Concussion litigation aimed at the NCAA has not reached NFL proportions, but former players and their lawyers seem to be exhausting all options.
Since the Adrian Arrington case out of Illinois surfaced two years ago and starts mediation Friday in Las Vegas, class-action suits in Tennessee and Indiana have followed. Bowling Green faces a lawsuit from former player Cody Silk, who claims he suffered several concussions as a result of improper school protocol.
Now, two former college football players who are asking courts to re-examine the Arrington case also consider litigation against individual schools "a potential option for us," Chicago-based attorney Jay Edelson says Tuesday evening.
"Since the NFL announced its concussion settlement, there's a lot of money involved and you have a bunch of lawyers smelling a pot they want a part of," Steve Berman, Arrington's attorney out of Seattle, told CBSSports.com on Wednesday.
Former Pitt offensive lineman Frank Moore (1994-97) and former San Diego State offensive lineman Anthony Nichols (1989-92) this week filed a petition for personal injury to be part of the Arrington case.
Edelson, the attorney representing those former players, said Arrington mediation focuses on 'medical monitoring' -- such as future health care costs -- instead of compensation for past injuries.
"We think personal injury is the whole case," Edelson said. "They have elected to abandon that portion of the case. Someone has to be litigating on behalf of those who have suffered personal injury to determine how much damage was caused by their negligence."
Edelson is prepared to file a separate case if necessary or consider filing suit against schools, which Berman thinks has a better chance than piggybacking on Arrington because law is "absolutely clear" you can't class-action certify a personal injury case based on the 1990s asbestos case AmChem Products Inc. v. Windsor that went to the Supreme Court.
The Arrington case set out to determine whether the NCAA breached its duty to students over brain-trauma management, Berman said, giving plaintiffs the chance to prove their individual cases later on.
"You can't do it on a class basis," Berman said. "(Edelson's) just wrong."
Edelson says Arrington lawyers originally sought personal injury damages but changed the tone. Berman should be reminded of the fudiciary duty to his clients, Edelson said. For context, Edelson said the NFL concussion suit is settled as a class action.
"In class action, what you have to show is overriding issues are common as opposed to individuals," Edelson said. "This is a mainstream position. We're asking for us to join in representing the common interste of clients."
Moore and Nichols are not plaintiffs in the Arrington case, but Edelson says they've suffered damages typical of "football players who were forced to play when they shouldn't be playing.' Several concussions forced Moore into depression and ruined his marriage, Edelson said, and Nichols' MRIs showed memory loss and other concussion-related symptoms.
Without personal injury as part of the case, "people are going to wonder what they've been fighting for," Edelson said.
The NCAA reportedly is prepared to mediate with the Tennessee case. Many concussion-versed attorneys believe the NCAA has closely followed the NFL's concussion strategy and might have consulted the league on the matter.
Anyone who doesn't believe concussions are a problem at the grassroots level should check out the National Academies' Institute of Medicine and National Research Council's latest report about a 'culture of resistance' in reporting concussions.
Athletic departments are bracing for the impact of concussion litigation. Many public schools are part of in-state insurance programs. "We're in a lot of conversations that could help put the university in a good position relative to lawsuits, but that's not a driving force for it," Cal athletic director Sandy Barbour said last month. 'What are we doing to help players? What are we doing to protect?"