CHICAGO — A dissenting plaintiff's attorney told a federal judge Friday that a reworked class-action head-injury settlement with the NCAA is as bad as the one the same judge rejected in December — though other attorneys defended it.
The hearing in U.S. District Court in Chicago, where around ten similar suits nationwide were consolidated into the one case, was the first since the new proposed agreement was unveiled this week.
In giving the first proposal the thumbs-down, Judge John Lee raised several concerns, including that the $70 million the NCAA pledged to set aside to test current and former athletes for signs of brain injury might be too little.
Around 4.4 million former or current athletes who played contact and non-contact sports in college could apply for the NCAA-funded testing, which was the core feature of both the original proposal and in the new one.
Jay Edelson, the dissenting lawyer, said the deal would still deprive thousands of people of the compensation they deserve. And he said drafts of the notices that would go out to former and current players don't say clearly enough that they'd forfeit their rights to sue as a collective class if they accept the settlement. He told the judge, "It's incredible."
But a lead plaintiffs' attorney, Steve Berman, said the new deal fixes all the flaws highlighted by Lee. He said new supporting documents illustrate how the $70 million will be more than enough.
Lee had also expressed concern that the NCAA had no mechanism for forcing schools to tighten return-to-play concussion policies that are called for. The new deal, Berman said, requires that schools adopt the policies within six months or they'd lose the protection from class-action suits that the deal confers.
Lee said he will take several weeks to decide on preliminary approval for the revamped settlement.
Outside the courtroom Friday, Edelson told reporters the proposed settlement gave the false impression that the NCAA was taking decisive steps to resolve the concussions issue.
"This is a smoke-screen settlement," he said.
He said plaintiffs' attorneys instead should have sought a single, blockbuster payment from the NCAA to injured former athletes. He's said that could have been worth billions.
Asked later about Edelson's comments, Berman said, "That is utter nonsense."
Even though the NCAA will be shielded from class-action lawsuits in exchange for the medical testing and other provisions of the deal, current and former athletes would still be able to sue their college or the NCAA as individuals. The NCAA-funded test could help give them medical grounds for filing just such suits.
That, plus rule changes and other protocols that would come into effect under the settlement, would also help prevent many brain injuries in the future, Berman insisted.
"If we halt a half dozen kids from (getting) permanent brain injuries, it'll be the proudest thing I've done" as an attorney, he said.