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NFL internal memo describes concussion settlement as commitment to retired players


The NFL has long been criticized for not properly taking care of retired players. The NFL regards the concussion settlement as a vehicle for doing just that.

“Today’s decision is a significant step in implementing the clubs’ commitment to provide compensation to retired players who are experiencing cognitive or neurological issues,” NFL general counsel Jeff Pash wrote in the final paragraph of a memo, obtained by PFT, explaining Monday’s appeals court ruling upholding the deal to the 32 teams. “It reflects the decision of the clubs to set aside strong legal and factual defenses, and instead provide medical care and compensation for retirees and their families.”

Though many will say that the NFL was merely buying its way out of a potentially crippling mega-lawsuit, the truth is that, if push had indeed come to shove, the NFL would have had a very good chance to win the case, with multiple strong legal defenses to the allegations regarding the league’s failure to warn players about the risks of concussions. And even if the NFL had lost, final payment would have come only after years and year (and years) of litigation.

The mere fact that the concussion settlement took more than 2.5 years to go from agreement to formal approval (with the opponents still possessing further appeal rights) proves just how slowly the process works. If the settlement had been scrapped, who knows how long it would have taken to resolve the case?

Instead, former players and their families will now be eligible for compensation arising from specific cognitive problems, without having to prove that playing NFL football caused those ailments. While some symptoms from which plenty of former players suffer are omitted, plenty of non-football players are afflicted by the same ailments.

“To be sure, the mood and behavioral symptoms associated with CTE (aggression, depression, and suicidal thoughts) are not compensated, but this result was reasonable,” the U.S. Court of Appeals for the Third Circuit concluded in its 69-page opinion. “Mood and behavioral symptoms are common in the general population and have multifactor causation and many other risk factors. . . . Retired players tend to have many of these risk factors, such as sleep apnea, a history of drug and alcohol abuse, a high BMI, chronic pain, and major lifestyle changes. . . . Class members would thus face more difficulty proving that NFL Football caused these mood and behavioral symptoms than they would proving that it caused other symptoms associated with Qualifying Diagnoses” that make former players eligible for compensation.

And so the outcome is, as the appeals court described it, not perfect but fair. And it’s a lot more fair than the outcome that may have transpired five or 10 years from now, especially if the end result would have been a finding that the NFL has no liability to any of the thousands of former players who will now potentially benefit from the settlement.