‘Not Perfect, But Fair’

Tuesday April 19th, 2016

The NFL’s leading voice on player health and safety, Jeff Miller, can exhale. His admission in front of a Congressional roundtable in March that there is a link between playing football and contracting CTE did not affect the Third Circuit Court of Appeals’ review of the NFL concussion litigation settlement, a deal that was affirmed by the appellate court on Monday. The court’s endorsement concludes, for the moment, a long and winding process toward final resolution of the lawsuit by thousands of former NFL players and, will lead, eventually, to checks being sent out to retired players suffering various levels of cognitive and physical distress.

This settlement was first reached between the NFL and the plaintiffs a couple of years ago, although Judge Anita Brody rejected the $765 million cap on the total payout. Judge Brody then fashioned a more agreeable settlement without a cap although still based on a “grid” concept that awards compensation based on a formula calculating a player’s age, symptoms and NFL service. Final approval of that settlement came almost exactly a year ago, on April 22, 2015. However, a small number of players “opted out” of the settlement, and part of that group—termed the “Objectors” in the legal documents—appealed to the Third Circuit. After hearing the arguments in November, and noting Miller’s comments in March, the Court endorsed the settlement on Monday.

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The opinion reads as a homily to the NFL and the plaintiff attorneys for recognizing that there has been suffering from its game and for doing something about it, in the form of this compensatory system for retired players. It calls the settlement “not perfect, but fair” and one that is “a testament to players, researchers and advocates who have worked to expose true human costs of a sport so many love.” The NFL, which has been trying to put this settlement to bed for years, had to have been pleased with the language.

Former NFL fullback Kevin Turner, photographed in 2012. A key figure in the lawsuit brought by former players against the league, he died of ALS in March.
Gary Bogdon

As for Miller’s admission of a link between football and CTE, there were some in the league who were worried that it could have ripple effects as the court deliberated on the settlement. When I remarked on ESPN that I thought it would not affect the settlement, a team president texted me “I hope you’re right about that.” Fortunately for the league, and as I noted at the time, the court stood by Judge Brody’s comments that while CTE was not covered in the settlement due to it not being diagnosable prior to death, its symptoms—depression, dementia, etc.—were compensable through other diagnosed illnesses. The court also bought in to the NFL’s version of Miller’s acknowledgement—as opposed to the Jerry Jones or Jim Irsay version—that it was merely “conceding something already known.” Having said that, the language does speak to an “unavoidable conclusion” of a link.

As to the reasons why the retired players—save for the few who have opted out—settled in the first place, they are the same they have always been. First, pursuing litigation against the league would take years upon years, with the NFL delaying and creating great costs for the plaintiffs. Second, there would be countless adversarial and uncomfortable depositions of players and their families, not only probing into football played at lower levels but also asking questions about other injuries and habits that could be seen as having causal links to the player’s ailments. And perhaps most importantly, there were players suffering greatly, such as the now-deceased Kevin Turner, who needed financial assistance as soon as possible—although not soon enough for Turner. Now, assuming no lingering appeals by the Objectors—whether to the Third Circuit en banc (as a whole) or to the United States Supreme Court—the checks will, we think, start coming soon.

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As for continuing concussion lawsuits against the NFL, those who opted out can still sue, and, theoretically, active players can eventually sue as well. The opt-outs will face the same obstacles—years of litigation, interrogative depositions, etc.—as well as the fact that the settlement has been blessed by the Court of Appeals. Regarding current players, who are not covered by the settlement, the league’s recently instituted concussion protocols and head trauma awareness initiatives will make their prospects of suing later in life far more difficult than those for players from previous eras.

And speaking of those previous eras, the settlement will put to rest—legally if not morally—a time that was, well, simply not a good look for the NFL. “League of Denial” and “Concussion,” as well as the recent exposé in The New York Times that prompted threats of a litigation by the NFL documented a time during which there certainly appeared to be obstacles in seeking the truth on this important topic. The NFL is certainly now in a much better place with regard to head safety, but it cannot ignore that previous time in its history.

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The settlement, now careening towards final resolution, allows the NFL to avoid a major threat to its continued unrivaled prosperity. It avoids the potential of billions of dollars of exposure for an amount that will end up costing each team roughly $25 to $30 million, much of it covered by insurance. And the settlement, as we know, will provide no coverage for CTE and carries no admission of liability. The league’s lawyers will receive nice bonuses for this work, and the plaintiff’s lawyers will make—as per the settlement—more than $100 million without activating one deposition or paying one expert witnesses.

The hope here is that while legal liability may be extinguished, moral liability will continue to be monitored with proper diligence and vigilance.

• Question or comment? Email us at talkback@themmqb.com.

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