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.