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.