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Looming decision on arbitration helps settle concussion cases


There’s much to digest about the $765 million settlement of the concussion lawsuits filed against the NFL, and plenty of questions to be answered.

For now, the most important point is that the looming ruling on whether all or most of the claims would be steered toward the arbitration process helped the two sides come together and work out their own resolution.

It’s a common dynamic in litigation. There’s a key ruling to be made, and the outcome will tight the case strongly for one side or the other. Instead of rolling the dice on what the judge will do, the two sides use the uncertainty as the impetus for forging their own outcome.

The lawyers representing the players surely will be criticized for accepting what amounts to less than $200,000 per plaintiff. But if the cases had been shifted out of the court system (and, ultimately, away from a jury of average citizens) to an arbitration presided over solely by lawyers and/or retired judges, the value of the cases would have plummeted.

To get the highest possible recovery, the plaintiffs needed a jury that would have been swayed by sympathy for players who got paid a lot less during their careers for helping make the game what it now is. The Robin Hood mentality often plays out loudly and clearly before juries that make decisions based on a visceral sense of fairness. Before one or more arbitrators, the cases would have been decided dispassionately, based on the facts and on the law, and nothing else.

Even if the plaintiffs had prevailed on this threshold issue and kept the cases in court, the NFL had plenty of additional hurdles to throw in their path, from arguments based on statutes of limitations to the question of whether any amount of warning would have caused players not to play football to the conspicuous absence of the NFLPA as a party to the cases.

The NFL will be criticized because most will assume that the agreement to pay $765 million represents an admission of wrongdoing. But these decisions are driven not by a desire to purge the soul but by a decision to consciously manage risk. The NFL realized that this could all spiral out of control if a jury ever had a chance to apply its own form of gut-level justice to the situation.

For these purposes, it’s not about whether the NFL did anything objectively “wrong.” (Indeed, the settlement contains an express statement that the NFL admits no liability.) Win, lose, or otherwise, plenty of people were going to believe the NFL acted improperly. Settling a lawsuit is about about treating the case as a business proposition and applying a proper dollar value to it.

That’s what happened here; the NFL was willing to pay an amount that the plaintiffs were willing to accept. If the settlement ultimately secures final approval, the NFL will be able to put the bulk of the concussion lawsuits behind it, to deal with the claims not part of the combined lawsuit (the term “opt out” will be mentioned once or twice), and to wait for the next wave of concussion lawsuits to come.