Writers of Pro Football Prospectus 2008

14 Jan 2014

Judge Denies Motion to Approve Concussion Settlement

Judge Brody refused a preliminary motion to approve the settlement of the NFL's concussion lawsuit. What does this mean? Sports On Earth's Patrick Hruby has you covered.

Posted by: Rivers McCown on 14 Jan 2014

26 comments, Last at 16 Jan 2014, 2:40am by Aaron Brooks Good Twin


by Sisyphus :: Tue, 01/14/2014 - 8:32pm

Nice that someone is watching out for the players here. The numbers do not really seem right. It seems that setting a firm cost on this is problematic when the scope of the problem really is not entirely clear. The NFL's projections seem very optimistic just on the face of it.

by Bobman :: Wed, 01/15/2014 - 4:44am

I tend to agree. It looks like a giant number until you count up the number of players, the years of payout, and look at medical costs (as well as the giant uncertainty issue). It seemed like a relative bargain for the league to me at the time it was announced, and the longer I look at it, the more I think it's a huge win for the league; it's not nearly enough to really help those who need it most, but if they were desperate to get *anything*, well, it's better than nothing.

by Independent George :: Wed, 01/15/2014 - 12:04pm

I'm on the players' side in this, but I don't understand how the judge can set aside a negotiated settlement short of proof of malfeasance by one of the parties.

It's not the judge's job to 'look out for the players' - that's the job of their highly-paid attorneys. It's the judges' job to ensure that the case proceeds according to the law.

by tuluse :: Wed, 01/15/2014 - 12:57pm

It is the judge's job to make sure an agree upon settlement is actually feasible.

by Led :: Wed, 01/15/2014 - 1:09pm

In a federal class action, it IS the judge's job to look out for the interests of the class because the interests of the class action attorneys are not always aligned with the those of the class. The attorneys, who will get a percentage of the settlement or and may have to fund the expenses of the suit out of their pocket, have an interest to get a sufficiently big settlement in the shortest amount of time and at the least expense. They might not be willing to fight for a bigger settlement even though that is in the interest of the class.

by Alexander :: Wed, 01/15/2014 - 12:31am

I still think, that outside of the players proving a cover up by the NFL, the doctrine of assumed risk would govern here and the players would be entitled to $0.

by MC2 :: Wed, 01/15/2014 - 1:27am

I totally agree. This is like suing a casino to recoup your blackjack losses.

by herm :: Wed, 01/15/2014 - 4:48am

The doctrine of assumed risk is only relevant if you can show that the players were aware of the dangers of head injuries. You don't need to show that there was a coverup by the NFL (which there was) only that players didn't have the ability to make an informed choice. It's been obvious for a very long time that it's hard to win at a casino, while the harmful effects of football on the brain have only been laid out in detail more recently.

by MC2 :: Wed, 01/15/2014 - 5:07am

Oh please, you would have to be a complete idiot not to realize that repeatedly getting hit in the head could lead to brain damage. It's not exactly rocket science.

Besides, even if the players didn't know the risks, if the NFL didn't either, then how is it their fault? In other words, how can the NFL be held liable for failing to disclose information that they didn't have?

by Alternator :: Wed, 01/15/2014 - 6:05am

This risk is why the players were willing to settle at all. As embarrassing as discovery is nearly guaranteed to be for the league, embarrassment doesn't equal financial liability, and the retirees are primarily interested in money for medical expenses. It is, obviously, far from certain that the league would win, but it's certainly possible, and that risk is undesirable for both sides.

by Alexander :: Wed, 01/15/2014 - 11:41am

Correct. This is why the judge's ruling is terribly erroneous. She is basically saying "this settlement is not the figure that the players would have gotten if they successfully sued and prevailed on all their claims in that suit."

However, in all settlements that is not what happens. Most settlements arrive at a number that is crudely represented by the equation: $$ = (Average Judgement)*(Plaintiff's chance to Prevail).

by akn :: Wed, 01/15/2014 - 6:30am

If you want to know what the NFL knew, look no further than the longtime head of it's brain trauma committee, Dr. EJ Pellman. Go straight to the horse's mouth and read his publications. I'll even link them for you:


Note the times of the publications as well. As a neuroscientist, I find much of the methodology and many of his conclusions shameful.

by MC2 :: Wed, 01/15/2014 - 10:38am

First, your link is broken.

Second, in case it's not clear, I'm not making any claims as to what the NFL did or didn't know. I'm just making an "if, then" statement: IF the players can't prove the NFL hid information from them, THEN the NFL shouldn't owe them a penny.

Of course, if the players can prove the NFL hid information, that's an entirely different matter.

by dcaslin :: Wed, 01/15/2014 - 10:22am

"Oh please, you would have to be a complete idiot not to realize that repeatedly getting hit in the head could lead to brain damage. It's not exactly rocket science."

Are you sure about that? 10 years ago (and probably even 5) the common understanding was that boxers could get punchy and overly concussed football players might have some memory issues, but that it was generally a linear progression. So if you're an athlete starting to see symptoms, you can retire immediately and stem the damage and possibly even recover. In that sense brain injuries were viewed more like a knee problem.

