NFL Settlement for $765 Million – Experts Weigh In

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A huge settlement was reached by the NFL and quite a few of its players about a month ago in its traumatic brain injury case. The amount settled for was $765 million, which is supposed to help fund players care and fund further study of the effects of football on the brain. We asked experts what they thought about this recent settlement, and here are their thoughts. If you want to share your thoughts and add to the discussion, feel free to do so by commenting under the article.

So many people are talking about traumatic brain injury (TBI) in sports, but TBI can happen to anyone, anywhere, anytime.

  

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Dixie Coskie

The settlement of $765 million is a start for compensation for former NFL players. The speed and forces in collisions has risen dramatically in the NFL over the last 10 to 20 years with damages affecting players currently playing the game, and also surfacing in those who have retired.

John V Prunskis MD FIPP

Dr Prunskis is one of Illinois’ most esteemed pain management specialists. Board certified in both anesthesiology and pain management and achieving the highest distinction for an interventional pain physician as a Fellow in Interventional Pain Practice (FIPP), Prunskis is founder and co-Medical Director of the Illinois Pain Institute.

I’m a HUGE football fan… and for most women that is out of the ordinary. I think the settlement is a shame and disgusting. Why? THE NFL has known for years that playing such a hard hitting contact sport could leave and does leave long lasting effects on players. The amount of the settlement is ridiculous. They said something like 5% of the total intake of what NFL makes is what they are giving. To me that is a slap in the face. People have played for the NFL for what 40 or 50 something years now and they can only give out such a small amount. What is the NFL thinking? They can just do this as a hush money and hope it gets swept under the rug? Typical. What about the players that are getting injured now and the season just starting this week? And will the amount of money given in the lawsuit bring back the injured person’s life as it was? I bet no amount would ever do that. I’m sure when they signed with the NFL no player was thinking BOY I HOPE I NEVER GET SERIOUSLY INJURED…Come on now it seems there should have already been a protocol in place here.

Deb Bailey

Our company has a strong opinion on this settlement. We are a company with a training aid product that teaches proper HEADS Up tackling and we’ve had some dealings with the NFL. This notion that they are really trying to do something about all of this is just nonsense. It’s just a big PR fiasco for the NFL. We know firsthand.

Helmet HALO Technologies makes the HITRight Helmet Sensor

Frankly, I was disappointed with the concussion settlement. I understand from the league’s perspective how it would be attractive to settle, at about 1.5M per year for each team over the next 20 years, I’d assume that’s a cost that they’re going to barely notice. Additionally from the players perspective, I’m sure some of the men involved in the suit desperately need some additional support either financial or medical.

While it makes sense for both sides to reach a deal, what seems to be missing is any type of talk about the future of the game. Concussions are still happening and rules changes and equipment’s ability to prevent concussions simply don’t seem capable of stemming the tide. I’m left to wonder, what happens when my 2 year old son asks me to play football? How can I let him when neither side seemed even remotely interested in what happens next?

Mark Aselstine
Proprietor
Uncorked Ventures

As a fan, I am saddened that the league seems to have been keeping this vital medical information from players. Some of my favorite players and coaches are older now and I hate the idea of seeing them decline because they were not adequately protected as they entertained us playing a game that they loved.

As a media relations consultant, I think that the settlement was the way to go. The brand, much like the human brain, could not sustain repeated assaults. The NFL made the right choice to settle and attempt to move forward before additional damaging information was revealed. I hope that we see stronger oversight going forward and I would like to see the NFL create more messaging around this topic to inform the general public. There are many children and young adults who aspire to be NFL players and this is an awesome opportunity for the NFL to take a public lead on protecting their players and all the players down the line to pee-wee football.

Julia Angelen Joy

Z Group PR

A good settlement is often described as a negotiated result that leaves both sides equally unhappy.  While the amount of the settlement may seem staggering, to give it some context about what a great deal it is for the league, one need only glance at revenue and valuation estimates.  The NFL is the wealthiest and most powerful sports league in the world.  It is estimated that annual revenues for the league are over $8 billion. The average NFL team is valued at $1 billion, using a conservative multiple of four times annual revenues of $250 million. TV rights alone generate $4 billion in annual revenues for the league.  So yes, $765 million is an enormous settlement (especially when the amount of attorney’s fees is contemplated!), but the NFL can easily afford it.

