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Thursday, August 29, 2013

Settlement in NFL concussion lawsuit

The class action against the NFL by more than 4000 former players, alleging that the league knew and failed to disclose the risks of head trauma associated with the game, has tentatively settled. Players will receive $ 765 million (plus court-approved attorneys' fees to be determined later) for individual compensation (reportedly about $ 110,000 per plaintiff), plus funding for research and medical examinations. The settlement was reached following court-ordered mediation, although the agreement still must be approved by the court.

Much is being made in some sports-media circles about the size of the settlement relative to the NFL's wealth, but, of course, civil damages are tied to the harm to the plaintiffs, not to the defendant's ability to play. We might question whether the settlement figure provides sufficient deterrence that the NFL will take real steps (as opposed to the cosmetic ones it has been taking) to make the game safer--assuming such a thing is actually possible (I have my doubts).

Like many other cases, this one also highlights the question whether settlement, especially in money cases, furthers the civil justice system's goals of discovering the truth. There was no discovery, so we never really learned what the NFL knows and has known about the game's risks or about what those risks actually might be (the answer to both is "a lot," according to a forthcoming documentary). We also have not heard the plaintiffs' stories told in a judicial forum (although we might not have). Of course, discovery in a case like this almost certainly would have been sealed, a regular practice that presents a different problem in modern litigation. And the plaintiffs' willingness to settle this early makes sense, because this case would have been a ripe target for a Twiqbal-based 12(b)(6) and a motion to send the entire issue to arbitration under the CBA.

Update: The prevailing view among sports columnists is that the NFL won huge, although this seems to be because legal experts predicted settlements of between $ 5 and $ 10 billion, so a figure of less than $ 1 billion is so paltry that plaintiffs' attorneys must have caved. So did they cave? Or does this just show the limited ability of "legal experts" to predict anything?

Posted by Howard Wasserman on August 29, 2013 at 06:40 PM in Civil Procedure, Howard Wasserman, Law and Politics, Sports | Permalink

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One NFL-Concussion Opt Out Could Save Generations
Force Disclosure of Information About Extent of Risk and Prevention

WASHINGTON, D.C. (August 30, 2013): One major problem the proposed settlement of concussion law suits creates is that the NFL will not be forced, through the normal process of pretrial discovery, to reveal its reportedly huge amounts of still secret information about the causes, symptoms, rates, and possible mitigation of injuries caused by concussions – information which could help generations of potential players to decide whether these risks outweighed the benefits of playing the game, and also possibly to detect very early symptoms of serious problems in time for players to give up the game before the damages becomes irrevocable.

But the industry could still be forced to make all of this information public if just one player simply opted out of the settlement to continue his own law suit – including pretrial discovery in which he could demand disclosure of secret studies and reports, require employees to testify under oath, etc.

This suggestion comes from law professor John Banzhaf, who was called the "Dean of Public Interest Lawyers," "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," and "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars."

While defeating the proposed settlement itself might be difficult, and possibly not in the interests of many of the older players already suffering from major medical problems, any member of the class covered by the suit is permitted by law to simply opt out of the proceeding, leaving him free to purpose his own law suit unrestricted by the terms of the proposed settlement.

In doing so he could benefit and help protect literally millions in future generations who might decide not to play football based upon risks which are now still not fully appreciated, or to stop playing earlier than otherwise based upon still-secret information about early detection of serious potential problems before they fully manifest themselves.

Such a player might be one whose concussion-related injuries are less serious than others and/or someone who has sufficient savings that he has less need of an immediate payout. It could also be someone who wishes to make a lasting contribution by helping to insure that many more generations of children and young men are not lured into playing a game where the risk of serious brain injury is just too great.

Any information from such a law suit – information which would not be made public under the proposed settlement – could also help spur the developments of safer football helmets, provide the basis for similar law suits against universities, etc.

Banzhaf says that any player willing to opt out and pursue separate litigation should be able to find lawyers like himself willing to pursue the case at no cost to the player.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf

Posted by: Law Prof John Banzhaf | Aug 30, 2013 10:49:52 AM

I think that this case should not be so much about money, but more about preventing future head traumas.

Posted by: Zane Becker | Aug 30, 2013 1:28:25 PM

What a shame. A jury verdict would have been the best way to raise awareness, prevent future injuries, and find better treatments. Right now, there are basically no effective, evidence-based treatments.

Posted by: anon | Sep 1, 2013 10:29:08 AM

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