Op-Ed: Public Interests & the NFL Concussion Litigation Settlement
By: Daniel S. Goldberg, J.D., Ph.D.
There has been a lot of discussion over the perceived fairness of the NFL concussion litigation settlement. But of course fairness is something of a loaded term: Fair to whom? In what context? And what are the criteria for fairness? “Fair” in terms of a litigation outcome is obviously something altogether different from Plato’s conception of justice, of which fairness is the central criterion.
I have suggested that the NFL concussion litigation is best seen as something called social impact litigation. This means that the fact of the litigation itself, the discovery process, possible settlements, and ultimate outcome has the potential to have a significant social impact far beyond the impact the litigation would be expected to have on the private parties. The distinction between the interests of the private parties and the potential public interest matters a great deal because a particular outcome could conceivably be in the best interests of the private parties but not remotely so for the public at large.
And my initial opinion in the days following the news of the settlement is that we may have just such a situation here. One of the very basic lessons one learns quickly in my fields of interest – law/policy, history of medicine, and bioethics – is how easily the voices of the sick, injured, and disabled get overridden or drowned out, lost in the more dehumanizing aspects of sickness and the health care non-system. Indeed, without getting too academic, it is generally accepted that the fact of illness itself has a tendency to alienate, isolate, and silence people. So it seems generally risky to ride in to a situation one may know nothing about and subsume the voices of those dealing with sickness, injury, and/or illness.
I am less interested in whether the settlement is in the best interests of the private parties to the NFL concussion litigation, which is not to say it is unimportant. But what of the public interest? The notion that the American public – let alone other publics that have reason to be interested in contact sports and mTBI – has an interest in the outcome of the litigation is indisputable. As I and others have pointed out, the settlement hardly disposes of a host of urgent questions, including but not limited to:
- Should children play American football?
- At what age is it safe to begin play?
- When is it safe to return to play after experiencing mTBI?
- How many mTBI events are too many? When should a football season end due to mTBI? A career?
In fairness, these are difficult epidemiologic questions that the NFL concussion litigation would not have answered. But there is a fallacy lurking here – the belief that better science can resolve all of our moral and policy questions regarding mTBI and American football. Two physicians put it very well recently:
[s]cientific evidence can only help us describe the continuum of benefit versus harm. The assessment of whether the benefit is great enough to warrant the risk of harm — i.e., the decision of where the threshold . . . should lie — is necessarily a value judgment.
The question of what levels of risk are acceptable to expose to which age groups are unavoidably moral and political questions, and they cannot be resolved by the application of even excellent epidemiology.
Of course, such epidemiology is absolutely critical to calibrating the risk, and therein to informing the difficult moral and political questions with which families, communities, and institutions must grapple. But it will not answer these kinds of questions by itself.
This observation takes us back to the social impact of the NFL concussion litigation. The NFL’s privately held information had the potential to contribute much to a robust public discourse on these complicated questions of risk and benefit. But the settlement vitiates that, since the public will never see the information compiled over the last few decades by the NFL.
And so public reason on mTBI and American football will be all the less rich for its absence.
(A more detailed version of this argument can be found here).