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).
Editor’s Note: What follows is a two-part series by Dr. Andrew Blecher on the state of football, and the all-important issue of concussion. The series is also being published in Concussion Litigation Reporter. For more details on how to subscribe, click here.
Part 1: The NFL
by Andrew M. Blecher MD
Collision sports are full-contact sports with a greater than average risk of injury. They include sports such as football, rugby, ice-hockey, mixed-martial arts and boxing. But there is something different about the last two. In the professional sports of MMA and boxing the intent is to hurt your opponent. In fact the best outcome would be to knock-out your opponent. Since a knockout is a concussion, the intent of the sport is therefore to cause brain injury to your opponent. How can this be right? In fact, for decades the American Medical Association has called for banning professional boxing for this very reason. From the Summaries and Recommendations of Council on Scientific Affairs Reports 1999 AMA Annual Meeting:
“Until such time as boxing is banned in this country, the following preventive strategies should be pursued to reduce brain and eye injuries in boxers: (a) Ideally, head blows should be prohibited…The World Boxing Council, World Boxing Association, and other regulatory bodies should develop and enforce objective brain injury risk assessment tools to exclude individual boxers from sparring or fighting including APOE e4 screening, neuroimaging, clinical neurological assessment, neurophysiological assessment, and indices of cumulative brain injury… [They] should develop and enforce standard criteria for referees, ringside officials, and ringside physicians to halt sparring or boxing bouts when a boxer has experienced concussive or subconcussive blows that place him or her at imminent risk of more serious injury…The AMA will: Promote the concept that the professional responsibility of the physician who serves in a medical capacity at a boxing contest is to protect the health and safety of the contestants. The desire of spectators, promoters of the event, or even injured athletes that they not be removed from the contest should not be controlling. The physician’s judgment should be governed only by medical considerations.”
Now wait a second. This sounds very familiar. This was over a decade ago, but if you re-read this and replace “boxing” with “football” and replace “World Boxing Council” with “NFL”…. suddenly it perfectly describes today’s current events. Football is an inherently dangerous sport. We know this. It has an injury rate of over 100%. With an injury rate that high, there must be something within the sport that includes intent to cause harm. Do 100% of NFL players get injured and they are all just “work-related accidents”? Or does the “Bounty” scandal illustrate that there may be something else going on? NFL players have a higher rate of injury than any other profession according to the National Worker’s Compensation Board. But just being a dangerous sport isn’t the problem. It is specifically the specter of traumatic brain injury and its long term affects that defines football’s current crisis.
The problem with boxing is that the cumulative concussive and subconcussive blows (especially those that are not medically managed correctly) are risks for developing long term brain injury. That brain injury has a name. It’s called Dementia Pugilistica, also known as chronic boxer’s encephalopathy, traumatic boxer’s encephalopathy, boxer’s dementia, chronic traumatic brain injury associated with boxing (CTBI-B), and punch-drunk syndrome. This is not something new. It was first described in the 1920’s. But the injury that is new is CTE or Chronic Traumatic Encephalopathy. What’s the difference? Well nothing really, other than the fact that it’s what we use to describe the exact same condition but in non-boxers… namely, Football Players.
The evidence might not yet be as clear-cut in football as it is in boxing and some will say that we shouldn’t jump to conclusions, but we are starting to connect the dots and medical research is catching up. As the brain bank full of ex-football players with CTE continues to grow we must acknowledge that although the object of football might not be to cause brain injury, as it is in boxing, there does seem to be a growing preponderance of evidence that the game of football is not good for brains. But what about the helmets, you ask? There are no helmets in boxing but we have the best helmets that money can buy in the NFL. Surely that must make a difference. Unfortunately it doesn’t. There has never been a single medical study to show that helmets reduce the incidence of concussion or long term brain injury. Do they reduce the incidence of skull fracture and death due to acute brain trauma? Absolutely. But that’s not what we are discussing here. We are concerned with long-term cumulative brain injury.
Let’s take a quick look at how helmets are tested. The majority of helmets that are used for recreational activities such as biking and skiing and skateboarding are designed to withstand a single impact. This means that the helmet absorbs impact by deforming and is therefore intended to be replaced after a single impact. However, in contact sports, helmets are certified by the National Operating Committee on Standards for Athletic Equipment (NOCSAE) to withstand multiple impacts. How does NOCSAE test these helmets? Approximately 27 different impacts are created at different locations on the helmet with different velocities and under different temperature conditions. “A passing helmet model is able to withstand all impacts.” This means that the helmet survived the impacts. It says nothing about the forces that occurred inside of the helmet and whether the accelerating/decelerating brain inside of the skull that is inside of the helmet can survive those impacts. Furthermore, 27 impacts occur in 1 single days worth of a football game or practice. So these tests do not measure whether the helmet can survive an entire season of impacts.