From the player’s point of view, they certainly get enormous benefits.  Although the league did not admit any wrongdoing, the settlement is tantamount to an acknowledgement that for years, players have sacrificed their bodies and brains in a way that may not have been entirely healthy.  And of course, the players risked taking nothing in their claims. Even kindergarteners know that banging your head over and over again isn’t good for you, so the idea that the players assumed the risk isn’t without legal support.

On balance, even though the players got several hundred million to divvy up, it strikes me that the league came out on top of the pile.  They get some PR benefit in appearing to “do the right thing” regardless of what a trifle that amount is to them; there is no admission of wrongdoing; and the NFL will get to keep its dirtiest secrets about what it knew and when it knew it concerning traumatic brain injuries.  Even though the league threw the players a bone, the wealthy guys still won.  Comedian Chris Rock jokes about the difference between the professional athletes – the rich – and the team owners – the truly wealthy.  The players may be, for a brief moment, rich.  But the guys that sign the paychecks are the wealthy ones.  And in this case, the wealthy guys won again.

Darren Kavinoky

The settlement occurred just as I thought it should. The league settled without showing their bad documents, and the case continues against Rydell. Not sure why they didn’t buy out. The $10M for research is a joke. The key term here is all players get it and the lawyer’s fees will be paid by the NFL.

Cal Burnton

Partner

Edwards Wildman Palmer

Chicago, IL

The recent NFL settlement, if carried out in the manner described in the settlement agreement, could be considered fair to both the NFL and the retired players who suffered concussions and related injuries. The settlement agreement provides for $75 million to give baseline medical exams to the former players and $675 million to compensate former players who have suffered cognitive injury or their families. The remaining funds will go towards research, education and other miscellaneous costs.

The settlement agreement is unfair to the injured players in a couple of ways. The NFL refuses to admit liability or admit that the players’ injuries were caused by football. They are obviously seeking avoid any potential protracted litigation from future players who might bring suit based on any perceived admission in the settlement agreement. They also cap the plaintiffs at “all players who have retired as of the date on which the Court grants preliminary approval to the settlement agreement” therefore denying relief to any current or future NFL players.

Beth Shankle Anderson, Esq.

The NFL needed to “slow down” this tremendous concussion awareness attack on the game & they sure can afford the money. Now we’ll see how the colleges, high schools, & youth leagues adapt. I’m all for trying to increase safety – BUT assuming it can be done with the game of football as we know it? … Lots of luck!

Dr. Bob Weil

Do you think this settlement was fair for the NFL?

I think the NFL got off easy.

Was it fair for the players?

I don’t think it was fair for the players. Some say the NFL settled to avoid having to spend money on lawyers and litigation over the next several years. My take on it is that they leveraged this against the players in order to get them to take the deal. It wouldn’t surprise me at all if lawyers on the side of the NFL told the players they were prepared to litigate this for years if they wanted to fight for more money. Or, in lieu of a protracted legal battle, they could take the $765 million now. The well-being of many of these players may depend on the money in the suit that’s designated for medical research, putting more pressure on them to accept the deal.

What are your thoughts on the lawsuit in general? Feel free to be open and honest in sharing your thoughts on this.

$765 million may sound like enough, but it really isn’t. Not when you consider the number of players involved (as many as 20,000) and the amount of revenue the league brings in (about $9 billion) annually. And the fact that the NFL doesn’t have to admit to hiding the information it had on head injuries makes the deal even more suspect. I understand why the players’ side took the deal – I just wish they had been in a better bargaining position to hold the NFL’s feet to the fire a bit more.

David Bakke

Editor at Money Crashers

While many outlets are reporting on the proposed settlement reached between the retired NFL players and the league two weeks ago as if it is the end of the MDL Concussion Litigation, the litigation is far from over and many hurdles remain before the settlement is final and approved by the Court. Even if the NFL settlement goes through, the litigation will continue against the official helmet maker of the NFL, Riddell, as Riddell is not a party to the settlement. While Riddell has not garnered nearly as much media attention as the NFL has, a recent Colorado state court jury verdict against Riddell for $3.1 million may signal to the plaintiffs that Riddell could have significant exposure in the MDL Concussion Litigation. This is the first jury verdict against Riddell arising out of a concussion-related incident.

