in re: National Collegiate Athletic Association Student-Athlete Concussion Injury Litigation

Filing 276

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 7/15/16.Mailed notice(ca, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
IN RE: NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION
STUDENT-ATHLETE CONCUSSION
INJURY LITIGATION

This Document Relates to All Cases

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MDL No. 2492
Master Docket No. 13 C 9116
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
In its January 26, 2016, Memorandum Opinion and Order, the Court granted the Settling
Plaintiffs’ Joint Motion for the Preliminary Approval of the Amended Class Settlement and
Certification of Settlement Class, subject to a number of modifications.

See In re Nat’l

Collegiate Athl. Ass’n Student-Athlete Concussion Injury Litig., __ F.R.D. __, MDL No. 2492,
2016 WL 305380 (N.D. Ill. Jan. 26, 2016).

The Court then provided the parties with an

opportunity to determine whether they would be amenable to the modifications or, to the extent
they were not, to provide additional evidence to address the concerns set out in the order.
As instructed, counsel for the Settling Plaintiffs and the NCAA, as well as counsel for
Lead Objector Anthony Nichols, met on numerous occasions to discuss the modifications
proposed by the Court with the assistance of retired United States District Judge Wayne R.
Anderson. Based upon these discussions, the parties have agreed to all of the modifications with
one exception, and, as to that exception, they have presented additional evidence and arguments
to demonstrate why the Court should grant preliminary approval of the settlement agreement as it
is now proposed. Finding that the proposed settlement, as it is currently constituted, addresses

the concerns raised in the January 26 order, the Court grants preliminary approval of the Second
Amended Class Settlement and conditionally certifies the Settlement Class and Settlement
Subclasses.
Background
The Court assumes familiarity with the facts and history of this multi-district litigation as
outlined in the Court’s prior orders. Accordingly, only a brief synopsis is provided here.
The Settling Plaintiffs are a putative class of current and former collegiate studentathletes, who have sued the National Collegiate Athletic Association (“NCAA”), asserting
contractual and common law claims relating to the way in which the NCAA has addressed
concussions and concussion-related risks.

Among other things, the Settling Plaintiffs seek

medical monitoring for the class, because they contend the class is at risk for developing future
symptoms related to concussions and/or the accumulation of sub-concussive hits.
After conducting extensive class and merits discovery, the Settling Plaintiffs and the
NCAA have engaged in protracted negotiations to achieve a settlement.

The parties have

presented a proposed settlement agreement to the Court for preliminary approval on two
previous occasions.
On December 17, 2014, the Court declined to approve the first proposed settlement
agreement due to a number of significant concerns. See In re NCAA, MDL No 2492, 2014 WL
7237208 (N.D. Ill. Dec. 2014). The parties requested an opportunity to re-engage in settlement
negotiations in an effort to address the Court’s questions. After additional negotiations, they
submitted an amended settlement agreement for approval.
On January 26, 2016, the Court preliminarily approved the amended proposed settlement
and conditionally certified the settlement class. But the Court did so on the condition that the

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parties either agree to certain modifications or provide additional evidence to allay the Court’s
concerns. Those modifications included: (1) creating subclasses for student-athletes in Contact
and Non-Contact sports; (2) requiring notification to class members via the NCAA’s website as
well as social media in order to supplement the class notice plan; (3) deleting provisions that
require a class member to submit a claim to his or her health insurance company or permit the
Medical Monitoring Program to seek subrogation or reimbursement from a class member and his
or her health insurance company; (4) extending the Medical Monitoring Period if sufficient funds
are available at the end of the monitoring period; (5) requiring that the $5 million contribution
from the NCAA for concussion research go to research that would otherwise not have occurred
absent the settlement; (6) implementing publicity campaigns during the Medical Monitoring
Program on the ten-year, twenty-year, thirty-year, and forty-year anniversaries of the
commencement of the Medical Monitoring Program to ensure that class members remain aware
of the program’s availability; (7) enabling the Court to require reports from those in charge of the
Medical Monitoring Program as needed; and (8) excluding Class Counsel from the waiver of
future claims. 1 The Settling Plaintiffs and the NCAA have since agreed to these modifications.
The remaining modification proposed by the Court addressed the scope of the release
contained in the amended settlement agreement. As part of the settlement, the class members
would have to release any and all claims “brought or pursued on a class-wide basis and relating
to concussions or sub-concussive hits or contact.” In re NCAA, 2016 WL 305380, at *5.
However, they still would retain the right to bring “individual personal or bodily injury claims”
and “class claims that do not relate in any way to medical monitoring or medical treatment of

