May 19, 2016

NFL concussion settlement: Who wins, who loses

Image by Artamp

Though a court recently found no “obvious” red flags in the proposed concussion settlement between the NFL and thousands of ex-players, the settlement is fundamentally unfair.[1] True, it’s generally easy to accuse class action settlements of unfairness.[2] But the proposed NFL settlement—even in its current mutation—merits a double-helping of criticism.[3] The settlement gives only some players a fair shake while others get the shaft. All the while, the NFL wins big.

Concussion Settlement Basics: The NFL’s Victory


The settlement’s basic terms are easy enough to understand: All 20,000-plus retired NFL football players, except those who opted out, will forever forfeit rights to sue the NFL for health problems related to head trauma.[4] In return, each ex-player can receive limited compensation for only specific health problems related to head trauma.[5]  Though ex-players don’t have to do anything to prove the NFL actually is to blame for their cognitive problems,[6] the NFL—thanks to the settlement’s recently updated terms—has unlimited appeals in challenging each individual claim.[7] 

For likely less than one-tenth of the NFL’s annual revenue,[8] the NFL will shield itself from potentially “billions in liability” and “embarrassing discovery . . . likely to draw new attention to the medical histories of former players from as far back as the 1940s,”[9] without having to admit any wrong-doing.[10] Further, despite the lead plaintiff’s well-publicized goal of forcing the NFL “into changes, including changes to players’ practice routines,”[11] or “ensuring that future generations of football players do not suffer” as they have in the past,[12] nothing in the settlement actually mandates any specific changes in the way the league is run.[13] In a fair settlement, compromises are made by both parties. But here, some have complained, “[T]his is everything the N.F.L. wanted.”[14]

The Players That Do Okay


The settlement treats thousands of current retirees with known brain problems alright, presenting them a transparent offer to fast-track recovery. 

Not all injured former players have the luxury of the time in litigating their individual claims. The proposed settlement meets at least one key goal by “help[ing] guys who need it now.”[15] One way the settlement accelerates the timeline is by offering remedies without former players having to prove the NFL is in fact responsible for the cognitive problems suffered.[16]

Further, diseased ex-players have a better idea than those who currently appear healthy what the settlement actually means for them. The terms of the settlement were well publicized and any ex-player or family of deceased ex-players had the freedom to opt out.[17] Those facing known issues could make educated decisions about the fairness of the terms in respect to their specific problems. It is telling that some of the former players and player families burdened with known challenges considered what the settlement offered and opted out.[18]

The Players That Lose


Many former NFL players do not know what damage was done to their brains over the years playing football. They do not know which, if any, diseases will affect them in the future or too what magnitude. For such players, the settlement is a terrible deal.


Unfair Timing


First, the timing of the settlement is unfair for two reasons: it forces former players with diseases that have not yet manifested themselves to bargain in the dark. Second, while a public hearing will scrutinize the fairness of the settlement, that hearing will only happen after the opt out window has closed.

Unlike other class actions, where you have a pretty good idea of your injuries before opting in or out, many retired players have no idea which diseases, if any, will affect them. How are such players supposed to critically read the settlement’s terms when they do not know which terms will be personally relevant? The settlement lists many diseases, and to the casual reader without a specific disease in mind, it would be easy to assume it protects every problem relating to head trauma, but it does not.[19] The terms of the settlement force undiagnosed players to make a choice before they know what they are bargaining away.[20] This is a fundamental problem with the nature of this settlement and not something tweaking a term or two of the agreement could adequately address.

Additionally, the timing of the opt-out period forced players to make premature decisions about the settlement’s fairness. Players had to decide whether to opt out of the proposed settlement before October 14—more than one month before the settlements fairness hearing on November 19.[21] Thus, if new issues about the settlement came to their attention at the hearing, they are powerless to remove themselves from the class action. Therefore, the opt-out period should be extended until after the fairness hearing.

