A federal judge in Chicago rejected a proposed $75 million class-action head injury settlement with the NCAA on Wednesday, portraying the deal as too unwieldy and potentially underfunded and urging both sides to go back to the drawing board.
Under the proposal, the Indianapolis-based NCAA would toughen return-to-play rules for players with concussions and create a $70 million fund to test current and former athletes in contact and non-contact sports for brain trauma. It also would set aside $5 million for research.
The first-of-its-kind deal was designed to settle a host of class-action suits accusing the NCAA of failing to protect athletes against head trauma. In return for the testing program and for improving the safety of current players, the agreement would also shield the NCAA from being hit with a single, blockbuster damages payout.
In his 21-page opinion Wednesday, U.S. District Judge John Lee held out the hope that the agreement could be refashioned to address its shortcomings.
"The court encourages the parties to continue their settlement discussions … to address these concerns," Lee wrote. He added later that the proposal was "a significant step in trying to arrive at a resolution of this highly complex matter."
At an October hearing, Lee raised concerns that contact sport and non-contact sport athletes were covered under the proposal, as were former players going back 50 years or more. He said at the time: "The settlement, as it's constituted, includes every athlete for all time. … Doesn't it make sense to have a more manageable period?"
In his Wednesday opinion, Lee noted athletes in sports categorized as non-contact do suffer concussions, pointing to baseball players or water polo athletes. The judge said their inclusion in the deal and other factors left him wondering if $70 million for the medical monitoring program was enough.
He also said it was unclear how the NCAA would enforce tougher return-to-play rules foreseen in the settlement or even whether the Indianapolis-based body had the authority to mandate that all schools adopt the rules in the first place.
A plaintiffs' attorney who spent nearly a year negotiating the proposal, Joseph Siprut, said Wednesday evening that he remains optimistic a reconstituted settlement will be approved.
"I would view this as a step along the way, but we've had a million steps along the way already. And we'll eventually get there," he said.
NCAA spokeswoman Stacey Osburn did not have an immediate comment on the ruling, saying only that the governing body was "reviewing the decision."
Ten lawsuits filed nationwide were consolidated into the one case in Chicago, where the first suit 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.
The number of athletes who may require testing to learn if they suffered long-term damage runs into the tens of thousands, the plaintiffs have said in filings. They cited NCAA figures that from 2004 to 2009 alone, 29,225 athletes suffered concussions.
At an earlier hearing, Lee also questioned the most contentious provision of the settlement: Severely concussed athletes would forfeit all rights to sue the NCAA as a group. They could still sue, but only as individuals.