CHICAGO — The federal judge overseeing a first-of-its-kind head injury settlement with the NCAA expressed serious concerns Thursday about some terms and the vast scope of the $75 million deal that currently encompasses all college athletes going back decades.
Facing NCAA and plaintiffs' attorneys who crafted the deal, U.S. District Judge John Lee wondered why sports like rifle teams, golf and swimming would be covered by the proposed agreement along with football, hockey, soccer and other contact sports.
"I'm going to assume there aren't a lot of risks of concussions in rifling," Lee said during a hearing on a motion to give the deal preliminary approval.
He added later: "The settlement, as it's constituted, includes every athlete for all time."
After questioning lawyers for 2 1/2 hours, Lee adjourned without saying when he might rule. He could give the preliminary thumbs up while ordering sweeping changes to the settlement as a condition of final approval.
Under the settlement, NCAA would toughen return-to-play rules for players who receive head blows. It creates a $70 million fund to test thousands of current and former athletes for brain trauma, and it sets aside $5 million for research. The number of athletes who may require testing to learn if they suffered long-term damage runs into the tens of thousands, plaintiffs' filings say. They cite NCAA figures that from 2004 to 2009 alone, 29,225 athletes suffered concussions.
Lee also questioned the most contentious provision of the settlement: Severely concussed athletes would forfeit all rights to sue the NCAA as a group for a single, blockbuster damages payout. They could still sue, but only as individuals.
Lee alluded to critics who say that provision lets the NCAA off the hook, ensuring they'll never have to pay significant damages. He asked the NCAA's lead attorney whether individual suits might only result in paltry payouts of a several thousand dollars.
The attorney, Mark Mester, insisted individual suits could, result in notable cash awards.
"You're looking at six or seven figures ... for someone who has valid claims," he said.
Lee repeatedly went back to the absence of a cutoff date in the proposal, saying it left open the possibility of former college athletes from the 1950s or even further back being covered by the terms.
"Doesn't it make sense to have a more manageable period?" Lee asked.
It was precisely those who played decades ago who are, in many cases, suffering the most from lingering brain trauma and can benefit most from the NCAA-funded medical testing, responded Richard Lewis, an attorney for the plaintiffs.
"The older players are the ones that needed it the most and needed it the soonest," he told Lee.
To keep the NCAA from having to hold unwieldy talks with multiple plaintiffs, 10 lawsuits filed nationwide were consolidated into the one case in Chicago, where the first lawsuit was filed in 2011. The lead plaintiff is Adrian Arrington, a former safety at Eastern Illinois. He said he endured five concussions while playing, some so severe he has said he couldn't recognize his parents afterward.
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