SBD/September 4, 2013/Leagues and Governing Bodies

Source: Both Parties In NFL Concussion Suit Could Have Been Hurt By Proceeding To Trial

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Litigation over the NFL concussion case could have continued for years
The $765M proposed concussion settlement between the NFL and 4,500 retired players "ended up in court-ordered mediation only after the judge told players' attorneys that the bulk of their case was in 'real danger of being dismissed,'" according to a source cited by Fainaru & Fainaru-Wada of ESPN.com. The source added that while NFL attorneys "confidently indicated that they would take the case to court," U.S. District Court Judge Anita Brody in the same discussion told league attorneys that "at least part of the case was likely to survive, a possibility that would expose the league to potentially embarrassing disclosures and a continuing public relations nightmare." The source said that once in mediation, the players "demanded slightly more" than $2B. The NFL indicated that it "was unwilling to offer more than a token settlement and said it was prepared to try the case." Brody had "signaled that she was going to side with at least part of the league's argument" that some players covered by the CBA should "not be able to sue the league." That would have "gutted the lawsuit in two ways." First, it would have removed many of the former players who appeared in the league from '94-'10, "the controversial period at the heart of the lawsuit." Second, those who "remained would have faced a major hurdle proving fraud," given that the NFL's concussion committee was not formed until '94. It "became clear that the NFL was potentially facing years of litigation, even if many of the plaintiffs were to be tossed out." If a "significant number of players were to exercise their right to opt out of the settlement agreement, Brody has the option of not accepting the settlement overall or issuing a ruling on the league's motion to dismiss the lawsuit" (ESPN.com, 9/1).

AVOIDING DIRTY DETAILS: THE MMQB's Peter King cited a source as saying that a "large majority of NFL owners approved the details of the settlement" in conversations with Commissioner Roger Goodell. For about $16M per team over the next three years and $12M over 17 years, "nuclear winter was averted." If players are "unhappy with the amount of compensation and want to file claims, they’ll run into some of the best litigators in America, the NFL’s, and it’ll take years and millions of dollars to fight the fight." King: "So for now, most experts feel the crisis has been averted, and the game will go on." From the NFL’s side, there was "no way it wanted the dirty laundry of stories of team doctors ignoring or minimizing concussions during games aired in depositions before the trial, or in testimony at trial." One "rogue doctor or ruthless trainer would have been enough to turn all public sentiment against the league." The attorneys for the players "felt they got as much as they could from the NFL before the two sides would have had to appear in front of Judge Brody ... at which point the players knew the case could have been weed-whacked if Brody removed all the players who had played" since '94 (MMQB.SI.com, 9/2). NFL VP/Communications Brian McCarthy said that all teams "will contribute equally to the overall fund." PRO FOOTBALL TALK's Mike Florio wrote teams contributing will include "those that have been in the league since the 1920s" as well as those that have "existed for less than 20 years." For a $32B business with "billions more already guaranteed to be generated over the next decade through TV contracts, it's a hiccup" (PROFOOTBALLTALK.com, 8/30).

THE COMMISH SPEAKS
: NFL Commissioner Roger Goodell and Under Armour Founder, Chair & CEO Kevin Plank today appeared on "CBS This Morning," with Goodell first discussing the concussion settlement. CBS' Charlie Rose said, "Some are saying that the NFL got off easy." Goodell said the "most important thing to us was to be able to resolve the differences and get relief to the players as soon as possible and their families. What we were able to do was all compromise on our positions. There was no admission of guilt. There was no recognition that anything was caused by football, but the reality is we want to help our players … and if we litigated this, it would have been years of litigation and the help wouldn't have been given to the players at an earlier date." But Goodell added that "one thing I've learned in this business is litigations are never over." Goodell said of recent rule changes, "It's made the game safer because as we see techniques, we change the rules to take those out of a game. Our focus in recent years has really been how do we protect the 'defenseless player.’” Plank also discussed the GE-UA-NFL partnership to develop ways to prevent head injuries. Plank said, "What we want to do is put the smartest minds around the world at the table” ("CBS This Morning," 9/4). Goodell also appeared on CNBC's "Squawk Box" and said the game of football has never "been safer" and the NFL is "better and more exciting." Goodell: "The changes that we're making at the NFL level with rules and equipment by pioneering research have worked its way all the way down through college football to high school football to youth football" ("Squawk Box," CNBC, 9/4).

MORE TO COME? The WALL STREET JOURNAL's Jason Gay wrote the settlement "does not rule out other lawsuits." It does "not close the door on the information" that former NFLPA President Kevin Mawae wants. More challenges "are sure to come" (WALL STREET JOURNAL, 9/3). ESPN.com's Gregg Easterbrook wrote, "Preventing disclosure of team finances was a major goal on the NFL in this settlement." For plaintiffs' counsel the outcome is "marvelous." The NFL is "covering their legal fees," which means the "lawyers get their payday upfront, rather than waiting for years." If the NFL "offered the players' lawyers a pretty penny to settle, they may have had incentive to sell their own clients short -- an issue the supervising judge may explore" (ESPN.com, 9/3). In Toronto, Steve Simmons wrote the settlement "might help the desperate in need of treatment money, but more than anything, it buys the NFL some time to try and understand and grasp what has happened here but determine how to prevent the next generation from living equally painful lives" (TORONTO SUN, 9/1).

WINNERS & LOSERS: In Boston, Ben Volin wrote the settlement "appears to be a victory for both the NFL and the retired players -- but with a capital 'V' for the league and a lower-case 'v' for the retirees." The sum of $23M per team is a "drop in the bucket for the owners, especially when considering they have 20 years to pay out" (BOSTON GLOBE, 9/1). In St. Louis, Bryan Burwell wrote the settlement was the "perfect strategy to make the whole embarrassing mess just go away quietly." The NFL "needs this story to go away as quickly as possible because it doesn’t want to end up looking as cold-hearted as big tobacco executives." So now it "gets to close the door on this one, and move on, make us believe they care." Burwell: "And maybe they do now, but we know this religion is an all new thing to them" (ST. LOUIS POST-DISPATCH, 9/3).

ON THE DEFENSIVE: In L.A., Ken Bensinger cited California workers’ compensation data as showing that NFL DBs are "more likely to file injury claims than any other position." Since '90, DBs "have filed nearly 1,100 claims in California" against their former NFL teams for injuries suffered on the field. DBs also "led all position groups in claims for head and brain injuries with more than 820 filings." California, because of "several unique aspects of its law, has over the last six years become a venue of last resort for such filings by injured former athletes who cannot make such claims elsewhere." The claims "can be costly for all professional sports teams, which must pay them out of pocket or carry pricey workers’ compensation insurance." But no league "faces more financial risk for the injuries than the NFL, which faces some 4,000 pending claims in California" (L.A. TIMES, 9/2).

NORTH OF THE BORDER: The CP's Donna Spencer noted CFL Commissioner Mark Cohon "wouldn't comment Monday on the NFL's settlement ... saying the CFL has been proactive in addressing concussions." Cohon: "What we’re essentially doing is making sure we’re focused on player safety. What we’ve been doing for years now is putting the right protocols in place. We actually had protocols in place on our sidelines well before the NFL had them" (CP, 9/2).
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