Concussion Litigation May Be a Constant Headache for the NCAA

The NFL is not the only organization that was blindsided with a flurry of concussion-related lawsuits. On September 12, 2011, a class action complaint was filed against the NCAA in the U.S. Dist. Ct., Northern District of Illinois, Adrian Arrington v. NCAA. Shortly thereafter, another lawsuit was filed against the NCAA, Derek Owens and Alex Rucks v. NCAA. Subsequently the cases were consolidated, and a “Corrected Consolidated Complaint” was filed naming Adrian Arrington, Derek Owens, Mark Turner and Angela Palacios as Plaintiffs for the putative Class.

To read about Arrington and his lawyer’s comments see a related ESPN article here.

The Plaintiffs’ complaint asserts four claims: 1) medical monitoring; 2) negligence; 3) fraudulent concealment; and 4) unjust enrichment. The Plaintiffs seek compensatory and declaratory relief and the creation of a trust fund to establish a medical monitoring program for all past, present and future student-athletes who have suffered or will suffer concussion-related symptoms. (Note: the class is not limited to football players; it seeks to represent ALL student athletes.)

According to the complaint, the NCAA has failed to,

“(1) address and/or correct the coaching of tackling, checking or playing methodologies that cause head injuries; (2) educate coaches, trainers and student athletes as to the symptoms indicating possible concussions; (3) implement system-wide “return to play” guidelines for student-athletes who have sustained concussions; (4) implement system-wide guidelines for the screening and detection of head injuries; (5) implement legislation addressing the treatment and eligibility of student-athletes who have sustained multiple concussions in the course of play; and (6) implement a support system for student-athletes who, after sustaining concussions, are left unable to either play their sport or even lead a normal life.”

The NCAA filed its general answer and denial on December 21, 2011, denying nearly all of the Plaintiffs’ allegations and asserting several affirmative defenses.

As an estimate, the requested relief for medical monitoring would likely be in the hundreds of millions of dollars, and therefore the NCAA will vigorously oppose any attempt by the Plaintiffs’ to certify the Class.

Fortunately for the Plaintiffs here, and unlike the hurdle the former NFL players have to overcome in the NFL litigation, the NCAA is unable to assert that the Plaintiffs’ claims are barred by the CBAs, since this is clearly not a “labor dispute.” This likely means that Discovery will begin immediately, and the Plaintiffs will not be nuanced with rebutting a preemption argument.

On January 13, 2012, the Plaintiffs and the NCAA filed a Proposed Joint Status Report defining the issues, setting the scope of discovery and proposing a timeline in which the litigation will proceed.

According to the Report, the Plaintiffs and the NCAA disagree upon the scope of discovery. The Plaintiffs argue that discovery should go directly to the merits of the lawsuit, while the NCAA argues that discovery should be limited to whether the Plaintiffs can satisfy the requirements of a Class.

The opposing arguments are arguably supported by caselaw; however, it is clear that a threshold question to be determined by the court is whether the putative Class should be certified pursuant to Rule 23. This analysis will “entail some overlap with the plaintiff’s underlying claim.” See Dukes v. Wal-Mart, 131 S. Ct. 2541, 2551 (2011). In other words, the analysis whether a Class should be certified and the merits of the Plaintiffs’ claims are not hermetically sealed, and therefore, the court will likely allow limited discovery into the merits of the Plaintiffs’ allegations.

It is apparent that the NCAA and the Plaintiffs are headed for a long litigation battle that may take several years to resolve.

In addition to the NFL litigation, this site will also follow the NCAA concussion lawsuits.