published Thursday, July 31st, 2014

Wiedmer: NCAA concussion settlement better than nothing

The scene is from the 1978 remake of "Heaven Can Wait." An angel having just placed his soul inside the body of a ruthless industrialist, a well-intentioned Warren Beatty offers a simple solution for all the innocent porpoises the industrialist's tuna canning company is accidentally killing in its nets.

"What if we had a good-guy tuna company on the porpoise team?" he asks his dumb-founded associates. "A lot of guys would buy that so their kids wouldn't get mad at them. We don't care how much it costs, just how much it makes. If it costs too much, we charge a penny more. Wouldn't you pay more to save a fish that thinks."

I think of that priceless movie moment each time some big corporation grudgingly settles a case that it has determined could cost it much more money if that case is later thrown before a judge, jury or both.

Why couldn't they decide to become the Good-Guy Corporation before they misbehaved.

Which brings us to Tuesday's settlement offer from the NCAA regarding a number of concussion lawsuits, as well as an ode to Watergate concerning what did the NCAA know and when did they know it.

According to The Associated Press and other media outlets, college athletics' governing body agreed to, in the AP's words, "Settle the class-action head-injury lawsuit by creating a $70 million fund to diagnose thousands of current and former college athletes to determine if they suffered brain trauma playing football, hockey, soccer and other contact sports. ...

"College sports' governing body also agreed to implement a single return-to-play policy spelling out how all teams must treat players who received head blows, according to a filing in U.S. District Court in Chicago."

And that's certainly a good place to start. As is the NCAA's decision to allow athletes to sue individually for damages, their cases strengthened by the results of the NCAA-funded tests.

In other words, the NCAA is going to evaluate your injuries for free, then you can take the results and sue the pants off the bad guys at Big State U. that turned your brain into tuna salad to win a few extra games.

Beyond that, the settlement applies to every man or woman who ever played basketball, football, ice hockey, soccer, wrestling, field hockey or lacrosse at an NCAA member school over the past 50 years.

Is it enough if you're one of the plaintiffs in this case, say former Eastern Illinois safety Adrian Arrington, and you suffered five concussions during your college days, some so severe that he claims he couldn't recognize his parents afterward?

If your life has become an endless stream of headaches, memory loss, seizures and depression so severe that you can't hold a job or take care of your children -- as Arrington claims -- does this change your downward spiral?

Can a financial reward from Eastern Illinois, the NCAA, or both give you back the life you might have had if you'd never been allowed to suffer a third, fourth or fifth concussion after the first two?

Probably not. And the fine print is important here. While the NCAA settlement -- if eventually approved by U.S. District Judge John Lee -- covers the screenings (estimated to be a $4,000 value), the athlete would have to pay for treatment, presumably from the money won suing his college or university.

Making matters worse for those who may need help most, ESPN reported that those suffering brain traumas before 2004 may have a difficult time collecting anything, since it wasn't until then that an international conference in Zurich, Switzerland, came to a consensus on how to manage concussions.

Steve Berman, one of the lead attorneys for the plaintiffs, told ESPN, "The NCAA did not implement those standards, and we believe they had a duty to do so. In 2004, people realized that concussed athletes should never return to play that day and that certain steps needed to be taken before they could return to play."

How many concussed athletes? Thousands. From 2004 to 2009 alone, according to NCAA data, nearly 30,000 athletes suffered concussions. Under the settlement, all those athletes will be sent a questionaire. If the medical experts deem the answers in those questionaires add up to trouble, the athlete is free to take the $4,000 test.

This is where the devil is in the details. If all of those nearly 30,000 athletes from 2004 to 2009 alone are found to need the $4,000 evaluation, you're looking at over $1 billion in costs rather than $70 million. Beyond that, to take the case of Arrington, what if a sympathetic jury awards him $5 million or more? Should even a fourth of the NCAA's 1,000-plus member schools have to pony up a few of those each, we're talking a lot of athletic departments suddenly serving up a lot of canned tuna instead of grilled tuna steaks to their athletes.

Nor should anyone believe the NCAA has suddenly developed a heart and soul and an ocean-sized case of guilt.

Joseph Siprut, the lead attorney for the plaintiffs told media outlets that that stricter oversight and return-to-play rules were necessary to ease the fears of parents currently inclined to not let their kids play.

Said Siprut: "Changes were necessary to preserve the talent well of kids that feeds the game of football. Absent these kinds of changes, the sport will die."

And without football, how would schools ever find the money to pay the lawsuits that result from football? (Forgive me for that Steven Wright moment.)

So it's not perfect. Especially for the older crowd. Perhaps Judge Lee can find a fairer solution.

But at least it's a start. Just once, though, why can't those with the power and money to do the right thing agree to do so before they have to settle a lawsuit? Why can't somebody, anybody become a Good-Guy Corporation on the front end?

Contact Mark Wiedmer at mwiedmer@timesfreepress.com

about Mark Wiedmer...

Mark Wiedmer started work at the Chattanooga News-Free Press on Valentine’s Day of 1983. At the time, he had to get an advance from his boss to buy a Valentine gift for his wife. Mark was hired as a graphic artist but quickly moved to sports, where he oversaw prep football for a time, won the “Pick’ em” box in 1985 and took over the UTC basketball beat the following year. By 1990, he was ...

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