The National Football League today reached a $765 million preliminary settlement with thousands of former players who were suing the league over its treatment of concussions and potential obscuring of the links between football and brain injuries, a move that brought a threatening lawsuit nearer to its end just two weeks before the 2013 NFL season begins. Both sides hailed the settlement, which doesn’t require the NFL to admit to wrongdoing, as a success, but reactions against it were swift, particularly from former players.
Was it a good deal? That’s hard to say. The alternative to settling now was years of costly litigation that may have cost the NFL billions but also could have left the players with substantially less, all while the NFL continued to shuffle its feet on the broader issue of concussions thanks to the specter of major litigation that hung above its head. From a purely legal standpoint, the number seems right, Paul Anderson, an attorney and expert on the litigation who writes regularly at NFLConcussionLitigation.com, said.
“I think it’s certainly a very, very fair number,” Anderson said. “The judge is not going to have a problem approving the settlement terms, especially since she was the one pushing for a settlement to begin with.”
Putting the amount of the settlement in the context of revenues makes it seem like the NFL got off easy. The league hauled in $9.5 billion in revenues in 2012, and commissioner Roger Goodell expects that number to grow to more than $25 billion in 2025. The NFL has 20 years to pay off its obligations — it must pay half over the next three years and the rest over the 17 years after that — so given that its revenues over that period will likely exceed $200 billion, the $765 million figure looks a lot like a number the NFL can meet by digging through its couch cushions. The league’s revenues and what it can afford to pay, though, aren’t necessarily the standard for what constitutes a fair settlement, and it may be years before a full judgment can be made about whether the amount was right. Still, to former players, the number may seem like a slap on the wrist, especially for a tacit admission from the league that its game is incredibly dangerous and that it may not have been forthcoming about those dangers.
At the same time, the settlement is unquestionably a step in the right direction for players in several ways. First, it provides $75 million for baseline testing for most retirees, not just those who were party to the suit, and it provides $675 million for injury redress. Those benefits will be especially strong for players who are severely impaired, suffering from dementia, ALS, Alzheimer’s, and other disabilities or brain diseases. “The (players) that are truly suffering will get a fair sum that will adequately protect them from now until the end of their lives,” Anderson said. The agreement also requires the NFL to fund $10 million in research into concussions, brain injuries, and treatment and prevention.
While it’s a small step forward, larger questions remain about the future of the game. The NFL has taken significant actions in recent years to help reduce concussions and brain injuries in its game, changing rules, requiring evaluations from independent doctors, and improving testing and treatment procedures. It has couched much of that in gibberish as it refused to explicitly acknowledge the dangers of concussions, but perhaps the absence of major litigation will now allow it to speak frankly about the need to make its game safer — and about the need to improve safety at the college, high school, and youth levels too.
“This is an opportunity for them to kind of wipe their entire slate clean,” Anderson said. “So maybe in five years, the NFL will be hailed as a protector of players.”
Will the NFL take that opportunity? Its policy changes will probably shield it from future litigation of this magnitude, Anderson said. So with that threat largely removed, will the NFL continue to evaluate and improve its rule changes and concussion protocols for effectiveness? Will it continue to improve the treatment and education of its players, many of whom still don’t understand the risks concussions pose? Will it remain proactive about head and brain injuries not just for PR reasons but because it has an obligation — moral, legal, or otherwise — to protect its players? All of those questions will be answered in the future.
And then there is the question of football itself. Eliminating concussions from the game is impossible. Rather, the focus should be on how to improve recognition, treatment, and management of those injuries. The larger problem is that for all the focus on concussions, research is starting to raise the possibility that routine hits to the head, the type that happen dozens of time each game, also pose a threat to the long-term health of players’ brains. The NFL’s primary job is to be honest with players and give them agency in the decision-making process: if players are properly informed, they can assess the risks and decide if the game and the money are worth it. But if players and fans, including the president of the United States, continue to worry that the game is simply too dangerous for America’s children to keep playing and that those dangers aren’t worth it, can the game go on? Are there enough rule changes to make to make it safe? And if so, will the end result look like the game people want to watch and play?
This settlement, of course, can’t answer those questions and wasn’t meant to. The complaint from 4,800 former players wasn’t about making the game safe for the future but about righting a wrong perpetuated on so many NFL players until 2009, when the league finally began to acknowledge that it had a problem. Does this settlement do that? In some ways it does, even if it could have been far more robust financially. Still, there will be more anger among former players over the settlement than there will be in the league’s front office, and the feeling that the league got off easy won’t and shouldn’t go away soon.
The final words of the press release accompanying the settlement are that “[p]arents should know that the NFL and the plaintiffs are committed to doing what’s right for the game and making it safer at all levels.” Now it’s time for the NFL to prove that, and just because it has made minor steps to address its past unwillingness to protect the health and safety of its players doesn’t mean the conversation about concussions, brains, and the safety of the game itself is over. This is instead the beginning of that conversation, and no less than the future of football — and the fate of a countless number of human brains — is at stake.