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Original Issue

Shield Law

The latest revelations about the NFL and head trauma may add a dent to the league's image on the subject, but they probably won't penetrate its legal defenses

THE PAST TWO weeks have transformed the debate over concussions in the NFL. On March 14, Jeff Miller, NFL senior vice president for health and safety, told the House Committee on Energy and Commerce during a hearing that there is a link between playing football and suffering chronic traumatic encephalopathy (CTE), a degenerative neurological condition. This was the first time that a league official had publicly acknowledged such a connection. Then, on March 24, The New York Times reported that the NFL used incomplete injury data from 1996 to 2001, downplaying concussion rates among players.

The fallout from these developments? There could be legal consequences for the league, but the most significant impact is likely to be another p.r. hit.

Last April, the U.S. District Court for the Eastern District of Pennsylvania approved a settlement between the NFL, retired players, and relatives of deceased players. For more than 98% of retired players and relatives, the settlement ended litigation over whether the NFL concealed information and failed to exercise reasonable care. The settlement calls for varying levels of compensation based on a retired player's age, injuries and experience. On average, the settlement will pay each retired player around $190,000 and cost the NFL about $1 billion over 65 years.

That money will help suffering players, but a league raking in about $13 billion a year could—and should—pay more. In fact, several dozen retired players and relatives objected to the settlement, and many of them have petitioned the U.S. Court of Appeals for the Third Circuit to intervene on grounds that the settlement is inadequate. Miller's admission and the Times's reporting could motivate additional retired players to join the protest, since they may now question whether their acceptance of the deal was based on informed consent: Had they known about flawed data, they might have opted out or objected.

Steven Molo, a lawyer for the objectors, maintains that Miller's admission is a game-changer. There's no way to diagnose CTE in living people, so the settlement covers only the families of those who received a postmortem diagnosis of CTE. Even if a test is devised to confirm CTE among the living some time in the next 65 years, those players would still not be entitled to compensation. In a letter to the Third Circuit, Molo charges it is now "inexcusable" for the settlement to not pay for present and future players diagnosed with CTE.

Beyond those disgruntled with the terms of the deal, there are slightly more than 200 retired players and families who opted out of the settlement completely. Those players and families are free to pursue individual lawsuits against the NFL, and their cases may be bolstered by the latest revelations.

Should the NFL be worried? Probably not. For starters, new appeals would have had to have been filed within 30 days of a district court's decision, which was April 22, 2015. And courts typically don't extend deadlines. Further, appellate courts normally defer to settlements, in part because they weigh the consequences of rejecting a deal, which here would lead to months of litigation. Appeals courts also consider the reaction to a settlement, and in this case only a small group of retired players and relatives have objected.

Reopening the case may not serve the plaintiffs anyway. It could take years, and the players would face long odds. The NFL has several defenses, including "preemption," which refers to the league's agreement with the NFLPA that player health disputes be resolved through arbitration—not brought to court. Retired players must also demonstrate that their problems arose from playing in the NFL, rather than in college or high school or from some other activity. Even if the NFL used flawed data, it wouldn't necessarily prove that any particular player suffers from a neurological problem because of playing NFL football.

Whatever the NFL's motivation was for letting Miller speak up, the league must be pleased that it settled with retired players long before the latest revelations surfaced. Had the article run and all the data been known years ago, retired players would have gained an improved bargaining position. The league has never wanted to go to court over concussions. Taking on aging players afflicted with neurological problems is not good for the league's image. The NFL instead negotiated a settlement. We'll see if it holds up.

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