SBD/July 9, 2013/Leagues and Governing Bodies

Judge Anita Brody Orders Mediation In NFL Concussion Lawsuits

Concussion lawsuit plaintiffs and the NFL agreed to mediation in the case
U.S. District Court Judge Anita Brody, who is hearing the consolidated concussion lawsuits brought by more than 4,800 former NFLers, yesterday ordered the parties into mediation, just two weeks before she had said she would rule on the league’s motion to dismiss the case. Retired U.S. District Court Judge Layn Phillips has been appointed mediator, and he will report back to the federal court on or before Sept. 3. Brody wrote in her order she would not rule on the motion to dismiss until that date. Brody also placed a gag order on the parties now that the case is in mediation. In her order, Brody indicated the two sides agreed to mediation. “I held an informal exploratory telephone conference with lead counsel,” she wrote. “As a consequence, I order parties, through their lead counsel, to engage in mediation to determine if consensual resolution is possible.” The NFL in a statement said, "We respect and will comply with the Court’s order regarding mediation and will be available to meet with Judge Phillips at his direction" (Daniel Kaplan, Staff Writer). In N.Y., Ken Belson notes the “two-month window for the mediator gives Brody more time to write or adjust her opinion on whether to dismiss the case.” Both sides have “talked about the strengths of their arguments, but they have a lot to lose potentially, perhaps giving them an incentive to settle.” If Brody’s ruling “is appealed, as many legal experts expect, the case could drag on for months and generate even larger legal bills.” The discovery process “can also be expensive” (N.Y. TIMES, 7/9). Fordham Univ. and Baruch College sports law professor Marc Edelman called it '''highly unlikely'' that either side would budge during mediation." He said, ''The sentimental impact of this type of case is one that would make it strongly advantageous for the plaintiffs to get to a jury. The position the NFL has taken is they are not liable for anything that's happened to the players” (AP, 7/8).

BUCKLE UP: The WALL STREET JOURNAL’s Kevin Clark noted by "all accounts, the battle could take years to settle, with thousands of players' medical histories likely to become a point of contention.” Even cases of “demonstrable brain damage, for instance, will be subject to questions about when exactly that damage occurred -- in a professional game, in a college game -- or in a childhood fall from a tree?” The discovery period “alone could take two years.” For now, plaintiffs' attorneys “have focused on athletes who played before 1968 or between 1988 and 1993, when no collective bargaining agreements existed.” Players' attorney David Frederick said that those cases “render moot the NFL's argument about CBA jurisdiction.” There are “around 300 players in the suit who fall into that category.” NFL attorney Paul Clement in April said that those “would be the toughest cases to defend, but stressed that [the] league's ‘unprecedented’ benefits apply even to the so-called gap-years players” (WSJ.com, 7/8).
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