Federal judge rejects preliminary NCAA concussion settlement

A federal judge on Wednesday denied preliminary approval to a settlement in a class-action concussion lawsuit against the NCAA.

Calling the proposed settlement "a significant step in trying to arrive at a resolution of this highly complex matter," District Court Judge John Z. Lee encouraged the parties to continue negotiating a settlement.

Lee's denial in the U.S. District Court for the Northern District of Illinois comes after the class representatives and NCAA announced a $75 million preliminary settlement in July that would create a medical monitoring fund to provide testing over the next 50 years, would allocate $5 million to research and would include recommendations the NCAA would make to its membership to codify new guidelines.

Lee noted several areas of concern about the proposed settlement, including it's ability to address the needs of a class consisting of all current and former NCAA athletes when contact and non-contact sports are treated differently under the terms, whether the $70 million was sufficient to fund the medical monitoring program and whether the ability to notify at least 80 percent of the class was plausible.

Steve Berman of Hagens Berman Sobol Shapiro LLP, one of the lead attorneys for the plaintiffs, released a statement Wednesday that said, "We appreciate the time and thoughtful analysis provided by the Court, which has raised issues that the parties are in the process of addressing. We continue to stand behind this historic settlement that will provide certainty, safety and measurable guidelines of player health.

"Judge Lee's examination raised good points, and we are confident that we can address them to his satisfaction. Our goal is to act quickly, to ensure that these protections for student-athletes can be realized as soon as possible. It is not surprising a settlement of this complexity would be subject to changes."

The plaintiffs had sought to address Lee's concerns in November by adding two named plaintiffs from non-contact sports.

Lee's order also raised several questions about the fairness of the settlement. Among them:

• Whether the NCAA could mandate that its member schools implement return-to-play guidelines and what actions it could take against a school that did not comply with the terms of the settlement.
• What criteria the Medical Science Committee, which is tasked with overseeing the medical monitoring program, will use to assess questionnaires. Under the terms of the settlement, an athlete would have to fill out a questionnaire that would be reviewed by the committee to qualify for medical evaluation.
• How an athlete who develops symptoms of chronic traumatic encephalopathy (CTE) after reaching the limit to five questionnaires and two medical evaluations in the 50-year period would be addressed.
• How the medical science committee will choose program locations. The settlement calls for 10 locations and the plaintiffs have said now 33 locations would be within 200 miles of 90% of class participants. Lee suggested that an athlete should be able to travel to and from the evaluation within a day, but a lack of information about how long that exam takes meant he could not determine if the 200-mile limit is fair.
• Whether a retention provision that any remaining money at the end of the 50 years be returned to the NCAA creates a conflict of interest if the committee members or program administrators could be incentivized to limit the number of medical evaluations.

Lee noted that "in light of the numerous issues discussed throughout this order, the Court does not have sufficient information to determine whether the proposed $70 million would be sufficient to implement" the program.

The judge's rejection of preliminary approval extends a case that began when former Eastern Illinois football player Adrian Arrington was one of four named plaintiffs to first file the lawsuit in 2011.

After the attorneys in the case - Berman and Joe Siprut of Siprut PC in Chicago - filed a motion for class certification in July 2013, a rash of similar lawsuits followed. They were consolidated by a federal panel in December as mediation was ongoing with in the Arrington case.

Siprut and Berman were named co-lead counsel in the consolidated case and announced a preliminary settlement five months ago.

While they hailed it as a historic agreement, critics questioned whether the settlement was sufficient. Attorneys could receive as much as $15 million of the $70 million allocated for medical monitoring, leaving $55 million for the 50-year span. An economic analysis submitted with the preliminary settlement stated the settlement would provide enough funding.

"I think any time you have medical monitoring those kind of questions arise," Christine Bartholomew, a lecturer in law at the University of Buffalo and expert on class-action litigation, told USA TODAY Sports in October. "You just want to make sure that there's enough money, that if you set up a system that's going to provide benefits that you don't run out before the benefit's derived. Especially for latent injuries that might take some time to become obvious."

In August, attorney Jay Edelson, of Edelson PC in Chicago, filed an objection to the plaintiffs' motion for preliminary approval. Among the concerns raised by Edelson - who represents former San Diego State football player Anthony Nichols - was the lack of a damages class in the lawsuit.

While the settlement did not include a damages class, something the co-lead counsel said would be hard to certify, it preserved the right of any athlete to file an individual personal injury lawsuit.