Judge Anita Brody is putting the squeeze on the parties to the concussion lawsuits.
Previously expected to issue on July 22 a ruling on the key threshold question of whether more than 4,000 claims against the NFL will be dismissed in deference to the arbitration process created by the various labor deals between the league and the NFLPA, Judge Brody has ordered the parties to mediation, according to Daniel Kaplan of SportsBusiness Journal. Retired federal judge Layn Phillips has been appointed to preside over the effort.
Judge Brody has instructed the parties to report back to her by September 3, and she won’t issue a ruling on the pending motion to dismiss before then.
“I held an informal exploratory telephone conference with lead counsel,” Judge Brody wrote in the order directing mediation. “As a consequence, I order [the] parties, through their lead counsel, to engage in mediation to determine if consensual resolution is possible.”
On one hand, it’s possible that the lawyers said something during the call suggesting that a settlement could be negotiated. On the other hand, it’s possible that none of the lawyers wanted to appear to be unreasonable or unwilling to at least press pause on the litigation and consider a resolution that could be reached without Judge Brody issuing a ruling on the motion to dismiss.
Regardless, the pending ruling provides an obvious point for the parties to attempt to reach their own result before Judge Brody reaches one for them.
“We respect and will comply with the Court’s order regarding mediation and will be available to meet with Judge Phillips at his direction,” the NFL said in a statement issued to Kaplan.
Requiring parties to submit to mediation doesn’t mean the parties will be required to settle the case. They’ll be required to participate in the process in good faith, but if they don’t want to settle the case, they won’t.
It will be very hard to settle the cases, given the number of plaintiffs involved. And the NFL won’t want to settle with some of the plaintiffs. The NFL will want to settle with all of them, or with none of them.
And the NFL isn’t in the habit of settling with anyone. With multiple strong defenses at their disposal, the league may want to let this play out a bit longer before breaking out the checkbook.
Still, it’s possible that Judge Brody’s decision will be driven by the reasonableness, or lack thereof, that Judge Phillips detects during the mediation process. The potential connection between a bad attitude at mediation and a bad outcome to the pending motion dismiss could be enough to spark both sides to take this situation seriously, which could nudge the case toward settlement even if neither party wants to settle it.
Either way, every case has a dollar value at every step of the litigation. The challenge is getting the two sides to get to the point where they apply the same value to the settlement of the case.