1

The capitalized terms are as defined in the Second Amended Settlement Agreement. ECF 266,
Joint Mot. Preliminary Approval 2d Am. Class Settlement & Certification Settlement Class & Settlement
Subclasses, Ex. 1.

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concussions or sub-concussive hits or contact.” Id. Effectively, this would mean that, while a
class member would retain the right to sue the NCAA individually to recover damages for bodily
injury claims, he or she would no longer be able to participate in a class action of any scope
against the NCAA in order to assert those claims on a class-wide basis.
In reviewing the overall fairness of the amended settlement, the Court assessed the
strength and value of the released procedural claims of the putative class against the value of the
settlement to the class. In so doing, the Court found that, based on the record presented by the
parties, it was highly unlikely that a nationwide class of current or former NCAA studentathletes or a class consisting of current or former NCAA student-athletes from multiple schools
could be certified under Rule 23(b)(3) or 23(c)(4) for the purpose of asserting bodily injury
claims for damages. However, the Court also held that the parties had not provided sufficient
evidence for the Court to ascertain the likelihood of class certification for a class action brought
by current or former NCAA student-athletes from a single NCAA-affiliated school. Id. at *23.
Accordingly, the Court approved the proposed release of class-wide claims, but only to the
extent that it precluded actions brought by a nationwide class or a class that consists of current or
former student-athletes from more than one NCAA-affiliated school. Id.
After engaging in multiple additional rounds of negotiations, the Settling Plaintiffs and
the NCAA now agree that the release of class-wide bodily injury damages claims will not extend
to those cases where the class is composed of current or former student-athletes of a single sport
at a single NCAA-affiliated school. But they request that the Court permit the release to
preclude cases where the class consists of current or former student-athletes from more than one
sport at a single school. Put another way, under the new proposal, members of a football team
from a single NCAA school would be able to sue the NCAA (as well as its affiliates) on a class-

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wide basis to recover damages based on bodily injury claims; however, a class consisting of
members from both the football team and hockey team from that same school would not. Joint
Mot. Preliminary Approval 2d Am. Class Settlement & Certification Settlement Class &
Settlement Subclasses, Ex. 1, 2d Am. Class Action Settlement Agreement & Release, XV.A.12.
In support of this position, the Settling Plaintiffs and the NCAA argue that it is highly unlikely
that such a multiple-sport, single-school class could be certified under Rule 23 and, thus, the
procedural right to assert such a claim would have minimal, if any, value to the putative class.
As a result, the parties contend, even if such claims were included within the scope of the
release, the proposed settlement would remain within the “range of possible approval.” See In re
NCAA, 2016 WL 305380, at *5-6 (citing to authorities).
To buttress their argument, the Settling Plaintiffs and the NCAA have supplemented the
record with additional evidence obtained during discovery. And counsel for Lead Objector
Anthony Nichols has withdrawn his objection to the settlement based upon the new revisions.
Finally, the other attorneys in the related actions (which are listed at id. at 1 n.1) also have been
provided an opportunity to file objections to this most recent proposal, and none have been filed
to date.
Legal Standard
Any settlement that results in the dismissal of a class action requires court approval. See
Fed. R. Civ. P. 23(e); Reynolds v. Beneficial Nat’l Bank, 288 F.3d 277, 279 (7th Cir. 2002).
When parties seek preliminary approval of a class action settlement agreement and certification
of a settlement class, the district court conducts an independent class certification analysis and
determines whether the proposed settlement is within the range of possible approval. Gautreaux