Player Peer Pressure


The pressure to jump on the settlement bandwagon was more than that found in a typical class action. Unlike a typical class action settlement where a hodgepodge of previously unconnected people are united by an accident, this settlement “involves emotional nuance because the retirees were teammates, friends . . . bonded by a sport that in many ways has shaped them as adults.”[22]

Attorneys, who “stand to get $112.5 million . . . if the deal goes through,”[23] have used that nuance to shame former players into accepting the settlement. For example, Craig Mitnick, an attorney representing former players,[24] has said players who criticize the settlement are "basically putting their middle finger up to [their peers] suffering from dementia or Alzheimer's or Parkinson's[,] . . . delaying medical treatment[,] . . . ignoring the fact that there are people out there that need this now … and . . . attempting to hold this thing up for their own selfish purpose."[25] While there may not be anything the settlement’s terms themselves can do to remedy such unfair peer pressure, it is important be aware of.


Holes in Compensation Plan


The initial proposed settlement was shot down by the court for primarily one concern: Despite what financial experts from both sides agreed,[26] the judge—completely unassisted by a financial expert at the time—felt there was a chance that the $765 million to be set aside by the NFL would be insufficient to sustain the agreement’s 65-year lifespan.[27] Consequently, mainstream media has focused almost exclusively on that rather remote danger without adequately scrutinizing other aspects of the settlement. Thus, when the NFL removed the $765 million cap and made the potential payout “unlimited,” the public largely embraced the updated settlement as a victory for NFL players.[28] For example, lead plaintiff Kevin Turner quickly celebrated the new settlement: “[T]his settlement is guaranteed to be there for any retired player who needs it.”[29] Chris Seeger, an attorney representing NFL players, has framed the new settlement as a “100% guarantee” and stated, “There is no scenario where a player won’t get paid.”[30] Slightly better, yes: The remote danger of the settlement’s funds running out is gone. But the settlement’s current terms are still far from a “100% guarantee” for anyone and there are former players suffering, and who will suffer, from brain trauma that won’t get paid.

First, mood or behavioral problems stemming from head trauma are not compensated.[31] Mood and behavioral problems can impact quality of life just as much as cognitive problems. However, it may be unfair to the force the NFL to compensate mood or behavioral problems without any proof of cause. Thus, players should have to prove at a least a minimal correlation between such problems and their participation in the NFL; previously existing problems should not be compensated.

Second, former players with only minor or even moderate problems do not qualify for compensation—the payouts are only for those who are “severely impaired” or “almost fully dependent on another person for most activities of daily living.”[32] Even minor problems, if shown to correlate with professional football, should be compensable. The settlement’s scaling of damages is good, but the scale should extend to cover all wrongs, not just the big ones.

Third, the testing that determines compensation under the settlement is questionable. Oddly, some of the testing looks for some things which do not affect player compensation at all.[33] But inefficiency is not its greatest problem. The testing is not appropriate for every disease covered in the settlement.[34] Moreover, it is not appropriate for older patients—those most likely to try to receive compensation.[35] Finally, the settlement requires review at a frequency—every ten years[36]—that likely does not keep pace with medical advances in brain trauma treatment and diagnosis. It has been predicted that likely in less than ten years great progress will be made in diagnosing some diseases linked to brain trauma.[37] If that proves to be the case, there may be undue delay in incorporating improved methods into the NFL’s test battery. To fix this problem, the settlement should mandate a review of testing procedures at least every five years and have an independent committee decide which tests are most appropriate for all impacted ages.

Fourth, at least one key brain disease linked to repetitive trauma is ill-addressed in the compensation plan: Chronic Traumatic Encephalopathy (CTE). CTE “is associated with memory loss, confusion, impaired judgment, impulse control problems, aggression, depression, and, eventually, progressive dementia.”[38] CTE has been “found in many dead ex-players.”[39] Harshly, even though pre-death symptoms are beginning to be identifiable, CTE is only compensable at all if it kills you.[40] 

Compounding the unfairness, CTE is only compensable if it killed you before July 7.[41] Thus, any retired football player—or more accurately, any family of a retired football player—killed by CTE during the 65-years of the settlement’s lifespan cannot receive any compensation for it. Further, it may be “decades after the last brain trauma or end of active athletic involvement” before CTE manifests itself, meaning that some retired players who failed to opt out of the settlement may not have any clue CTE will affect them.[42]

The way attorneys charged with protecting NFL players' collective interests[43] try to justify CTE’s mistreatment in the settlement plan falls short. Rather than to save the NFL potentially millions of dollars in liability, they say that the “July 7 cutoff was added to take away any financial incentive for suffering players to commit suicide.”[44] First, it is difficult to imagine that a player would consider killing himself to get money he, as a dead man, cannot spend. Second, even if some players could be tempted to take their own lives to financially benefit loved ones because the settlement offers up to $4 million for CTE if it kills you,[45] the appropriate solution is not to further limit the compensation plan as attorneys have, but to expand it to fairly compensate the living who suffer from CTE.

