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Judge who brokered settlement casts doubt on viability of future concussion cases

Gavel AP

One of the obvious questions arising from the concussion settlement is its impact, if any, on the rights of current players.

Technically, there’s none.  As a practical matter, there’s plenty.

The proposed concussion settlement applies to all retired NFL players as of the date on which Judge Anita Brody grants preliminary approval to the deal.  The settlement therefore does not encompass any players who are still playing at that time.

It means that, in theory, the current players could later sue.  But Judge Layn Phillips, who brokered the settlement, has made it clear that the courts will be taking a dim view of future allegations that the NFL concealed the impact of concussions or failed to protect players from head injuries.

“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,” Judge Phillips said in a Q&A document released in connection with the settlement.  “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.  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.”

The term “labor law defenses” refers to the threshold legal argument that drove the current settlement.  The league always will argue that these cases should be pursued through arbitration under the Collective Bargaining Agreement.  And it is a very, very strong argument to make.

Apart from that, there’s no longer any doubt that the players understand, and assume, the risks of concussions.  Liability, if any, primarily comes from putting a player back on the field before he has recovered from a concussion.  Given the NFL’s current protocol for returning players to action, any player who plays before he’s truly ready will have a lawsuit not against the league but against the doctor who negligently cleared him.

The biggest remaining donut hole for the NFL comes from its procedures for spotting potential concussions during a game, removing the player for an evaluation, and if necessary shutting him down for the rest of that game.  To date, the NFL has erred on the side of letting a concussed player play over inadvertently removing from a game a player who actually didn’t have a concussion.

Absent a catastrophic outcome, look for the NFL to continue to resist a process that could, for example, take a franchise quarterback out of action for 10 minutes of real time in a big game while he’s properly checked in the locker room for a concussion he ultimately doesn’t have.

Thus, the NFL has gotten to the point where there are few avenues for potential liability — and probably no situations where the NFL would have to answer allegations arising from concussions before a jury.

Regardless of whether the NFL has won or lost in the proposed settlement, the stage has been set for the NFL consistently to win when it comes to any current or future players who try to sue for concussions.

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12 Responses to “Judge who brokered settlement casts doubt on viability of future concussion cases”
  1. pats3rings says: Aug 29, 2013 3:16 PM

    “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,” Judge Phillips said

    Assuming the NCAA follows suit and settles their concussion lawsuit and that going forward NO ONE can ever say again that they didn’t fully understand the dangers of football can we finally put to rest the “concussion crisis”???? The possibilities of future lawsuits are dead, and unless “they” (they being the people of this country who insist upon saving people from themselves) attempt to ban youth football, the game lives on? This is a good day for all of us you played and love this wonderful game……. LONG LIVE FOOTBALL!

  2. mburkett1980 says: Aug 29, 2013 3:21 PM

    …hence all the rules changes and “defenseless player” stuff. They’ve been doing all of these things to protect themselves from future litigation.

  3. ochospantalones says: Aug 29, 2013 3:28 PM

    This is not actually logical. It may make sense as applied to people coming in to the league now, but the idea that Ray Lewis should be able to collect but Peyton Manning should not because one retired and the other did not is absurd. Not that either of those guys actually needs the money.

    If you want to say that by a certain date the dangers were known, you need to allow all players who played before that date to collect, regardless of whether they happened to be still be playing after that date.

  4. mogogo1 says: Aug 29, 2013 3:29 PM

    Interesting comments from the judge, given there are still smoker lawsuits many decades after the dangers of smoking were widely known. Like it or not, our society loves lawsuits and it’s darn hard to protect yourself from them, no matter how hard you try.

    Let’s imagine a new helmet comes out that claims to limit concussions and the NFL doesn’t immediately adopt it. That by itself would potentially leave them open to another lawsuit. They’ve also toyed with eliminating kickoffs. If that doesn’t happen and stats show concussions happening to a greater degree on kickoffs, that would open a door to a lawsuit, as well.

    Short of players signing waivers, I don’t see how the NFL ever really escapes from future suits.

  5. ratsfoiledagain says: Aug 29, 2013 3:54 PM

    Players need to be held accountable as well. No more lying about concussion symptoms in order to get back into the game.

  6. nflpoker says: Aug 29, 2013 4:03 PM

    The judge is right. Now, nobody can say “Well, I didn’t know I could get hurt my brain doing this”. It would be like a player saying that the NFL was hiding the fact that players could get knee injuries.

  7. realdealsteel says: Aug 29, 2013 4:09 PM

    Let’s get something straight:

    You don’t need no freaking doctor to tell you cracks in you skull is damaging to your long term health!

    So now that the NFL is “officially” saying it, the matter should be closed.

  8. ravens533 says: Aug 29, 2013 4:14 PM

    Two things that might help is to one have the players have a no suit for injuries clause in their contracts – that will never happen. Two start making health insurance available to retired players. Quite often it is years later that various problems with health arise. Chiefly there is more problems with arthritis and joint trouble.

    Either way, with all the money the teams make, there should be some common ground for both.

    I agree with what ratsfoiledagin says about players being held accountable for reporting problems. I remember one player last year bragging about how he played with broken ribs and didn’t tell anyone about it until after the season was over.

  9. sisqsage says: Aug 29, 2013 4:33 PM

    The NFL must have looked at, or consulted indirectly with companies like Philip Morris for this case. Despite decades of tobacco lawsuits, PM is still one of the best stocks to own on the Dow (price, huge dividend, buybacks, tons of cash).

    NFL fans and owners, like shareholders of a stock, were the winners here. They get to keep enjoying the sport they are passionate about without suffering a huge blow to the bottom line many predicted.

  10. nflpoker says: Aug 29, 2013 5:14 PM

    Like what Mike Ditka more or less said on ESPN, “Players always get injured and he thinks the lawsuit was a joke”. This “blissful ignorance” B S by the players is a bunch of _____.

  11. wisbadgfan says: Aug 29, 2013 5:33 PM

    I would have to speculate that future player contracts will have concussion specific language in them.

    All occupations have specific risks and hazards. The NFL has now correctly proceeded on the basis that concussions are a risk, and the appropiate safety measures are now being taken.

    Players are now fully aware of the inherent risks of concussions, and also are aware of the safety measures and education—-ie—-they are signing off on any assumed risk factor.

    Lets play football—-lets get out of the courtrooms.

  12. olcap says: Aug 29, 2013 6:44 PM

    Those with the most shiny stones win again!

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