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v. Pierce, 690 F.2d 616, 621 n.3 (7th Cir. 1982); Am. Int’l Group, Inc. v. ACE INA Holdings,
Inc., Nos. 07 C 2898, 09 C 2026, 2011 WL 3290302, at *3 (N.D. Ill. July 26, 2011).
Because the Court has already conducted an analysis with regard to certification of the
settlement class and settlement subclasses under Rule 23(b)(2), it will not repeat that here. See
In re NCAA, 2016 WL 305380, at *8–22. The Court instead focuses on the new evidence cited
by the parties and whether the proposed settlement that releases multiple-sport, single-school
bodily injury class claims is within the range of possible approval.
In assessing a settlement’s fairness, “relevant factors include: (1) the strength of the case
for plaintiffs on the merits, balanced against the extent of settlement offer; (2) the complexity,
length, and expense of further litigation; (3) the amount of opposition to the settlement; (4) the
reaction of members of the class to the settlement; (5) the opinion of competent counsel; and (6)
stage of the proceedings and the amount of discovery completed.” Wong v. Accretive Health,
Inc., 773 F.3d 859, 863 (7th Cir. 2014). “The most important factor relevant to the fairness of a
class action settlement is the strength of plaintiff’s case on the merits balanced against the
amount offered in the settlement.” In re Gen. Motors Corp. Engine Interchange Litig., 594 F.2d
1106, 1132 n.44 (7th Cir. 1979).
If the district court finds that the certification of the settlement class is appropriate and
the proposed settlement is within the range of possible approval, the court will then order the
plaintiffs to provide notice of the settlement to the class “in a reasonable manner” so that the
class members can raise any objections to the settlement. Fed. R. Civ. P. 23(e)(1). Once the
class is provided with notice of the settlement and an opportunity to object, the court will
conduct a final approval hearing to determine whether the settlement is “fair, reasonable, and
adequate.” Fed. R. Civ. P. 23(e)(2). If the district court is satisfied that the settlement meets

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these criteria, it will grant final approval of the settlement, which binds the defendant and all
class members to the terms of the settlement.
Analysis
The issue before the Court is decidedly limited. As described above, the parties and
intervenors have agreed to all of the Court’s modifications save one: the exclusion of multiplesport, single-school damages class from the proposed release. The parties now present evidence
to demonstrate that a multiple-sport, single-school damages class is unlikely to satisfy Rule
23(b)(3)’s predominance requirement. Thus, the parties argue, the procedural right to a file a
class action based upon bodily injury damages claims on behalf of a class, consisting of studentathletes from more than one sport at a single school, has minimal value, and the proposed
settlement is within the range of possible approval, even when such a right is subject to the
release. 2 Accordingly, in evaluating the fairness of the latest proposed settlement, the Court
must evaluate the strength of this procedural right—that is, whether a multiple-sport, singleschool class asserting bodily injury claims against the NCAA is capable of being certified under
Rule 23(b)(3). See Wong, 773 F.3d at 863.
Once the requirements of Rule 23(a) are satisfied, certification of a class under Rule
23(b)(3) is proper if “the questions of law or fact common to class members predominate over
any questions affecting only individual members, and [when] a class action is superior to other
available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P.
23(b)(3). “Predominance of issues common to all class members, like the other requirements for
certification of a suit as a class action, goes to the efficiency of a class action as an alternative to
individual suits.” Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014). Thus, the
2

Although the NCAA also contends that a multiple-sport, single-school damages class would fail
Rule 23(a)’s numerosity requirement, the Court need not address this argument because, even if such a
class could satisfy numerosity, it would likely not satisfy Rule 23(b)’s predominance requirement.

