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Volume 21 No. 1
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Order offers hope for progress in concussion case

Next Monday was to be a landmark date in the massive concussion litigation filed by more than 4,200 players against the NFL, when a federal judge would rule whether the case could move forward.

Instead, Judge Anita Brody last week switched gears and ordered the parties to mediation, forestalling her decision until at least Sept. 3.

The move left some observers cautiously hopeful that a long-expected legal slog that could consume up to a decade might end instead with a quick settlement.

“The order will put pressure on the league to seriously consider its position in the case,” said Cal Burnton, a liability lawyer with the firm Edwards Wildman. “If the motions [to dismiss] are denied, even in part, discovery will proceed, and the players will get access to all of the league’s internal documents.

“The league’s bargaining position is now at its highest,” Burnton said. “Once discovery begins, the players will have a much stronger hand. The league also has to ask, What is its end game? Certainly it wants to avoid a [Big] Tobacco-type of resolution. If the documents are as ‘bad’ for the league as the players’ lawyers hope, then a tobacco-type of resolution could be demanded.”

The NFL argues the claims should be handled under the dispute-resolution mechanisms of the collective-bargaining agreements in place when the former players competed. The players contend the NFL hid the risk of concussions and that their injuries were not contemplated under the CBAs.

Adding to the case’s complexities, if Brody were to let the case proceed, discovery could take years as the league interviews each player about his injury history, from youth though high school football and on to the pros. Some players may not live that long given their conditions.

And even before the NFL could opt to settle, it would need to know how much its insurance carriers will pay, and right now, the league is engaged in a legal battle with them over that liability. The carriers sued the league seeking to avoid liability coverage.

Many observers are not as hopeful as Burnton. Gabe Feldman, director of Tulane University sports law program, said the case is too complicated for a quick settlement

“At this stage of the game, it is too early and the gap is too large,” he said. “The biggest stumbling block is the NFL likely believes it has a strong case.”