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Report: Judge Brody Threatened to Dismiss the Heart of the Players’ Case

2013 September 3

After two months of court-ordered negotiations, the NFL and players announced a proposed deal that for many falls well short of expectations.

My initial reaction to the deal was, and still is, that it is fair. Most importantly, it is beneficial to the players and families currently suffering with severe neurological disorders.

Yes, the dollar figure pales in comparison to the annual revenue of the NFL and teams. The fact that the NFL’s alleged misconduct may never be discovered—unless certain players opt out—is a detriment to the public.

However, when balanced against the lives of many players and families that are on the verge of bankruptcy and death, the urgency is clear. Guaranteed money now is much better than no money after years of litigation.

As I’ve said repeatedly, whether this lawsuit was successful or not, the most important thing already occurred: a new era of concussion awareness was born.

One of the biggest reasons why this case didn’t settle for more than a billion was due to the complex legal issues—specifically, causation—that the plaintiffs would face as they tried to prove their claims.

According to a report by the Fainaru brothers, causation may not have been the only reason why the settlement was much lower than expected. Apparently, Judge Brody signaled multiple times that she was going to dismiss the strongest part of the players’ case.

Although I don’t question the Fainaru brothers’ report in the slightest, I do question the legitimacy of the threatened dismissal.

I say this because, based on my interpretation, the threat of dismissal is contrary to the law.

The strongest theory in the plaintiffs’ case revolved around the creation of the Mild Traumatic Brain Injury Committee. In 1994, the NFL voluntarily assumed a duty to spearhead concussion research.

According to the plaintiffs’ allegations, the NFL spent the next 15 years denying and orchestrating an affirmative campaign of disinformation designed to manipulate the players’ understanding of neurological risks.

Since this voluntarily and/or gratuitously assumed duty is independent from the CBA, preemption should not be triggered. The Third Circuit precedent bolsters this conclusion, and the case law should have foreclosed the dismissal of all negligence and fraud based claims that relied upon the MTBI Committee’s conduct. See, Kline v. Security Guards, Inc. 386 F.3d 246; Trans Penn Wax Corp v. McCandless, 50 F.3d 217; See also, Voilas v. General Motors Corp., 170 F.3d 367.

If Judge Brody were truly leaning towards the dismissal of these claims, it would have been an unpredictable shocker. I think most scholars believed that the claims hinging on the MTBI Committee’s conduct were the most likely to prevail.

Nevertheless, the threat of having the heart of the plaintiffs’ case tossed out of court – if true – had to have been the overriding force in getting the deal done.

On the other hand, if the dismissal was just posturing, then I think the entire report was based on a source that was jockeying for a settlement in an attempt to counter the public’s perception that this deal was lousy.

In other words, according to the source’s reasoning, the players had no other option but to settle at this number because the value of the case would have been significantly weakened if Judge Brody had ruled on the NFL’s Motion to Dismiss.

This source also purports to send warning signals to any player contemplating whether he should opt out (this simply means declining to take part in the settlement). So the reasoning goes: if a player opts out, he’ll face a significant and perhaps futile hurdle in defeating preemption, and thus his entire case would be tossed out of court.

Again, this source may have simply taken this position in order to garner a settlement. This leads to the final point.

Although there is a deal in principal, the settlement must be confirmed by Judge Brody. Class-wide notices will soon be sent out to all former players and their families. The notice will set forth the terms of the deal and provide the player with the right to opt out.

The terms of the settlement will have a deal-buster provision (aka a “blow-up provision). This means that if a certain number of players choose to opt-out, then the entire settlement agreement could be terminated. It is unknown at this time what the necessary number (or percentage of players) must opt out in order to trigger this provision.

If the public’s perception of the deal is an accurate indicator, then the provision may very well be triggered. Even if the provision is not triggered, that does not foreclose individual players from opting out and marching ahead with their lawsuit.

If a player chooses to opt out, he can pursue an individual lawsuit against the NFL in hopes of maximizing his settlement value. This means discovery is still possible, and the public may have an opportunity to find out exactly what the NFL knew and when they knew it.

This route, however, is risky.

Various studies have shown that class members who opt out and pursue individual claims often times increase what they would have recovered in the class settlement by many multiples. For example, instead of a $170,000 settlement, a player could receive $1,700,000 – or NOTHING!

Although the potential for a significantly enhanced settlement or verdict is appealing, it comes with significant risks. In the event a player decides to opt out, and his case is later defeated on preemption grounds or on the merits, his rights are fully extinguished and he will receive NOTHING from the settlement.

The question becomes: will there be a Curt Flood-esque group of players—who are willing to be sacrificial lambs or Davids—that decide to roll the dice in order to take on Goliath?

Stay tuned; the NFL Concussion Litigation is far from over.

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