Settlement of NFL Concussion Lawsuit Raises Questions for NCAA

The NFL’s announcement on Thursday that it had reached a tentative $765-million settlement over concussion-related injuries among thousands of former players renewed speculation that the NCAA would take steps to resolve a case challenging its handling of head injuries.

The NCAA acknowledged this month that it was willing to consider “reasonable” settlement options in a federal lawsuit involving four former college athletes who say the association failed to protect them from head injuries.

But the legal issues involving the NFL differ significantly from those the NCAA faces, says Matthew Mitten, a law professor and director of the National Sports Law Institute at Marquette University. If the association settles its case, he says, it could look much different than the NFL’s deal.

The NFL plaintiffs argued that the league knew or should have known about the long-term risks of neurological injury that its players faced, and that it misled players about those risks. (In its announcement, the NFL said its agreement “cannot be considered an admission by the NFL of liability, or an admission that plaintiffs’ injuries were caused by football.”)

The plaintiffs in the NCAA case say the association failed to establish appropriate return-to-play guidelines for athletes who sustained concussions, effectively allowing players to be put in harm’s way. The NCAA has denied those claims, arguing that, until 2012, there was no consensus among medical professionals that players should be kept out of action immediately following a concussion diagnosis.

The NCAA plaintiffs also argue that the association did not do enough to assure that college coaches were teaching proper tackling techniques. The NCAA has long left it up to individual colleges to do that. If they don’t, they could face legal liability for player injuries.

Those defenses could give the NCAA leverage in its case, says Mr. Mitten, a former chair of the NCAA’s Competitive Safeguards and Medical Aspects of Sports Committee.

“Maybe the NCAA looks at this and says, ‘We feel strongly enough that we can win on the merits here because we didn’t breach any legal duty or responsibility,’” he says.

Legal experts say the association may have a disincentive to settle its case because it has not been certified as a class action. Agreeing to settle now might invite subsequent class-action litigation by other former players.

“There’s greater incentive to settle if there’s a certified class action,” Mr. Mitten says. “Settling with four plaintiffs doesn’t preclude future similar claims by anyone else.”

But there could be advantages to settling. Some legal observers believe the NCAA’s potential liability could be greater than the NFL’s, given that more players compete in big-time college sports than make it to the pros. Each of the 120 or so major-college teams has about 100 players, including 85 scholarship spots. The 32 NFL teams have 53-man active rosters.

NCAA athletes also don’t receive the injury-protection benefits that their professional counterparts do. And if liability is proven, juries may look more favorably on college players because of that. Unlike NFL players, college athletes are not paid, nor are they protected by a collective-bargaining agreement or the same ability to collect disability benefits should they become seriously injured.

NCAA athletes could use further protections, says Paul D. Anderson, a lawyer in Kansas City, Mo., who is representing the family of a former Frostburg State University football player who died after suffering from multiple concussions. He would like to see the NCAA adopt a strict limit on contact in practices, as the NFL and other leagues have.

Another complicating factor affecting potential settlement: The NCAA doesn’t have the same deep pockets that the NFL has. Despite the substantial media-rights deals that the NCAA and several conferences have negotiated, few university athletic departments generate a profit. The NFL, on the other hand, brings in some $9-billion a year.

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