In many respects, the massive NFL concussion lawsuit is forgotten, but hardly gone. The flow of new claims has gone from a trickle to dust, and the anti-football factions in the media generally have seemed to surrender to the idea that, even if certain aspects of football are inherently unsafe, Americans routinely engage in far more inherently dangerous activities for far less (or no) money.
Players of every age now know the risks of playing football, and football players are still playing football. Likewise, football fans are still watching football. The gloom and doom predicted by many has yet to even begin to take root.
But the concussion litigation persists. Amid the potentially valid injuries sustained by former players are many men who surely view the process as a supplemental severance package, goaded by opportunistic lawyers who easily can make the case for healthy men making claims. Regardless of motivation, a key ruling that will determine the future — and drive the value — of the claims is coming in little more than a month.
A ruling on the NFL’s motion to dismiss the concussion cases is expected on July 22. The NFL believes that most of the claims are governed by the labor agreements between the league and the NFLPA. If the league succeeds, the claims will be sent to the arbitration process, which removes from the equation the possibility of a sympathy-driven verdict that could cripple the owners financially.
If Judge Anita Brody believes that the various labor deals don’t override individual player rights, then the lawsuits will persist, and the NFL should quickly get serious about settling them.
The donut hole for the NFL arises from the periods during which no labor deal was in place, such as after the failed strike in 1987 through 1993. Still, from a liability standpoint, the biggest potential problems for the NFL arise after the formation of the Mild Traumatic Brain Injury Committee in 1994, since the strongest arguments regarding failure to warn and/or protect players flow from the notion that the MTBI downplayed the risks of head injuries.
Before the litigation gets to the question of whether the league failed to warn or protect players, the preliminary legal skirmishes must be resolved. If/when the lawsuits survive the first challenge from the league, the next fight will relate to the many claims that apparently were filed after the application of the statute of limitations.