The concussion settlement will end the ongoing talk about head-injury litigation and the NFL. Unless it doesn’t.
Legally, all players have the right to “opt out” of the class-action resolution of the claims that started as a 4,500-plus lawsuit and became a collection of all NFL retirees. According to ESPN.com, the family of the late Junior Seau has decided not to accept the terms of the settlement, and to proceed with a wrongful-death lawsuit against the league.
Seau committed suicide in 2012 after a 20-year career that included time with the Chargers, Dolphins, and Patriots.
“The family want to know why this settlement seems designed for expediency for the NFL and to ensure that information doesn’t come out,” lawyer Steven Strauss told ESPN.com. “And the Seau family wants the truth to come out. Since this litigation started, there hasn’t been one document produced, there hasn’t been one deposition taken. It seems very clearly designed to nip this in the bud and not have the truth come out, and that’s not acceptable to the Seau family, and it’s not acceptable to Junior’s legacy.”
As a result, Seau’s family will forfeit up to $4 million in potential benefits and chase not only a larger settlement or judgment, but also the truth.
Potentially blocking the search for the truth will be the first hurdle installed by the league in the path of those pursuing justice — the argument that the labor deal prevents players from going to court and requires them to pursue relief under the Collective Bargaining Agreement exclusively. The parties negotiated the settlement as Judge Anita Brody was preparing to issue a ruling on that key threshold question.
Seau entered the NFL at a time when the CBA didn’t exist, due to the decertification of the NFLPA following the failed 1987 strike. For any concussions he sustained from 1990 through 1992, he wasn’t covered by a CBA.
The league nevertheless will try to exclude from the litigation any concussions suffered by Seau as of 1993, when the CBA returned. That date becomes important because the controversial Mild Traumatic Brain Injury Committee formed in 1994. The MTBI Committee allegedly concealed the risks of harm and discredited the research of others for nearly a generation — during which Seau continuously played pro football.
So it could be that, in the same year Seau inevitably enters the Pro Football Hall of Fame, his family’s lawsuit will gather momentum toward an outcome that will cost the NFL a lot more than $4 million, and that will expose plenty of evidence that otherwise will never be revealed publicly.
The smartest play for the NFL could be to privately attempt to persuade the Seau family to take a lot more than $4 million to settle the case. At a certain point, the number could become so large that it would be impossible to say no.