The NFL Concussion Settlement: Four Blunt Points

DeSean Jackson (10) of the Philadelphia Eagles lies on the field after suffering a concussion on Nov. 29, 2009 Photograph by Hunter Martin/Getty Images

The National Football League’s $765 million concussion settlement with thousands of former players contains several surprises. Let’s go to the replay for a closer look:

For all its flaws, class-action litigation sometimes works. Yes, yes, already-wealthy plaintiffs’ lawyers are going to reap an as-yet unspecified windfall, probably tens of millions of dollars. And down the line there will be ugly disputes over which brain-damaged victims get precisely how much money. Still, the proposed settlement shows how grouping hundreds of lawsuits can force a deep-pocketed corporate defendant to realize that doing the right thing is the financially smart thing, as well.

Paul Swangard, managing director of the Warsaw Sports Marketing Center at the University of Oregon, told our cousins at Bloomberg News that the settlement makes sense for the NFL because the league takes in nearly $10 billion in annual revenue and will make payouts over 20 years. “It’s a win-win in that it provides immediate relief to those who have suffered and played in an era where it appeared they were much more susceptible to this type of injury,” he said. “It puts money where it needs to go.” Without the courtroom pressure, the NFL wouldn’t have acted as swiftly or dramatically.

On the other hand, the settlement obscures hard truths. The adversarial system, in theory, unearths misconduct: Incriminating documents are disclosed, recalcitrant witnesses cross-examined. Legal compromise, in contrast, leaves buried secrets safely entombed. The plaintiffs in this case accused the NFL of seeking to suppress medical research linking on-field collisions to crippling and fatal illnesses. If it happened, that’s some seriously evil behavior. Now we won’t get a definitive answer.

The NFL denies wrongdoing, and the plaintiffs’ lawyers insist justice has been served, if in a rough-and-ready fashion. “This agreement will get help quickly to the men who suffered neurological injuries,” says Christopher Seeger, one of the lead lawyers for the former players. “It will do it faster and at far less cost, both financially and emotionally, than could have ever been accomplished by continuing to litigate.” Perhaps. But what did the NFL know, and when did it know it?

This thing ain’t over until the final whistle blows. Some players are going to object that the NFL is getting off too cheaply. They will have an opportunity to attack the pact in court, and the truce could still fall apart. A federal judge in Philadelphia must rule that the settlement is fair. “The devil is always in the details, and we shouldn’t assume that this will work,” says Ronald Katz, a partner with Manatt, Phelps & Phillips who specializes in sports law and complex litigation. The NFL Players Association has responded cautiously, saying that it looks forward to learning more about the pact.

Kevin Mawae, a retired center for the New York Jets and former president of the players’ union who isn’t part of the lawsuit, said on Aug. 29 on his Twitter account that players need to be willing to “go all the way and not settle.” He added: “To be very clear … $$$ is not everything … Information=knowledge=security.” If that that kind of defiance catches on, the legal fight could reignite.

The settlement could usher in a new era of maturity and reason on unavoidable risk. To its credit, the NFL has responded to increasing scrutiny by changing rules and improving sideline procedures to diminish risks associated with an inherently violent sport. The settlement, however, applies to former players—it does not protect current or future athletes. Severe risks remain not just for the pros, but also players at the college, high school, and pee-wee levels. “You’re not going to have neurologists on hand at most high school or Pop Warner games,” notes Katz, who is chairing a timely symposium on concussions at Santa Clara University’s Institute of Sports Law and Ethics on Sept. 12. “My parents wouldn’t let me play football, and that was before we know what we know now about the dangers of head injury. It’s still a dangerous game.”

And yet Americans love their football. Barry Sanders, a 10-time Pro Bowl running back, said on ESPN that, at least in the NFL, players know the hazards. Sanders retired after the 1998 season. His son plays on the Stanford University team. “It’s physical. There are no guarantees,” Sanders said. “No one is forced to play, and all you can do is explain what the dangers are and, like any other sports, you let kids and young men make their own decisions.” Common sense from a Hall of Famer.

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