Will The NCAA Concussion Lawsuit Be The Next To Settle?Marc Edelman in Forbes, September 12, 2013
Two weeks after the NFL agreed to settle its concussion lawsuit for $765 Million, all eyes have turned to the NCAA and whether it will now settle Arrington v. National Collegiate Athletic Association – the most notable concussion litigation involving the college ranks.
In many ways, the Arrington lawsuit (which is currently in mediation) will be challenging to settle. One reason for this is because the NCAA is composed of 1200 members rather than just 32 — a factor complicates achieving association-wide consensus on a settlement.
Nevertheless, settlement of the NCAA concussion lawsuit seems to be in college sports’ best financial and public relations interests. At the same time, the NCAA may be interested in settling the case given its recent agreement to mediation.
From a legal perspective, a number of factors seem to make the NCAA’s risk exposure, if it does not settle, far greater than that of the NFL. For example, the NCAA may owe a greater “duty of care” to its athletes because it purports to exist for the very purpose “to protect young people from the dangerous and exploitive (sic) athletic practices of the time.” By contrast, the NFL has generally held itself out as nothing more than a collection of profitmaking businesses.
At the same time, the NCAA may have a greater legal obligation to its athletes based on a distinction in its labor relations. The NCAA has never permitted its athletes to form an organized body to negotiate over the ‘working’ conditions of college football. Instead, it has simply required its athletes to accept the terms put in place by the NCAA’s own bylaws — terms that the NCAA has long proclaimed were in the athletes’ best interests.
Finally, there is also a temporal factor that seems to expose the NCAA to greater liability than the NFL. While the NFL might have been able to have shifted some of its concussion liability onto the NCAA, the NCAA cannot so easily try to place blame on to the NFL — especially given that many of the plaintiffs suing the NCAA never went on to play professional football at any level.
Marc Edelman is an Associate Professor of Law at the City University of New York’s Baruch College, Zicklin School of Business, where he has published more than 20 law review articles on sports law. In addition, he is an adjunct professor at Fordham Law School, and a legal consultant on sports, antitrust, gaming and intellectual property matters. Nothing contained in this article should be construed as legal advice.