Liam Day points out that as much as the league might wish otherwise, this case and the issues it addresses are far from settled.
Last month, when the NFL announced its settlement with retired players, who will now be eligible to receive compensation from the league if they are determined to be suffering from the effects of brain trauma, which include ALS, Parkinson’s, early onset dementia, and other ailments, the NFL clearly hoped the settlement would put to rest the issue of concussions, at least legally speaking. This hope was articulated in the press package distributed by the league at the time of the announcement. The league may have been protesting a bit too much.
Current players are excluded from the settlement. It is at least partially for this reason the NFL had the mediating judge weigh in on the actionability of any possible future claims brought by current players in a Q & A attached to the press release. As I mentioned when covering the announcement, Judge Layn Phillips was quoted as saying that “the underlying theory of the lawsuit about what took place in the past would be difficult to replicate in the future.”
Including Judge Phillips’s statement about the difficulty of bringing future suits is meant to scare off possible litigants in the hope that the statement will become a self-fulfilling prophecy. But hope is a two-edged sword. It’s sometimes the balm that makes the impossible possible. It can also lull people into a false sense of security.
Now less than a month later, the NFL’s hope that the announced settlement would put legal matters to rest looks just a tad premature. For it turns out that not only does the settlement exclude current players, it also excludes the families of any players determined to have suffered brain injuries but died before 2006. The NFL had wanted to abide by the statute of limitations in this case, which is two years in most states, but the players’ representatives were able to negotiate an increase to 7. Still, the inclusion of any limitation threshold creates a separate pool of possible litigants, against whom it will be more difficult for the NFL to defend itself by invoking the statute of limitations because they’ve already dismissed it once.
More ominously for the league, however, are rumblings that a number of the players eligible under the settlement may opt out in order to maintain the legal right to bring their own claim. This is on top of talk that the settlement might not be large enough to cover all the players and families who are eligible. In an ESPN report on Friday, Steve Fainaru and Mark Fainaru-Wada estimated that 300 players already qualify for the highest compensation categories, which range from $3 million to $5 million, depending on the diagnosis and the length of time they played in the league. These 300 players alone would completely exhaust the compensation fund. And there would still be 17,700 players to cover.
I suspect part of the reason some players and families are considering opting out is their fear the compensation fund won’t have enough money to cover them or that the league will find a way to drop compensation levels in order to keep the fund solvent. One can hardly blame them. Either way, much as the league might wish otherwise, this case and the issues it addresses are far from settled.