A Legal Hail Mary Might Throw the NFL's $765 Million Concussion Settlement for a Loss
On November 13, former Pittsburgh Steelers and Washington Redskins wide receiver Antwaan Randle El sued the National Football League in federal court in Manhattan, along with three other retired players and their families. The 43-page complaint reads like an indictment, alleging that the league "has done everything in its power to hide the issue and mislead players concerning the risks associated with concussions." Randle El, once known for his electrifying kick returns, now says he suffers "tingling/numbness in his hands and/or fingers" and other symptoms of latent brain disease.
"It's like reading a horror story, what these guys have been through," says Norman Abood, Randle El's attorney. "Players have literally sacrificed themselves on the field for the NFL to be successful."
In August, when the NFL reached a tentative $765 million deal to settle a class-action lawsuit filed by thousands of former players suffering debilitating health problems caused by concussions, the backlash was as jarring as a linebacker leveling a wide receiver on a crossing route. Fans, pundits, and players fumed that the league, which generates nearly $10 billion in annual revenue, got off cheap.
Facing allegations that it deliberately deceived players and the public about the dangers of repeated blows to the head, the NFL had apparently dodged a prolonged court battle and quelled a brewing public relations disaster. The terms of the agreement — still awaiting a judge's approval — explicitly state that the league does not admit any wrongdoing. If distributed evenly among all the players, the package would be worth roughly $170,000 per person — a meager sum when medical costs and permanent debilitating conditions such as Alzheimer's are involved.
"This NFL settlement reminds me of Henry Hill when he meets Paulie at the end of Goodfellas," New York Post sports columnist Mike Vaccaro tweeted the day the deal was announced. "'$170K he gave me. $170K for a lifetime.'"
But attorneys tell the Voice that a spate of new cases like Randle El's could force the league back to the bargaining table. The legal equivalent of a Hail Mary, the scenario would require hundreds of additional players to file grievances, compelling the judge in the case to declare the $765 million offer insufficient.
"If you have enough critical mass, you can derail that settlement," says Timothy Epstein, a sports law attorney in Chicago and adjunct professor at Loyola University Chicago School of Law. "All these other lawsuits that are popping up, what they're saying is, 'This settlement is not going to fairly compensate my client. We think we can get a better deal.' If enough of those get filed, it could convince the judge to say, 'This is not good enough; you have to try again.'"
Abood says he's uncertain whether his clients will join in the settlement or "pursue independent courses of actions." Challenging the NFL head-to-head in court, however, entails years of legal wrangling with no guarantee of victory. It's like playing the worst lottery ever: When your health is poor and you have bills to pay, do you take the smaller lump sum right away or hope for a bigger jackpot years down the road?
"It becomes an evaluation of what's in the best interest of your clients," Abood says. "How do you get them benefits sooner rather than later? It becomes a matter of expediency."
Most players thus far have opted for the immediate, guaranteed money. Altogether, the NFL's settlement covers 297 lawsuits brought by more than 4,800 retired players from the 1940s to the present, including Hall of Famers Bruce Smith, Eric Dickerson, and the late Junior Seau, who committed suicide last year and was later found to have concussion-related brain damage. The cases were merged earlier this year under a special federal legal procedure called MDL (short for multidistrict litigation), designed to make complex lawsuits less time-consuming. The litigation includes 275 former New York Giants players and an equal number of ex-Jets, according to a database assembled last year by the Washington Times. A separate but similar class-action lawsuit is still pending against helmet manufacturer Riddell.
Each case is its own nightmare, with many men describing symptoms including dementia, migraines, blurred vision, and severe depression. Precisely how much each player receives will be decided by a yet-to-be-determined "matrix" that will reportedly take into account the severity of their conditions and the length of their careers. According to a confidential letter from the NFL described by the New York Times in October, "only players with the most severe brain injuries would be compensated, and the estates of retirees who died before 2006 would be excluded."
Christopher A. Seeger, one of the lead attorneys in the MDL, tells the Voice in a written statement that the $765 million from the NFL will face further scrutiny, but he feels it will prove more than enough.
"As the approval process moves forward, analysis from economists, actuaries and medical experts will be presented to the court," Seeger writes. "These reports will confirm that the programs established by the settlement will be sufficiently funded to meet their obligations for all eligible retired players."
The stakes are high. If the pending deal is made official, current and future NFL players will essentially be barred from suing their former employer over concussions. According to Epstein, the issue is one of "informed consent." While former players can say they were led to believe concussions involved no lasting dangers, athletes today can no longer plead ignorance. Epstein says the NFL may also seek immunity in the settlement from future concussion lawsuits.
"They want to buy their peace," says Epstein. "The NFL is not going to want to pay out this money and then have to deal with other players out there who are current or former players. We don't know exactly what those final terms will be yet, and what level it will foreclose people down the line from having their own individual suits."
Cases like the one brought by Randle El stand to complicate matters. Similar lawsuits involving ex-players were filed in September in Louisiana and Illinois, and all attorneys interviewed for this story said they expect more in the coming weeks. According to NFL.com, there are approximately 12,000 living former NFL players. Roughly one-third of them are already involved in concussion litigation, making Epstein's scenario of dozens or hundreds of additional lawsuits seem unlikely but within the realm of possibility.
Of course, as Randle El's attorney Abood notes, there's also the chance of backfire if the judge elects to uphold the existing deal. The more people vying for a slice of the $765 million pie, the less there is to go around for everyone else.
"It's simple arithmetic," Abood says. "The more people you add in, the fewer benefits are available. It appears to be a very good deal for the league."
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