NFL Concussion Settlement Draws Immediate Backlash — But Legal Experts Say Players Did OK

$150,000 per affected player might not sound great. But lawyers following the case say that doesn’t mean the union got steamrolled.

Alex Brandon / AP

Not surprisingly given the league’s very questionable history of dealing with concussions, and its $9 billion in annual revenue, immediate online reaction to news of the NFL’s $765 million settlement to resolve concussion-related lawsuits with 4,500 former players was overwhelmingly negative. Football writers dismissed the proposed settlement, which breaks down to about $150,000 per player or estate, as laughably inadequate given the lifetime of medical expenses facing brain-damaged patients:

But Paul Haagen, a law professor and co-director of the Center for Sports Law and Policy at Duke University who has followed the case, said the settlement seemed fair given the potential troubles with the players’ case against the league, which would have required proving the NFL — rather than simply the game of football itself — culpable for the conditions of a variety of players with a range of health problems.

“The number that they’ve come up with looks to me like a pretty reasonable number,” Haagen said. “There are real difficulties with the case, with proof, with class certification, with a whole series of other litigation matters. And it would be extremely expensive to litigate.

“Obviously, it was much less than what it could have been if the plaintiffs proved their case. But it’s not an unreasonable number.” Haagen did add this: “It’s certainly a desirable outcome for the league.”

As recently as two days ago, Haagen suggested to The New York Times that the court might encourage a settlement because of the complexity of the case.

Among the complicating factors: the difficulty of finding evidence the NFL knew about the danger of concussions; players proving their medical issues came as a result of head injuries suffered while in the NFL and not, say, in high school or college; and the sheer breadth of players involved in the lawsuits — some who were Hall of Fame inductees and others who made it only onto a practice squad, among other issues.

Michael McCann, a University of New Hampshire law professor and director of the Sports and Entertainment Law Institute who’s generally an advocate for players, also reacted to the immediate criticism of the settlement, raising the additional point that the players’ union already has contractual agreements on health issues with the NFL in the players’ Collective Bargaining Agreement:

Matthew Mitten, a Marquette law professor and director of the National Sports Law Institute, also noted there had not yet been a ruling on the NFL’s argument that each player should be required to make their claims individually. That’s one more thing that could’ve gone wrong for the plaintiffs.

“That would have been an incredible complication,” Mitten said. “Because, in fact, there would have been a different issue in each individual case. A significant number of plaintiffs wouldn’t have recovered anything.”

Indeed, according to one plaintiffs’ lawyer, the incentive to get money to players as soon as possible was a consideration in the decision to settle.

If the judge approves the deal, as expected, then the NFL can start the 2013 season without the cloud of litigation and the former players can limp into the future certain there will be some financial help for their injuries. Even if some plaintiffs don’t like to the deal, Mitten said, the judge can still sign off on the settlement.

“It’s not uncommon in class-action litigation if some plaintiffs are unhappy,” Mitten said. “It’s an all things considered type of situation.”

While this particular chapter in the concussion saga looks to close sooner than expected, the contentious reaction to the news — and the issues both short- and long-term that remain in disupte, like the penalization of helmet-to-helmet hits, the on-field treatment of concussions, and what if anything can be done to mitigate the long-term risk of brain damage — indicate that the larger story won’t be over any time soon.

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