The NFL and NHL’s Ongoing Concussion Crisis

U.S. District Court Judge Anita Brody took a surprising and rare step on January 14, 2014, by denying preliminary approval of the $750 million settlement between the National Football League (NFL) and 20,000 former players and their families for alleged injuries the players sustained during their careers.  Judge Brody wrote in her opinion that she was concerned that “not all retired NFL football players who ultimately receive a qualifying diagnosis or their (families)… will be paid. “  Essentially, the judge was concerned that there is not enough money in the settlement and insufficient analysis to show how the settlement would work. Lawyers not connected with the litigation speculate that the judge’s hold on the settlement was partially based on the fact that more than 70 retired NFL players have filed concussion lawsuits since the proposed settlement was reached in August 2013. Furthermore, there was a public outcry after FRONTLINE aired its special titled “League of Denial” which negatively portrayed the NFL as hiding what it knew about the risks associated with brain injuries to former players.  (See previous blog post.) To further complicate matters, Judge Brody appointed a special master to review financial aspects of the settlement due to potential “double dipping” by some plaintiffs’ attorneys involved in the settlement talks.

Michael McCann of Sports Illustrated (SI)  wrote the parties to the settlement have two options:  negotiate a new proposed settlement or return to litigation.  A new settlement would bring more financial data and documentation to the negotiation table so that both sides could renegotiate terms.  Given the fact that the NFL has annual revenues of approximately $9 to $10 billion, some sports analysts have commented that $750 million seems inadequate to meet the needs of 20,000 former players. The downside of the parties litigating the case is that it could take several years for the litigation to conclude and some retired players need money immediately for their medical and living expenses; and some retired players must contend with collective bargaining agreements and statutes of limitations which may soon run out. The NFL also faces hurdles it would rather avoid, such as having to present evidence of what it knew about the long term effects of head injuries to players and when it knew about the information.  Currently, the NFL has made no admissions about how it handled concussions in the past and it appears it wants to keep it that way.

The National Hockey League (NHL) is also facing its own concussion crisis. The NHL was recently hit with a class action lawsuit from 10 retired players, which now has grown to include over 200 former players, who contend that the NHL failed to protect them from concussions.  The retired NHL players are seeking damages and court approved NHL sponsored medical monitoring of their brain trauma and/or injuries, which they claim they received during their time in the NHL.  The suit also claims that the NHL sponsors a “culture of violence” through its refusal to ban fighting and body checking, and by employing “enforcers” who main job is to fight.  Allan Muir of SI wrote that “It was never a matter of if the NHL would face a concussion lawsuit similar to the one the NFL faces, but a matter of when. “