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“predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant
adjudication by representation.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623 (1997). “If
resolving a common issue will not greatly simplify the litigation . . . the complications, the
unwieldiness, the delay, and the danger that class treatment would expose the defendant or
defendants to settlement-forcing risk are not costs worth incurring.” Parko, 739 F.3d at 1085.
The predominance inquiry “begins, of course, with the elements of the underlying cause
of action.” Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 809 (2011). Any lawsuit
brought by a multiple-sport, single-school class seeking damages for bodily injury claims would
require the class to prove, among other things, that the NCAA’s failure to adequately prevent and
treat concussions caused a class member to suffer bodily injury. To this end, the parties argue
that a multiple-sport class—even from a single school—would not satisfy the predominance
requirement, because concussion prevention and treatment practices even at a single school
would have varied not only from sport to sport, but from coach to coach.
First, the parties point to evidence that the NCAA typically has promulgated safety rules
to prevent and mitigate concussions on a sport-by-sport basis. Along these lines, the NCAA
Constitution and Bylaws establish association-wide committees to address issues that affect
NCAA members and perform duties necessary for the on-going operation of the association.
ECF No. 268, Ex. A, Spellman Decl. (“Spellman Decl.”), Ex. 1, NCAA Constitution §§ 21.02 et
seq. One such committee, the Play Rules Oversight Panel (“PROP”), oversees other NCAA
committees that establish rules for individual sports, such as football, wrestling, soccer, just to
name a few (the “individual sports rule committees”). Id. § 21.1.4. And, as part of its duties, the
PROP considers and approves recommendations made by the individual sports rule committees
that bear on the safety of players in a particular sport, including, but not limited to, equipment

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requirements, rules changes, and other issues that address injury risks. See, e.g., Spellman Decl.,
Ex. 5, 4/14/10 Play Rules Oversight Panel Minutes (discussing proposals by the Soccer Rules
Committee and Football Rules Committee); id., Ex. 7, Agenda for February 21, 2013, Meeting, ¶
7(e) (reviewing information regarding hockey helmet requirements).
Similarly, the NCAA’s Committee on Competitive Safeguards and The Medial Aspect of
Sports and the Sports Science and Safety Subcommittee are tasked with sponsoring research
regarding health and safety issues, promoting education to enhance student-athlete health and
safety, and monitoring injury trends to enhance safety in intercollegiate athletics. Spellman
Decl., Ex. 1, NCAA Constitution § 21.2.2.2. Like the PROP, these committees generally address
health and safety issues on a sport-by-sport basis. See, e.g., Spellman Decl., Ex. 4, June 10, 2007
Minutes of the Committee on Competitive Safeguards and Medical Aspects of Sports ¶¶ 11.b,
11.d (noting recommendation and report submitted by the Field Hockey Rules Committee and
Wrestling Rules Committee); id., Ex. 9, Basketball Rules Committee Addresses Safety of Court
Surfaces; NCAA 2008 Rule Changes (stating striking an opponent with one’s football helmet
results in a 15-yard penalty); id., Ex. 2, Feb. 6, 1996 Minutes of the Sports Sciences Safety
Subcommittee ¶ 8 (discussing football equipment and rules to prevent concussions proposed by
the Football Rules Committee).
Additionally, as mentioned above, the NCAA has established individual rules committees
for the vast majority of NCAA-sanctioned sports, including football, field hockey, soccer,
volleyball, water polo, basketball, bowling, fencing, gymnastics, ice hockey, rifling, skiing,
swimming and diving, track and field, wrestling, baseball, beach volleyball, golf, lacrosse, and
tennis. See http://www.ncaa.org/governance/committees/ncaa-sports-playing-rules-committeerosters (last visited July 8, 2016). These committees address sport-specific issues that bear on

