Big Law

Who Won in NFL-Retired Players Settlement?

Player safety has become a hot-button issue in the NFL all the way down to Pee Wee football due to reports of brain trauma associated with the sport.

With recent stories linking concussions to a number of post-career ailments, the National Football League is looking at rule changes, increased safety measures and more stringent rules about what players can and cannot do after getting a concussion.

Now, a “historic,” and apparently time and cost saving settlement between the league and close to 4,500 retired players has addressed some of these issues and changed the tone of the beginning of the 2013-2014 NFL season. However, there are still a few lingering legal questions and concerns about what the future of professional football will look like.

The NFL did not admit liability, and according to the summary of the agreement, neither side conceded that they may not have been able to win the case. Much of the NFL’s statement on the matter focused on the benefits retired players will enjoy and the good to come from funding for safety-related research.

According to information from an NFL statement released on Sunday, Aug. 29, a $675 million fund, among other pools of money set aside for medical exams and research, will be set up to compensate retired players who have suffered “cognitive injury.”

Carla Varriale, attorney with Havkins Rosenfeld Ritzert & Varriale, LLP, and a teacher of sports law and ethics in the Columbia University Sports Management graduate program, said the timing of the announcement was likely not an accident. “

The judge [Layn Phillips] encouraged settlement because it was time to strike while the iron was hot,” she said. “With a motion pending and the outcome uncertain, both parties were uniquely motivated- plus football season was about to start. Timing is everything.”

In an effort to avoid “spend[ing] the next 10 years and millions of dollars on litigation,” a settlement was reached, Phillips said. The judge said the cases, without an agreement, would have to be settled individually.

“[Prolonging that case] would have been great for lawyers, expert witnesses, trial consultants and others,” Phillips said. “But it would not do much for retired players and their families who are in need.”

Varriale said making sure not to admit liability works in favor of the NFL twofold. “[That] the NFL did not admit liability, including notice of the dangers of concussions and brain injuries, protects the NFL in the event of further litigation- a shrewd move from a legal and public relations standpoint.”

She added: “I think this is a win-win, but perhaps more so for the NFL. No admission of wrongdoing or ‘what it knew’ about the health effects of brain injury, $765 million [including medical expenses and safety and research funding] was economically advantageous.”

The players faced some uncertainty in the face of the motion to dismiss, but got a notable settlement that earmarks funds -perhaps a small amount in the scheme of things- for future research, she noted. “The lawsuit, however, is a success because of the awareness it brought to a problem that had previously been obscured- the lawsuit married science, law and public policy. I will be interested to see how what we have learned about concussions and brain injuries impacts youth sports-not just football.”

Phillips also addressed the possibility of future litigation. “For a variety of reasons, the underlying theory of this lawsuit about what took place in the past would be difficult to replicate in the future. Everyone now has a much deeper and more substantial understanding about concussions, and how to prevent and manage them, than they did 20 or even 10 years ago, and the information conveyed to players reflects that greater understanding,” she said.

“In addition, the labor law defenses asserted by the NFL would represent a very substantial barrier to asserting these kinds of claims going forward. The combination of advances in medical research, improved equipment, rules changes, greater understanding of concussion management, and enhanced benefits should, and hopefully will, prevent similar lawsuits in the future," Phillips says.

"Going forward, complete agreements with United States District Judge Anita Brody in Philadelphia will be filed. Brody will then schedule a hearing to consider granting preliminary approval to the settlement. If approved, notice will be given to the retired players and will schedule a hearing to consider final approval, according to information from the NFL."

Dan Sabbatino is an award winning journalist whose accolades include a New York Press Association award for a series of articles he wrote dealing with a small upstate town’s battle over the implications of letting a “big-box” retailer locate within its borders. He has worked as a reporter and editor since 2007 primarily covering state and local politics for a number of Capital Region publications, including The Legislative Gazette.

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