(USA TODAY) -- Nearly three years after former athletes filed the first of several concussion lawsuits against the NCAA, a settlement has been reached that would change association guidelines regarding management of concussions and provide $75 million for medical monitoring and research.
A settlement agreement was filed early Tuesday ahead of a 3 p.m. ET status hearing before Judge John Z. Lee of the U.S. District Court for the Northern District of Illinois.
Lee must first give preliminary approval to the settlement so that notice can be provided to the class. Then he must determine whether it is "fair, adequate, and reasonable." Final settlement approval likely would take months to complete.
The settlement does not include damages for the four plaintiffs and other former athletes, which had been sought in the initial lawsuit. Instead it allows for players to files separate personal injury lawsuits.
As part of the agreement, the NCAA would require member schools make changes to their concussion-management policies and institute return-to-play guidelines. Currently, the association only requires that schools have concussion management plans on file but it does not outline what should be in those plans and has not punished schools for not following them.
The settlement also establishes a 50-year medical monitoring program for all current and former NCAA athletes in any sport – a class which includes several million people – with $70 million going for screening for long-term damage and $5 million going to research.
"We have been and will continue to be committed to student-athlete safety, which is one of the NCAA's foundational principles," NCAA Chief Medical Officer Brian Hainline said in a statement. "Medical knowledge of concussions will continue to grow, and consensus about diagnosis, treatment and management of concussions by the medical community will continue to evolve. This agreement's proactive measures will ensure student-athletes have access to high quality medical care by physicians with experience in the diagnosis, treatment and management of concussions."
The NCAA, which in the settlement denied the plaintiffs' allegations, agreed not to oppose attorneys' fees up to $15 million. Those fees and expenses would come out of the $75 million assigned for medical monitoring and research.
"I think this is a great resolution to an epidemic," said Joe Siprut, co-lead counsel for the plaintiffs. "This is an issue that has plagued college sports for decades. I think that we're singlehandedly, through this case – I don't want to say resolving it because as long as football exists there will always be injuries – but I think we're addressing and confronting the issue in a way that has never been done before.
"I think that we're getting essentially everything that we could have gotten if we had gone all the way."
Among the changes agreed to in the settlement were several mandates for member schools:
-- Preseason baseline testing for every athlete for each season in which he or she competes
-- Prohibition from return to play on the same day an athlete is diagnosed with a concussion. Generally accepted medical protocols recommend athletes not return to play the same day if they exhibit signs of a concussion or are diagnosed with one, but a 2010 survey of certified athletic trainers conducted by the NCAA found that nearly half reported that athletes had returned to play the same day.
-- Requirement that medical personnel be present for all games and available for practices for all contact sports, defined in the settlement as football, lacrosse, wrestling, ice hockey, field hockey, soccer and basketball. Those personnel must be trained in the diagnosis, treatment and management of concussions.
-- Implementation of concussion tracking in which schools will report concussions and their resolution
-- Requirement that schools provide NCAA-approved training to athletes, coaches and athletic trainers before each season
-- Education for faculty on the academic accommodations needed for students with concussions
The medical monitoring would consist of assessment of self-reported symptoms that might be tied to concussions or subconcussive hits and in-person medical evaluation at one of at least 10 locations nationwide.
A four-person medical science committee would be appointed. The settlement recommends retired U.S. District Court Judge Wayne R. Andersen serve as the chair of the committee while the following doctors be appointed: Brian Hainline, the NCAA's chief medical officer; Robert Cantu, a leading concussion expert and the medical director of the National Center for Catastrophic Sports injury research; Ruben Echemendia, who has worked with the NHL and U.S. soccer federation; as well as a fourth expert to be selected by the chair.
Siprut, of Siprut PC in Chicago, first filed a lawsuit in Sept. 2011 on behalf of Adrian Arrington, a former Eastern Illinois football player who suffers from headaches, seizures, depression and other effects of at least five documented concussions.
Arrington was joined by former Central Arkansas football player Derek Owens, former Ouachita Baptist University soccer player Angela Palacios and former Maine hockey player Kyle Solomon in his initial lawsuit, which sought damages and a medical monitoring class.
Under the settlement, those four plaintiffs would each apply for $5,000 from the medical monitoring fund for their time and service. All four were deposed in relation to the lawsuit. Eight other named plaintiffs who were not deposed would apply for a $2,500 service award.
But the settlement comes with questions, chief among them being damages for the former athletes.
While the settlement would allow all former NCAA athletes to be screened for the permanent effects of concussions, it would not provide damages or pay for medical expenses. Under the conditions of the settlement, athletes seeking further compensation would not be barred from filing individual suits.
The medical monitoring procedures would give plaintiffs the basis on which to build individual personal injury claims, Siprut said.
"There wasn't really a good way to deal with that on a class basis," said Siprut, "so the best we could do was create a platform for people to be able to make those claims individually."
Jay Edelson, who represents former San Diego State football player Andy Nichols and former Pittsburgh football player Frank Moore, previously sought to lead a class for personal injury claims. Edelson, of the Chicago-based firm Edelson LLC, tried to intervene in the mediation in October when it appeared personal injury claims would not be part of the negotiations.
The settlement contends getting a personal-injury class certified would be "unsupportable."
"Lead Plaintiffs made the strategic decision to support a $70 million Medical Monitoring Program with meaningful changes to the NCAA's return to play practices in return for waiving a virtually non-existent right to class personal injury claims," the settlement reads.
"In sum, Plaintiffs likely could not have achieved the same victory – a comprehensive Medical Monitoring Program for all living NCAA athletes under 50 states' laws and significant changes to the NCAA's concussion-management and return-to-play guidelines – on a contested basis."
If Lee does not approve the case, it could be headed down a similar road as a lawsuit settled with the NFL. A U.S. District Court judge rejected a $765 million settlement between the NFL and more than 4,500 plaintiffs who alleged the league for years knowingly hid the risks of concussions as well as their long-term effects.
Questioning whether the initial settlement was sufficiently funded to address the medical needs of thousands of plaintiffs, U.S. District Court Judge Anita Brody rejected the first one and now must decide if an uncapped settlement submitted earlier this month is fair.
Unlike the NCAA settlement, the one between former players and the NFL does seek to include damages for medical expenses.
In the NCAA lawsuit, current and former athletes have the opportunity to opt out of the settlement. If many do, that could lengthen an already years long legal battle with the NCAA.
The Arrington plaintiffs filed a motion for class-action certification in July 2013, submitting hundreds of pages of documents in support which included potentially damning NCAA emails as well as a motion of more than 200 pages from Cantu.
After at least nine similar lawsuits were filed in the following months, a Judicial Panel on Multidistrict Litigation decided after a hearing in December to consolidate the cases in Illinois.
By that point, the Arrington plaintiffs had been in mediation with the NCAA since August. Attorneys for the plaintiffs and NCAA met three times before retired Judge Layn R. Phillips between November and February. A May filing from Steve Berman, co-lead counsel for the plaintiffs and managing partner of Hagens Berman Sobol Shapiro LLP, indicated that those talks resulted in a term sheet in February.
The NCAA also awaits the decision from U.S. District Court Judge Claudia Wilken in the Northern District of California in a lawsuit regarding the use of players' names and likenesses. That anti-trust lawsuit, in which former UCLA basketball player Ed O'Bannon is a named plaintiff, contends the NCAA limits what athletes can earn for their names and likenesses.