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the safety of the student-athletes, including equipment requirements and modifications to playing
rules to address the risk of head injuries. See, e.g., Spellman Decl., Exs. 5, 6, 17, 18 (discussing
football rules intended to prevent or reduce head injury); id., Ex. 17 (rule changed to reduce
hitting from behind and contact to head in hockey); see also ECF No. 268, NCAA Mem. at 6
n.12 (examples of rules changes in individual sports to minimize risk of head injuries).
The parties also point to evidence that the actions and practices of individual coaches and
athletic trainers typically play a key role in mitigating or aggravating concussion-related risks
and injuries. For example, at the University of Maine, even after hockey player Kyle Solomon
hit his head on the boards, lost consciousness, and received stitches in the locker room, the head
coach and the athletic trainer nevertheless allowed him to play in the third period of the game.
Id. ¶ 70; see NCAA Ex. 20, Solomon Dep. at 84:8–86:9. At the University of Central Arkansas,
although Derek Owens complained of recurring migraines to his football head coach after being
concussed on several occasions, the head coach did not refer Owens to a physician for
neurological testing.

ECF No. 218, Pls.’ Resp. Nichols’ 2d Objections Pls.’ Mot Prelim.

Approval Class Settlement, Ex. A, Exemplar Proffer of Facts Concerning Arrington Plaintiffs ¶¶
10, 22. At Ouachita Baptist University, the athletic trainer for the soccer team recommended that
Angela Palacios skip practice after suffering from a concussion, but the head coach overruled
that determination. Id. ¶ 53. In fact, the coach made her run with the team even though she was
still vomiting, felt nauseated, and had a severe headache. Id. These examples illustrate that the
actions of a particular head coach, team medical doctor, or team trainer would likely impact
whether and to what degree a particular student-athlete suffers bodily injury as a result of
concussions or sub-concussive impacts. 3
3

The allegations made in the individual lawsuits brought by student-athletes against the NCAA
also bear this out. See ECF No. 268, NCAA Mem. at 9 n.14; 10 n.15; 12 n.18 (citing cases).

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To bolster this argument, the NCAA has presented an expert, Ross Mishkin, who has
performed a statistical analysis regarding the number of NCAA head coaches that coach more
than one NCAA sport. NCAA Ex. B, Mishkin Report at 4. According to Mishkin, in 2016,
NCAA-affiliated schools employed 14,361 head coaches. Id. at 5. Nearly 81% (11,619) of them
coached a single sport. Id. Approximately 18% (2,585) coached more than one sport, and all of
these instances involved two or more non-contact sports. Id. Indeed, almost half of those who
coached more than one sport coached a combination of track and field and cross-country
programs. Id. Notably, less than 0.5% (57) of head coaches coached two contact sports, and
when they did, it was some combination of field hockey, lacrosse, and soccer programs, across
men’s and women’s programs. Id. Accordingly, it is highly unlikely that a multiple-sport,
single-school class would involve only one head coach, particularly when it comes to contact
sports, such as football or ice hockey. And the predominance analysis is further complicated by
the involvement of athletic trainers, many of whom are assigned to particular sports. See, e.g.,
NCAA Ex. 20, Solomon Dep. at 82:2–83:10 (testifying that athletic trainer attended hockey
practices and traveled with the hockey team); http://www.usctrojans.com/ot/ usc-ath-medicinestaff.html (last visited July 12, 2016) (listing different athletic trainers for different sports at the
University of Southern California); http://www.stanfordsports medicine.com/athletic-training/
(last

visited

July

12,

2016)

(Stanford

University);

http://www.ramblinwreck.com/

sportsmedicine/staff.html (last visited July 12, 2016) (Georgia Institute of Technology);
http://www.guhoyas.com/ot/sportsmed-staff.html (last visited July 12, 2016) (Georgetown
University).
All of this evidence demonstrates the high degree to which the causation inquiry in any
bodily injury class action will likely depend on the particular circumstances surrounding the