So the majority of helmets are indicated for single use only. But some, such as football are indicated for repetitive use. Does this mean that they prevent the effects of repetitive or cumulative brain injury? No. It just means that with repetitive use the helmet (or your skull for that matter) won’t break down. But even still, the helmet needs to be refurbished or replaced after a certain amount of use. But what about your brain? Does it get to be refurbished or replaced after a certain amount of use? Isn’t it time that the helmet companies and NOCSAE start calling the football helmet what it really is? It’s a device that will protect your skull up to a certain amount of wear and tear but has no claims whatsoever for protecting your brain against long term brain damage. In fact, it’s really a device that is only certified to withstand 27 impacts. So therefore it should only be used for one day of playing football. So either NOCSAE has to develop more rigorous testing, or the certification should only be good for one day of use and football players should only be allowed to wear a helmet for one day until it needs to be replaced. Otherwise it violates NOCSAE standards. Since the NFL, NCAA and National Federation of State High School Associations all require the use of NOCSAE approved helmets, one could therefore say that in order to be in compliance, each of these organizations would need to supply its players with new football helmets for every single day of use. While the NFL might be able to afford this, surely most colleges and high schools could not. So if someone were so inclined to “legislate the banning of football” all they would have to do would be to deny government funding (high school and collegiate) to schools that weren’t following these standards. I am not going so far as to say that this is what needs to be done, however, it is important that we all understand what is currently occurring with football helmet use and certification. I can guarantee that these are facts that the majority of past and present football players are unaware of. Once we have all completely digested and understood these facts, can we then make well-educated decisions about whether or not we want to play football. And if we as a society (or the AMA as a medical society) decide that playing this dangerous game of football should not be allowed to continue in its current form until a helmet can be designed to prevent the long term brain damage… Well, then we may in fact be seeing the beginning of the end of football as we know it.
Ultimately isn’t that what today’s crisis is all about? We already know what the potential effects of football related concussions and head injuries are. The cat is out of the bag. The question is whether or not the NFL has understood this and made sure that its players were fully informed about the risks. How the NFL chooses to handle its past is up to them. But going forward let’s make no mistake… EVERY NFL PLAYER SHOULD BE FULLY INFORMED THAT PLAYING PROFESSIONAL FOOTBALL CARRIES AN INCREASED RISK OF HEAD INJURY WHICH MAY HAVE LONG-TERM EFFECTS AND HELMETS DO NOT PREVENT THIS. Does this mean that professional football needs to be banned or changed? No, I don’t believe that it does. But we do need to be aware of what it is. Let’s call a spade a spade. Let’s not gloss over the issue by having a safety first campaign, or throwing millions of dollars towards helmet research or touting an independent neurologist on the sidelines and that concussions are finally going to be managed correctly. These things are great and long overdue, but they ultimately don’t negate the fact that unless repetitive head contact is taken out of the game of football, (let’s say it again): EVERY NFL PLAYER SHOULD BE FULLY INFORMED THAT PLAYING PROFESSIONAL FOOTBALL CARRIES AN INCREASED RISK OF HEAD INJURY WHICH MAY HAVE LONG-TERM EFFECTS AND HELMETS DO NOT PREVENT THIS. I don’t know whether or not that means that every player needs to sign something that clearly illustrates this understanding before they play in the NFL. I will leave these issues up to the lawyers. Whether or not the NFL recognizes itself for what it truly is will be something that may ultimately end up being determined in a court of law. But what I do know is that sooner or later the public will realize what the NFL truly is. It’s bloodsport. It’s still a great sport. It’s entertaining and love it or leave it, it’s part of our culture. But let’s not call it safe anymore. It’s a very unsafe sport and it’s a very unsafe profession. If players fully understand their risks and agree to play, and spectators understand the risks and agree to watch, then the NFL will continue to exist, just as it has… just as boxing has. And I will continue to watch.
Stay tuned for the more complicated part of the story with Part II of “The Reclassification of Football: The Collegiate, High School and Youth Game of Football”.
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.
NFL and Players announce a historical settlement. The press release issued from Judge Layn Phillips, the appointed mediator, is pasted below:
NFL, RETIRED PLAYERS RESOLVE CONCUSSION
LITIGATION; COURT-APPOINTED MEDIATOR
HAILS “HISTORIC” AGREEMENT
Thousands of Retirees and Families to Benefit
Medical Testing; Research; Compensation and
Promotion of Safety All Part of Agreement
Former United States District Judge Layn Phillips, the court-appointed mediator in the consolidated concussion-related lawsuits brought by more than 4,500 retired football players against the National Football League and others, announced today that the parties had reached an agreement that would end the litigation against the NFL and NFL Properties and provide medical and other benefits, as well as compensation, to qualifying injured players or their families.
The agreement came after nearly two months of intensive negotiations under the supervision of Judge Phillips. It will be submitted for approval to United States District Judge Anita B. Brody, who is presiding over these cases in federal court in Philadelphia. Under the agreement, the NFL and NFL Properties will contribute $765 million to provide medical benefits and injury compensation for retired NFL football players, fund medical and safety research, and cover litigation expenses. Attorneys’ fees, to be approved by the district court, will be paid in addition to the settlement amount.
“This is a historic agreement, one that will make sure that former NFL players who need and deserve compensation will receive it, and that will promote safety for players at all levels of football,” said Judge Phillips. “Rather than litigate literally thousands of complex individual claims over many years, the parties have reached an agreement that, if approved, will provide relief and support where it is needed at a time when it is most needed. I am deeply grateful to Judge Brody for appointing me as mediator and offering me the opportunity to work on such an important and interesting matter.”