Conclusion


Some have argued the NFL won nothing in this case because no one should be compensated for assuming known risks,[46] but only the NFL and the players themselves know whether the actual risks were truly understood. While the settlement is no official acceptance of fault on the part of the NFL,[47] the NFL will not have to answer under oath why its Mild Traumatic Brain Committee “was once led by a rheumatologist with no previous expertise in brain research.”[48] Or, whether that committee, as players have alleged, “not only denied a link between football and brain injury, . . . [but] also waged aggressive attacks against mounting medical research showing that repetitive hits to the head lead to conditions such as depression and dementia.”[49]

Sure, players who are currently racing against their degenerative clocks, or the families of those already deceased, should be able to manage alright under the settlement. Those people knew enough to make educated decisions about whether to seize the quick remedy or to opt out and chance an independent suit. However, some ex-players have been pressured into giving up unknown rights in exchange for an offer full of holes—holes that many such players will inevitably fall into.



[1] Turner v. NFL (In re NFL Players' Concussion Injury Litig.), 2014 U.S. Dist. LEXIS 91534, 14 (E.D. Pa. 2014).
[2] See Melissa Hart, Will Employment Discrimination Class Actions Survive?, 37 Akron L. Rev. 813, 835–36 (2004) (“Lawyers, judges, academics, and the media complain that class actions are used to force settlement of meritless claims; that they are primarily tools of collusion between defendants and plaintiffs' counsel; and that absent plaintiffs are not adequately represented by plaintiffs' counsel who seek only whatever resolution will maximize their attorney's fees.”) .
[3] The first edition of the proposed settlement was shot down, but the second—and current—has preliminary court approval. Turner, 2014 U.S. Dist. LEXIS at 4, 35. The second mutation, born after six months of additional negotiation, id., has been trumpeted as a “win-win” for all, Andy DeGory, New Concussion Settlement a Win-Win, SI.com (June 26, 2014), http://mmqb.si.com/2014/06/26/new-concussion-settlement-kevin-turner/, but is debatably even worse than the first.
[4] Turner, 2014 U.S. Dist. LEXIS at 70 (“Unless you exclude yourself (opt out) from the Settlement, . . . you cannot sue the NFL Parties, the Member Clubs, or related individuals and entities, or be part of any other lawsuit against the NFL Parties about the issues in this case.”).
[5] Id. at 9–10, 45–46.
[6] Id. at 9.
[7] Id. at 10; DeGory, supra note 3 (“One change of note is that the NFL’s ability to appeal claims is now unlimited, whereas they were limited to 10 appeals a year in the July agreement. Some argue that this could give the league a loophole to minimize claims.”).
[8] Though the settlement amount is now unlimited on paper, it would not likely exceed $765 million in reality. See DeGory, supra note 3 (explaining analysts representing both the NFL and the players have agreed that $765 million should be enough). In contrast, the NFL rakes in roughly $9.2 billion annually. Ira Boudway, The NFL's Secret Finances: A $10 Billion Mystery, BusinessWeek.com (Sep. 4, 2014), http://www.businessweek.com/articles/2014-09-04/nfls-secretive-finances-a-nearly-10-billion-mystery.
[9] Jason M. Breslow, NFL Reaches $765 Million Settlement in Concussion Lawsuit, PBS.org (Aug. 29, 2013, 4:57 PM), http://www.pbs.org/wgbh/pages/frontline/sports/league-of-denial/nfl-reaches-765-million-settlement-in-concussion-lawsuit/
[10] Turner, 2014 U.S. Dist. LEXIS at 45.
[11] Michael David Smith, Kevin Turner, Suffering from  ALS, Explains why he’s Suing the NFL, NBCSPORTS.COM (June 7, 2012, 12:04 PM), http://profootballtalk.nbcsports.com/2012/06/07/kevin-turner-suffering-from-als-explains-why-hes-suing-the-nfl/.
[12] DeGory, supra note 3.
