NCAA Agrees to Mediate Suit Filed by College Athletes for Concussion-Related Injuries

Whether you prefer football bowl season or March Madness, it’s a fact that many of us enjoy watching the college sports regulated by the National Collegiate Athletic Association (the “NCAA”). Unfortunately, some of the very sports we enjoy watching can have very negative impact on the over 400,000 student-athletes that play them. Serious health conditions resulting from concussions in “contact” college sports has come to the forefront of public debate recently and is now the subject matter of a recent court case. If successful, that court case could result in significant changes in NCAA regulations.

Adrian Arrington, a former Strong Safety for Eastern Illinois University (“EIU”), filed against the NCAA two years ago. During his tenure at EIU from 2006-2009, Arrington played as a starter after his first year. He served as the team’s captain in the 2009 season and ended his college career with 154 tackles. His impressive football career, however, took a toll on his health. While still on the team, Arrington sustained several serious concussions and began experiencing memory loss, migraines, and seizures. Despite the serious nature of each of his injuries, the EIU team doctor often released him after less than a day of rest.  The EIU coaching staff never taught him effective, safe tackling techniques or discussed with Arrington how to prevent concussions in the future. Now, just a few years after his football career ended, Adrian Arrington cannot sustain employment because of his seizures and must rely on the welfare system.

Though the action filed in late 2011, Arrington now argues that NCAA acted negligently by failing to warn and disclose the risks stemming from repeated concussions and fraudulently concealed facts that exposed those former and current players to harm. For those alleged failures and negligence, Arrington now seeks damages for his own medical conditions and the medical conditions of similarly-situated current and former student athletes. In addition, the Arrington suit seeks medical-monitoring relief for athletes competing in certain “contact” sports, including, but not limited to, basketball, field hockey, ice hockey, lacrosse, and soccer.

Just this month, more student-athletes stepped forward against the NCAA, including Chris Walker, former defensive end for the University of Tennessee, Ben Martin, former defensive linemen for the University of Tennessee, and Dan Ahern, former offensive guard for North Carolina State.  Like Arrington, they are using the court system seeking compensation for their concussion-related health problems and to safeguard the health of future generations of student-athletes.

The arrival of this new set of plaintiffs prompted the NCAA to agree to settlement negotiations, and on October 17th, U.S. District Court Judge Layn Phillips granted a stay in the Arrington case in anticipation of mediation. The NCAA has agreed to try alternative dispute resolution despite the NCAA’s position that the allegations are inappropriately directed against it.

The question many have is why the NCAA is coming to the table for mediation when its position is that the allegations are either unfounded or misdirected. Alternative dispute methods- such as negotiation, mediation and arbitration- are often attractive to both parties for a variety of reasons. Both parties, for example, can benefit from shorter timetables in resolving a conflict, less expensive litigation fees, or a broader spectrum of possible resolutions. Parties choosing to mediate or arbitrate often have much more control or influence over the rules and procedures governing the resolution process. Moreover, alternative dispute resolution provides both individuals and organizations an opportunity to safeguard their personal reputation or their corporate image. Lastly, the activities and eventual agreement between the parties need not be disclosed and can be kept confidential among the parties if that is their wish. These are only a few of the benefits parties who choose to use alternative dispute resolution enjoy.

While the NCAA has not given its statement on why it is considering settlement negotiations, according to its spokeswoman, Stacey Osburn, the NCAA is “willing to consider reasonable settlement options” at this point, and any or all of these factors could have influenced that decision. The outcome of the settlement negotiations with Arrington, scheduled in November, and the new set of plaintiffs, set for February, may lead to important changes in the NCAA’s regulations of contact sports. For example, a mediation agreement could result in the NCAA mandating affiliated colleges to train current student athletes on safer tackling methods, could result in a set of health guidelines or criteria that must be met before an athlete may return to play, or could lead to the establishment of a NCAA-funded medical monitoring program for both current and former student-athletes.