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Patrick Hruby

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Breaking down the proposed NCAA concussion settlement

Sports on Earth

The National Collegiate Athletic Association agreed on Tuesday to a proposed settlement of a class-action concussion lawsuit brought by several former athletes -- a deal that would establish rudimentary association-wide concussion management guidelines and provide medical monitoring for ex-players, but not offer cash awards or treatment for the afflicted.

How does the tentative agreement break down? A quick look at the good, the bad and the unsettled:

A More Honest Assessment

Let's start with the good news. The proposed settlement calls for the NCAA and its insurance companies to spend up to $70 million on a 50-year medical monitoring program open to all current and former association athletes -- about 4.2 million people -- that will screen for long-term brain damage resulting from concussions and repeated sub-concussive hits to the head.

Here's how the program will work: Former athletes will be asked to self-report both symptoms and their medical, concussion and athletic histories via a questionnaire to a settlement medical science committee, which in turn will design an algorithm to score questionnaires and determine if those athletes qualify for specialized, in-person neurological tests that could cost as much as $7,000 per person. The program will cover those costs, and participants will be able to take at least two exams during the agreement's 50-year lifespan.

What will the screening program be looking for? That's the really good news. Unlike the proposed National Football League concussion settlement -- which limits its definitions of and compensation for brain damage to cognitive impairment and a handful of specific, worst-case neurodegenerative diseases -- the NCAA deal actually seems to acknowledge the wider spectrum of neurological illnesses and ailments that can result from head trauma:

… the Medical Evaluation will be designed to assess symptoms related to persistent post-concussion syndrome, as well as cognitive, mood, behavioral, and motor problems which may be associated with mid- to late-life onset diseases, such as [chronic traumatic encephalopathy] and related disorders … (bold added)

This matters. Parkinson's disease is awful. So are amyotrophic lateral sclerosis (ALS), Alzheimer's and dementia, the other conditions covered by the proposed NFL agreement. However, they're far from the only health problems associated with brain damage. Think chronic migraines, ceaseless ringing in the ears, emotional explosiveness, difficulty focusing and paying attention to things, an inability to multitask -- like driving to swim practice with your children in the back seat -- without being inexplicably overwhelmed. Or take CTE, which often causes mood and behavior disorders in younger patients, sometimes years before they develop memory and cognitive issues. That the NCAA is promising to screen for these symptoms is both commendable and overdue; it makes the NFL failure to follow suit look even worse, as if League of Denial is less a book with a closing chapter than a denial-driven, liability-limiting legal and public relations game plan that remains in full effect, albeit with a slicker, mom-friendly propaganda.

Of course, there may be a simple reason the association's stance toward sports-induced brain damage is so much more liberal …

No Money, More Problems?

Zilch. Nada. Bupkus. If you're a former college athlete with brain damage and/or a neurodegenerative disease, guess what: The proposed NCAA settlement will pay for your diagnosis. And that's it. Not a nickel for treatment. Not a dime for pain and suffering. The deal's medical monitoring fund isn't matched by an award fund, which means the truly injured are on their own -- including name plaintiffs Adrian Arrington and Derek Owens, who both suffered concussions and sub-concussive hits playing college football and currently suffer from chronic headaches, short-term memory problems, depression, trouble concentrating and other issues.

Perhaps unsurprisingly, CBS Sports college football writer Jon Solomon reports that some player attorneys are unhappy with the proposed deal:

Attorney Jay Edelson, who represents former San Diego State football player Andy Nichols and former Pittsburgh football player Frank Moore, said there is a "large camp" of attorneys and clients who are very concerned about the settlement and plan to oppose it.
"What the case was originally about was people who suffered real injuries from concussions," Edelson said. "If you look at the NFL settlement, and I'm not taking a position whether it's good or bad, there's going to be people who gets hundreds of thousands of dollars of cash. Here nobody is getting anything. I think we lost focus of what the purpose of the case was: get cash in people's hands."
Edelson said the idea that players with concussion-related symptoms can fill out a questionnaire and possibly get another medical evaluation "doesn't do them any good. Having another doctor say they have medical issues? So what?"

In a motion for preliminary settlement approval filed with federal judge John Z. Lee, the players' attorneys who negotiated the deal counter that certifying a damages class would have been "unsupportable" -- and moreover, former athletes covered by the settlement would still be able to pursue personal injury lawsuits against schools and the NCAA, something Arrington and Owens plan to do.