[13] See Turner, 2014 U.S. Dist. LEXIS at 35–82. Though there is a small victory in that “[t]he NFL will . . . allocate $10 million toward medical, safety, and injury-prevention research and toward educating retired players on NFL benefits programs."  Ryan Wilson, NFL, Former Players Reach Settlement in Concussion Lawsuit, CBSSports.com (Aug. 29, 2013, 12:41 PM), http://www.cbssports.com/nfl/eye-on-football/23380915/nfl-former-players-reach-settlement-in-concussion-lawsuit (internal quotations omitted). Contrast the NFL concussion settlement with the proposed NCAA settlement which imposes strict rules like prohibiting any athlete playing with a concussion. NCAA reaches proposed settlement in concussion lawsuit, NCAA.com (Jun. 30, 2014), http://www.ncaa.com/news/ncaa/article/2014-07-29/ncaa-reaches-proposed-settlement-concussion-lawsuit. There is no good reason why the NFL settlement should not include similar mandates.
[14] Ken Belson, When Settlement Buys Time, N.Y. Times (July 18, 2014) [hereinafter Belson, Buys Time], available at http://www.nytimes.com/2014/07/19/sports/football/former-nfl-players-make-difficult-choice-in-opposing-concussion-settlement.html?_r=1 (quoting Sean Morey, former NFL player against the current settlement agreement).
[15] Brent Schrotenboer, Ex-Players Clash on NFL Concussion Lawsuit Settlement, USA Today (Aug. 19, 2014, 6:20 PM), http://www.usatoday.com/story/sports/nfl/2014/08/19/nfl-concussion-lawsuit-settlement-sean-morey-plaintiffs/14303249/ (quoting Shawn Wooden, a former player).
[16]Turner, 2014 U.S. Dist. LEXIS at 9–10, 45–46.
[17] Id. at 31–32.
[18] E.g., Belson, Buys Time, supra note 14. (stating that other athletes and the family of Junior Seau, a former NFL player, opted out of the settlement and will sue independently).
[19] Turner, 2014 U.S. Dist. LEXIS at 61.
[20] Id. at 70.
[21] Id. at 41.
[22] Belson, Buys Time, supra note 14.
[23] Schrotenboer, supra note 15.
[24] Ken Belson, Brain Trauma to Affect One in Three Players, N.F.L. Agrees, N.Y. Times (Sept. 12, 2014), available at http://www.nytimes.com/2014/09/13/sports/football/actuarial-reports-in-nfl-concussion-deal-are-released.html.
[25] Schrotenboer, supra note 15.
[26] DeGory, supra note 3.
[27] Turner v. NFL (In re NFL Players' Concussion Injury Litig.), 2014 U.S. Dist. LEXIS 91534, 4 (E.D. Pa. 2014).
[28] E.g., DeGory, supra note 3.
[29] Id.
[30] Id.
[31] Declaration of Robert A. Stern at 12, In Re NFL Players’ Concussion Injury Litigation, 2014 U.S. Dist. LEXIS 91534 (E.D. Pa. Oct. 6, 2014) (No. 2:12-md-02323-AB).
[32] Id. at 13.
[33] Id. at 11–12.
[34] Id. at 11 (explaining the tests are not well suited for Mild Cognitive Impairment and Alzheimer’s disease).
[35] Id. at 12 (stating the Mini International Neuropsychiatric Interview’s “inclusion in the battery is unnecessary because the results are not used in any way to determine compensable diagnosis”).
[36] Schrotenboer, supra note 15.
[37] Stern, supra note 30 (discussing anticipated advances in Chronic Traumatic Encephalopathy (CTE) diagnosis).
[38] What is CTE?, BU.edu, http://www.bu.edu/cte/about/what-is-cte/ (last visited Nov. 11, 2014).
[39] Schrotenboer, supra note 15 (highlighting “Junior Seau, who committed suicide in 2012”).
[40] Stern, supra note 30.
[41] Schrotenboer, supra note 15.
[42] What is CTE?, supra note 37.
[43] Schrotenboer, supra note 15.
[44] Id. 
[45] Id.
[46] E.g. NFL, Players Reach Concussion Deal, ESPN.com, http://espn.go.com/nfl/story/_/id/9612138/judge-nfl-players-settle-concussion-suit (last updated Aug. 29, 2013, 7:46 PM) (on Aug.29, 2013, Jason Holzem left a comment on the article criticizing the suit via three hypotheticals: “I was feeding alligators in the swamp and got bit and lost my hand. I sued the parks . . . . I was running by the pool and slipped and fell, so I sued the public pool . . . . I was drinking water from the urinal and got sick, so I sued Applebee's . . . .”).
[47] Turner v. NFL (In re NFL Players' Concussion Injury Litig.), 2014 U.S. Dist. LEXIS 91534, 45 (E.D. Pa. 2014) (“The NFL parties deny that they did anything wrong.”).
[48] Id.
[49] Id.

