Calling For a Fair Catch: The Implications of the NFL Concussion Settlement

Calling For a Fair Catch: The Implications of the NFL Concussion Settlement

 By Clay Comley

            May 2nd of 2012 ushered in another beautiful day in Oceanside California. The Wednesday morning began as any other day in the peaceful town just outside of San Diego. The sun had risen and began welcoming the day’s first waves as they crashed against the beach. But for one resident, the peace was only moments from an abrupt end.

At 9:30 AM, after a morning workout, Megan Noderer returned to the beachside house she shared with her boyfriend expecting to find him just as she had left him… still sleeping in their bed.[1] However, as she entered the bedroom, she immediately knew that this morning was unlike any other. Her boyfriend was dead. 

            The man was Junior Seau, a former professional football player and one of the greatest linebackers the National Football League (“NFL”) had ever seen. During his career from 1990 – 2009, Seau racked up over 1,800 tackles including 56.5 sacks and had been selected for the NFL Pro Bowl 12 times.[2] Beloved by his hometown team, Seau led the San Diego Chargers to a Superbowl appearance after the 1994 season, was inducted into the Chargers Hall of Fame, and had his number, #55, retired by the franchise.[3] He was also known around town as a cheerful restaurant owner who enjoyed surfing and playing his ukulele.[4] Despite all of this success, on May 2nd 2012, Seau decided to take his life with a self-inflicted gunshot to the heart, and was pronounced Dead On Arrival by the emergency response team.[5] Without a suicide note left behind, the question was why.

After his death, the National Institutes of Health concluded that Seau had suffered from chronic traumatic encephalopathy (“CTE”), a progressively degenerative brain disease that results from multiple brain traumas which causes aggression, dementia, and depression.[6] Citing Seau’s disease as the cause of his untimely death, his family filed suit for wrongful death against the NFL in January of 2013.[7]

The Suits

Unfortunately, Junior Seau’s family’s suit was only one of numerous suits against the NFL related to brain injuries sustained while playing in the league. Other plaintiffs included former 2-time Superbowl champion quarterback Jim McMahon, former safety for the Atlanta falcons Ray Easterling, and Chicago Bear’s legendary safety Dave Duerson.[8] Both Easterling and Duerson also committed suicide with a self-inflicted gunshot. Even more alarming is the fact that almost 1/3 (over 4,500) of the NFL’s former players joined as plaintiffs in the class action.[9] All of these claims were based on claims that the NFL not only had knowledge of the negative long-term effects of these brain injuries, but also that the league “deliberately ignored and concealed them.”[10] The class action complaint also discusses the NFL’s Mild Traumatic Brain Injury Committee (“Committee”), and despite significant medical findings, that the Committee as well as the NFL failed to inform players of the findings and warn of the possibility of progressive injuries.[11] All of these claims were later removed to the federal court by the NFL and consolidated as In Re: National Football League Players’ Concussion Injury Litigation.[12] The NFL then filed a motion to dismiss with Judge Brody of the Eastern District of Pennsylvania arguing that due to collective bargaining agreements entered into by the players, this matter was unfit for trial and needed to be resolved through arbitration.[13] Before entering judgment on the NFL’s motion, Brody appointed a former federal judge to oversee a court-ordered mediation between the league and its former players.[14] On August 29th of this year, the parties had agreed to a settlement offer of $765 million, which would offer medical funds to the plaintiffs as well as any other players who satisfy the “baseline” cognitive exams.[15] Lastly, the plaintiffs agreed to release their right to pursue the legal claims against the NFL.[16]

 

Why Settle?

            Settlement has increasingly become a popular resolution in the U.S. legal system. With a “full settlement”, as the parties reached here, the plaintiffs are offered some form of damages while simultaneously dropping all claims against the defendant.[17] But due to the controversial nature of this matter and the extensive media involvement with a suit against a household name like the NFL, this settlement has received mixed criticism. Numerous people have criticized the settlement, either as a low-ball cop-out for the NFL, or an exorbitant amount for players who knew what they were getting into with a high-contact sport like football.[18] Thus, the main question remains why did both parties agree to settle these extremely serious and sometimes fatal issues?

            The truth is both parties needed this matter settled, but for extremely different reasons. According to the court-appointed mediator, formal U.S. District Judge Layn Phillips, “[B]oth sides recognized that it would be far more productive to get out of court and do something good for retired players with medical needs and focus on the future of the game and making it safer.”[19] As Phillips states, settlement prevented both sides from spending copious amounts of time and money in further litigation with an uncertain future. “A price must be paid for seeing the case through final judgment. Once that cost is estimated, then the possible results must be anticipated and the risks of an undesirable result calculated.”[20] Here, both sides recognized their predicament in a nationally-known lawsuit that involves injured plaintiffs in need of medical care. Both the NFL and its former players had extremely significant incentives to settle this matter.