Speaking with The New York Times, Edelson questioned the viability of that strategy. A class action suit can be a hammer; an individual case is a pinprick.

"It's going to be tough to find a lawyer to fight against the NCAA's machinery when you're talking about only $20,000 in damages," Edelson told the Times. "This is going to snuff out the vast majority of claims."

Translation? Expect objections, opt-outs and additional legal wrangling before any deal is finalized -- and if damage awards ever become part of the agreement, expect the type of brain damage covered by the screening process to be significantly narrowed.

Do the (Obviously) Right Thing?

The proposed settlement's other main piece involves brain trauma protections for current and future NCAA athletes. Under the terms of the deal, the association will make the following changes to its concussion and return-to-play policies:

• Institute preseason baseline neuropsychological testing for all athletes;

• Require all schools to have medical personnel with "training in the diagnosis, treatment, and management of concussion" present at all contact sport games, and also "available" at all contact sport practices;

• Create a concussion reporting system for all cases of diagnosed concussions and their resolution, and also a whistleblower system that allows athletes and their parents to report concerns about concussion management directly to the NCAA;

• Provide NCAA-approved concussion education and training to athletes, coaches, athletic trainers and faculty;

• Donate $5 million over a 10-year period to concussion research;

• Prohibit any athlete diagnosed with a concussion from returning to play or practice on the same day they were concussed.

If all of the above sound like no duh provisions -- the equivalent of the old Chris Rock joke about a father bragging about taking care of his children, even though that what he's supposed to be doing -- well, yes. That's exactly what they are: A bunch of obvious health and safety measures the NCAA already should be carrying out. No same day return to play in 2014! How bold! Problem is, the association hasn't actually been doing much of anything, instead relying on a concussion policy that pretty much states that members schools have to have a concussion policy on file.

And no, I'm not minimizing for comic effect. As I noted last year, within the NCAA's voluminous, 400-page rulebook, the word concussion appears three times -- 76 fewer times than the word meals.

Oh, and there's another issue, one pointed out by college athlete advocate Ramogi Huma, who has been lobbying the NCAA and its member schools about concussion reform for years. If you read the actual settlement, it doesn't require the association to immediately adopt the listed protections -- instead, it simply states that the NCAA's Executive Committee will "will recommend that the governing bodies of Divisions I, II, and III pass legislation requiring member schools to certify that they have a concussion management plan in place" that meets the same requirements.

Will schools vote for the new requirements? Probably. Do they have to? Nope. Moreover, the provisions don't come with any actual teeth. None of the hard-boiled rule enforcement the NCAA typically reserves for, you know, policing appropriate pasta portions and other amateurism violations. (Do not mess with the association's money). If schools fail to abide by concussion protocols and place athletes in harm's way -- like the time former University of Arizona quarterback Matt Scott absorbed two hits to the head during a single play against USC, vomited on the field and remained in the game to throw the winning touchdown pass -- they won't be sanctioned. Won't lose scholarships. Won't go on probation.

"It's not mandatory," Huma says. "They're not implementing it as mandatory rules. And even if the NCAA adopts them, if you look at it, there is no enforcement mechanism. If a player reports it, the NCAA won't have any way to punish the schools. There are other problems as well. No mandatory reduction in contact in practices. No independent doctors on the sidelines. Those are things the NFL is already doing."

Sports-related brain trauma acknowledgement and care rule of thumb: If the same NFL that still employs Elliot Pellman as a medical advisor has adopted an athlete-protecting measure before your organization has, you're probably just a bit behind the curve.

Conflicted Interest

Speaking of independent doctors, the proposed deal calls for a four-member, court-appointed medical science committee to oversee implementation of the medical monitoring program. Members are to be "medical experts with expertise in diagnosis, care, and management of concussions in sport and mid-to late-life neurodegenerative disease," representing the fields of behavioral neurology, neuropsychiatry, neuropsychology, neurosurgery and athletic training. Not a liability lawyer in the bunch. Sounds good. The committee will prepare and review both the medical questionnaire and subsequent in-person tests, and amend them on a yearly basis to account for scientific progress. Sounds even better.

(Once again, the tentative NCAA settlement trumps the NFL one, as the latter only allows administrators to meet once every 10 years to make changes in light of medical advances, and even then does not allow any changes to the qualifying diagnoses that actually pay out cash awards. As if science will not achieve a better and different understanding of brain damage over the next 65 years. Ahem. Back to your regularly-scheduled programming).

