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Thursday, August 29, 2013
In the end, settlement not surprising

By Lester Munson
ESPN.com

After two months of negotiations orchestrated by a court-appointed mediator, NFL player representatives and owners announced Thursday that they had reached a proposed $765 million settlement that would resolve thousands of claims of concussion injuries. The settlement would end a league crisis that began when retired players asserted that the league had concealed from players that head injuries could cause depression, dementia and even death. The settlement announcement raises questions about its timing, its terms and its fairness:

Q: Is the settlement a surprise?

A: No. In a private telephone conference two months ago with attorneys, U.S. District Judge Anita B. Brody heard a signal. It was a signal that at least one side in the dispute wanted to talk settlement. There may have been signals from both sides. The signal came as Brody was preparing to issue her first major ruling in the massive litigation. When she heard the signal, the judge changed course. She deferred her major decision and ordered the players and the league to cease all other work on the case and to enter into a process of mediation. Although mediation is frequently used in civil litigation, it normally would come later in the process. Her early use of mediation was a clear indication that settlement was possible.

Q: Does it appear to be a fair settlement?

A: In any settlement of any civil case, neither side is supposed to be totally happy. Each side must give something it did not want to give. In this case, the players must accept less than they wanted, and the owners must pay more than they wanted. They're supposed to be equally unhappy with the final settlement. With a total payment for all claims from all retired players of $765 million, however, the owners are going to be happier than the players. If the settlement sum is divided equally among the 32 owners (a procedure the NFL has used in earlier settlements), then each owner will pay only $24 million. And the $24 million will be paid in installments, half of it within three years and the remainder over the following 17 years. A large portion of the $24 million will be paid from league and team insurance. If you told any owner a year ago that he could escape from the concussion crisis with a payment of $24 million, he would have been relieved and happy.

Q: What happens next?

A: The settlement terms will be presented to Brody for her preliminary approval. If she approves (it is highly likely that she will), then the proposal is presented to the players and to the league owners for their approval. It will be a long and difficult process to obtain the approval of the players. The league has agreed to pay as much as $4 million for the preparation and distribution of settlement notices to the players. At this point in the process, the players will face difficult decisions. Accepting the settlement will give a player and his family a level of certainty as they face their future. If the player refuses to accept the settlement, the player can opt out of the agreement and push his case to trial in his home courthouse, a long and expensive process. A simple majority of players is all that is needed to approve the settlement. But if a high number of players refuse to accept the settlement (likely) and seek higher compensation in new trials, Brody can consider that in her final ruling.

Q: Who determines the amount to be paid to each player?

A: The settlement provides for a claims process in which independent doctors and court-appointed administrators will decide each player's compensation. The factors to be considered include the specific injury, the player's age and the number of seasons played in the NFL. It will be a lengthy and difficult process, similar to the process under which baseball players collected compensation for collusion damages in the 1990s. Neither the NFL Players Association nor the NFL will be involved in the claims decision process.

Q: What does the settlement say about the question of the NFL concealing the dangers of concussions from players?

A: Nothing. The settlement expressly provides that the agreement is not "an admission by the NFL of liability" on the concealment issue. To achieve the settlement, both sides agreed to defer all action on the issue. By settling at this early stage, the NFL and the owners have avoided the "discovery" process that comes in any civil lawsuit -- in this case a strip search through league records looking for evidence of concealment. If there is a "smoking gun" somewhere in the league files, it will not be disclosed.

Q: Who pays the players' attorneys?

A: The league has promised to pay the attorneys for the players. Brody will determine the amount of the fees. The amount will be in addition to the $765 million.

Q: Is there a hero in all of this?

A: Yes. The hero is the mediator, former Federal District Judge Layn Phillips. Brody selected the right mediator when she appointed Phillips. He managed to bring dozens of lawyers, thousands of players, 32 team owners and several insurance companies together in a highly complicated dispute and to produce a settlement. It could not have been easy. He was already well-known for his expertise in mediation, and he will now be viewed as the nation's finest mediator.