“In this complaint filed in 2010, the plaintiff, Rhett Ridolfi, a high school student, brought suit against his high school district, various school officials and coaches, and Riddell. Ridolfi brought suit seeking damages for injuries he alleged he received in 2008 when he suffered a concussion during an early morning football practice, was cleared to continue practicing despite complaints of headache, dizziness and vomiting, and then participated in an afternoon practice on the same day. Ridolfi alleges that when his symptoms worsened during the afternoon practice, he was taken to the emergency room and diagnosed with an arterial hemorrhage. Ridolfi alleges he had multiple brain surgeries and sustained permanent brain damage. Ridolfi sued Riddell under five products liability theories – failure to warn, strict liability of manufacturer, breach of implied warranty of fitness for a particular purpose, breach of express warranty, and breach of implied warranty of merchantability. Riddell denied the substantive allegations.”

Ultimately, “the six-person jury found Riddell liable for failure to warn and awarded $3.1 million in compensatory damages to Ridolfi. The jury did not find against Riddell for its helmet design under strict liability or negligence theories.”

Kathryn Thomas is a partner in the Litigation Practice Group at Freeborn & Peters LLP (Chicago).

After the announcement of the NFL settlement with the players recently, a lot of talk has gone around over who won the deal.  While it doesn’t happen very often I’d say that everyone won in some capacity, but at the heart of it the NFL won a lot more cost wise then shelling out a few hundred million dollars will cost them.  For the players, it likely became a matter of seeing something versus risking the possibility of seeing nothing.  The judge had warned that were she to make the decision, neither side was likely to be fully satisfied.  For the players it meant possibly losing members of the lawsuit due to their standing under previously negotiated bargaining agreements with the NFL.  If some of the more recent players were dropped, it’s likely the NFL could use the passage of time as arguments against the older players and question if their playing days even contributed to their current physical conditions at all.  A fairly slimy argument but one that might have held merit.  What really seems to be the win in the players’ favor is now there is real money coming to them and it will be distributed sooner rather than later (with “not at all” being squashed thanks to the settlement).  These players need the help now, not when they’ve passed away.  With a hopefully fair vetting system that delivers the cash in amounts based on need and condition, the players can move forward with their lives and hopefully seek quality medical care to allow them to enjoy their remaining days whether it be in years or decades.

But for the NFL, the win is not about money.  Sure they have to give up what amounts to a pittance when comparing annual balance sheets as well as the lofty predictions of future seasons where revenue could surpass $10 billion, $15 billion, or even more.  The real win lies in what they don’t have to give up.  There will be no discovery now and no team medical reports unearthed and shared with the public.  They don’t have to worry about a rogue team physician or trainer who found themselves with a guilty conscience and decided to testify on the players’ behalf, potentially opening up a Pandora’s box of situations and stories where players may not have always been diagnosed in ways that were fully beneficial to them (versus, say, being beneficial to the team).  The public relations nightmare that a trial almost certainly would have become is now a moot point.  While the NFL shouldn’t exactly be beaming with pride over this development and the cloud it has cast upon their regard (or even disregard) of their players’ safety, the league can move forward with their goals of continuing to build the brand and remain the most popular sport in America today.

But what would be nice to see in the aftermath of this lawsuit is for the NFL to take more seriously the needs of the players that were instrumental in building the league and granting it the opportunity to pursue such lofty billions of dollars in the first place.  Without the players of the 1960s, 70s, 80s, etc. the league wouldn’t be where it is today.  It was disappointing to see players like Drew Brees make offhanded comments regarding how these players should have handled their money better and foreseen the possibility of mounting medical bills in the future.  Mr. Brees obviously needs a history lesson on players’ salaries.  In 1982 the average NFL salary was just over $90,000 so there were players making less while a few stars made a lot more.  Not too many years earlier players were even working regular jobs during the off season as these were the days before year round mini camps and training sessions.  So it’s easy to imagine that twenty to thirty years later those players are still having to work and if their NFL injuries prevent them from doing so then they may have felt no other recourse but to come after the league.  And why wouldn’t they?  Some may feel the NFL doesn’t owe them anything but I argue that they do.  Or at least they owe the players more than lip service about the thanks they deserve for getting the league to where it is today.  Moving forward it would be nice to see the NFL make more effort to help out the past players as well as the present ones who one day will be ex-players as well.