“This agreement lets us help those who need it most and continue our work to make the game safer for current and future players. Commissioner Goodell and every owner gave the legal team the same direction: do the right thing for the game and for the men who played it,” said NFL Executive Vice President Jeffrey Pash. “We thought it was critical to get more help to players and families who deserve it rather than spend many years and millions of dollars on litigation. This is an important step that builds on the significant changes we’ve made in recent years to make the game safer, and we will continue our work to better the long-term health and well-being of NFL players.”
“This is an extraordinary agreement that will provide immediate care and support to retired players and their families,” said lead plaintiffs’ attorney Christopher Seeger of Seeger Weiss LLP. “This agreement will get help quickly to the men who suffered neurological injuries. It will do so faster and at far less cost, both financially and emotionally, than could have ever been accomplished by continuing to litigate.”
“The benefits in this agreement will make a difference not only for me and my family, but also for thousands of my football brothers who either need help today or may need help someday in the future,” said Kevin Turner, a former running back for the Philadelphia Eagles and New England Patriots. Turner, who has been diagnosed with ALS, will serve as the lead plaintiff for one group of retired players. “I am grateful that the NFL is making a commitment to the men who made the game what it is today.”
Once final documentation is completed, the settlement will be filed with Judge Brody, who will then schedule a hearing to consider whether to grant preliminary approval to the agreement. If the settlement receives preliminary approval, Judge Brody will direct the parties to distribute notice to the retired players. After giving retired players an opportunity to file objections to the settlement, Judge Brody will hold a hearing to consider whether to grant final approval. Judge Brody is expected to issue the precise schedule within a few weeks.
“Approval of the settlement will require Judge Brody to determine that it is fair, reasonable, and adequate in light of the claims and defenses, and the expense, uncertainty and time inherent in litigating the claims, particularly given the benefits provided by the agreement,” said Judge Phillips. “There is no question that this settlement will provide benefits much sooner, and at much less cost, for many more retirees, than would have been achieved through extended litigation. For these and other reasons, I will strongly endorse this settlement in my report to Judge Brody.”
A summary of the key terms of the agreement is attached.
Principal Terms of NFL Litigation Settlement
Class Settlement – The settlement will include all players who have retired as of the date on which the Court grants preliminary approval to the settlement agreement, their authorized representatives, or family members (in the case of a former player who is deceased).
No Admissions of Liability or Weakness of Claims – The settlement does not represent, and cannot be considered, an admission by the NFL of liability, or an admission that plaintiffs’ injuries were caused by football. Nor is it an acknowledgement by the plaintiffs of any deficiency in their case. Instead, it represents a decision by both sides to compromise their claims and defenses, and to devote their resources to benefit retired players and their families, rather than litigate these cases.
Payments – The NFL and NFL Properties will make payments in connection with the settlement as follows:
(A) Baseline medical exams, the cost of which will be capped at $75 million;
(B) A separate fund of $675 million to compensate former players who have suffered cognitive injury or their families;
(C) A separate research and education fund of $10 million;
(D) The costs of notice to the members of the class, which will not exceed $4 million;
(E) $2 million, representing one-half of the compensation of the Settlement Administrator for a period of 20 years; and
(F) Legal fees and litigation expenses to the plaintiffs’ counsel, which amounts will be set by the District Court.
Timing of Payments – If the agreement receives preliminary approval from the District Court, the NFL will pay the costs of preparing and distributing notice to the class members (up to $4 million). If the settlement receives final approval, and any appeals have been concluded, the NFL will pay approximately 50 percent of the settlement amount over three years, and the balance over the next 17 years.
Baseline Medical Examinations – Eligible retired players may receive a Baseline Medical Assessment, the results of which will be used to establish a qualifying diagnosis, either now or at a point in the future. The baseline examination program will operate for a period of 10 years. After 10 years, any funds allocated for this program that have not been spent will be added to the fund for payment of monetary awards.
Injury Compensation Fund – The fund of at least $675 million will be available to pay monetary awards to retired players who present medical evidence of severe cognitive impairment, dementia, Alzheimer’s, ALS, or to their families. The precise amount of compensation will be based upon the specific diagnosis, as well as other factors including age, number of seasons played in the NFL, and other relevant medical conditions. These determinations will be made by independent doctors working with settlement administrators appointed by the District Court.
If a retired player’s condition worsens over time, he may apply for a supplemental payment.
In the event the Injury Compensation Fund ultimately is deemed insufficient to pay all approved claims, the Settlement Administrator will make a recommendation to the Court that the NFL make an additional, one-time contribution to the Injury Compensation Fund up to a maximum amount of $37.5 million.
Research and Education Fund – The NFL will allocate $10 million toward medical, safety, and injury-prevention research, and toward educating retired players on NFL benefits programs. A portion of this fund will be used to support joint efforts by the NFL and retired NFL players to promote education and safety initiatives in youth football.
Other Benefits – No retired player will forfeit or become ineligible for any other benefits provided by the current Collective Bargaining Agreement between the NFL and the NFL Players Association.
Schedule for Further Activity – The parties will prepare and file complete agreements with Judge Brody in Philadelphia, who will then schedule a hearing to consider whether to grant preliminary approval to the settlement. Assuming preliminary approval is granted, the Judge will direct that notice be given to the retired players and will schedule a hearing to consider whether to grant final approval to the settlement.
