By Judy Battista
In a conversation last winter, an NFL executive asked a reporter what the league needed to do to get better. The answer was an obvious one: Settle the mushrooming concussion lawsuits. No rules change, no television deal, no superstar player would benefit the league's future more, because nothing provided a greater threat.
Thursday's stunning settlement agreement -- stunning only in its timing, not that a settlement was ultimately agreed upon -- will limit much of the discussion of a topic that might have bored many fans but vexed the people charged with steering the league into the future. While the NFL admitted no responsibility for the brain trauma suffered by retired players -- standard for a settlement -- the money it will pay to help those who are afflicted will also help remove the ugly stain that had begun to spread: That a wildly successful league, with revenue growth rising steadily, had left its weakest players behind to suffer alone.
That is just one of the reasons this case had to eventually be settled (of course, players are free to opt out and pursue their own cases separately). As the plaintiffs' attorneys explained in a conference call, they wanted to get money for players who need it right now, who could not afford to wait another five or 10 years for financial relief while the case wended its way through the courts. The remuneration owed to those families whose loved ones are lost -- those players diagnosed with Alzheimer's or dementia and the survivors of those players who were diagnosed after their deaths with CTE are eligible for seven-figure sums under the settlement -- might not seem like enough. But for those with urgent medical needs, the settlement provided an immediate salve that they might never have seen otherwise. It provided money that might have been substantially reduced if the judge in the case had ruled that many of the cases belonged under the auspices of an arbitrator rather than a court.
In that respect, the NFL had all the leverage in negotiations. The settlement figure of $765 million to be paid over 20 years -- a figure that could surpass $900 million, when attorneys' fees are included -- would seem to reflect that. Outside analysts had estimated the league, which currently pulls in about $9.5 billion per year in revenue, might have had to pay several billion dollars if the case had gone to trial. That the worst of the financial implications is now likely determined is no small issue for owners and potential owners -- their exposure in a concussion case was a source of concern.
U.S. District Court Judge Anita Brody had been pushing the sides to try to settle almost from the moment the lawsuits arrived in her court. And owners and league officials had begun to have internal conversations about what they would need to settle on. One of their biggest priorities was finality -- they did not want to confront this issue now, and then again in 10 years. And they wanted the money to go to those who needed it most, not to those who might eventually file what they considered frivolous claims. There was, among owners, substantial consensus -- although not unanimity -- to pursue a settlement.
In July, when Judge Brody appointed a mediator, the sides began to make progress, and by early August, a structure for the settlement -- the medical exams to be given, for instance -- was in place, leaving only the economics to be hashed out. The settlement came together when it did in part because it was simply a good time. Brody could have thrown out some of the cases next week, and appeals and discovery would have begun, and the cost of litigation would have begun to soar for the teams or attorneys involved as each case was litigated separately.
But the case also had to be settled for the more obvious reason: Neither side had the stomach for what was to come if it proceeded. If the case had gone to discovery, players and league officials would have been subject to painful and ugly questions. Doctors would have been deposed; records would have been sought; players' personal health habits would have been scrutinized. The process might have been acutely embarrassing for players who were not prepared to have years of their behavior picked apart by lawyers. But it could have been much worse for the league, which would have suffered the far greater public relations hit wrought by the perception of moneyed owners bullying injured players and, worse, seeking to cover up what they knew. Nearly a billion dollars for a settlement is not a pittance for any organization. But for one that has now removed a lingering threat to its future, that was a small price to pay.
We might never know what the league knew about concussions and when it knew it. The league has long denied withholding information from players, and in recent years, the constant drumbeat of player safety has provided the league's soundtrack. It was hard not to view that sometimes as an effort to play catch-up under the glare of a harsh spotlight, but it is unlikely to change even after this settlement. Rules will still be adjusted and the NFL will still have to try to persuade its players that it is better to risk collapsing a knee than crashing into a head. It is an enormous culture change.
Those who celebrated Thursday's settlement by wondering if the NFL would go back to playing "real" football seem to have missed the point. This settlement might change the narrative about former players' health, but it has no impact on concussions as a continuing problem in a physical game.
It is almost impossible to imagine the NFL going backwards on player safety now, because this settlement, sweeping as it might have been, could not address the one problem that still threatens the very long-term future of the game.
As high school practices begin, as college games kick off Thursday night, as the NFL prepares for its own kickoff in a week, the enrollment in youth leagues has, in some places, begun to ebb as concussion awareness has risen. While professional players complain about the shrinking strike zone for tacklers, parents might continue to steer their children away from football, unless the NFL, as caretaker of the game, can convince them that the sport has been made safer for good. The pipeline of players will almost certainly never be fully turned off, of course. And perhaps as headlines about concussion lawsuits eventually wane, so, too, might the acute fear of the associated risks among those at the beginner levels. That, as much as Thursday's settlement, would be a development the NFL would savor.