Timothy Liam Epstein provides insight on the latest in a wave of new cases against the NCAA in an article on Law 360, written by Zachary Zagger, entitled "New NCAA Injury Suits Could Be Negated By Concussion Deal."

New NCAA Injury Suits Could Be Negated By Concussion Deal

    By Zachary Zagger

Law360, New York (July 14, 2016, 5:00 PM ET) -- The NCAA is again a target in a new wave of class actions over student-athletes' repeated head injuries and concussions, but experts say plaintiffs could hit a roadblock as the NCAA is trying to tie the new claims to a related settlement.

The NCAA originally reached a $75 million medical monitoring settlement in the concussion MDL back in April 2015 but some of the players objected, saying it did nothing for those athletes already experiencing neurological problems. One objector, former San Diego State University football player Anthony Nichols — who is represented by attorneys at Edelson PC, which brought the new suits — claimed the settlement required class members to waive "billions and billions of dollars" in personal injury claims.

Since then, the parties reached a modified agreement that the association says ensures athletes will be able to sue their individual colleges, but only on behalf of players of a single sport. Nichols thus withdrew his objection but has since argued that a dispute remains as Edelson has already helped file a string of such lawsuits against several schools, major athletics conferences and the NCAA alleging they are liable for injuries suffered by college football players.

While the NCAA has agreed to the yet-to-be-finalized settlement, it has called these new suits "questionable" and on Thursday, the Judicial Panel on Multidistrict Litigation approved the NCAA's motion to begin transferring them to an existing concussion MDL, which some attorneys say could present a challenge for plaintiffs in those cases moving forward.

"How the judge would rule, I am not sure, but I think the NCAA has relatively strong arguments both from the suits being preempted by the settlement as well as on a proof basis — the plaintiffs being able to prove the NCAA had a duty to the plaintiffs and that they breached that duty," said sports and entertainment litigator Timothy L. Epstein of Duggan Bertsch LLC.

Epstein noted, though, that the settlement does not give the NCAA "blanket immunity," as it does not provide individual damages to the former players as the plaintiffs seek in the new suits.

These lawsuits target the NCAA and major athletics conferences such as the Southeastern Conference, Big Ten Conference, Pac-12 Conference and Atlantic Coast Conference, as well as several schools such as Pennsylvania State University and Vanderbilt University, seeking "to obtain redress for all persons injured by their reckless disregard for the health and safety of generations" of college football players.

The suits point to repeated blows to the head, alleging that many former players now suffer from neurological and cognitive damage, including the much-publicized degenerative brain condition chronic traumatic encephalopathy, or CTE.

So far a total of 15 suits have been filed, with a batch of five of them just filed last week.

To fight these suits, the NCAA last Wednesday moved to transfer seven into the same court handling the concussion MDL, arguing they are "potential tag-along actions" because they involve "common questions of fact" and that the actions are "virtually verbatim copies of one another." The JPML on Thursday signed off on the transfer, but the plaintiffs will have a chance to oppose it. 

"Failing to achieve a bodily injury component to the [MDL] settlement, it appears that counsel is attempting to extract a bodily injury settlement through the filing of these new questionable class actions," NCAA Chief Legal Officer Donald Remy said in a statement sent to Law360. "This strategy will not work. The NCAA does not believe that these complaints present legitimate legal arguments and expects that they can be disposed of early by the court."

J. Philip Calabrese of Porter Wright Morris & Arthur LLP said that consolidating the suits can better set up the NCAA to argue that the new claims are covered or resolved by the settlement — or it can just help make defending the suits more efficient.

"It is fairly common to see personal injury litigation consolidated in an MDL," he said. "It doesn't happen all the time, but it makes sense sometimes because there are efficiencies to be gained in doing so."

Transfer could also make it easier for NCAA to defend the new claims or to reach a new settlement collectively, and at the very least puts the claims in front of a judge who is already familiar with the issues, experts said.

It was unclear this week what action the plaintiffs in the suits would take, as the existing settlement in the NCAA concussion MDL, being overseen by U.S. District Judge John Z. Lee, is still facing some objections.

Another main objector, former Eastern Illinois University football player Adrian Arrington, has opposed settlements because they failed to provide any monetary remedy for athletes who had been injured during their playing years. No amount of the $75 million in the settlement is going directly to individual players for medical costs.

And while Nichols has dropped his objections, he has expressed reservations telling Judge Lee that the NCAA is trying to say single-sport, single-school class actions are covered by the settlement. Nichols argued there is no reason for this and that the new wave of suits should be allowed to continue, and otherwise has no objections to the settlement. 

At a hearing ThursdayJudge Lee preliminarily approved the settlement and said that he is considering putting the new suits in a separate MDL for administrative purposes, but the NCAA pushed for them to be in the same MDL. 

But even if the settlement is finalized, Epstein said it is not likely the claims would be precluded, though they would face other issues. 

"The proposed settlement only sets aside money for testing and protocol. But at the same time, they would try to say, 'Well, there is a different theory of liability here that it is based on the same operative facts,'" he said. 

The NCAA is unlike the NFL in that it does not have as much control over the individual athletes, and there is not yet any "smoking gun" evidence that shows the NCAA knew of specific dangers and just failed to protect the players against them, particularly before the NCAA instituted its concussion protocol.

Still, the NCAA's attempt to close out the issue by agreeing to pay $75 million when there are so many potential plaintiffs is just not that easy. 

"Parties enter into settlements and you think that you are getting finality, but sometimes you end up prolonging the dispute or allowing new claimants to emerge,” Calabrese said. 

The case is In re: National Collegiate Athletic Association Student-Athlete Concussion Injury Litigation, case number 1:13-cv-09116, in the U.S. District Court for the Northern District of Illinois. The MDL is In re: National Collegiate Athletic Association Student-Athlete Concussion Litigation, case number 2492, in the U.S. District Court for the Northern District of Illinois.

--Additional reporting by Diana Novak Jones. Editing by Katherine Rautenberg and Kelly Duncan.

Correction: An earlier version of the story incorrectly reported the type of claims covered by settlement and failed to specify that a judge was only considering putting new suits in a separate MDL. The errors have been corrected.

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