Jason Jennings

Sports Blog Writer

I feel the settlement is a much better deal for the NFL than the players. For the players, the proposed amount likely will not be enough to cover the costs of current and future football-induced brain trauma – remember, the money isn’t simply for the 4,500 or so plaintiffs, but also for all current living players (17,000-plus), some percentage of which will develop future neurological illnesses as a result of playing the sport.

In that sense, the settlement is also bad for taxpayers, because Medicare, Medicaid and Social Security disability will end up picking up the tab.

Meanwhile, the NFL accomplishes three important goals:

1. It largely indemnifies itself against future brain trauma lawsuits;

2. It gets to walk away from a huge public relations problem without admitting that football causes brain damage, a concept that is harmful to its long-term business model;

3. It does not have to disclose what it knew about football-induced brain damage and when it knew it, even though there is ample public evidence suggesting that the league both denied the problem and covered-up what it knew about the problem.

What stands out most to me are the externalized costs of the settlement. As mentioned, if and when the money runs out, the general public will be covering the football industry’s long-term health expenses. Dementia patients are not cheap. Moreover, football safety is a public health issue – the vast majority of players are not paid professional adults, but unpaid children – and given that the NFL is publicly trying to take the lead in making the game safer via “safe tackling” programs like Heads Up Football, it would be nice to know who at the league did or did not hide or lie about the sport’s inherent risks. Would you want people who claimed that concussions in football are not serious injuries – as league-sponsored scientists did – telling your child’s youth league how to play the game safely? Do we know enough about the NFL to trust it?

Patrick Hruby

The long term neurological risks of playing football & other contact sports are largely unknown. Chronic Traumatic Encephalopathy (CTE) has been identified in a number of former football players with and without a history of concussion who committed suicide. Symptoms of CTE include memory loss, confusion, depression, aggression, and progressive dementia. CTE can only be diagnosed post mortem which makes it very hard to study. Some researchers have found an increased rate of ALS in people with a history of concussion and similarities in neuropathology between CTE and ALS but this research is very preliminary. But, some ex-players with extensive concussion histories and signs of neurodegenerative changes were found not have CTE so the relationship between CTE and concussion is complex and not understood.

Injuries such as concussions can’t be prevented in sports such as football due to the violent nature of the game. It is not known whether improvements in helmet design can help minimize the forces which cause concussions. Sensors imbedded in helmets may provide information on the forces on the brain with impacts that don’t cause concussions but may affect the brain. Rule changes which minimize high impact collisions and player/coach education about safer tackling techniques may also help reduce the number of concussions. A serious but unanswered question is the effect of concussions and impacts to the brain on children who play football since their brains are still developing.

Sam Pierce, PT, PhD, NCS and Associate Professor at the Institute of Physical Therapy Education at Widener University

The settlement is great for the retired football players, who faced a long and uncertain path to recovery. It seems as though the players will need to show evidence of cognitive impairment, but not that the impairment was caused by football-related injuries. Compensation is based on the severity and nature of the injury and (in some unspecified way) on the number of professional football games played.

But it’s not ideal from a public health perspective, because the evidence the NFL had about the effect of head trauma (especially concussions) on long-term cognitive impairment will forever be hidden from public view. This protection was probably needed for the NFL to settle, but it raises the question whether there might be evidence in the documents that might help in designing interventions and changes in rules to reduce the incidence of such injuries in the future.

The parties have papered over this problem by agreeing to allocate a measly $10 million “toward medical, safety, and injury prevention research,” and with the vanilla statement that that “the NFL and the plaintiffs are committed to doing what’s right for the game and making it safer at all levels.”  But by keeping secret the potentially damning documents, the NFL leaves open the worrying possibility that it will only encourage safety to the extent doing so is profitable. And because the NFL sets the agenda and the tone for football at all levels — including youth football — it’s impossible not to be concerned for the future health and safety of all players, including those who won’t have a compensation fund dedicated to them.