Q & A with Judge Layn Phillips on NFL Litigation Settlement
Who will receive the money and how?
Retired players will have the opportunity to participate in baseline medical exams. Players with demonstrated cognitive injury, now or in the future, will be able to obtain a monetary award. The decisions regarding who qualifies and the amount of the award will be made by independent doctors and fund administrators agreed upon by the parties, and the federal court in Philadelphia will retain ultimate oversight.
How will the medical monitoring work?
A nationwide network of health care providers will be available to give the baseline exams to retired players. The goal will be to make the exam sites convenient so that as many retirees as possible can take advantage of the potential medical benefits.
Is this an acknowledgement by the NFL that it hid information on long-term effects?
No. An agreement doesn’t imply anything about either side’s position. It doesn’t mean that the NFL hid information or did what the plaintiffs claimed in their complaint. It does not mean that the plaintiffs’ injuries were caused by football or that the plaintiffs would have been able to prove that their injuries were caused by football. On the other hand, it doesn’t mean that the plaintiffs wouldn’t have been able to prove their case. The settlement means that the parties reached an agreement to put litigation behind them, get help to retired players who need it, and work proactively to support research and make the game safer. These are goals everyone can share.
What would be the process without a settlement?
Absent a certified litigation class or some creative form of consolidation, every case would have to be addressed individually. Doing so would be complicated, time consuming, expensive, and the outcome for both sides would be highly uncertain.
How were you able to get the parties to settle something that seemed so contentious?
To their credit, both sides recognized that it would be far more productive to get out of court and do something good for retired players with medical needs and focus on the future of the game and making it safer. I would characterize it as a ‘win-win.’ The alternative was for the two sides to spend the next 10 years and millions of dollars on litigation, which would have been great for lawyers, expert witnesses, trial consultants and others. But it would not do much for retired players and their families who are in need. This resolution allows the sides to join together, do something constructive, and build a better game for the future. Both sides faced major risks and uncertainties that made a class settlement far and away the best path for resolving these issues.
Will this prevent other lawsuits of this nature from being filed?
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. 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.
What should parents of kids who play football take from this settlement?
Parents should know that the NFL and the plaintiffs are committed to doing what’s right for the game and making it safer at all levels. The proposed settlement includes funds for medical research and education to support those goals.
On August 28, 2011, we lost our beloved son and brother Derek Sheely to a sports-related brain injury. It is inconceivable to us how, with all the attention on concussions, there is still no unified enforcement to prevent dangerous drills, stop false safety claims, or ensure proper medical attention to concussed athletes. We are haunted by the knowledge that Derek’s death was preventable, and we feel an obligation to share lessons that could prevent other children from suffering Derek’s fate.
– The Sheely family
A copy of the lawsuit can be found here: Derek Sheely, et al v. NCAA, et al
Additional coverage:
http://www.washingtontimes.com/news/2013/aug/22/death-frostburg-state-player-derek-sheely-due-egre/
http://deadspin.com/family-of-player-killed-in-practice-sues-ncaa-coaches-1188048031
http://abcnews.go.com/Sports/wireStory/md-family-sues-frostburg-st-football-death-20070297
http://www.baltimoresun.com/news/maryland/bs-md-concussion-lawsuit-20130826,0,6351398.story
http://times-news.com/local/x865761408/Lawsuit-filed-in-2011-death-of-FSU-football-player
http://www.law360.com/articles/467330/lawsuit-targets-ncaa-helmet-maker-over-death-of-player
On July 8, 2013, with the highly anticipated ruling on the NFL’s motion to dismiss looming, Judge Anita Brody took many by surprise when she ordered the parties in In re National Football League Players’ Concussion Injury Litigation to mediation. Despite any undertones that the order may have revealed toward Judge Brody’s likely disposition on the matter, the order gives the parties a unique opportunity. With settlement seemingly a distant possibility prior to the order, the parties now avoid years of painstaking litigation by crafting a resolution through mediation or, at the very least, develop a better understanding of the issues (which may pave the way for a settlement further down the road). And as the mediation begins, the parties can build upon the professional sports industry’s recent embrace of mediation as a dispute resolution mechanism. Mediation contributed greatly to resolutions in the recent labor disputes of the NFL, NHL, and MLS (and was also used during the NBA’s labor dispute, albeit with less success). In the NFL’s recent mediation experience during the league’s labor dispute, the owners and players took part in three separate mediations. Those specific sessions can serve as a guidepost for the parties in the NFL concussion litigation as they attempt to resolve their issues through mediation.
Mediation, a form of alternative dispute resolution (“ADR”), is a self-determinative process, similar to negotiation (though instead with a neutral party at the helm), in which the parties determine a resolution rather than a judge, jury, or arbitrator. Despite being court-ordered in many instances, mediation is still voluntary. If a party withdraws from mediation, the litigation simply resumes. Moreover, the mediator cannot disclose anything said or done during the mediation to the court or to others (with some exceptions relating to the well-being or safety of others), and the discussions have no legal effect. Though mediation seems straightforward, for it to succeed in an industry as unique as professional sports, each party (including the mediator) must be cognizant of the many factors that can affect respective motivations and strategies and, in turn, a resolution.
