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Volume 21 No. 1
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NFL settlement blocks lawsuits against NCAA

Former NFL players who receive cash payouts as part of the proposed class-action, $760 million settlement of lawsuits that contend the league hid the dangers of concussions cannot sue the NCAA for the same reason.

According to a copy of the 85-page NFL settlement proposal filed in federal court last week, the retirees who are part of the settlement would give up their rights against the NCAA, which is facing litigation similarly contending that it knew of, and did nothing about, the dangers of concussions from playing football.

“Settlement Class Members who receive Monetary Awards will agree … to dismiss pending, and/or forebear from bringing, litigation relating to cognitive injuries against the National Collegiate Athletic Association and/or other collegiate, amateur or youth football organizations and entities,” the provision on page 68 of the settlement proposal says.

The NCAA said it had nothing to do with the insertion of the provision. The retirees’ lead counsel, Chris Seeger, also noted that the NCAA had no role in the insertion of the provision.

The NFL, Seeger said, wanted a complete peace regarding litigation and worried that if players were to sue the NCAA and win any such cases, the collegiate body could then sue the league. Under this scenario, Seeger said, the NCAA — if it lost a lawsuit brought by former players who competed both in college and in the pros — could sue the NFL arguing that some of the physical maladies were inflicted while playing professionally.

The NFL declined to comment. A source close to the league said the league “wanted complete peace, and this is an effort to ensure that the class members do not accept this settlement and then turn around and sue the NCAA.”

It is not unusual in class-action settlements to immunize non-parties from future lawsuits, Seeger said.

A lawyer for one of the collegiate players suing the NCAA said he did not think the NFL settlement term would materially affect his case but is perplexed by it.

“I see no reason why class counsel in NFL would do the NCAA’s bidding by including this clause,” said Steve Berman, of Hagens Berman Sobol Shapiro, which represents Adrian Arrington in his lawsuit against the NCAA. “Assume, for example, that a settlement of the NCAA had as a component a medical monitoring program. Why would the NFL care if a player availed himself of whatever testing the NCAA was offering?”

Similarly, Jon King, who represents former NFL quarterback Craig Morton in a lawsuit filed late last year against the NFL over its concussion protocols, said of the settlement provision that it “makes no sense at all, as the NCAA is not a party to this settlement.”

“The NCAA has always vigorously sought to distinguish itself from professional sports entities,” King said. “I’d expect this provision to get heightened scrutiny, and it should.”

The federal court judge who is overseeing the NFL concussion lawsuit, Anita Brody, is expected to rule sometime this month on the retirees’ motion for preliminary approval of the settlement. If she approves it, she must then schedule a fairness hearing, and then ultimately decided whether to certify the class and settlement.

Staff writer Michael Smith contributed to this report.