It’s widely believed that the NFL got a sweetheart deal in connection with the resolution of the concussion litigation, avoiding years of litigation and the possibility of a verdict that could have shaken the league to its foundation if not crumbled it. Indeed, some former players remain sufficiently unpersuaded about the fairness of the deal to fight its finalization all the way to the U.S. Supreme Court.
But if anyone were to conclude that NFL owners are happy about the concussion settlement, they’d be wrong, according to Texans owner Bob McNair.
“Owners are not happy that [because] the NFL was the one with the deep pockets, so that’s who the plaintiffs’ lawyers went after,” McNair told Daniel Kaplan of SportsBusiness Journal. “They have not sued any of the colleges and the reason is simple: You sue the University of Alabama and go into Tuscaloosa, do you think a jury is going to give you an award against the University of Alabama? Forget it.”
He’s right about the willingness of a Tuscaloosa jury to ring the bell when otherwise chanting, “Roll Tide.” But those issues could have been navigated by skilled lawyers via the selection of the forum and the choice of the defendants. While the NFL may indeed have been targeted due to the depths of its pockets (and any plaintiffs’ lawyer who doesn’t pursue the deepest pockets is committing malpractice), the NFL also was deemed to be the most responsible for failing to do enough to protect players against the harms of head injuries.
Besides, the NFL could have joined the colleges as third-party defendants to the various class actions filed against the NFL, if the NFL believed that college football bore any real responsibility for the injuries allegedly suffered by players who weren’t properly warned about the risks or concussions and/or weren’t reasonably protected against concussions.
“We could have fought that, and my feeling, and the feeling of many of us was we would have lost very few of those individual cases because the burden is so high,” McNair added. “I mean, they would have to prove, No. 1, you received a concussion from playing football. No. 2, at what level, when did it occur? And they have played since they were a little kid, so was it in high school or junior high or college or the NFL? And to be able to prove that would be a tremendous, tremendous task. But we did recognize that there were some people who were having some problems and that we did not know enough about concussions and we were better off settling this, setting aside money to take care of these players.”
Again, McNair is right about the defenses that would have been available to the NFL. The league would have even more arguments beyond those mentioned by McNair, including the role of the NFL Players Association (which is/was the players) in disseminating information about concussions, the applicable statutes of limitation, and the one defense that drove the settlement: The protection against lawsuits arising from the existence of a collective bargaining agreement.
The decision to avoid a worst-case scenario that could have destroyed the league for an anticipated expenditure of up to $31.25 million per team over 65 years was a no-brainer, especially in light of the P.R. benefits that come from McNair being able to say “we did recognize that there were some people who were having some problems and that we did not know enough about concussions and we were better off settling this, setting aside money to take care of these players.” At an average of $480,000 per year over 65 years, if the total payout ends up being $1 billion, owners shouldn’t be happy about the outcome.
They should be ecstatic.