For the NFL concussion litigation, in particular, the success of the mediation can easily be determined at the outset when appointed mediator and retired federal judge Layn Phillips decides how to conduct the proceedings. He can have the parties (whomever they send as representatives) appear at each session face-to-face (“joint sessions”) or in separate rooms with the mediator as an intermediary (“shuttle diplomacy”), or he can choose to utilize a combination of the two. Joint sessions may spur an immediate starting point. However, they are not appropriate in all situations, especially where the underlying emotions or nature of the issues may detract from fruitful discussions and cloud the path to settlement (As a former ADR professor of mine and mediator tells parties, “Mediators are not therapists”). Shuttle diplomacy also presents obstacles, as it too may impair the parties’ ability to engage in candid dialogue. The lack of face-to-face discussions was a common complaint among players in the two failed mediations in the NFL’s labor dispute. There, as a last ditch effort, the parties engaged in several marathon joint sessions, which ultimately aided in the parties’ reaching a settlement.
With the NFL concussion litigation, the gravity of the claims at issue (i.e., wrongful death, fraudulent concealment, fraud) may suggest that it be more prudent and practical to separate the parties. Still, wading through the complex issues of the case may not be feasible if the parties are separated given the number of parties involved and the time and money that is required for any protracted discussions. These are all factors that Judge Phillips must consider when deciding how to conduct the mediation; a decision that may seem trivial but will undoubtedly have a great impact.
Another seemingly insignificant yet determinative wrinkle to the process is the parties’ commitment to confidentiality. Surely, the media has and will continue to report on concussions in the NFL, which have rightfully become a matter of great public interest. Still, the order to mediate explicitly requires that the parties refrain from any public disclosure regarding the discussions. The decision to leak details of the talks or to wage a publicity war while mediation is ongoing not only violates the court’s order but also eliminates any semblance of trust between the parties. For example, in the NFL’s labor dispute, the court imposed a confidentiality order regarding the mediation, yet both the parties and the omnipresent “anonymous sources” routinely disclosed intimate details of the talks. This hindered any progress and, not surprisingly, contributed to the failure of the first two mediations. Only once the parties made an effort to maintain confidentiality were they able to reach a mediated settlement.
The high-profile nature of the NFL concussion litigation assures that there will be similar confidentiality issues. Neither the media nor the public are bound by the order and undoubtedly have no intention of respecting it, so it is up to the parties to prevent any detailed information from being disclosed. If media reports surface with any details of the talks (nothing has leaked as of yet), take that as an early indication that not all parties are serious about mediating toward a resolution and that the parties will find themselves back in court.
Lastly, imperative to the success of the mediation is the parties’ preparation for and approach to the discussions. More specifically, a concept or strategy that often gets overlooked in negotiation (and, in turn, mediation) is grasping the value of one’s “best alternative to a negotiated agreement” (“BATNA”). Simply put, this concept consists of a calculated balancing of the relative extrinsic and intrinsic benefits that settlement and its alternatives offer. If a party’s BATNA will lead to a better result than a projected settlement, that party is best served to follow the alternative. But as the circumstances of a dispute change, so, too, do parties’ interests, the relative balance of power, and whether settlement does, in fact, outweigh the alternatives.
For example, in the NFL’s labor dispute, the first two mediation attempts occurred while the district court and court of appeals, respectively, were close to issuing significant rulings in each case. Despite the uncertainty involved, each party seemed to believe that their BATNA—continuing with litigation—outweighed settlement. But by the third mediation, the parties’ alternatives had changed. Without a settlement, the parties would be faced with a prolonged lockout. As their alternatives narrowed, the parties became more aware of and focused on engaging in interest-based bargaining (i.e., exploring mutual gains), which ultimately aided in a resolution.
Similarly, the NFL concussion litigants find themselves mediating with the court’s pending ruling on the motion to dismiss in the backdrop. Either side may adopt the belief that they are better off waiting for Judge Brody’s ruling rather than to mediate. But if the parties were to adopt an interest-based bargaining approach, they may find settlement at this early stage of the litigation to be advantageous. Consider the many nuanced issues of the dispute. Even if the litigation were to survive past the motion to dismiss stage, the court may simply be unable to provide the parties with adequate remedies. For instance, the plaintiffs’ claim for medical monitoring presents several obstacles for the plaintiffs from both a practical and legal standpoint. Across the aisle, the NFL is undoubtedly aware of the effect that prolonged litigation and factual discovery may have on its future liability, image, and, ultimately, bottom line (see, for example, the recent internal emails from the NCAA concussion litigation). Mediation enables the parties to address these issues and contour a mutually-favorable resolution.
If the NFL concussion litigants are to maximize the benefits of mediation, they must be mindful of the foregoing factors, which are by no means exhaustive. Even if the effort does not lead to an immediate settlement, the parties’ candid dialogue, respect for confidentiality, and willingness to engage in interest-based bargaining can pay dividends in the future. The experience may provide the parties with a better understanding of the underlying issues or interests, temper expectations, and serve as a catalyst for future settlement.
By: Daniel S. Goldberg, J.D., Ph.D.
Thanks so much to Paul for the pulpit! By way of introduction, I’m Daniel S. Goldberg, and I’m an assistant professor in the Brody School of Medicine at East Carolina University. I’m trained as an attorney (with experience as a defense attorney in mass-tort litigation), as an historian of medicine/public health, and as a public health ethicist. I’ve been interested in ethics and concussions in American football for at least the last five years. You can read more about my work here.
