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Examining what happens next in NFL concussion lawsuit settlement

SI Now: The NFL and ex-players reach settlement
On Thursday's SI Now, Sports Illustrated legal analyst Michael McCann weighs in on the NFL and ex-players recently settled agreement.

Through mediation, the NFL and more than 4,500 retired players and their family members have reached a proposed settlement in the class action litigation over concussions and other neurological harm. The proposed settlement would pay reportedly $765 million, of which as much of a third would be paid to the plaintiffs' attorneys (they may instead receive fees as a separate amount). Remaining settlement money would pay direct compensation to players, while other parts of it would be used to fund medical exams and medical research. It is unclear how much money each NFL team would pay as part of the settlement, as the league's own resources would likely contribute, but each NFL team owner can expect to write a sizable check.

Court Approval Process

U.S. District Judge Anita Brody has to approve the proposed settlement for it to take effect. It will not be a rubber stamp process. Expect Judge Brody to raise detailed questions about the adequacy of the amount and how money would be distributed. For instance, would all retired players and their families get paid the same? Or would payment depend on such considerations as: years played in the NFL; position played and level of contact associated with the position; present and expected health needs of individual players; and number of family dependents of individual players?

Judge Brody will also want assurances on how quickly payments would start and whether payments be staggered or paid in full. These are serious and difficult questions, answers for which dramatically impact how much each individual player and his family would receive from the NFL through the settlement. Judge Brody will question attorneys for the retired players and their families that their clients are truly comfortable with the settlement's terms.

A Victory for Retired Players and their Families

Although some commentators are surprised that retired NFL players did not receive more money in the proposed settlement, keep in mind the alternative. Had the retired players continued the litigation, it is possible that some or all of the claims in their lawsuit would have been dismissed by Judge Brody.

Beyond the threat of dismissal, going to trial may have proven unsuccessful. The league was prepared to argue that the players' claims are barred by the fact that players, through their union, agreed to health protocols and waivers of legal rights as part of the collective bargaining agreement. The league would have also attacked causation: retired players played years of football before entering the NFL and their neurological injuries may have been caused in part or in whole by their college and high school days. Non-football activities, diet and genetic predisposition may also be causes.

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The complicated science could have enabled NFL attorneys to convince a jury that there is no real certainty for the cause of any one player's neurological problems and thus their claims should be rejected.

Even if the players won a trial, there would have been appeals that lasted years and threatened reversal. It is not a stretch to say that had the retired players instead litigated, some of them may have died before they were ever paid. For other retired players, a delay in payment would have meant they could not afford to pay for certain treatments. A settlement, provided it is approved, avoids these worries and ensures that retired players are paid.

A settlement would not bar future lawsuits by other players. In order for the settlement to have such legal effect, the NFLPA and NFL would need to collectively-bargain an agreement that the settlement has such an effect. This agreement would be amended to the collective bargaining agreement and would be incorporated by reference into the CBA. There is no indication yet whether the NFL and NFLPA will reach such an agreement, but expect it to happen at some point.

A victory for the NFL

By settling, the NFL also gains considerable benefits. The league avoids further litigation of a lawsuit that has threatened billions of dollars in damages and dramatic effects on team insurance costs. For team owners, they were faced with the possibility of paying some of those damages and also seeing their franchise values potentially drop. While the league was optimistic it would prevail in litigation, there was no guarantee it would. By settling, the league obtains control over the controversy and prevents the prospect of jury of a dozen people from dictating the league's future.

Through a settlement, NFL also sidesteps any potential damaging disclosures in the pretrial discovery process. The league was alleged to have engaged in fraudulent conduct to conceal a concussion epidemic. Had documents that reflect poorly on league officials and team owners surfaced in discovery, they may have irreparably harmed the reputations of many connected to pro football.

Along those lines, the NFL can now minimize the public relations damage caused by the litigation. This is true not only for purposes of fan attitudes and media commentaries, but also -- more importantly -- in regards to members of Congress. Members of both political parties have increasingly signaled concern over the health of retired NFL players and the perception that football is too dangerous. Settling the lawsuit does not end the broader question of whether football is too unsafe, but it likely removes from the table potential legislative proposals directly adverse to the NFL. The NFL, like the NBA, NHL and MLB, enjoys exemption from antitrust scrutiny for national broadcasting deals with the networks through the Sports Broadcasting Act of 1961. Rumors of connecting that continuation of the exemption with the health of retired players are now likely to wane.

Photo: Matt Rourke/AP

Former NFL players Dorsey Levens (right) and Kevin Turner were at an April news conference with Mary Ann Easterling, the widow of former NFL player Ray Easterling, when the concussion lawsuit was gaining steam.

Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.

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