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    April 2020

    New Concussion Management Requirements for NCAA Institutions

    Colleges and universities face new athletic concussion compliance requirements if they wish to be released from liability under a recent settlement agreement. The agreement, which occurred in a federal class action lawsuit related to concussion management and medical monitoring brought by former NCAA student-athletes, requires:

    • NCAA members to create1 a medical monitoring program for former NCAA student-athletes who are part of the settlement class
    • NCAA members to establish concussion protocol provisions that will allow them to be released from certain liability claims going forward if they certify compliance
    • The NCAA to establish additional education practices and reporting channels

    For NCAA members to be released from certain liability claims under the settlement agreement, by May 18, 2020 (six months from the settlement’s effective date), institutions must certify that they have adopted specific concussion management protocols. Institutions that do not complete this certification could become vulnerable to concussion-related medical monitoring claims and other class-action claims related to concussion or sub-concussive hits or contact during collegiate sports.

    Review this summary of settlement provisions with legal counsel, as well as any guidance you have received from the NCAA, to ensure your institution can certify compliance by May 18.

    Note that in March 2020, the NCAA posted FAQs and certification instructions for how to comply. See below for details.

    The Medical Monitoring Program

    The settlement’s main goal is to establish a medical monitoring program for people who played a sanctioned sport at an NCAA member institution on or before July 15, 2016. The program will offer medical screening to these former student-athletes for symptoms related to persistent post-concussion syndrome as well as cognitive, mood, behavioral, and motor problems that may be associated with mid- to late-life onset diseases that may be linked to concussions or sub-concussive hits.

    If your institution certifies compliance with the settlement provisions, it will avoid liability for:

    • Any claims by the settlement class members seeking damages or relief for medical monitoring for concussions or sub-concussive hits or contact
    • Class-action claims relating to concussions or sub-concussive hits or contact sustained during collegiate sports as an NCAA student-athlete

    Student-athletes can still bring other claims, including individual personal or bodily injury and class-action claims for injuries in a single sport at a single school. Indeed, some “single-sport, single institution” putative class-action lawsuits for football players’ bodily injuries are pending against the NCAA and many conferences and institutions2.  

    Certification Requirements

    By May 18, 2020, NCAA member institutions must certify to settlement representatives that their concussion management plan includes specific return-to-play guidelines. Many NCAA members already use some aspects of the required return-to-play protocols, as they are similar to current NCAA best practice guidance, but institutions still should obtain legal or risk management advice in updating their concussion management plans to conform to the requirements of the settlement agreement. The NCAA has provided step-by-step instructions and FAQs about the certification process, which can be completed on a website managed by a third party settlement administrator.

    The following is a summary of protocols NCAA institutions must certify they have adopted, as indicated in the Sample Certification Form:

    1. Prior to practicing or competing, NCAA student-athletes will undergo preseason baseline testing for each sport in which they participate.
    2. NCAA student-athletes diagnosed with concussions will not be allowed to play or participate in any practice or game on the same day in which the concussion was sustained.
    3. Any NCAA student-athlete diagnosed with a concussion by medical personnel must be cleared by a physician before being allowed to play in practice or competition.
    4. Medical personnel with training in the diagnosis, treatment, and management of concussions will be present at contact sports games and available during contact sports practices. The settlement defines these sports as NCAA men’s or women’s lacrosse, wrestling, ice hockey, field hockey, soccer, basketball, and football.

    This final protocol regarding medical personnel presence at games and availability at practices for contact sports may be a significant change for many institutions. Athletic departments should ensure adequate staffing and coverage for all contact sports practices and games.  

    Education, Training, and Reporting Obligations

    The settlement also places separate responsibilities on the NCAA. The NCAA agreed that it will:

    • Require members to provide NCAA-approved concussion education and training to student-athletes, coaches, and athletic trainers before every season for the 50-year duration of the medical monitoring period
    • Annually, provide members with educational materials for faculty regarding suggested academic accommodations for student-athletes who sustained concussions
    • Create two new reporting mechanisms (with details forthcoming from the NCAA):
      • For members to report concussion diagnoses and resolutions to the NCAA
      • For third parties, such as student-athletes and/or their parents, to report concerns about concussion management issues to the NCAA

    1This lawsuit is docketed as In Re: National Collegiate Athletic Association Student-Athlete Concussion Injury Litigation (MDL No. 2492 / Master Docket No. 1:13-cv-09116 (N.D. Ill.)). The agreement became effective Nov. 18, 2019.

    2See National Collegiate Athletic Association Student-Athlete Concussion Injury Litigation - Single Sport/Single School (Football) (Master Docket No. 1:16-cv-08727 (N.D. Ill.).

    More From United Educators

    Prevention and Protection Podcast: New Concussion Management Requirements for NCAA Institutions

    Concussion Awareness and Management Resources

    Additional Resources

    Arrington Class Settlement Information

    Guidance to the NCAA membership about the Arrington Certification Process

    Arrington Settlement: Online Certification Process Step-by-Step Instruction

    Second Amended Class Action Settlement Agreement and Release

    NCAA Student-Athlete Concussion Injury Litigation Website

    NCAA Concussion Diagnosis and Management Best Practices

    By Christine McHugh, senior risk management counsel


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