A prior paper of mine, published in a bioethics journal in 2008, addressed the ubiquitous conflicts of interest that exist in the N.F.L. and how they influence concussions top to bottom, from league and team policy down to individual treatment and return-to-play considerations. If you’re interested, you can download the full paper free of charge here.
I was fortunate to have a second paper on the subject published in the last month or so, this one addressing the strategy apparently deployed by the NFL and most other agents of regulated industry involved in 20th c. occupational health disputes. This strategy is known as the “manufacture of doubt.” It involves the mobilization of an enormous amount of resources all devoted to creating doubt regarding both the probability of the harm in question occurring and the magnitude of that harm if it were to occur. By creating doubt in the policy arena, industry can argue that given the uncertainty, regulation is unwise pending the development of further facts.
As I note in the article, this is a particularly poor standard for public health policy because of the undeniable fact that epidemiologic evidence is always uncertain. That uncertainty inheres in the field itself because determining epidemiologic causation is one of the more difficult tasks we face. If we waited for knock-down drag-out proof that a given exposure caused a given health problem, we would barely implement any public health policies at all. These facts are encapsulated in what is known as the precautionary principle, which basically means that when we have a serious public health risk, we intentionally relax our evidentiary standards and intervene to ameliorate the risk substantially.
If the manufacture of doubt sounds familiar to you, it should — it has been used most vigorously and most effectively by the tobacco industry. David Michaels, an epidemiologist and twice-appointed executive official, actually entitled a book on the subject, taken from a memo written by a tobacco company official: Doubt Is Our Product.
A few more additional points. First, although this blog is devoted to the NFL concussion litigation, I want to insist that what we are dealing with is a bona fide population health problem. This is not simply a private employment dispute (although it is that). Literally millions of children and adolescents play American football, and it is undisputed that developing brain are at higher risk of mTBI and of more severe sequelae as a result of those concussions. Football-induced mTBI is a major public health problem. (And TBI in general is distributed highly unequally along lines of class and race, a point I develop in the article).
Second, information is enormously powerful in context of public health. If the information the tobacco industry possessed regarding the true dangers of tobacco consumption had been widespread public knowledge in the 1950s, 1960s, and 1970s, it is difficult to contest that many hundreds of thousands of lives could have been saved (a number that represents only a fraction of the active smokers during this time).
So if we have a major public health problem, and if the regulated industry in question possesses information valuable to informing public discourse on how the risk of its product should be evaluated and managed, it dramatically undermines effective public health leadership for the industry to keep that information private. (We all know why industries involved in mass-tort litigation do so – but this is an ethical claim, that they ought not do so).
Finally, this last point leads me to the current posture of the litigation. Most of the commentary on the NFL concussion litigation focuses on the potential dollar amount of the payout, either as judgment or settlement. If I am advising the NFL – and I am most certainly NOT – I am less concerned about this amount. The NFL basically prints its own money. Even a mammoth settlement or judgment is unlikely to derail the finances to the point that the entire endeavor itself becomes questionable (which did happen in the case of the asbestos industry). Although this is beyond my area of expertise, my understanding is that true valuation experts tend to think that the goodwill a company possesses is literally its highest-value item. It is all about the brand, as they say.
And I cannot for the life of me understand how the NFL is willing to go through the discovery process, which would be likely to result in millions of pages of documents becoming public record. This process has done far more to tarnish the public image of the tobacco industry than any settlement ever could. So I have trouble seeing why the NFL would be willing to risk the public disclosure of its knowledge and conduct regarding the risks its workers faced of brain injury.
So … that’s it for now. If Paul is kind enough to permit me, I may offer another blog post or two in the upcoming weeks, especially as I have begun to write yet another paper on this subject. But I’d like to hear from y’all. What do you think?
The NFLPA announced that Ben Utecht won his injury grievance against the Cincinnati Bengals. The arbitrator ruled that Utecht was returned to play too soon after suffering a concussion.
The language used by the arbitrator is intriguing. According to the NFLPA, the arbitrator held that Utecht “had not been sufficiently tested, both in his aerobic and strength reconditioning program, nor had he been tested in sport specific activities which would be a more accurate means of determining whether the damage caused by the concussion had ‘cleared.’”
Though I’m not privy to the facts, I wonder if the “testing” included ImPACT. Could there have been a false positive that caused the team to allow Utecht to return too soon? Based on the ruling, it appears that the medical staff failed to ensure that Utecht was fully asymptomatic.
It’s disheartening that a staff of medically-trained professionals would overlook and/or disregard certain tests that are so fundamental to a proper return-to-play evaluation.
Despite the loss, the NFL quickly seized upon the ruling to make a statement that the NFL Concussion Litigation should be decided by an arbitrator as opposed to a jury.
“The decision demonstrates that our collective bargaining agreements provide players with comprehensive remedies for football-related injuries, including injuries related to concussions,” NFL spokesman Greg Aiello said in a statement to Pro Football Talk.
I think the ruling is probably a win for both sides, although it tips more in favor of the players.
The grievance procedure – which was collectively bargained for – worked well in Utecht’s case, and it looks like a fair result was reached.
