Luang Prabang, Laos
Friday 30th August 2013
The big news of the week in the sports medicine world has to be the settlement between the NFL & the thousands of retired American football players to end their litigation in relation to the consolidated concussion-related claims.  The settlement will see the NFL & NFL Properties provide compensation & benefits, including the costs of medical care to qualifying injured players & their families.

The $765 million dollar agreement, that will also see funds contributed to research & player testing initiatives, was the culmination of two months of intensive negotiations, overseen by mediator, Judge Layn Phillips.  Under the terms of the agreement, the NFL are under no obligation to admit liability or culpability in failing to warn players of the potential health risks of playing the sport & of sustaining multiple concussions.

The full terms of the agreement are available at the link below but are summarised as follows (Paul D Anderson Consulting, 2013):

Principal Terms of NFL Litigation Settlement

            Class Settlement – The settlement will include all players who have retired as of the date on which the Court grants preliminary approval to the settlement agreement, their authorized representatives, or family members (in the case of a former player who is deceased).

            No Admissions of Liability or Weakness of Claims – The settlement does not represent, and cannot be considered, an admission by the NFL of liability, or an admission that plaintiffs’ injuries were caused by football.  Nor is it an acknowledgement by the plaintiffs of any deficiency in their case.  Instead, it represents a decision by both sides to compromise their claims and defenses, and to devote their resources to benefit retired players and their families, rather than litigate these cases.

Payments – The NFL and NFL Properties will make payments in connection with the settlement as follows:

(A)  Baseline medical exams, the cost of which will be capped at $75 million;

(B) A separate fund of $675 million to compensate former players who have suffered cognitive injury or their families;

(C) A separate research and education fund of $10 million;

(D) The costs of notice to the members of the class, which will not exceed $4 million;

(E)  $2 million, representing one-half of the compensation of the Settlement Administrator for a period of 20 years; and

(F)  Legal fees and litigation expenses to the plaintiffs’ counsel, which amounts will be set by the District Court.

Timing of Payments – If the agreement receives preliminary approval from the District Court, the NFL will pay the costs of preparing and distributing notice to the class members (up to $4 million).  If the settlement receives final approval, and any appeals have been concluded, the NFL will pay approximately 50 percent of the settlement amount over three years, and the balance over the next 17 years.

Baseline Medical Examinations – Eligible retired players may receive a Baseline Medical Assessment, the results of which will be used to establish a qualifying diagnosis, either now or at a point in the future.  The baseline examination program will operate for a period of 10 years.  After 10 years, any funds allocated for this program that have not been spent will be added to the fund for payment of monetary awards.

Injury Compensation Fund – The fund of at least $675 million will be available to pay monetary awards to retired players who present medical evidence of severe cognitive impairment, dementia, Alzheimer’s, ALS, or to their families.  The precise amount of compensation will be based upon the specific diagnosis, as well as other factors including age, number of seasons played in the NFL, and other relevant medical conditions.  These determinations will be made by independent doctors working with settlement administrators appointed by the District Court.

If a retired player’s condition worsens over time, he may apply for a supplemental payment.

In the event the Injury Compensation Fund ultimately is deemed insufficient to pay all approved claims, the Settlement Administrator will make a recommendation to the Court that the NFL make an additional, one-time contribution to the Injury Compensation Fund up to a maximum amount of $37.5 million.

Research and Education Fund – The NFL will allocate $10 million toward medical, safety, and injury-prevention research, and toward educating retired players on NFL benefits programs.  A portion of this fund will be used to support joint efforts by the NFL and retired NFL players to promote education and safety initiatives in youth football.

Other Benefits – No retired player will forfeit or become ineligible for any other benefits provided by the current Collective Bargaining Agreement between the NFL and the NFL Players Association.

Schedule for Further Activity – The parties will prepare and file complete agreements with Judge Brody in Philadelphia, who will then schedule a hearing to consider whether to grant preliminary approval to the settlement.  Assuming preliminary approval is granted, the Judge will direct that notice be given to the retired players and will schedule a hearing to consider whether to grant final approval to the settlement.

The news has been digested with a mixture of relief, gratitude & cynicism.  

There are those that are please that such a swift resolution has been reached, thus ensuring that players suffering now, can receive support for the treatment & care they require.  Players such as former Philadelphia Eagles & New England Patriots running back, Kevin Turner, who has been diagnosed with amyotrophic lateral sclerosis (ALS), an incurable neurodegenerative disease, have welcomed the news.

"The benefits in this agreement will make a difference not only for me & my family, but also for thousands of my football brothers who either need help today or may need help someday in the future.  I am grateful that the NFL is making a commitment to the men who made the game what it is today."

The complexity of the legal argument, revolves around the issue of causation & it is for this reason that the case didn't settle for a figure with more 0s on the end.  The debate regarding whether or not the NFL wilfully denied & orchestrated a campaign of disinformation to mislead the players regarding the neurological risks, through the Mild Traumatic Brain Injury Committee that was established in 1994, also had an influence on the size of the pay out.

In the light of these claims, there are those that argue that the sum agreed is small change in comparison to the annual revenue of the NFL & its member teams, finding it unpalatable that the degree of the NFL's alleged misconduct may never be discovered.

Personally I can see both sides of the argument, however the fact that those that need it most, the players on the verge of death & the families on the verge of bankruptcy, will receive support now as opposed to a settlement being achieved years down the line after millions more dollars of litigation, swings my opinion in the favour of the current settlement.

More importantly, what this case does do is welcome in a new era of enhanced awareness into the importance of accurately diagnosing, appropriately managing & carefully rehabilitating those that suffer concussive injuries & underline the implications of ignoring the current research that is out there.

For more information, I have selected a few of the articles I have been reading to keep abreast of the story.  Just click on the links below:

In light of this news, the Sporting Concussion Management Symposium, that will take place on 1st & 2nd February, 2014 as part of the Asian Emergency Sports Medicine Conference, in Hong Kong, should be a fascinating forum for the latest research, clinical expertise & debates on the matter of concussions in sport.

Information will be available soon, once the website has been constructed at - make sure you check back for updates!!!

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