John Culhane, Professor of Law at Widener University School of Law in Wilmington, DE

The settlement of the NFL concussion/head injury litigation has both positive and negative aspects.  Certainly, it is a step forward that injured NFL veterans will receive additional financial benefits to help them to cope with the effects of past head injuries.  The amount of money involved in the settlement (over $700 million) suggests the severity of the problem, and of itself, should be seen as a warning to all those involved in contact sports.

However, at the same time, the settlement included provisions in which the NFL denied legal responsibility/guilt or previous knowledge of the effects of head injuries – which could interfere with the gathering of important data.  The settlement does not specifically address the life problems that those afflicted suffer (e.g., cognitive impairment, impulsivity, depression, etc.)  Further, when compared to the income generated by the NFL, in my opinion, the amount of the settlement is not commensurate with results of the injuries suffered, the need for aggressive ongoing research, and the ethical imperative to inform not only NFL players of the actual risks present, but educating those who aspire to be NFL players of the risks attendant to playing football at all levels (Pee-Wee, high school, college, etc.) For every NFL veteran who is suffering, one must assume that there are hundreds if not thousands who never made it to that level of competition who now have related symptoms, but who will derive to specific benefit from the settlement.  In my own psychiatric practice, in my becoming more aware of the effects of sports-related head injury and questioning patients more carefully regarding their history of playing contact sports, I have been quite surprised and worried by the significant percentage of psychiatric patients who, when asked the correct questions, provide evidence of at least some contribution to their difficulties due to past sports related head injury.  While it may be argued that those who have not played in the NFL have not been exposed to the same level of risk as professional players competing against each other, on the other side, there is at least anecdotal evidence that those who suffer the most trauma at the lower levels of competition are the smaller, less talented players who never make it “to the next level.”  As one NFL team neurologist told me, “At the high school and college level, it is the future NFL’ers, due to their size and talent, who are inflicting injuries on others, rather than suffering the most significant injuries.”

Much more needs to be done to address the issue of head injury, not only in football, but also in all contact sports.  In fact, a press release from the Sports Legacy Clinic on September 12, 2012 described that a new study from researchers at the Harvard School of Public Health, Boston University School of Medicine (lead author Emily Kroshus of the Department of Social and Behavioral Sciences at Harvard School of Public Health) and the non-profit Sports Legacy Institute (SLI), published the British Journal of Sports Medicine, has found that concussion education at the collegiate level is largely ineffective.  It was stated, “The National Collegiate Athletic Association (NCAA) mandates its member institutions provide concussion education for their student-athletes.  However, the policy doesn’t establish standards…  [with] significant between-team discrepancies in quality, delivery and effectiveness of concussion education materials…  Concussion under-reporting is a problem in sports at all levels of competition, and well-designed concussion education can be part of the solution…”

Thus, while the NFL litigation resolution helps to bring the issue into focus, there is still a long way to go.

David M. Reiss, M.D., Psychiatrist, San Diego, CA, www.DMRDynamics.com

Do you feel the settlement is fair to the players?

I hate to use the work “fair” because it is so subjective, but the settlement is a reasonable one for the players, under the circumstances they were in. Although there was talk of a $1 billion plus settlement, the plaintiffs and their lawyers knew that time was not on their side and that a long period of pre-trial discovery could take years. Given that many have financial problems, there was little choice but to accept this particular amount and get the compensation sooner.

What about fair to the NFL itself? Why do you feel this way?

The NFL won big — First, the payments are pre-rated over 20 years (although 50% has to be paid much sooner than that), and given the billions in revenues earned by the NFL teams, it is a very small amount — I think about $1.5 million a year over the 20 years (but I do not have the exact figures, so that is an estimate). Also, the NFL was able not to admit liability, which is a big victory, potentially protecting the league and its teams from future cases.

What stands out most about the settlement in your mind (either good or bad)?

I think it is the non-admission of liability.

Mark Conrad
Director, Sports Business Specialization, Gabelli School of Business

Associate Professor, Law and Ethics

Schools of Business
Fordham University