Is there a winner in this game? The NFL head trauma settlement

The recent NFL settlement will pay $685 million into a pool to compensate former players suffering neurological injury from football-induced head trauma. At first blush, the deal seems just like so many other settlements: an uneasy compromise by both sides to avoid the unknown risks of the courtroom. Is the settlement fair? That depends largely on evidence of the NFL's accountability that now remains private, combined with evaluation of the nature and extent of the specific injuries suffered by former players, which is largely unknown and likely to remain so long into the future.
 
The settlement, however, does clearly reveal a few important points. The NFL's willingness to reach a settlement suggests it had serious concerns about revealing what it knew about the effects of head trauma and the reasons it apparently did not reveal its knowledge to players and the public. If the NFL had this knowledge and put players at risk by withholding it, then the NFL is legally and morally responsible for players' neurological injuries, which could expose the NFL to significant civil liability. Settling the lawsuit enabled the NFL to close the chapter on this issue, avoiding a potential public relations nightmare and a possibly far higher damages award.
 
On the other hand, the NFL had some strong defenses at its disposal. If the lawsuit went to trial, the players would have to demonstrate the NFL's conduct — and not repetitive traumas during childhood, high school, and college football — caused their injuries. The NFL also put forth legal challenges to many of the players' claims based on their collective bargaining agreement, and the presiding judge relayed to the parties that she considered many of the plaintiffs' claims vulnerable to this legal attack. Some players' claims would have likely survived, but many claims faced possible outright dismissal.
 
While some may criticize the lawyers who will receive enormous fees for selling the players short, the case was no easy win and suggesting otherwise ignores the sometimes cruel realities of high stakes litigation. And those who note how easily the immensely profitable NFL can afford the settlement miss the point: the settlement must focus on fairly compensating the injured plaintiffs, without regard to the size of the NFL's coffers.
 
That said, if hundreds of the former players that are part of the case have or develop serious neurological diseases, the amount of the settlement will be woefully inadequate to compensate them for two reasons. First, an otherwise healthy, young person stricken with a serious neurological illness requires significant care and suffers significant and dramatic loss in quality of life and longevity that, taken together, would justify much larger individual awards than the settlement can fund. Second, the $685 million amount would quickly disappear with only a few hundred distributions for sufferers of Amyotrophic Lateral Sclerosis (ALS or Lou Gehrig's disease), who would receive up to $5 million, Parkinson's ($4 million cap) or Alzheimer's or dementia ($3 million cap). Then again, the $2 billion the players reportedly initially sought also would fall short.
 
In addition, the tragic effects that "minor" neurological impairment can have on the lives of otherwise young, healthy people should not be underestimated. However, understanding if and how this condition will affect the former players involved in the case probably would not be possible by the time the case would have ended. This means more uncertainty and substantially more delay for those seeking compensation. While the net amount for each individual plaintiff surely will be inadequate compensation for their losses, the settlement is a sure thing that will give many needy former players much needed financial assistance – now and without the need for lengthy appeals.
 
From what is publicly known, there is no clear winner in this settlement. It buys the NFL closure, but it also buys the players certainty and control.  It's not a perfect solution for either party, but what settlement is?
 

 

The author, Paul Slager, is a partner at Silver Golub & Teitell in Stamford, Connecticut, and has represented many survivors of serious brain injuries in their civil cases. He has been a board member of the Brain Injury Alliance of Connecticut (formerly, the Brain Injury Association of Connecticut) since 2006, serving as President of the Board from 2008-2013.
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