NFL uses its head in concussion settlement

Posted: August 30, 2013

THE IMPETUS for yesterday's $765 million settlement of the NFL concussion lawsuit ultimately turned out to be the clock.

It was time. With its unlimited army of high-priced lawyers and nearly $10 billion in annual revenue, the NFL easily had the wherewithal to let this thing drag on and on and on in the courts.

Even if the class-action suit managed to make it to trial, it would have been 5 or 6 years before there would have been a verdict. And a yearlong appeal would have followed that regardless of who was the victor.

And while anyone who has spent more than a couple of minutes around the NFL knows the league played dumb about concussions for years, it's one thing to know it but another thing to prove it to a jury.

The NFL always was confident it could win. But the whole concussion mess had become a public-relations nightmare for the owners. No amount of player-safety rule changes or tackling clinics for kids could change that. With another season about to start, they just wanted it to go away.

As for the lawyers representing the players, despite their strong rhetoric and confident posturing, they knew they were fighting an uphill battle.

And they knew that many of their clients, like former Eagles fullback Kevin Turner, who has ALS, were running out of time and couldn't wait 5 or 6 years for justice.

"Our goal from Day 1 was to get medical benefits and compensation to the players as quickly as possible," said Chris Seeger, the co-lead counsel for the retired players along with Sol Weiss, of the Philadelphia law firm Anapol Schwartz.

"Players like Kevin need help now, not 15 to 20 years from now. There was a time element here. We needed to get it done. You could hear the clock ticking. Now, I didn't hear the clock ticking to the point where I made compromises that I didn't think were right. But we pushed it right to the limit and as hard as we could. And when we got to the number we needed, we ended it."

Strictly from a dollars-and-cents standpoint, this was a clear win for the NFL. The $765 million the owners will hand over for medical benefits and injury compensation for retired players, to fund medical and safety research and cover the players' litigation costs is chump change for a league as filthy rich as this one. Trust me. Jeff Lurie isn't going to have to start buying his suits off the rack to pay his 1/32 share of the settlement.

Players like Turner with serious neurological problems such as ALS, Parkinson's disease, Alzheimer's or dementia will receive a settlement up to $5 million as soon as U.S. District Judge Anita Brody approves the agreement, which could take up to 6 months.

Every retired player who agrees to the settlement will be eligible to participate in a neurocognitive baseline assessment program. Those who are diagnosed with a certain level of cognitive impairment will be eligible for treatment of their condition. If they eventually develop more serious problems, even if it's 20 years down the road, they will be eligible for inflation-adjusted compensation.

"This case has always been about providing security and care to former NFL players and their families," Seeger said. "This agreement will get help quickly to the men who suffered neurological injuries playing the game. It will do so faster and at far, far less cost both financially and emotionally than would have been accomplished by continuing to litigate. Not to mention the risks of litigation."

While the NFL was confident it would have won in court, the public-relations damage it would have suffered along the way would have been monumental, and it knew it.

"I think the league would have beaten the class [action] because I think there were too many individual issues for the case to go forward as a class-action," said a lawyer who has represented defendants in class-action suits.

"But what would have been tough for the league, and what would have been a PR nightmare, is that there probably would have been some really ugly individual cases. Situations where Player A or Player B or Player C had really bad facts. And it would have played out again and again and again.

"I think what the NFL is banking on is if they can get this whole problem resolved in one fell swoop with this [settlement], they can clean out as many of those cases as possible so that they can put this chapter behind them."

No one was happier to see yesterday's tentative settlement than the 44-year-old Turner, who is 4 years into a battle with a disease that usually kills its victims within 5 years.

"It's been a struggle," said Turner, who played for the Eagles from 1995-99 after 3 years with New England. "But today, I am very proud that the NFL decided to stand up for all of the former players who are suffering from brain injuries. The compensation provided in this settlement will lift a huge burden off men who are suffering.

"This settlement is a very important step for assuring future generations of football players do not suffer the same way me and my generation and the generations before me have."

There still are a number of things that need to be done before Brody signs off on the settlement, including sending notice to the more than 18,000 retired players. They will be given the opportunity to exclude themselves from the settlement, which would give them the right to bring their own lawsuits against the league but also make them ineligible for the baseline assessment, treatment and compensation from the settlement.

Weiss confirmed that the league has put a "blowup" provision in the settlement, which would allow it to opt out of the settlement if a certain number of retired players oppose it. That's typical in these kinds of cases. But it's unlikely the league, which talked yesterday about "doing the right thing for the game and for the men who played it," would have the guts to back out.

"I think it would be very hard for them to do an about-face after some of the things they said today," the class-action lawyer said. "For them to talk about the importance of doing the right thing for the players and then back out in 5 months because too many players opted out, that would be extremely unlikely."

He also pointed out that the lawyers representing the retired players are going to be able to apply to a payment fund that will be created for them. So they will have a great deal of incentive to get their clients to fall in line.

"There's 19,000 potential plaintiffs," Weiss said. "I think most of them will agree."

Two years ago, Weiss and Larry Coben, a fellow partner at Anapol Schwartz, fired the shot that started the concussion war against the NFL, filing a suit in federal court on behalf of several retired players and their families, including former Falcons defensive back Ray Easterling and former Bears and Eagles quarterback Jim McMahon.

Over the course of the next 2 years, more than 4,200 players filed concussion-related suits around the country against the NFL. They eventually were consolidated into the class-action that was settled yesterday.

Easterling wasn't around for the settlement announcement. He commited suicide last year.

"It was just obvious from having worked with people who are brain-damaged that these guys were suffering, at different levels," Coben said about the decision to go after the NFL. "Some with ALS and Alzheimer's. Some with mild forms of dementia. Some that were just getting started down that dark road. It was just obvious that there was a pattern that wasn't ending. It was getting worse and worse.

"This is one of those cases where the clients were driving the case. Lawyers didn't really settle this case. The NFL knew that these were guys who gave their lives to the sport were paying a price. It realized that it could face lawyers all day long. That doesn't matter. But it's the players and their families [that mattered].

"It's just so gratifying to help these people."


Email: pdomo@aol.com

On Twitter: @Pdomo

Blog: ph.ly/Eagletarian.com

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