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Concussion plaintiffs faced various hurdles

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In giving preliminary approval to the concussion settlement, Judge Anita Brody ultimately had to assess whether the agreement to resolve the claims is fair.  In concluding that it is, Judge Brody outlined the challenges that the former players suing the NFL would face.

The first hurdle came from the argument that federal labor law prevents players from filing suit against the NFL, forcing them to instead rely on the arbitration procedures contained in the various Collective Bargaining Agreements.  The settlement was negotiated last year with that very question pending before Judge Brody, and the uncertainty as to whether the NFL would win or lose on that point surely nudged the process toward settlement.

But even if the cases had survived the opening challenge, the plaintiffs faced additional obstacles.  As Judge Brody pointed out in her Monday order approving the settlement, the NFL could have raised the statute of limitations defense, “given that many of the Retired NFL Football Players have not played for years, or even decades, and may have had their injuries or symptoms for the same amount of time.”

She also pointed to the “doctrine of assumption of risk”, which “could pose a challenge to Plaintiffs’ claims in light of the risk of injury that is inherent in football.” Judge Brody likewise noted that “[t]he NFL could also contest whether there existed a consensus in the scientific and medical communities at the time each player played sufficient to prove that the NFL Parties knew or should have known — and concealed — the cognitive risks of football-related concussions and sub-concussive hits.”

In addition to those arguments, the players also faced a challenge regarding the concept of causation. “Plaintiffs would be required to demonstrate that retired players’ injuries were caused by NFL football play, as opposed to unrelated causes, the natural aging process, or concussions or sub-concussive hits experienced in youth or college football,” Judge Brody wrote.

The settlement makes those various arguments moot, giving players compensation based on whether they currently suffer from or eventually develop specific cognitive problems, without regard to whether those conditions related to NFL football. While not a perfect deal, it’s a resolution that takes into account the various roadblocks that the NFL would have used, both in an effort to win the case and to delay it for as long as legitimately possible.

Of course, the league benefits from the settlement by shielding from public view information about what the NFL knew and when the NFL knew it regarding the risks of concussions. But if only one lawsuit from a former player who opts out of the deal gains some traction, that information may end up becoming available, anyway.

In the end, players who decide to push forward and who successfully force the NFL to produce unflattering evidence and/or answer tough questions may end up getting even better deals. Of course, there’s also a chance they’ll end up getting nothing.

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9 Responses to “Concussion plaintiffs faced various hurdles”
  1. thestrategyexpert says: Jul 8, 2014 9:57 AM

    Screw all that noise, I still endeavor for the perfect deal, or whichever theoretical deal comes closest to being perfect. Then the job is done and justice is rendered. That’s what would happen in a civilized society.

  2. 700levelvet says: Jul 8, 2014 10:02 AM

    The players simply aren’t getting as much money as they think they should.. The owners are playing with house money and the eventually the house always wins.. Simple as that

  3. purpleguy says: Jul 8, 2014 10:27 AM

    Most important — the former players that need financial and medical help can now get it, rather than wait 5 years for litigation to conclude.

  4. brownsmakemecrazy says: Jul 8, 2014 10:28 AM

    Someone needs to have the courage to take the NFL on. They need to be forced to reveal what they knew, when they knew it and how much they knew

    Getting any money from this class action suit is going to be like pulling teeth anyway. There is nothing to lose and everything to gain.

    Just like players are challenging the NCAA, the NFL needs to be exposed for who they are.

  5. vikesr4reel says: Jul 8, 2014 11:19 AM

    Johnny football will be the first official BUST of the draft…

    Mark it down

  6. marthisdil says: Jul 8, 2014 11:42 AM

    Anyone who sues won’t get squat – the NFL will point out the causation – forcing the players to prove that t he injury didn’t happen before they started in the NFL.

  7. walkinginthewasteland says: Jul 8, 2014 1:00 PM

    Pray tell, where and what is this hidden evidence? You know, the common sense that blows to the head arent healthy? The simple fact which has been known for centuries and visible in older boxers?

    To accuse the NFL of attempting to belittle the dangers of concussion is easy, given the pseudo experts they brought out in years past.

    But to assume there is a some hidden report that confirms the obvious is stupid. Anyone with a double digit IQ understands the risks of repeated head blows. These players did too, but they were paid a lot (or at least recently), loved the lifestyle and everything else that went with the game. In repeated cases, past and present, the players would continue to play after getting injured.

  8. bunjy96 says: Jul 8, 2014 1:43 PM

    “Of course, the league benefits from the settlement by shielding from public view information about what the NFL knew and when the NFL knew it regarding the risks of concussions.”

    You have to be kidding. It’s no different than boxing, continuous blows to the head causes damage. Nothing hidden about it

  9. mackie66 says: Jul 9, 2014 5:29 AM

    Since no one seems to know crashing into hard objects with your head causes concussions, I ll be the first to alert all potential ballers.
    Running into hard objects with your head, weather covered with a helmet or not, may cause concussions which may be determental to your health going forward into old age.
    Common sense reveals that the above statement was know by the NFL and players alike. Are these players just plan stupid or what. Weather or not the NFL knew what, when and where doesn’t matter. Head trauma science is much better today then 40, 30, 20 yrs ago. Plus, I say this again so maybe Flo, you can get back on your soap box, most players improperly wear their helmets.

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