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rules, protocols, and equipment adopted for an individual sport, as well as the specific coach
and/or medical professional responsible for that sport. As a result, based on the current record,
the Court finds that it is highly unlikely that a multiple-sport, single-school bodily injury class
would be sufficiently cohesive to warrant certification under Rule 23(b)(3) and, therefore, the
value of such a procedural claim—that is, the ability to file a bodily injury class action for
damages on behalf of student-athletes from multiple sports at a single school—is minimal, at
best. 4
Turning to the settlement as a whole, the proposed settlement, among other things,
creates and funds a $70 million dollar Medical Monitoring Program that entitles all class
members nationwide to be screened for symptoms of neurodegenerative diseases multiple times
during a fifty-year period at no cost. Considering that many states disallow medical monitoring
as a form of relief in the absence of present physical injury, the ability of the Settling Plaintiffs to
negotiate the creation of the Medical Monitoring Program for all class members nationwide is a
substantial achievement. Furthermore, absent a settlement, class litigation of this nature is
extremely complex, very costly, and sure to be protracted, as indicated by the lengthy mediation
process and voluminous discovery and motion practice in this case. It also should be noted that
the settlement was negotiated and re-negotiated over the course of many months with the careful
guidance of two widely respected retired federal judges.

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Moreover, Lead Counsel for the

Indeed, the Court does not believe that requiring student-athletes from two different sports to file
two separate class actions against the same school would impose a significant burden on their ability to
pursue their claims, as evidenced by the numerous lawsuits of this type that have already been filed. See,
e.g., Hermann v. NCAA, 2:16-cv-01042-KJM-AC (E.D. Ca.) (University of Georgia football players);
Cook v. NCAA, 3:16-cv-02630-EMC (N.D. Ca.) (University of Oregon football players); Walthour v.
NCAA, 6:16-cv-00834-CEM-TBS (M.D. Fla.) (Vanderbilt University football players); Miller v. NCAA,
1:16-cv-01222-TWP-MJD (S.D. Ind.) (Auburn University football players); Owens v. NCAA, 1:16-cv01409-TWP-MJD (S.D. Ind.) (University of Tennessee football players); Lee v. NCAA, 1:16-cv-01411WTL-TAB (S.D. Ind.) (Duke University football players); Seals v. NCAA, 2:16-cv-00412-RJS-BCW (D.
Utah) (University of Utah football players).

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Plaintiffs is of the opinion that the settlement is fair and equitable, the Lead Objector has
withdrawn his objection based upon the revisions to the settlement agreement, and no one else
has objected to the terms of the settlement or release at this time.
In summary, the Court previously has explained why the prior settlement agreement
would pass muster (at least, at the preliminary approval stage), if the parties agreed to a number
of modifications. Since that time, the parties have agreed to all but one of the modifications, and
the Court finds that the adjustment requested by the parties as to the scope of the release does not
materially alter the Court’s valuation of the settlement. Accordingly, the Court finds, on balance,
that the Second Amended Settlement Agreement and Release is within the range of possible
approval.
Conclusion
For the reasons provided herein, the Court grants the Joint Motion for Preliminary
Approval of the Second Amended Class Action Settlement Agreement and Certification of
Settlement Class and Subclasses [266].
Pursuant to Fed. R. Civ. P. 23(b)(2), the Court conditionally certifies the settlement class
of “All Persons who played an NCAA-sanctioned sport at an NCAA member institution on or
prior to the Preliminary Approval Date” and conditionally certifies the following subclasses: “All
Persons who played an NCAA-sanctioned Contact Sport at an NCAA member institution on or
prior to the Preliminary Approval Date,” and “All Persons who played an NCAA-sanctioned
Non-Contact Sport at an NCAA member institution on or prior to the Preliminary Approval
Date.”

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Furthermore, the Court preliminarily approves the Second Amended Class Action
Settlement Agreement and Release and finds that the Second Amended Settlement Agreement is
within the range of possible approval.

SO ORDERED

ENTERED 7/15/16

____________________________________
John Z. Lee
United States District Judge

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