Judge asked to reject settlement

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Sunday, August 24, 2014

CHICAGO -- A former San Diego State football player has asked a federal judge to reject the recently proposed $75 million settlement of a class-action lawsuit against the NCAA, saying it unfairly forces athletes who suffered head injuries to forfeit hundreds of millions of dollars in potential damages.

The request, which came in a late Friday filing in federal court in Chicago on behalf of Anthony Nichols, is the first in what's likely to be a monthslong approval process to raise questions about the deal, under which the NCAA would create a $70 million fund to test thousands of current and former athletes for brain trauma. It also sets aside $5 million for research.

The filing zeroes in on a settlement provision that would require football, hockey, soccer and other contact-sport athletes to give up their rights to seek a single, potentially blockbuster sum in damages as a class. They can sue as individuals, but the filing says most couldn't afford the legal costs and so won't.

"The proposed settlement is truly a rarity: a settlement where the class members get nothing but are forced to give up everything,'' according to the 28-page court document, submitted by one of Nichols' attorneys, Jay Edelson. "Injured student athletes will be ... left in the dust.''

Nichols, who says he suffered concussions while an offensive lineman for San Diego State from 1989 to 1992, is among tens of thousands of male and female athletes who would be covered by the sweeping class-action deal.

The first class-action suit was filed in 2011 in Chicago on behalf of former Eastern Illinois safety Adrian Arrington, and 10 similar head-injury suits were later consolidated into the one that was heard in federal court in Chicago. Arrington's lawyers took the lead in nearly a year of negotiations with the NCAA before the proposed settlement was announced July 29.

Under the settlement, the NCAA would also toughen return-to-play rules for athletes who receive head blows. Among other terms, all athletes would be given baseline neurological tests to start each year to help doctors determine the severity of any concussion during the season.

When the settlement was announced, one of Arrington's attorneys, Joseph Siprut, heralded it as one that would reduce the health risks to players. He added, "It's changed college sports forever.''

But Friday's filing describes the benefits to athletes as paltry compared to what the NCAA gains: legal protection from having to pay out what the filing argues could have been a billion dollars or more in damages.

The filing calculates there are as many as 4.2 million current and former college athletes who could theoretically be covered by the deal, but estimates that only around 3,500 will end up qualifying for and receiving the diagnostic tests.

"What makes the ... settlement so unique -- and so dangerous -- is that nearly 90 percent of the class will get absolutely nothing from the settlement and yet will give up valuable rights,'' the filing says.

Siprut defended the settlement Sunday, saying in a phone interview it would reduce the health risks to players.

He also denied negotiators left hundreds of millions of dollars on the table that could have gone to athletes. Legal obstacles, he said, would have made a single, massive payout impossible.

"When you are negotiating a settlement, you can't just pound the table and say, 'I want this and I want that,'" Siprut said. "If anyone says we should have gotten a billion dollars, they don't know what they're talking about."

The Chicago lawyer added there's no reason why thousands of athletes couldn't successfully sue the NCAA for damages. He says the diagnostic tests mandated in the settlement would help prove athletes suffered brain damage, boosting their chances of winning an individual suit.

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