New NFL Concussion Settlement a Win for NFL and Retirees, Loss for Everyone Else

Ty Schalter@tyschalterNFL National Lead WriterJune 25, 2014

NFL Legend Tony Dorsett, who has been diagnosed with CTE.
NFL Legend Tony Dorsett, who has been diagnosed with CTE.Keith Srakocic/Associated Press

Retired NFL players and their families have finally found peace, if not justice.

The NFL has agreed to an uncapped settlement of the master class-action concussion litigation, per its press release.

Judge Anita Brody rejected the original settlement agreement back in January, ruling the NFL's $765 million cap on damage payments wasn't enough. Given how little we know about the role football plays in severe neurological diseases, the risk of the fund running dry was too great.

Now, after six months' work with Judge Brody and special master Perry Golkin, the new settlement addresses that objection. All retired players (or their surviving families) who have been diagnosed with a qualifying condition will get the monetary relief they deserve from the NFL.

This is wonderful news for suffering players and their loved ones.

The original settlement was reached in August 2013, nearly a full year ago. The money they desperately need to cover medical bills, in-home care or dedicated facilities has been in legal limbo ever since. It's also a relief for those families' lawyers—many of whom, as The New York Times' Ken Belson noted, have been working on a contingency basis.

Hall of Fame quarterback Dan Marino can rest easy.
Hall of Fame quarterback Dan Marino can rest easy.Mark Duncan/Associated Press

Even better, relief is also guaranteed for players like Hall of Fame quarterback Dan Marino, who recently submitted, then withdrew, a personal lawsuit against the NFL. Marino, like many retired vets, is not suffering from any neurological symptoms—but if he does someday become afflicted, he and his family will know money is there for them to claim.

I talked to Bleacher Report lead medical writer Will Carroll about the impact of the settlement.

"The key point is that there's not an overall cap," he said. "There's some protections in there for the NFL, but possibly more available for the number of athletes that have claims and may have claims in the future."

The NFL is running a risk by pledging unlimited money for those players, but not much of one. "Actuarial estimates from both parties," the league claimed in its announcement, "supported the $765 million settlement that was announced in August." Unless huge numbers of current retirees develop the most debilitating diseases, the ultimate bill won't run much higher. Even a billion dollars spread out over decades wouldn't be crippling to a league pulling in over $10 billion a year.

There are a couple of other wrinkles, too, like the schedule on which the NFL will fund the settlements, and the removal of a clause that restricted the players' rights to sue other organizations, such as the NCAA, for damages. "That NCAA indemnification is huge," Carroll said.

"It looks like it fixes some of the holes," Carroll told me. "Perfect? No, but a settlement is designed to make everyone a bit unhappy."

So, everybody wins?

Not quite.

Nothing has changed from last fall, when the initial settlement was still being mooted and the devastating "League of Denial" Frontline documentary ran on PBS.

As I wrote at the time, everyone involved in the NFL's money machine has to examine the evidence of the game's dangers, and the extent to which the league has covered up those dangers.

Players, coaches, teams, executives, media and fans all have some role in hiding the truth: Football damages the brain in ways we don't fully understand, by mechanisms we can only speculate on, at rates we're completely in the dark about.

This settlement, like the initial one, contains a crucial passage: Article XXIV, "Denial of Wrongdoing, No Admission of Liability." It's exactly what it sounds like. The NFL denies it did anything wrong and doesn't accept any liability for these players' issues. It just agreed to pay hundreds of millions of dollars rather than go to trial.

If the league didn't do anything wrong, why wouldn't it go to trial?

"League of Denial" uncovered plenty of evidence that the NFL went to great lengths to silence and discredit doctors who discovered evidence of severe brain trauma and disease in former players. Should this settlement stand, the NFL will get a complete and total pass for it actions—which have been compared to tobacco companies refuting the link between smoking and cancer.

As Patrick Hruby of Sports On Earth wrote at the time, retired players are giving up an awful lot by not bringing the case to trial—especially the "discovery phase," where the NFL would be forced to disclose exactly what it knew, when and if its executives perpetrated a cover-up.

Even after the league began taking the issue seriously, it launched or continued campaigns to lengthen the NFL season, increase youth participation and blame head injuries on improper technique. This, despite no evidence that altering technique can prevent or reduce brain injuries.

Last fall, Bleacher Report NFL lead writer Michael Schottey talked to Dr. Benet Omalu, a key figure in "League of Denial," and USA Football Medical Advisory Board member Dr. David Yukelson. Both confirmed there simply isn't enough data to "know the risks" of playing tackle football from elementary school into adulthood.

Kike Calvo/Associated Press

Yet, if today's (and tomorrow's) NFL players eventually suffer the same neurological problems, they'll be on much shakier legal ground.

Since acknowledging the issue, the NFL has made many visible attempts to raise concussion awareness, improve diagnosis and treatment protocols and change locker-room culture in regard to reporting symptoms. This settlement earmarks $10 million for concussion-prevention education, as the initial settlement did. "The NFL should get credit for continuing that," Carroll pointed out, and he's absolutely right. 

If nobody knows how to prevent concussions in football, though, or how concussions impact mental health, how will that $10 million be spent? How will it help prevent another generation of crippled, anguished players and grieving families?

Today's NFL, college, high school and youth football players are taking the same risks the beneficiaries of this settlement did, but they won't be eligible for a cent of the "uncapped" compensation.

For them, Wednesday's news doesn't change a thing.