Now that emotions have cooled, it's worth looking back at the concussion litigation that led to a $765 million settlement from the NFL. Something resembling a near-certainty emerges: Had it gone to trial, this was a case the NFL was going to win, for two distinct and dispassionate reasons.
If the league wanted to make sure no one paid much long-term attention to the settlement, it couldn't have done much better than the news being announced just before a holiday weekend, and a week before the season kicks off. For example: the single best postmortem of the case and the negotiations was published by ESPN.com on Saturday afternoon, and roundly ignored. Even then, the crucial information is buried beneath an insignificant headline—that the former players began negotiations aiming for $2 billion.
No, the real news is reported comments from District Court Judge Anita Brody, who was hearing the consolidated lawsuits and ordered the two sides into mediation in July. According to Steve Fainaru and Mark Fainaru-Wada, Brody told lawyers for the players that the vast majority of the cases were in "real danger of being dismissed."
At issue were the players who played under a collective bargaining agreement. The league's main defense had always been that the CBA governed head injuries, and put the onus for safety on the individual teams as well as the NFLPA itself. By agreeing to the CBA, the league's lawyers argued from the beginning, players had forfeited their right to sue. Brody apparently agreed.
According to the source, Brody, in the July meeting and in several follow-up discussions involving either her or the federal mediator, indicated to players' attorneys that they faced significant legal challenges. "Don't you think this case can be settled — a lot of guys are going to be out of court," Brody told lawyers for the players, the source said. The source added: "The comments were always very consistent, it wasn't just posturing. It was, 'You guys have real legal hurdles here.' "
A CBA was in place from 1968-1987, and again from 1993 to the present. Examining the database of players suing the league, a large majority played during those periods. If Brody was sending signals that those cases were going to be dismissed, that bloc had more than enough numbers to push for accepting a settlement. Some money is better than no money.
(This is the reason many "gap year" players weren't happy when all of the concussion suits were consolidated—their lawyers recognized that the inclusion of CBA-era players might have watered down the case as a whole. The family of Dave Duerson, who played from 1983-1993, and committed suicide in 2011 after years of cognitive breakdown, were dead set against their case being lumped in a one-size-fits-all consolidation.)
But what of those gap year players, who the NFL's lawyer admitted in opening arguments were "the most difficult cases?" Judge Brody indicated that she would allow their cases to proceed to trial, but they faced a second obstacle, just as towering.
These lawsuits were never about, as some stupid people believed, players "knowing what they signed up for." There is evidence that the NFL's doctors actively ignored the long-term effects of concussions, and publicly smeared those independent researchers. That's the heart of the case—a willful cover-up. But the NFL only began its research in 1994, with the formation of Elliot Pellman's allegedly corrupt Mild Traumatic Brain Injury Committee. Before 1994, the league was doing no research, so it's difficult to argue they were burying anything.
By pure coincidence, that 1994 start date neatly coincides with the CBA—any player harmed by the MTBI's negligence probably had no standing to sue the league.
With the NFL confident that most of the suits against it would be dismissed, and the remaining ones unlikely to hold up in court, why would the league settle? This one's easy, and why many analysts predicted a settlement from the very beginning: The victory would have been a Pyrrhic one. Had even one case gone to court, the NFL would have had to submit to the discovery process, turning over its internal documents on concussions, revealing what it knew and when. Without knowing exactly what's in there, the best-case scenario is that the NFL would have been embarrassed, and given the NFLPA access to books the league desperately wants to keep closed. In the worst case, it would have opened itself up to further lawsuits.
In a sense, this settlement—reached days before Judge Brody's imposed deadline—is a win for everyone. The league makes its problems go away with a relatively painless payout, and doesn't admit liability. The players receive something when they could easily have gotten nothing, and the neediest receive the most: the estates of players diagnosed with Alzheimer's will get up to $5 million; CTE, $4 million; and dementia, $3 million.
Fans win too. The most popular sport in the country won't have to change the way it's played, but the league has been shamed into paying at least notional attention to the health of its employees.