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NCAA Concussion Litigation Heats Up

2014 February 8

As one concussion MDL reaches the stage of resolution, another battle is set to begin. Following a similar path of the NFL, the NCAA Concussion Litigation has reached a point where the consolidation of multiple lawsuits into a single forum has been ordered.

In late December 2013, the Judicial Panel on Multidistrict Litigation ordered all pending putative class actions against the NCAA to be transferred and consolidated to the Northern District of Illinois.

As we saw with the NFL Concussion Litigation, when there are multiple lawsuits pending throughout the country, it is most efficient for the cases to be sent to a single forum in front of a single judge.

Philadelphia is the battleground in the NFL litigation and the “referee” is the Honorable Judge Anita B. Brody. For the NCAA litigation it will be Chicago, with the Honorable Judge John Z. Lee presiding.

The genesis of the NCAA litigation is slightly different, which has triggered in fighting amongst the plaintiffs’ lawyers. (Forthcoming article: Motion Filed to Halt Settlement Negotiations) The Arrington case, filed more than 2 years ago, has advanced the players’ claims significantly. The lawyers engaged in a voluminous amount of discovery, uncovering damning communications that undoubtedly showed the NCAA’s betrayal of the student-athletes.

The Arrington lawyers were able to advance the case to a point where the NCAA was publicly humiliated and concerned that class certification was a real possibility. The NCAA raised the white flag, initially, and it was announced that the parties were heading to mediation. Catching word of this, other lawyers around the country started to file putative class actions — whether this was done for altruistic reasons or to represent non-proposed-class members’ claims (i.e. pre-2004 student athletes) is debatable.

Against this backdrop, MDL No. 2492 In Re: NCAA Student Athlete Concussion Injury Litigation was formed.

The first step in multidistrict litigation is the development and appointment of a leadership structure. Judge Lee has ordered the parties to identify two Lead Counsel to represent the players.

In the NFL litigation, Chris Seeger and Sol Weiss fill this role. As you saw, these lawyers basically have all the power, so it is clearly a coveted role to assume.

Multiple lawyers will obviously be vying for these two positions. Since two factions have apparently formed—i.e. the Arrington lawyers vs. all the others—the court may be inclined to appoint a representative from each faction.

By making these appointments, it may be the first step in resolving some of the bickering that has developed. If the parties cannot reach an agreement by February 24, 2014, Judge Lee will be forced to make the decision at or before the March hearing.

That initial pretrial conference is scheduled for March 5, 2014 at 2 pm. This hearing should iron out whether resolution viz-a-viz the ongoing mediation with Judge Phillips will remain fruitful or if protracted litigation is necessary.

If it’s the latter, then additional discovery will be planned and the putative class will be restructured to include virtually all former student athletes that played a contact sport at any NCAA-affiliated college.

At bottom, the next four weeks will be critical in assessing whether the lawyers can put aside their differences, and focus on a global resolution that will benefit all former and current student athletes.

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