By Steve Kallas
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Many have correctly viewed the recent settlement of the retired players’ lawsuit against the NFL as a victory for the NFL. $675 million of the $765 million total settlement will go to help those in need (reportedly with individual caps of $5 million for those with ALS, $4 million for those with chronic traumatic encephalopathy and $3 million for those with dementia).
HERE’S THE DILEMMA FOR THE LAWYERS OF THE PLAYERS
Many have criticized the lawyers of the players for not seeing the litigation all the way through, for not standing and fighting and/or for not understanding the grave nature of the injuries that these players have and/or eventually will suffer after years of brain trauma.
But the lawyers for the 4,500 or so retired players (and all retired players — not just plaintiffs — are included in the settlement) really had to do a balancing act. It’s really not their job to fight the powerful NFL and their billions for four or six or eight (you fill in your number) years with no guarantee of success down the road. Indeed, the lawyers of the players have to look out for their clients, especially the players who are suffering tremendously right now.
So, like the number or not (and yes, it is a drop in the bucket for the NFL), the lawyers, unless the players wanted to forego this money knowing they might get little or nothing six or eight or 10 years from no, did what they were supposed to do and got their most needy clients some real relief that might come to them within the next year or so.
You can criticize the lawyers for not getting more — ESPN reported that the players started at $2 billion and the owners essentially started at $0 — but that’s a difficult negotiating position for the lawyers of the players to be in: fighting the powerful giant while you have hundreds or thousands of clients who need immediate financial help. By the way, this happens all the time. Big corporate monoliths will pay something less, or drag you — the plaintiffs — through the mud for years, if not decades.
SO WHY IS IT SUCH A BIG WIN FOR THE NFL?
Well, that’s easy. While the NFL won on the number ($765 million), it certainly wouldn’t have hurt their bottom line by much if they had paid $1 billion or more. Paying $765 million, to this writer, is just a small part of the big victory.
The NFL, like virtually all the Goliaths of the world, admitted no liability. They didn’t have to produce any discovery; no documents, emails, letters, etc. that may very well have shown what they knew and when they knew it. They didn’t have to have any of their owners put under oath for depositions, or their bizarre concussion-committee members, who as recently as a few years ago were making statements that there really was little or no correlation between repeated brain trauma and later injuries for players.
As recently as 2009, the “man in the street” football fan was laughing at the “distinguished” NFL committee that was saying none of this was really a big deal.
Of course, none of that was really truthful, as it was clear even to those who just watch football that it was potentially very dangerous (life-threatening?) to have repeated blows to the head over days, weeks, months and years.
So the NFL win, with respect to retired players, is far greater than just not paying a lot of money. They didn’t (and won’t now have to) disclose anything. There will be no trial on fraud, which many believe the NFL committed against its players over decades.
And they can go back to their multi-billion dollar business starting this Thursday.
BUT WHAT ABOUT THE FUTURE?
Well, it’s an interesting question that seems to have been lost in the shuffle. This lawsuit/settlement agreement has nothing to do with the present-day players. Are a lot of these players, when they retire, going to eventually get ALS, CTE or dementia?
Of course they are!
So the NFL isn’t out of the woods yet, forward-looking. Although they are in a much better position than they were, say, a week ago.
It is also not yet clear if retired players, plaintiffs or not, will be allowed to “opt-out” of the settlement; that is, leave the group that has settled and bring an independent lawsuit on their own. That remains to be seen as well.
MORE IMPORTANTLY, WHAT ABOUT THE YOUNG FOOTBALL PLAYERS WHO NEVER PLAY A DOWN IN THE NFL?
This is where the most damage, in this writer’s opinion, will be done. With brains that are not yet fully developed, with scary, physical mismatches every week all over the country at all levels, the real damage will be done to kids all over the country.
While participation in youth football is down a little these past two years and may be down even more in these next few years, the death of football has been greatly exaggerated.
It will be up to parents and their kids to make what now is, at best, a difficult decision given the obvious potential dangers. At worst it’s a no-brainer for many parents who will simply forbid their young children from playing the sport.
BACK TO THE NFL SETTLEMENT
Some believe that Judge Anita Brody may not approve the settlement. But it says here that she will, especially since she really wanted the sides to work this out and appointed a well-respected former federal judge (Layn Phillips) as the mediator to iron out all the issues.
So yes, the NFL gets a big win here on a number of levels. But at least the players who need help (and their families) will see some money in the not-too-distant future.
Does this solve the same issues in the future for NFL players? Not at all. Does this solve the same issues for youth football players? Not at all.
Can those issues be solved? Well, that’s the next billion-dollar question coming down the pike.
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