Settlement was best NFL could do

Posted: August 31, 2013

In reaching a $765 million medical settlement with its former players, the NFL admitted that going to trial is always risky, and admitted that a long stream of disabled players making their halting way to the witness stand wasn't an appetizing notion. But the league didn't admit much else.

"The settlement does not represent, and cannot be considered, an admission by the NFL of liability, or an admission that the plaintiffs' injuries were caused by football," according to the principle terms of the agreement presented Thursday to Senior U.S. District Court Judge Anita Brody here in Philadelphia.

The players, or at least the counsel representing them, are going to let the allegations of cover-up and wrongdoing slide away, which is part of the deal when the other side agrees to give you a big pot of money to do so. What the master complaint in the class action filed last year on behalf of 4,500 former players termed "a concerted effort of deception and denial" will remain nothing more than an allegation the plaintiffs didn't need to prove.

It is an allegation the NFL didn't need to defend, either, and that's a good reason the league will write the checks with all those zeros. Even within the less-restrictive guidelines for finding guilt in a civil case, there was no guarantee the players were going to win. They would have poked around the league's internal documents during the discovery phase of the trial, but the probability of finding a "we-have-to-hide-these-damn-concussions" memo was not high.

But even if the league won, it would have lost. Once the litigation process started, the NFL would be committing itself to climbing the appellate ladder if necessary, and that could have meant years of pretending that all the players who garble their own names and all the families of men who died too young were victims of bad luck and not institutional malfeasance by the league.

It wouldn't have been pretty, and the league didn't have the stomach for the fight. If $765 million over 20 years is the price of peace and quiet, then the NFL accepted that as the cost of doing business. It can claim a moral high ground now and offer the settlement as proof that it is serious about the issue of brain injury among its players.

The agreement covers only retired players, so the current crop will be on its own. And good luck to those players when it is their turn and they try to say the league didn't take the concussion issue seriously or didn't do enough to protect them. They are playing during a time when the league has implemented strict guidelines for treating concussions, has committed a lot of money to research and reparation in the collective bargaining agreement, and has seemingly done everything it can to eliminate tackling above the shoulders.

If the NFL made a mistake by ignoring its liability exposure because of what happened in the past, it has corrected that mistake for the future. Nobody is going to out-safety the NFL. It's good for the players, which is true, and it's good for business, which is why there was a settlement announced Thursday.

The settlement prevented Brody from having to rule on the league's previous motion to dismiss the class action - which represented a consolidation of more than 80 individually filed lawsuits - on the grounds that the plaintiffs took their complaints to the wrong building. The NFL said what we have here is a workplace safety dispute between a union and its employers, a setting in which workplace safety issues are the subject of routine collective bargaining. Take it to a court of labor law and we'll chew on it there.

That might have been a defensible legal position, but it would have stunk out loud from a public relations standpoint, and it would have probably only delayed something like what happened Thursday.

Some insurance and liability analysts estimated that, if you hit the calculator often enough, the league could have been on the hook for as much as $2 billion in payoffs, which is a big number even for the NFL. Some others are quibbling that while half the payout must be made in the next three years, the league can spread the other half over the following 17 years, absolving its sins on a manageable budget plan. Did the NFL get its good-guy badge at a bargain price?

Christopher Seeger, co-lead counsel for the players, said that it's not always a good idea to listen to the opinion of insurance companies - not much argument there - and that the ability to immediately begin disability payments is what makes this a great deal.

"We got what we wanted. Put it that way," Seeger said.

So did the league. Of course, it usually does.


Bob Ford:

NFL, former players reach a $765 million settlement in concussion lawsuit. A1.

Former Eagle Kevin Turner says the settlement is a victory for the plaintiffs. C3.


Contact Bob Ford at bford@phillynews.com. Follow on Twitter @bobfordsports.

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