 

The Players’ Perspective

            For many of the former players, this suit was not about making money; the damages were necessary in order to pay for the healthcare required for such serious brain issues.[21] Former Philadelphia Eagles fullback Kevin Turner, who now suffers from Lou Gehrig’s Disease due to his head injuries stated, “The compensation provided in this settlement will lift the huge burden off the men who are suffering right now, both them and their and families . . .They’ll no longer have to make decisions regarding their health based on what they can afford.”[22] To a layperson, the fact that former professional athletes who received 6-7 figure salaries often go “broke” is surprising. These spectators would be even more surprised to learn that 78% of NFL players file for bankruptcy within five years of retirement.[23] With such a staggering amount of players without sufficient funds for healthcare compounded with the large number of brain injuries sustained, the players’ need for immediate funds becomes evident. That is precisely why the former players and their families recognized the need for an immediate resolution rather than an uncertain future.

            However, several critics have voiced their disapproval of the former players’ action. Some critics maintain that NFL players knew that they could, and would likely, sustain injuries while playing and should not be able to recover damages for choosing an injurious line of work. Still others, like former Atlanta Falcons cornerback Deion Sanders, have stated that many of the “broke” players are jumping on the lawsuit bandwagon to make a quick buck. “I don’t buy all these guys coming back with these concussions. I’m not buying all that. Half these guys are trying to make money off the deal.”[24] Whether these critiques are meritorious however, is irrelevant due to the NFL’s willingness to part with over 700 million dollars for their former players.

 

The League’s Perspective

Many people view the NFL’s large settlement as a gracious offer of aid to the players and families in need. In the same aforementioned press conference, Kevin Turner praised the NFL for its settlement offer. “I am very proud that the NFL has decided to stand up for all the former players who are suffering from brain injuries.”[25] By settling, the NFL may have assisted the former players in their time of need. With a high risk of further litigation and a pending motion to dismiss the Plaintiffs’ claims, the NFL’s offer may have been the saving grace the Plaintiffs needed. Even one of the players’ attorneys, Christopher Seeger, stated his fear for further litigation due to the risks of NFL-sponsored arbitration or even worse, complete dismissal.[26]

However, the NFL is not the martyr that some would make it out to be. When asked if the settlement was an acknowledgement by the NFL of some wrongdoing, mediator Layn Phillips clarified that the NFL admitted no liability in this matter.[27] “An agreement doesn’t imply anything about either side’s position. It doesn’t mean that the NFL hid information or did what the plaintiffs claimed in their complaint. It does not mean that the plaintiffs’ injuries were caused by football . . .”[28] Therefore, the NFL may have simply “hushed-up” controversy that would have rocked, and could have seriously hindered one of America’s favorite pastimes. However, as both sides obviously agreed this solution was in each other’s best interests, the players will receive funds and the NFL will play on.

            Just as any football team does in a time of desperation, the Plaintiffs “punted the ball” to the NFL. And seeing the onslaught of chaos and criticism from pursuing the claim any farther, the league “called for a fair catch.” But with so many future uncertainties like the NFL’s injury policies and the number of players that will chip away at the $765 million settlement, who got better field position remains to be seen.

           


[1] John Johnson, Cops Confirm Junior Seau’s Death Is Suicide Investigation (May 2, 2012, 3:30 PM), http://www.newser.com/story/145264/cops-confirm-junior-seaus-death-is-suicide-investigation.html.

[3] See generally http://www.chargers.com (This website has numerous pages that discuss Seau’s importance to the Chargers franchise).

[5] Rheana Murray, Junior Seau 911 call revealed: Girlfriend Megan Noderer frantically attempted CPR after finding body, NY DAILY NEWS (May 4, 2012, 6:47 PM), http://www.nydailynews.com/news/national/junior-seau-911-call-revealed-girlfriend-megan-noderer-frantically-attempted-cpr-finding-body-article-1.1072853

[7] Seau Family Complaint, 2013 WL 265303 (Cal. Super.).

[9] Id.

[10] One of several initial complaints before case consolidation, 2012 WL 204688 (S.D.Fla.).

[11] Id.

[14] Id.

[15] Id.

[16] Id.

[17] BLACK’S LAW DICTIONARY (9th ed. 2009).

[19] Q & A with Judge on NFL’s Concussion Settlement, USA TODAY (Aug. 29, 2013, 6:30 PM), http://www.usatoday.com/story/sports/nfl/2013/08/29/nfl-concussion-lawsuit-settlement-judge-layn-phillips/2727589/.

[20] Id.

[22] Id.

[23] Mina Hochberg, ‘Outside’ at Tribeca: Why do so Many Athletes Go Broke?, OUTSIDE (Apr. 30, 2012), http://www.outsideonline.com/outdoor-adventure/media/film/Outside-at-Tribeca-Why-Athletes-Go-Broke.html.

[24] Ken Bensinger, Deion Sanders, critic of NFL concussion suits, seeks workers’ comp, LA TIMES (Sept. 5, 2013), http://articles.latimes.com/2013/sep/05/business/la-fi-deion-sanders-brain-20130906

[26] Id.

[27] Q & A with Judge on NFL’s Concussion Settlement, USA TODAY (Aug. 29, 2013, 6:30 PM), http://www.usatoday.com/story/sports/nfl/2013/08/29/nfl-concussion-lawsuit-settlement-judge-layn-phillips/2727589/.

[28] Id.

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