Settlement II: Concussion cases become a headache for NFL

World Cup soccer fans, cheer up, the NFL preseason starts in 24 days. Since we have time to kill, the pre-preseason may be the perfect occasion for a heart-to-heart about — always a crowd favorite — brain concussions.

If you’ve read this far, you’ll recall the original NFL concussion settlement — featuring a $675 million payout, agreed to by retired players’ lawyers and the NFL — was so unfair that a Philadelphia federal district court judge, Anita Brody, rejected it. Whoa.

You have this front page, coast-to-coast lawsuit, both sides agree to a resolution, but the resolution is so obviously bad, so obviously unfair, even the referee can’t stomach it. Like nothing else, this explains how this lawsuit is about the NFL avoiding the discovery process and plaintiffs’ attorneys getting paid (attorneys are due up to $112.5 million within 60 days of settling).

So, settlement I is shelved. So, plaintiffs’ lawyers and NFL lawyers have to cook up something else to sell to the judge. Concussion Settlement II was submitted to Judge Brody on June 25, 2014.

There won’t be caps on how much money the NFL will spend, but caps remain on how much each retired player may receive for each covered medical condition. If the NFL actuaries are correct — and we don’t know, since their work hasn’t been shown to the public, but if they’re right, the actual outlay of NFL money won’t change. If they’re wrong, the total payout might be more, might be less. In either case no player will receive more money than what was due in Settlement I.

I wrote about a preliminary Settlement I draft last September. “The money is distributed over a 20-year period. Half to be paid out in three years, the other half to be paid out over 17 years. The NFL is making $10 billion in yearly revenue, projected to be $25 billion by 2027. But, let’s suppose the NFL’s revenue stays flat at $10 billion a year, and let’s suppose there is zero inflation for the next two decades. Journalist David Tigabu, commenting on how much money the NFL will take in over the next 20 years, writes, “...the $675 million figure being distributed to the players through this settlement amounts to .34% of the NFL’s total projected revenue over this period.’ Less than one-half of one percent.”

The corporate media doesn’t talk about one-half of one percent. It’s too complex, takes a paragraph to explain; better say $675 million and move on. Not remotely accurate, but it is easy.

Settlement I limited the NFL to ten appeals per year. Settlement II allows the NFL unlimited audits and appeals on players’ claims. In other words, if the NFL wants to trim expenses, they could demand this proof or that form, say this wasn’t filled out right and that wasn’t dotted. They could wage a paper war until the beneficiary gives up or dies.

In Settlements I and II, the NFL admits no liability, doesn’t have to answer a shit-storm blizzard of subpoenas about who knew what and when, won’t have a generation of NFL executives, coaches, trainers, and doctors deposed or made to testify in court, won’t have emails revealed, or dirty secrets exposed. Now that’s worth one-half of one percent.

In Settlement II, the NFL must deposit $120 million in a brain-damage award fund within six months of closing. After that, the league is only obliged to make deposits “as needed” to keep the fund at $10 million for the first ten years. Only needs to keep the fund at $5 million for the 11th through 50th year. At $1 million from the 51st through 60th year, and $250,000 though the 65th year. Suddenly, the only guaranteed money seems to be the initial $120 million. That one-half of one percent just took a brutal hit.

Since retired players’ attorneys are looking at a $112.5 million payday within 60 days of settling, and the NFL is looking at a flood tide of brain-concussion lawsuits that will stretch on until somebody invents brain-replacement surgery, you can’t find two sides who are more eager to settle.

Then there are the retired players. You have to do something about them. If the judge approves Settlement II, it will be sent to 18,000 plaintiffs and their beneficiaries. Retired players will vote to approve the settlement, opt out, or object to. How long will that take? No player will be paid until all appeals are exhausted.

Next up, 750 former NFL players are involved in a lawsuit, filed in federal court, alleging the NFL illegally and unethically supplied them with drugs designed to mask pain. If this keeps up, the NFL might have to move their payout needle to one percent.