Defense of the jury system

Lady Justice and a jury
           Juries are not perfect, but if I were on trial, I would rather have a group of biased strangers, who must reach a unanimous decision (at least in federal court) within the bounds set by a judicial referee, ultimately decide my fate than have one judicial referee call all the shots.
Juries are not as unpredictable as the news media often make them seem. According to a survey of 30 years of jury studies, “the jury system is healthy.”[1] "Quite a bit of their decision is determined by the case that the lawyers present to them. . . . [W]hat seems like a wild card, in fact, follows rules. The strength of the evidence in the case will give you a good sense about what a jury is going to do."[2]
Juries take parties’ fates out of the hands of just one human judge. “The strength of the jury is a diversity in decision making, which makes for a very robust process.”[3] Additionally, juries serve “many purposes and functions that go beyond the finding of facts in any one particular case."[4] For example, they may awaken a deeper sense of civic duty in the individual jurors, awaken them to a better understanding of the law in their jurisdiction, or instill in them respect for the judicial system.
However, the jury system is not without its flaws. Even those who claim the system is “healthy” have their reservations: “It's not clear that juries are the best way to decide to impose the death penalty, because of an inherent flaw in the system. People who oppose the death penalty are not allowed on capital juries.”[5] However, this limitation on jurors is not entirely illogical. Jurors are there to uphold the law and if they do not support the law, then they really have no place as an arbitrator of the law.[6] Moreover, judges have commented that jury bias in itself is not necessarily fatal to justice:
All jurors come to Jury service with certain biases and prejudices . . . Our system envisions these flawed individuals since no juror comes to jury service devoid of these leanings. The history of the jury system shows us that these flawed individuals can set aside these flaws and reach verdicts which are just and fair.[7]

            Others have been more cynical of the jury system:

Not long ago, the right to trial by jury was held to be so "justly dear to the American people," that regardless of "whether guaranteed by the Constitution or provided by statute, it should be jealously guarded by the courts." That is no longer the case.[8]

In doing so, they have claimed “lawyer manipulation” of juries through jury selection can stack the deck in favor of a result “completely inconsistent with the case itself.”[9] This challenge is weak. The adversarial system makes it highly unlikely any one side can stack the deck: the attorneys on the other side are trying to do the exact same thing. Further, even if one could theoretically hand-pick a jury, do you really think anyone can become so competent of human psychology to conclusively know which way any other individual, whom he or she has only known for a matter of moments via a survey of questions, will vote on a matter? Personally, I doubt it. People are difficult to throw in predictable personality boxes.
But critics have not stopped there; they have also complained of juries being “costly and time consuming.”[10] While that may be true, I am okay with paying the price tag of justice (or at least what appears to be the best semblance of justice humanly attainable).




[1] Susan S. Lang, Judging the jury: Does the American jury system work?, Cornell Chronicle (Sep. 9, 2008), http://www.news.cornell.edu/stories/2008/09/judging-jury-does-american-jury-system-work.
[2] Id. (quoting Valerie Hans, author of American Juries: The Verdict).
[3] Id.
[4] Id.
[5] Id. (citing Hans).
[6] See Waterman v. State, 822 So. 2d 1030, 1033 (Miss. Ct. App. 2002) (“It is presumed that jurors follow the instructions of the court. . . . If the presumption were otherwise, it would mean our jury system was fatally flawed.”).
[7] Wright v. Ctl Distrib., 679 So. 2d 1233, 1234 (Fla. Dist. Ct. App. 2d Dist. 1996) (quoting the lower court trial judge).
[8] Matthew Forbes, Comment, Juries and Jurors: Juries on Trial: Constitutional Right Versus Judicial Burden: An Analysis of Jury Effectiveness and Alternative Methods for Deciding Cases, 48 Okla. L. Rev. 563, 564–65 (1995).
[9] Id.
[10] Id.