the crippling effects that lawsuits could potentially have on the NCAA . . .  a  class action lawsuit for the NCAA similar to the NFL could be catastrophic" and "the NCAA may hold the fate for sports as we know it in America."  Indeed, the commentator also noted that the judge's decision to reject the NFL's proposed settlement "may open the floodgates that transform the way the business of sport is practiced in America."

The NCAA is facing law suits not just by football players, but by players in a wide variety of contact and even non-contact sports like basketball.  Moreover, at least one of the legal actions filed  so far was on behalf of a female athlete.  This is a very important point, suggests Banzhaf, because for the 2004-09 period, the rate of concussions among females was 57% higher than for men in college soccer, and 100% higher than in collegiate basketball.  Another complication is that an athlete injured playing sports in college might be able to sue the university as well as the NCAA, thereby potentially pitting the two against each other, with each trying to show how the other was negligent and/or tried to cover up key facts about the dangers of concussions.

All of this might help explain why the proposed NFL settlement is seeking to exonerate the NCAA of any potential legal liability.  One explanation as to why a organization would insist, as a condition of settlement, that another unrelated organization likewise be shielded from liability is the concern that its potential supply of professional football players could be slashed if the NCAA was suddenly to be overwhelmed with concussion-related injury law suits.

As some have predicted, the very future of the sport of football, and perhaps even of other sports in which concussions are common, could hinge on how all of these concussion law suits are either resolved through settlements or drag on for years in the courts.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf