August 30, 2013

The NFL Concussion Settlement

By Art Hinshaw

I haven’t had the time to review the terms of the NFL’s concussion settlement with former players, but I’ve heard a lot of news coverage of it.  On the Valley’s two morning drive-time sports talk shows (one local, one national) there was a lot of talk about the settlement and judging of winners and losers.  It was odd hearing discussions of the pros and cons of settlement in this forum, but I loved it.  Who knew that people in the sports world could echo Owen Fiss (Against Settlement) and Carrie Menkel-Meadow (Whose Settlement Is It Anyway?) so well?

There was a thoughtful discussion with former NFL players about causation issues, waivers of claims for injuries against the league, and the dreaded free riders who could be compensated.  On the other side a sports business analyst discussed the economic benefits for team owners.  After his discussion of how the settlement is supposed to work, I couldn’t help but think of this as any other mass tort compensation system – workers compensation, injury vaccine fund, 9/11 Fund, etc.  There was also serious criticism of the settlement from those who want transparency – what did the league know about concussions and when did they know it? – and from those who think the amount of money involved is way too low.

Here’s a straight news story of the settlement, here’s a good overview of the settlement and why it’s a win-win, here’s a story on why it’s a win for the NFL’s owners, here’s a piece on some players and agents who think it’s not enough, and here’s a Q & A with a legal analyst.

Finally, the mediator was California lawyer/mediator Layn R. Phillips, a former Federal District Judge.  I bet his mediation calendar is filling up fast.

Hat Tip – Sean Nolon

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Comments

  • Peter says:

    Hey Art here’s an article questioning what the NFL really knew about concussions:

    http://fadedhype.com/profiles/blogs/the-breakdown-charade-of-safety

  • Casey Shorts says:

    This settlement (much like most settlements) is a double-edged sword.

    Plus side: the former players get $ for medical payments and suffering in a rather quick manner, avoiding years of litigation. While the NFL essentially gets off the hook with a minimal amount of $ forked over without ever admitting fault. On the surface an overall win for mediation.

    However, I believe the mediation results, similar to massive pharmaceutical drug settlements, lack a major deterrence factor.

    This settlement does little to nothing to deter the NFL from exploiting its players and changing its current practices (i.e. the minimal amount of money the NFL has dedicated to “research”). ESPN, NFL network, NBC, FOX and CBS, will continue to replay big illegal de-cleating hits, and the NFL will fine that player on the field $50,000. Meanwhile, the NFL will continue to collect on advertising through huge television ratings and its merchandising industry (likely selling in big numbers the jersey of the player who it fined for the “illegal” hit (read, James Harrison)).

    In the long run the NFL wins out. The NFL will continue to make massive amounts of money from it’s players. It’s lawyers will also now saddle up and ensure that each team, player and the NFLPA, understands the boundaries of what it can and cannot expect come the next herd of injured players that decide their brains were exploited.

    Additionally, I wonder how this settlement will affect college sports, and if there is likely any soon-to-come suits between former players and their former teams. I understand that College players are not paid and do not have the benefit of a players union. However, the NCAA would look incredibly poor if there are real damages to former players who received close to nothing to play, yet suffered very consequential injuries effecting their life years down the road.

  • Marcus Hirsch says:

    The latest round of the NFL Collective Bargaining Agreement negotiations focused on how the players and owners would split up $9.25 billion in revenue. That’s “billion” with a “b.” The NFL has so many different streams of revenue coming in, from sponsorships to apparel to huge television contracts. In fact, stadium attendance, concessions, and parking can almost be looked at as extra bonus revenue, instead of essential cashflow for the owners. With just 16 regular season games, the NFL product has always been a hot commodity in the supply and demand flow. And over the last several years, broadcast revenue has increased even further with the league-run NFL Network adding Thursday Night Football broadcasts.

    It is widely accepted that the average NFL player career is around 3 years. What this means is that the NFL product has continued to be in high demand regardless of the name on the back of the players’ jerseys. The fact that concussions’ seriousness has been brought to the forefront of the public’s eye only recently is hardly indicative of the medical community’s understanding that repeated traumatic impacts to the human brain, especially in short succession, is extremely dangerous, and can have devastating long-term physiological impacts.

    Whether the higher-ups at the NFL were fully aware of these long-term dangers of concussions is not really the issue of the settlement; what is the issue is that the NFL was able to avoid a very public and potentially very embarrassing experience in court. Now, this seems like it will, at least temporarily, quell the uprising of public outcry that the NFL is “unsafe” for players. Otherwise, the potential for knee-jerk reactions in game rules and altering the game of football to an unrecognizable product in the name of safety would have come to the forefront.

    In the end, the $765 million settlement is going to look like the cost of doing business for the NFL. While the retired players who are eligible for the payments will surely benefit, future retired players will likely not see the anywhere near the same benefits as they would have had a judgment gone against the NFL, instead of a settlement.

  • David Ostrow says:

    As an avid NFL fan, it is apparent that concussions are a huge concern in the current NFL. An issue that is just as big, or bigger, is the affect of concussions on former players. There is not a good record of concussions by the players, or the affect that they have hand on these players’ lives, but it is know that there are problems. It is important that former players be compensated for the injuries that they may have obtained while playing and the lasting affect that the concussions have had on their lives. The players first filed a lawsuit in order to obtain compensation. While the case was going on, the players and the league were negotiating a settlement. I believe that negotiation was the best way to solve this dispute. The most important reason is that the NFL needs to have a good relationship with the former players. This relationship is continuous, and in a lawsuit, one or both of the sides could end up being very upset with the other one and that would strain future dealings. A second important reason is that mediation allows for solutions that are more creative. Anything is on the table as a solution in a mediation which benefits both parties. With mediation, there is a chance that both parties will be happy with the outcome. In this case, it seems as though the league is happier with the solution than the former players are.

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