It could set a player-friendly precedent for future concussion-injury grievances. Any player that is released may now try to point to a prior concussion and argue that he was “returned to play too soon” or his concussion was “mistreated.” Of course, there will have to be some type of causal connection, but it at least creates a colorable argument.
This, in turn, will require teams–if they aren’t already doing so–to meticulously document any concussion, the players’ concussion history and his various treatments. Which, in the long run, will hopefully increase the health and safety of the players.
The NFL will use this case in future civil litigation to argue that the CBA and its grievance procedures are perfectly suited to handle concussion issues, and therefore the court should dismiss the claims for failing to exhaust the grievance procedures.
This may carry some weight for mere negligence claims, but allegations of gross negligence, fraud and/or concealment (i.e. the NFL Concussion Litigation) should overcome the preemption/arbitration argument.
Notwithstanding the arbitrator’s decision in Utecht’s case, the Bengals’ medical staff and the NFL do not deserve a free pass.
The wrongful conduct occurred in 2009, at a time in which the NFL was still not taking concussions seriously.
Indeed, the “standard of practice” applied in Utecht’s case was endorsed by the Mild Traumatic Brain Injury Committee.
Specifically, two conclusion made by the MTBI Committee may have been applied in Utecht’s case:
Returning to play after a concussion “does not involve significant risk of a second injury either in the same game or during the season.”
“Many NFL players can be safely allowed to return to play on the day of injury” and that “the current decision making of NFL team physicians seems appropriate for return to the game after a concussion.”
This same “current decision making of NFL team physicians” was ruled to, arguably, fall below the standard of care.
The arbitrator rejected the team’s contention that a less rigorous testing procedure-which was endorsed by the MTBI Committee-should have been applied.
Taking a logical leap, the arbitrator effectively discredited the MTBI Committee’s conclusions and team decision making.
The plaintiffs’ lawyers would be wise to point to Utecht’s case as yet another example of the NFL failing to protect the players – placing its business interests above the players’ health and safety. It also sheds light on why players are so reluctant to place their medical decisions in the hands of team physicians.
Whose interests are they looking out for? Apparently not the players.
In any event, hats off to Utecht and the NFLPA for vindicating a player’s rights.
In a hail-mary-like play, Judge Brody Ordered the players and the NFL to engage in mediation to determine IF a resolution is possible.
Though a resolution is unlikely – at this early stage of the game – this Order signals a few things.
First, instead of ruling on the NFL’s Motion to Dismiss on July 22, as previously scheduled, Judge Brody decided to hold off.
Why?
I think she knows, and she wants the parties to be aware, that both sides are vulnerable. Now is the time to stop the train before it begins its tumultuous path to protracted years of litigation. More deaths. More pain. More suffering. More money expended on legal fees.
This, in turn, implies that her forthcoming ruling is NOT going to be in favor of the NFL. It indicates that Judge Brody is going to DENY the NFL’s Motion to Dismiss — at least in part, if not in full.
Second, Judge Brody is giving the NFL a wake-up call before things get heated. I think she believes the players’ claims have merit — even beyond a motion to dismiss.
Step VIII in the Ten Steps to Better Case Management: A Guide for MDL Transferee Judges states, “[a]s soon as you are satisfied that plaintiffs’ claims have at least some arguable merit,” suggest mediation.
Well, Judge Brody—the transferee judge—did just that. She is satisfied the players’ claims have merit.
Merit does not equate to SUCCESS, yet.
It does, however, give the plaintiffs’ a key to the NFL’s potential dirty laundry. DISCOVERY is on the horizon if a resolution is not found.
Either the NFL can keep its dark secrets sealed, or it can roll the dice and push forward with discovery. The plaintiffs’ lawyers’ leverage increases as they inch toward a jury trial(s).
Third, mediation is not binding. Both sides go into mediation with their own agendas and inflated egos.
It’s an early opportunity for the parties to size each other up.
The players will have a dollar figure in mind, likely north of $8 BILLION. And, the NFL will also have a resolution in mind: another charitable trust.
Whether actual dollars are discussed and proposals exchanged during the course of the next two months will be up to the Honorable Layn Phillips.
But, if the past NFL lockouts–with the players and the referees–were any indication as to how the owners do business, I wouldn’t hold your breadth that a resolution is near.
The NFL still has an arsenal of defenses, even if discovery proceeds. There is a chance the NFL could cut the entire plaintiffs’ pool (i.e. 5,000+) in half with various defenses and motions.
The owners are asking themselves, “Why concede defeat now when we could contain cost later?”
Umm, because the NFL is image conscious and it is taking a severe beating in the court of public opinion. Because “later” could also mean multiple HUGE verdicts if these cases ever see a jury. Because football is at a “crossroads” and the NFL needs to regain control of the dialogue.
The owners could still come out of this battle unscathed–other than a few billion lost–if it never admits and/or is forced to disclose exactly what it knew and when it knew it about brain injuries. But the clock is ticking.
This leads me to my final point.
Judge Brody threw the NFL an early bone. The ball is now in the NFL’s court.
Either they can acquiesce to the players’ demands and put the NFL Concussion Litigation in the early historical chronicles of major sports litigation.
Or, dismiss the plaintiffs’ demands and “awaken a sleeping giant.”
Here’s to a resolution.