Now it appears that an athlete can retire with virtually zero symptoms and have their entire life meltdown years later without any warning. And meltdown in ways no one predicted like suicide, violence, etc. I'd consider that a substantial difference.

To use the knee analogy, it would be like someone retiring after tearing their ACL and having their leg explode 10 years later.

by MC2 :: Wed, 01/15/2014 - 10:45am

Obviously, I'm not claiming that the players knew the exact specifics of the risk, just that they did know that there WAS a risk.

To return to my blackjack analogy, many people don't know whether the house edge is 1%, 5%, or 10%, but they are aware that there is a house edge, and therefore, if they're rational, they will expect to lose. However, regardless of how much they know (or even whether they know anything at all) about the odds, they still can't sue to recoup their losses, unless they can prove that the casino lied about the odds (or committed some other type of fraudulent action).

by JonC :: Wed, 01/15/2014 - 10:54am

Even if we accept argument by analogy, your analogy fails. One-time loss of some part of one's income is not the same thing as permanent loss of brain function; the former can be recouped, the latter cannot. The former does not lead to a degenerative condition. If I lose $500 at a blackjack table today that fact does not influence whether I will lose $500 tomorrow or $10,000 in six months. In the latter case, the effect of every head trauma is cumulative.

Also you should read this:
to determine what the NFL has or hasn't done in regards to brain injuries. The NFL has underestimated both the incidence of head trauma and its long-term effects for at least two decades during a period of increasing concern about head injuries.

by MC2 :: Wed, 01/15/2014 - 11:09am

Cumulative effect has nothing to do with determining liability (only the extent of damages in the case that liability has already been established).

As for the article you linked, I'll pass. I've already endured enough of Hruby's polemical style for one day.

I've also endured about enough of this spam filter for one day (or one lifetime, for that matter).

by tuluse :: Wed, 01/15/2014 - 11:40am

Most football players probably qualify as complete idiots, and complete idiots are in fact a portion of the population that needs the most protection not exploitation.

by bravehoptoad :: Wed, 01/15/2014 - 12:03pm

Oh please, you would have to be a complete idiot not to realize that repeatedly getting hit in the head could lead to brain damage. It's not exactly rocket science.

The "it's obvious" argument? If it was so obvious, then these new findings about brain trauma wouldn't be, well, news, would they?

Yeah. It's not rocket science. It's way more complicated. It's brain science.

by Aaron Brooks Go... :: Wed, 01/15/2014 - 2:08pm

Most of the new findings are about what metabolites are expressed, or what genes control regulation, or what various tolerances actually are.

But the generally understood concept of "getting hit in the head can lead to brain damage" literally goes back at least as far as David & Goliath. While we still fight about what exactly a concussion is and what causes it, we've known the sorts of things that lead to them since the writing of the first medical texts. Hippocrates wrote about them.

by bravehoptoad :: Wed, 01/15/2014 - 2:35pm

So essentially you're dismissing any new findings, saying that we haven't actually learned much about concussions since Hippocrates? We'll have to agree to disagree about that one.

by Aaron Brooks Go... :: Wed, 01/15/2014 - 2:39pm

You've completely misinterpreted what I was saying.

As point of fact, I'm an author on one of those new findings papers, so it would be completely against my interests to state that there's nothing new in concussions.

What I said wasn't new is the statement that getting hit in the head can lead to brain damage. This has been well known for the better part of 8000 years. What's new is "why, where, how much, how many, how reversible".

by LionInAZ :: Wed, 01/15/2014 - 9:52pm

This analogy is ridiculous. Goliath didn't suffer brain damage, he was killed by a projectile delivered at high velocity.
People have indeed done that for thousands of years, with bone clubs, boulders, tomahawks, rifle butts, baseball bats, pipe wrenches, police batons, etc. That's not the question here. If football players were dying on the field from head trauma, it would be easy.

But it's not. We're talking about long-term injury that has variable consequences and an agency that benefits from covering up or underplaying the risks.

by Aaron Brooks Go... :: Thu, 01/16/2014 - 2:40am

The tale isn't specific. David cuts his head off after Goliath is downed; more likely he dies of that than of the stone.

The point is that we know from antiquity more or less how one gets a concussion. Our state of understanding as to what was going on wasn't much more advanced than that in 1900. We had a better sense of the anatomy, but the acute physiology was still mostly a mystery.

And football players were dying on the field from head trauma. That's most of the reason we have the NCAA. The other part is that the Ivies didn't appreciate state schools letting the poors play football.

by Jimmy :: Wed, 01/15/2014 - 12:09pm

Oh please, you would have to be a complete idiot not to realize that repeatedly getting hit in the head could lead to brain damage. It's not exactly rocket science.

Or maybe you have been getting hit in the head on a football field since you were seven.

by Independent George :: Wed, 01/15/2014 - 12:11pm

Were the Cleveland Browns ever sanctioned by the NFL for their handling of Colt McCoy's concussion in 2011?