Mediation between NFL, retired players unfolded in the usual way

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With ESPN bowing out of a joint venture with PBS regarding concussions after reportedly being pressured to do so by the NFL, everything ESPN now reports regarding concussions will receive extra scrutiny.

The latest report from Outside the Lines is a tame as it gets.  Essentially, it’s a description of the usual way that cases settle via the mediation process.

Per ESPN, the retired players opened with a ridiculously high demand.  Like plaintiffs always do.

Per ESPN, the league countered with a ridiculously low opening offer.  Like defendants always do.

Per ESPN, the mediator brokered the deal by persuading the players that they were in danger (not to be confused with grave danger) of losing the case.  Like mediators always do.

Every lawsuit that settles through mediation follows the exact same course.  The plaintiff opens high, the defendant starts low, and the mediator nudges the parties toward an acceptable middle ground.

In this case, the danger (grave or otherwise) came from Judge Anita Brody’s plan to issue a ruling as soon as Tuesday on the pending motion to dismiss all of the claims from court on the theory that they should be pursued through arbitration under the labor deal between the league and the NFLPA.  That would have been a huge win for the league, a devastating loss for the players.

While the report from ESPN technically has new information, it’s been oversold on SportsCenter.  Most of the details in the report are implicit in the notion that mediation resulted in a settlement.  That’s how mediation works; a skilled and respected judge or lawyer points out to each side the flaws in their positions and the benefits of working out a deal on their own terms.

With players having to decide whether to take the deal or “opt out” and pursue litigation, none of these details should impact the decision.  The fact that the demand initially came in very high and was cut by roughly 66 percent doesn’t make the case weak.  The fact that the NFL started low and went to $765 million doesn’t make the case strong.

The settlement means only that the two sides found an acceptable alternative to uncertainty that could have ended with an all-or-nothing outcome that would have been great for one side and horrible for the other.  Any player who opts out of the settlement will continue with a roll of the dice that could, after years of litigation, pay off — or fail miserably.