The risk of injury has made football a controversial sport since its inception. Detractors have consistently denounced the sport as one of the most dangerous and even barbarous national undertakings, dangerous to everyone who participates, from the kids playing Pee-Wee to NFL power-hitters. Fans largely accept that danger as a necessary, perhaps overstated and forgivable feature of a beloved pastime. Even among those fans, though, it would be hard to find someone unfamiliar with at least one high profile impact injury- Joe Theismann’s badly broken leg or the devastating spinal cord injuries that ended the careers of Reggie Brown, Michael Irvin, Kevin Everett, Mike Utley and Darryl Stingley, the last two suffering life-long paralysis.
More recently, the greatest measure of public attention to NFL injuries has been drawn by the high profile rash of suicides among ex-NFL players in the past few years, including Andre Waters, Jovan Belcher, Kurt Crain, Dave Duerson, Ray Easterling, OJ Murdock and Junior Seau. (Not to mention suicides by players not in the majors, like University of Pennsylvania star Owen Thomas.) Several, if not all, of the pro ball player suicides were diagnosed postmortem with chronic traumatic encephalopathy (CTE)- a terrible degenerative disease. (Because of brain trauma’s invisibility, CTE can only be diagnosed during an autopsy.)
CTE is triggered by repeated brain trauma and is responsible for a sad litany of symptoms that include depression and anxiety, confusion, intense headaches, sexual dysfunction, dementia, aggression, vision problems and light sensitivity, a host of cognitive deficits including memory loss and learning impairment, motor skill degeneration, suicidal ideation and quite possibly more we’re not yet aware of. Small doubt those symptoms explain why the prevalence of suicide by professional football players is now six times the national average.
A growing number of scientists, analysts and specialist claim that deficient helmets and a similarly deficient, decades-old certification standard system for those helmets are largely responsible for the unacceptable flood of concussive brain injuries NFL players repeatedly suffer. The group responsible for helmet certification is the National Operating Committee on Standards for Athletic Equipment (NOCSAE) and their certification process hasn’t changed in 40 years. Said process involves dropping a helmet against an anvil from five feet up to measure its effectiveness against “linear acceleration”- a straight hit.
Unfortunately, the current research suggests that most concussions and other brain injuries which contribute to permanent damage are more the result of “rotational acceleration”- a sort of brain-twisting that strains and breaks nerve cells and their axons. Current helmets are designed to withstand linear acceleration so they’re good at protecting the skull from fractures and to some degree lessening the jarring of the brain inside the skull. In 2002, helmet manufacturing giant Riddell released the “Revolution” helmet. It was touted as just that- a revolution in helmet tech and safety, fitted with more padding, etc. A study (funded by Riddell), even suggested that the Revolution reduced concussion risk by 2.3 percent.
The concussion statistics, however, remain static. Still, virtually all of the advances in football helmet “anti-concussion” technology are variations on the current helmet-protection philosophy- more padding in more places means less concussions. Of course, that doesn’t seem to be the case. Until rotational acceleration can be significantly reduced, concussions and the resultant brain damage won’t be either.
One of the most promising advances in anti-concussion technology comes from Sweden with the Multidirectional Impact Protection System (MIPS) designed by Royal Institute of Technology scientist Peter Halldin. (MIPS is also the name of the company founded to produce MIPS-enhanced helmets.) Halldin’s MIPS works, in broad strokes, by providing a sort of helmet-within-a-helmet that allows the head some “float” when impacted. That in-helmet leeway distributes the force of a collision before the hit rattles the brain around. On paper the MIPS system has worked well- it more than halved the rotational acceleration damage an un-MIPS-protected brain would suffer.
The technology has been adopted by a number of professional athletes, including some pro skiers. When MIPS representatives pitched their system to NFL (and NHL) helmet manufacturers, however, they were shocked to be greeted by leery looks and the sound of crickets. The big helmet producers, like Riddell, were apparently worried that accepting a seeming leap forward in concussion tech like the MIPS would be an admission that their current and past products are and were deficient. As Riddell was recently stung by a $3.1 million dollar suit a high school player filed after being paralyzed, the admission of helmet negligence, they fear, could open a floodgate of pro-baller suits. So there is a chance that football helmets less than half as effective at reducing brain injury than those enhanced by the MIPS are being kept in play because the latter may prove safer.
Even the MIPS best-case scenario, though, is no TBI or CTE panacea. One of the most frightening features of this conundrum is that smaller, “subconcussive” hits can incrementally contribute to the eventual development of CTE. So even jarring tackles that a player with a MIPS helmet takes, those doing a less profound amount of brain damage than concussive hits, can cumulatively lead to CTE without a single concussion ever being sustained.
The troubling conclusion is: it’s hard to imagine any helmet really effectively mitigating the brain-health risk posed by a 280-pound athlete slamming into someone as hard as he can. As some level of TBI seems like a football inevitability, we’re going to have to decide as a society how willing we are to accept the reality of players with brain injury.
Vincent Imhoff is a writer and Los Angeles criminal lawyer who acts as a managing partner at Imhoff & Associates, P.C. He earned his law degree at Chicago-Kent College and his undergraduate degree at Lewis University. When he isn’t writing or practicing, Vincent finds time to ski on his favorite slopes and get some jogging in.