Typically, a plaintiff who has a chance to settle a lawsuit knows the size of the bird in the hand — even if the size and number of proverbial birds in the bush remain a mystery. For former players with actual cognitive injuries due to concussions, they’ll have to decide whether to opt out of the proposed concussion settlement without knowing what they’ll get if they take the deal.
While it’s good that only players with real injuries will share in the $675 million fund aimed at compensating players, it’s not so good that the players with real injuries won’t know what they’ll be getting before they have to decide whether to opt out and, in turn, what they’ll be giving up if they do.
It makes the decision whether to opt out even harder, and it could make some of the plaintiffs more inclined to roll the dice on the litigation.
In the end, all it takes is one plaintiff with a serious cognitive injury to decide to keep pushing. And if that player happened to suffer his serious cognitive injury between 1987 and 1993, when there was no Collective Bargaining Agreement between the NFL and the NFLPA, his case could be able to get past the league’s effort to get the lawsuit sent to arbitration.
It could be a long fight. The plaintiff(s) who decide to continue to pursue the lawsuit could eventually lose. But if the plaintiff(s) who opt to opt out can keep the case alive long enough to find out what the NFL knew and when the NFL knew it and, eventually, to push it through to a jury, who would decide the case based on sympathy and other factors that could result in the kind of verdict the NFL desperately wants to avoid.