Thing is, there's a potential catch: The NCAA agreement also calls for Brian Hainline to be appointed to the initial medical science committee. Who's Hainline? The association's chief medical officer. Which could be problematic.

Consider: you're a former college football player. A trainer misdiagnosed your concussion, a coach put you back on the field, you gutted out your senior day, and now you have post-concussion syndrome. Or perhaps symptoms consistent with CTE. You have a hard time holding down a job. A hard time supporting your family. You want to file a personal injury lawsuit against the NCAA and/or your alma mater.

Do you really want to participate in a medical monitoring program at least partially designed and influenced by a paid, high-ranking employee of the organization you plan to take on in court?

Look, I'm not saying that Hainline is up to anything shady. Or that he doesn't have the best medical interests of athletes at heart. I'm just saying it looks like a pretty obvious conflict of interest - and if former players can potentially file damages claims based on the information coming out of a diagnostic program involving Hainline, they (and their lawyers) might want to think twice about having him involved. Particularly given Hainline's indeterminate ties to the NFL's Pellman, which I previously noted:

… [Hainline is] a former professional colleague of former New York Jets team doctor Elliot Pellman -- a key figure in League of Denial, one-time head of the NFL's concussion-denying, junk science-producing Mild Traumatic Brain Injury Committee, a man who authored papers concluding that concussions "are not serious injuries" and that "many [concussed] players can be safely allowed to return to play on the day of injury."
Last July, Hainline defended the NCAA's foot-dragging on requiring that concussed players not be allowed to return to play on the same day as their injuries, telling The Chronicle of Higher Education's Brad Wolverton that until the end of 2012, there was not a widely accepted medical consensus on same-day returns. To support his position, Hainline noted that "one closely watched set of guidelines suggested that players should not be returned on the same day -- but left open a window for adult or elite athletes under special circumstances."
About those guidelines: Hainline was referring to the 2009 Consensus Statement from the Third International Conference on Concussion in Sport, a document that cites the American Academy of Neurology, the U.S. Team Physician Consensus Statement and the U.S. National Athletic Trainers' Association, all of whom advise against same-day return. As for the aforementioned "open window?" The consensus statement contained a single sentence, footnoted by a single paper studying American professional football players. A paper authored by -- you guessed it -- Pellman and the NFL committee …

Caveat emptor, former athletes.

Numbers Game

Last but not least, an economic, actuarial and medical report filed in support of the proposed NCAA settlement deserves individual attention. Created by The Analysis Group, the document purports to show that the $70 million fund will be sufficient to cover 50 years of medical monitoring expenses.

How so? By crunching numbers. Working with sports concussion pioneer Dr. Robert Cantu and using published NCAA concussion data, the report's authors estimated that:

• Of the approximately 4.2 million former NCAA athletes covered by the proposed settlement, 1.8 million played contact sports -- with 700,000 members of that group playing football;

• Between 10 percent and 25 percent of the contact sport group may end up applying for medical monitoring over the 50-year life of the deal;

• For a period that covers college sports careers beginning between 1956 and 2008, approximately 10-50 former athletes per year will be diagnosed with post-concussion syndrome;

• For a period that covers college sports careers beginning between 1956 and 2008, approximately 50-300 former athletes per year will be diagnosed with CTE;

• The cost of testing each athlete for post-concussion syndrome and CTE -- not treating, just testing -- will be between $1,500 and $5,000, depending on the use of neuroimaging technology.

Why does this matter? Easy. It's one of the first estimates we've seen of the potential incidence and prevalence of long-term brain damage in a contact sports-playing population. Which also makes it one of the first stabs at quantifying the risk of playing those sports. Should your son play football? Should your daughter's soccer league allow headers? Numbers like these -- as imprecise as they likely are -- can help you make an informed decision. The kind of informed decision the sports industry -- from the NFL to the NCAA to helmet makers to league-funded-and-dependent scientists -- too often seems afraid of. Indeed, the proposed NFL concussion settlement also has a supporting report, focused on the risks of professional football, calculated and prepared by experts. Or so the league and the top plaintiffs' lawyers claim. Only they haven't shown their math to the public. Or the press. Or any retired players. In fact, they haven't even shown it to most of said players' lawyers, even though at least one of those lawyers, Tom Demetrio, repeatedly has asked a federal judge to take a look. So give the NCAA a bit of credit: unlike the NFL, at least the association is willing to show its work.

Read the original article at Sports on Earth