Liam Day discusses the details of the settlement the NFL reached with former players in the class action suit being brought against it. He also wonders if this isn’t the last, but the first of such suits.
After months of negotiating, the NFL and roughly 4,500 players seeking damages for head injuries have reached a $765 million settlement. The agreement still awaits preliminary approval from the presiding judge, after which it will go out to the retired players, who can, upon review, file objections. A hearing will then be held to determine final approval.
The terms of the deal include $75 million to offset the cost of baseline medical exams, the results from which will help determine how much of a $675 million compensation fund each player or his family will get. In addition, $10 million will be dedicated to a research and education fund. The league will also bear the cost of distributing notice of the agreement to class members, a cost estimated at $4 million, as well as half the compensation costs, estimated at $2 million, for a Settlement Administrator to oversee the fund. Plus the league will cover all legal fees and litigation expenses.
What the deal doesn’t do is admit the plaintiffs’ injuries are due to football or that the NFL is liable for them. It also doesn’t include active players. To qualify for consideration as part of the class settlement, players will have to be retired as of the date on which preliminary approval of the deal is granted.
Therein lies the question. Does the settlement leave the door open to future legal actions?
In a brief Q & A included as part of the press release announcing the settlement, the mediating judge, Layn Phillips, argued that “the underlying theory of the lawsuit about what took place in the past would be difficult to replicate in the future,” which presumably will limit future litigation. He bases this on rules changes that have been implemented in the NFL, improvements to equipment, and how the league now manages concussions compared to even 10 years ago.
All of that is undoubtedly true. Pardon the pun, but the league is considerably more conscious of concussions than it used to be. Hits to the heads of quarterbacks and receivers (though not running backs, an oversight that needs to be addressed) are strictly policed. Yet the Master Settlement Agreement between the big four tobacco companies and 46 state attorneys general came some 32 years after warnings about smoking first started to appear on cigarette labels. I’m not sure that in this analogy, one the league would most certainly flinch at, yesterday’s announced settlement doesn’t represent 1966, rather than 1998.
Furthermore, the tobacco manufacturers who signed onto the Master Settlement Agreement committed to not “take any action, directly or indirectly, to target Youth within any Settling State in the advertising, promotion or marketing of Tobacco Products, or take any action the primary purpose of which is to initiate, maintain or increase the incidence of Youth smoking within any Settling State.”
In the Q & A with Judge Phillips, he is asked, “What should parents of kids who play football take from this settlement?” His response is rather all too vague, as it needs to be when the settlement does not actually settle liability: “Parents 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. The proposed settlement includes funds for medical research and education to support those goals.”
Great. In the meantime, kids playing Pop Warner and high school football will continue to get concussions.
I’ve asked on The Good Men Project before whether children should be allowed to play football. After all, there are any number of laws in this country that proscribe what children are allowed to do because we have deemed them too young to make decisions about engaging in these activities. Children cannot drink, nor can they smoke. Does playing football represent a concomitant threat to a child’s health and development?
More research needs to be done on football’s effects at younger levels. Most of the research to date has focused on the NFL and its former players, who have, likely, suffered the most grievous damage because they played the game longer and with greater intensity. Still, NFL players aren’t born, fully-formed, at the age of 21 and they represent a very small fraction of those who ever played the game on an organized basis. More than 1,000,000 kids will put on pads for their high schools this fall. What are they doing to themselves?
To paraphrase the Master Settlement Agreement with Big Tobacco, the NFL continues to target Youth in the advertising, promotion or marketing of football products. Is there future liability to be found there? I don’t know. But my guess is that, despite what the NFL might hope, or what Judge Phillips might claim, this isn’t the last legal action we’ve seen on the issue. I would also guess that future actions will cast a wider net—the NCAA certainly, as well as member institutions, maybe even high school associations. Who knows? Will a child be able to sue a parent for signing him up to play Pop Warner when he was 5? You could make a case for it.
Photo: AP/Matt Rourke